Artist escapes trial for using Ruth Bader Ginsberg’s iconic photo

Left: Photograph by Ruvén Afanador from 2009 titled “Ruth Bader Ginsburg” Right: An example of work by artist Julie Torres, titled “A Judge Grows Up in Brooklyn”

An artist, whose work has been exhibited at the Metropolitan Museum of Art, has escaped a copyright infringement lawsuit for her unlicensed use of an iconic photograph by Ruth Bader Ginsburg.

On Monday, a U.S. district judge granted Georgian artist Julie Torres’ motion to dismiss the lawsuit filed by photo agency Creative Photographers Inc against her.

The lawsuit focused on famed photographer Ruvén Afanador’s classic 2009 portrait of the late United States Supreme Court Justice titled “Ruth Bader Ginsburg.”

According to Creative Photographers, Afanador had granted the photo agency the sole and exclusive right to license and sell his work, including his 2009 image of the Ginsburg.

Law360 reports that Creative Photographers sued Torres and her art business in November 2021, claiming she created screen prints, mixed media works and limited edition prints of Afanador’s copyrighted photo of Ginsburg.

Creative Photographers alleges that Torres sold these works featuring Ginsburg for as much as $12,000 – without ever obtaining permission to use Afanador’s photograph.

The lawsuit also states that Torres permitted public display of his Ginsburg artwork at the Metropolitan Museum of Art in New York, also without consent to use Afanador’s photograph.

In October 2021, Creative Photographers discovered Torres’ alleged unauthorized use of Afanador’s image. The photo agency claims that the artist omitted the photographer’s name and copyright information from his artwork and refused to acknowledge or credit Afanador.

Not finished yet

In his order Monday, Judge Jean Paul “JP” Boulee of the Northern District of Georgia found that Creative Photographers, which represents Afanador, does not have standing to sue.

The judge said that while creative photographers may have the exclusive right to license and sell Afanador’s work, that does not give the photo agency the right to sue for copyright infringement. Creative Photographers’ agreement with Afanador merely makes the agency the photographer’s exclusive agent, not its exclusive licensee.

According to the order, even though the agreement gave Creative Photographers an exclusive license, the agreement contains no language suggesting that it gives the agency “the exclusive right to authorize the preparation of derivative works based on copyrighted work”.

However, the trial is not over yet. In his order, Judge Boulee allowed Creative Photographers to rework his complaint. The photo agency now has 14 days to file an amended complaint, reports Law360.

Judge Boulee also declined to address Torres’ argument that Creative Photographers did not file a copyright infringement claim because its work constitutes fair use. In his order, Boulee asserts that fair dealing requires a factual analysis.

Picture credits: Header photo obtained via Creative Photographers, Inc c. Julia Torres Art.

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