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Ryan McGinley is being sued by the photographer Janine “Jah Jah” Gordon, who claims that over 150 of his photographs are taken from her work. Gordon’s argument has been backed up by the former New Museum curator Dan Cameron, who wrote “my long-term expertise as a critic and curator gives me, I believe, sufficient authority to say, without hesitation, that Ms. Gordon’s work is completely original, in concept, color, composition and content, and that Ryan McGinley has derived much of his work from her creations.”

McGinley’s lawyers are dismissing the suit on the grounds that the images in question “do not look alike in the slightest,” saying that Gordon is “really complaining that the images share the same fundamental idea.”

Looking through the images in question, and through Gordon’s site, I have two thoughts. On one hand, I think some of the examples of copyright infringement she provided for the lawsuit feel like a pretty far stretch. The guy in a mosh pit (image below) seems particularly weak as what she’s saying is stolen is the body position. Does she really claim the sole rights to photographing someone with outstretched arms? On the other hand, I suspect McGinley is aware of her work and may reference it from time to time. I don’t know any photographer who works in a commercial context – myself included – who doesn’t work with references, and since a number of the images in question come from a campaign that McGinley shot for Levi’s x Opening Ceremony, it seems totally plausible that some of her images were used by McGinley as references for that.

I ran Nan Goldin’s studio for several years, and we often had to deal with case of Nan’s work being copied. There was one case while I was there of a really big commercial photographer referencing several of Nan’s photos. The other photographer settled out of court for a huge sum because I think everyone knew had it gone to court, Nan would have won. The whole thing left a weird taste in my mouth, I think because of my awareness of how commercial shoots are put together (though to be fair the images in question were fairly blatantly copied ). The whole process, starting with the ad agency and moving through to the photographers, requires images to illustrate intention for the shoot, and while those images sometimes belong to the photographer doing the job, they often come from other people’s work.

It’s not just commercial photography that works that way. Nan told me that when she started Larry Clark didn’t like her because he thought she was stealing from him, and McGinley so clearly references Nan, and his work has become a reference for so many artists younger than him. I’m not sure what the line between referencing and stealing is, but referencing is very much a part of photography. How can your eye not be influenced by what you’ve seen?

My feeling is that some – but not all – of these claims of copyright infringement are going to be decided in Gordon’s favor. I think her examples involving the monochromatic color palate (top photo) are reasonably convincing, and if Gordon can prove she did them first then she might get some money. That’s my psychic prediction, but I’m not actually sure what I think of the whole thing. I’m curious to hear what you guys think…

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