Yeah, you’re not a law blog. No, not at all.

Your posts seem very slanted toward McGinley, especially the choice of the 150 photographs found in the exhibit. They look like the weakest ones to me.

“The recent ruling of Gordon v McGinley, Levi Strauss, Co, Cris Perez of Ratio 3 Gallery, Team Gallery and Peter Hay Halpert Fine Art, has recently been a widely discussed controversy in the art world. Is this case in particular, the tipping point for the procreation of freedom of individual expression in America? Is it possible that the judicial system made an incredibly huge mistake by ruling a work of art of considerable stature as simply a commercial form of expression? The trial resulted in the New York court system dismissing the case, plus Gordon?s expert witnesses, and an analysis that illustrated the copyrightable elements of the various works in question. Is it possible that this is a pure illegality of judicial powers and a threat to the proliferation of creativity at its core?

Seemingly a victory for any artist that associates itself with the Appropriation movement, this actually appears to be a ruling where the judicial system inadvertently demolished the rights to a fair trial for the independent fine artist. It is ethically wrong to heavily appropriate another artist?s work? The mere idea of making a commercial profit off of the essential heart and soul of another artist?s vision in the same genre leaves a very bad taste in the mouth of the art community. Does this ruling set a precedent for various other companies to freely appropriate thematic structures from any artist they choose if and when they see fit, possibly leading to the loss of individualism? There are serious allegations that are stated and examples that lead the viewer to wonder if the primary inspiration from a numbered 150 photographic works by Janine Gordon were the primary inspiration of Ryan McGinley.
Originality and the inventiveness of the imagination, is the very Achilles heal of the art world which has now been superseded by an seemingly overzealous judicial system who obtained authority to deem a body of work as not worthy of being protected. The 2nd District court claims that such an action is frivolous, but the fact remains that millions of capitalistic dollars have been profited from Gordon?s art work .

Is it possible for any good lawyer to reverse a dismissal or win a case that is unethical, which in fact, Levi Strauss and Co. , McGinley and his art dealers have the capabilities of achieving? What happens in the case of Ms. Gordon, who is an independent fine artist struggling to survive in New York City, who couldn’t afford the highest paid IP Law firm? Gordon was fortunate to obtain a sympathetic lawyer who was able to ensue an actionable claim against McGinley and parties. After her case was dismissed, is has been said that the defendants are seeking legal fees and threatening to impose sanctions upon them. Gordon is not a commercial photographer to say the least, she is one of the few artists that transcend even the barriers of a typical fine art photographer and is exhibited amongst contemporary painters and sculptors. Her work is of a recognized stature and should have been held to a higher standard, as critics like Dan Cameron pointed out in his testimony.

Her work was highlighted at the 2002 Whitney Biennial, as well as being included in many prestigious collections such as the Hammer, SFMOMA, MAMCO, and recently seen at MCA Denver amongst many international museum, project spaces and galleries. As a volume of her life?s work, the 150 photographs that Gordon defined as infringing, is a large portion of the heart and soul of her accomplishments. Where artistic expression is the most important value aligned to an artist, when it is infringed repeatedly by either one individual or a company, it dilutes the primary ?aura? (Walter Benjamin, ??The Work of Art in the Age of Mechanical Reproduction? (1936) According to Benjamin an artwork has an ?aura which can wither ?with reproduction and its function and the tightly woven history of art could possibly be stripped of its message.

There is an obvious moral element of ethics that are at the core of this dismissal. Established visual artists should be protected by the legal system and other guidelines should have been applied by the courts. If big businesses can fund politicians, do they also have enough power, money or connections to sway a judge?s decision by dissuading them from pursuing cases that may risk in financial loss? When I viewed the evidence in this trial, I saw that the elements considered copyrightable are the expressive elements in Gordon?s work. The work that has been produced by these two artists have the same compositions, the same center of focus, similar lighting and similar technique. It appears as if McGinly deliberately cropped his photos to look like Gordons as well. And although nudes are a typical artistic subject as well as photographs depicting youth subculture, the question of source material is obvious when you closely look at the time line in which both bodies of work were produced.

The particular judge in this trial disregarded what is defined as copyrightable elements, reducing all of Gordon?s work into basic subject matters such as nudes, kissing or biking. In Gordons? work, the expressible elements are the basic things in fine art such as the color, contour, light, forms, composition, angle, focal point, and the physicality of her work. These combined elements of expression, in any particular work of art, is protected by the 1976 US Copyright Act. There are other elements that can be defined in a work such as, the energy, the gestalt and the context. A work that is derivative, does not have to be an exact copy to be of substantial infringement. Anyone can invert an image, alter its contrast and enhance its color and even replace the actual subject of flesh with fruit, as artists such as Giuseppe Arcimboldo and Max Ernst have often been known to engage in the dialogue of visual illusions and visual allusions. If the audience in the art world grew tired of seeing her style and message proliferate, wouldn?t that denigrate the value and need for her work?

They say that money rules everything and the gaps are growing larger than ever before in the history of civilization, given the climate of the Occupy Wall Street Movement. As a tour de force, in October 2010, Janine Gordons’ work was featured both on the cover and a 15 photo spread throughout the Adbusters Revolution issue. Adbusters.org is the known initiator of the Egyptian Spring riots and the Occupy Wall Street Movement. The Revolution was cited by Adbusters as their “Tools for Activists” http://www.adbusters.org/cultureshop/backissues/91 Gordon is not out in the riots taking pictures, but her spirit is there. She talks about the revolution for the art. Her work is revolutionary. What her work ephemerally embodies is about the spirit. Anyone can take an image and try to recreate it. When this happens, the spirit gets diluted and becomes something other than what it originally was. It is an obvious point and that the Court should have considered.

?Critical history is supported by manipulative history.? (Habermas) When I read through the articles and blogs revolving around the case, it seemed like a cheap Hollywood gossip column that has been carefully orchestrated. They present a very well respected artist who is being ?robbed? by a ?hyped out? fashion photographer. Could it be a feasible maneuver to sway the public to victimize Gordon, if you had a few dollars or a few favors that needed reciprocation? There were several articles that slandered Gordon, one in particular, by Jose Freire of Team Gallery was so demeaning that it attacked, unfoundedly, the quality of her prints. Jose Freire, one of McGinley’s art dealers, sent a dark message to the art world regarding the historical context of her work, in favor of his hot selling artist McGinley who began making photographs in 1999, more than 10 years after the creation of Gordon?s work.

It seems odd that Freire admitted going to Gordon’s studio to see her work, but 5 years later he began to work with McGinley. It is also suspicious that Gordon?s 4 year working relationship with her former dealer and curator friend, Chris Perez of Ratio 3 gallery also worked extremely closely with both artists.There is obviously a closely knit art world that can join forces. There were private messages that were sent in confidence that were published and were worded in such a manner as to point to her as the perpetrator. What would the purpose of these people to divulge such information in such a public manner be? There seems to be an undeserved lack of support for Gordon. If she was the victim of manipulation and appropriation, can this effect the future of the fine standards that are upheld in art? Is this invested interest the consequential effects of great importance because of monopolizing corporations like Levi Strauss or hungry art dealers and advertising agents? Is the purpose of freely using any content deemed to be profitable, created by fine artists and appropriated for commercial use, for the purpose of advancing society, or just simply selling a product?

It is beyond the catch phrased incidentals that were echoed by various blogs criticizing the case, that he only was familiar with Gordon?s work by possibly gaining access by casually going to exhibitions, was not even close to the truth. Nothing of the sort was ever mentioned in articles, nor was the fact that they had mutual art dealers, a mutual printer and were in several exhibitions together. This is Gordon?s life?s work that the court decided to disregard in lieu of the fair use of imagery. Janine Gordon was quoted as being the next Andy Warhol in the year 2000 by the art critic Ken Baker. This was a number of years before McGinley’s commercial production of such similar subject matters surfaced. When these two artists are represented by not one, but two galleries in the very city in which this article was read as well as both being represented at the Whitney. It is up to every member of the community to step up for what is right. This is a serious issue that needs to come to the surface. There was a well established artist whose rights were not recognized. It could affect every upcoming artist that is not in the right “circles”, leaving the doorway open.”

All your talking about is very rude , and it sounds like the blog owner has some inside connections. A. Mayer