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Tank-topped photos subjects don’t meet standard of ‘substantial similarity’

Mark Sableman April 21, 2016

How much of a photo must be taken in order to meet the copyright standard of “substantial similarity”? According to a district court in New York, you need more than a man standing in front of a crowd, wearing a white tank top, with his arms stretched out to the side.

Plaintiff Janine Gordon, a fine art photographer, asserted a copyright claim against Invisible Children, a charity that sought to draw attention to the alleged atrocities of Ugandan warlord Joseph Kony. In doing so, it produced a video about Kony and posted it on its website and on YouTube. Some of the video images show Kony standing with his arms outstretched before a crowd of children – ostensibly, his army of child soldiers and slaves.

Ms. Gordon claimed those images infringed her copyright in a photo she took at the 2001 “Warped Tour,” a series of punk and alternative rock concerts. That photo shows a tank-clad man holding back a crowd of concert-goers. The Whitney Museum has purchased and displayed the photo.

Judge Paul G. Gardephe of the Southern District of New York District Court was not impressed with Ms. Gordon’s claim. In the case, Gordon v. Invisible Children, Inc., he granted defendants’ motion to dismiss, holding that as a matter of law, the two photos lacked substantial similarity. He stated that “a visual comparison of the works reveals that the ‘total concept and feel’ of Gordon’s photo and the Kony 2012 images are entirely dissimilar.” The opinion went into detail about the dissimilarities (subjects, colors, media [one still, one video], composition, lighting, and impressions). And the court also included the photos in its opinion, apparently believing that they would verify his conclusion that the two images “do not share any meaningful similarities.”

Mark Sableman is a partner in Thompson Coburn’s Intellectual Property group. You can find Mark on Twitter, and reach him at (314) 552-6103 or msableman@thompsoncoburn.com.