Second Circuit Affirms Dismissal of Photographer’s Federal Copyright Act Claims

In a decision of importance to photographers, filmmakers and other creative artists, the United States Court of Appeals for the Second Circuit issued a summary order today affirming a lower court decision dismissing federal Copyright Act claims brought by photographer Janine Gordon against photographer Ryan McGinley.   Gordon v. McGinley, et al., Nos. 11-3711 and 11-3766.  In August 2011, United States District Judge Richard J. Sullivan of the Southern District of New York dismissed Gordon’s federal Copyright infringment claims, finding that no average lay observer using “good eyes and common sense” to examine the “total concept and feel” of McGinley’s photographs would conclude that he appropriated those images from Gordon.  Judge Sullivan noted that whether or not McGinley’s works “may be ultimately derivative and unoriginal in an artistic sense – something which the Court has neither the expertise nor the inclination to pronounce upon” – was irrelevant for federal copyright purposes.  Judge Sullivan rejected Gordon’s apparent theory of infringement under which Gordon “would assert copyright infringement in virtually any figure with outstretched arms, any interracial kiss, or any nude female torso,” which were some of the subjects of Gordon’s photos, as federal copyright protection does not extend that far.   The Second Circuit agreed fully with Judge Sullivan’s analysis and conclusion and affirmed the decision dismissing the case.

This article is intended only as a general discussion of these issues.  It is not considered to be legal advice or relied upon.  We would be pleased to consider providing additional details or advice about specific situations.  For additional information on this topic, please feel free to call the author, Lawrence Brocchini, who counsels clients and litigates copyright and other intellectual property matters, or any RPL attorney.

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