     11-3711-cv (L)
     Gordon v. McGinley


 1                              UNITED STATES COURT OF APPEALS
 2                                  FOR THE SECOND CIRCUIT
 3
 4                                         SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
 7   SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
 8   FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
 9   CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
10   EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
11   “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
12   PARTY NOT REPRESENTED BY COUNSEL.
13
14         At a stated term of the United States Court of Appeals for the Second Circuit, held at
15   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
16   York, on the 13th day of November, two thousand twelve.
17
18   PRESENT: JOHN M. WALKER, Jr.,
19            GERARD E. LYNCH,
20                          Circuit Judges,
21            JOHN GLEESON,
22                          District Judge.*
23   ————————————————————————
24
25   JANINE GORDON,
26                             Plaintiff-Appellant-Cross-Appellee,
27
28                        v.                                               11-3711 (L);
29                                                                         11-3766 (XAP)
30   RYAN McGINLEY, LEVI STRAUSS & CO. INC.,
31   CHRISTOPHER PEREZ, RATIO 3 GALLERY,
32   TEAM GALLERY, INC., PETER HALPERT,
33   PETER HAY HALPERT FINE ART,
34                 Defendants-Appellees-Cross-Appellants,
35
36   Jose Freire, Agnes Andree Margueri Trouble,
37   AKA Agnes B., Agnes B. Worldwide Inc.,
38   AKA CMC Agnes B.,
39                       Defendants.
40   ————————————————————————
41


              *
               The Honorable John Gleeson, of the United States District Court for the Eastern
     District of New York, sitting by designation.
 1
 2   FOR PLAINTIFF-APPELLANT-CROSS-                    JANINE GORDON, pro se, Brooklyn,
 3   APPELLEE:                                         NY.
 4
 5   FOR DEFENDANT-APPELLEE-CROSS-                     JACK A. GORDON (Joshua B. Katz, on
 6   APPELLANT RYAN McGINLEY:                          the brief), Kent, Beatty & Gordoll, LLP,
 7                                                     New York, NY.
 8
 9   FOR DEFENDANT-APPELLEE-CROSS-                     Guy R. Cohen and Shirin Keen,
10   APPELLANT LEVIS STRAUSS & CO,                     Davis & Gilbert LLP, New York,
11   INC.:                                             NY.
12
13   FOR DEFENDANTS-APPELLEES-CROSS-                   NICOLE I. HYLAND (Edward H.
14   APPELLANTS CHRISTOPHER PEREZ &                    Rosenthal, on the brief), Frankfurt,
15   RATIO 3 GALLERY:                                  Kurnit, Klein & Selz, P.C., New York,
16                                                     NY.
17
18   FOR DEFENDANT-APPELLEE-CROSS-                     Margaret M. Brady and Ronnie L.
19   APPELLANT TEAM GALLERY, INC:                      Silverberg, Brady, Klein & Weissman,
20                                                     LLP, New York, NY.
21
22   FOR DEFENDANTS-APPELLEES-CROSS- Jura C. Zibas and Scott M. Smedresman,
23   APPELLANTS PETER HALPERT & PETER Wilson, Elser, Moskowitz, Edelman
24   HALPERT FINE ART:                & Dicker, LLP, New York, NY.
25
26
27          Appeal from the order of the United States District Court for the Southern District

28   of New York (Richard J. Sullivan, Judge).

29          Plaintiff-Appellant-Cross Appellee Janine Gordon, proceeding pro se, appeals

30   from the district court’s judgment dismissing her amended complaint for copyright

31   infringement and related state law claims. Defendants-Appellants-Cross-Appellees

32   (“defendants”) appeal from that portion of the district court’s judgment declining to

33   exercise supplemental jurisdiction over Gordon’s state law claims, brought pursuant to

34   New York’s General Business Law and New York common law. We assume the parties’

35   familiarity with the underlying facts, the procedural history of the case, and the issues on

36   appeal.

                                                   2
 1   A.     Gordon’s Appeal

 2          Our independent review of the record and relevant case law, including our de novo

 3   review of the 150 allegedly infringing images, convinces us that the district court properly

 4   granted defendants’ motion to dismiss Gordon’s federal copyright infringement claims,

 5   for substantially the same reasons stated by the court in its August 18, 2011, opinion and

 6   order. See Gordon v. McGinley, No. 11-CV-1001, 2011 WL 3648606 (S.D.N.Y. Aug.

 7   18, 2011). Whether the “ordinary observer” test or the “more discerning observer” test is

 8   employed, the copyright infringement analysis involves a “common sense” determination,

 9   based solely on the works themselves, as to whether the allegedly infringing work is

10   substantially similar to the copyrighted work, focusing on “total concept and overall feel.”

11   Peter F. Gaito Architecture, LLC v. Simone Dev. Corp., 602 F.3d 57, 66 (2d Cir. 2010).

12          This Court has long recognized that a photograph may comprise original

13   expression subject to copyright protection. See, e.g., Leibovitz v. Paramount Pictures

14   Corp., 137 F.3d 109, 116 (2d Cir. 1998) (“[A photographer] is entitled to protection for

15   such artistic elements as the particular lighting, the resulting skin tone of the subject and

16   the camera angle that she selected.”); Rogers v. Koons, 960 F.2d 301, 307 (2d Cir. 1992)

17   (“Elements of originality in a photograph may include posing the subjects, lighting, angle,

18   selection of film and camera, evoking the desired expression, and almost any other variant

19   involved.”); Gross v. Seligman, 212 F.2d 930, 931 (2d Cir. 1914) (noting the “exercise of

20   artistic talent” reflected in “pose, light, and shade, etc.”). In light of the subtlety of these

21   considerations, we disagree with the district court’s suggestion that Gordon’s claim was

22   frivolous. See Gordon, 2011 WL 3648606, at *1, 7.

                                                     3
 1          Nevertheless, we ultimately conclude that, for the reasons articulated by the

 2   district court, the similarities between McGinley’s allegedly infringing images and

 3   Gordon’s copyrighted images are outweighed by the works’ numerous and significant

 4   differences. We therefore affirm the district court’s dismissal of Gordon’s federal

 5   copyright claims.

 6   B.     Defendants’ Cross-Appeal

 7          Defendants argue that the district court improperly declined to exercise

 8   supplemental jurisdiction over Gordon’s state law claims, and should have instead

 9   dismissed those claims with prejudice as completely preempted by the Copyright Act.

10   The “complete preemption” doctrine, where applicable, “substitutes a federal remedy for

11   [a claim under state] law, thereby creating an exclusive federal cause of action.”

12   Briarpatch Ltd., L.P. v. Phoenix Pictures, Inc., 373 F.3d 296, 305 (2d Cir. 2004). While

13   district courts generally have discretion to decline to exercise supplemental jurisdiction

14   over state law claims pursuant to 28 U.S.C. § 1367(c), where the state law claims are

15   completely preempted by federal law such discretion is lacking. “[O]nce a district court

16   determines that a state law claim has been completely preempted . . . the court must then

17   dismiss the claim for failing to state a cause of action.” Id. at 309. We therefore vacate

18   the dismissal of Gordon’s state law claims, and remand them to the district court to

19   determine which of the claims are completely preempted by the Copyright Act, and only

20   then to decide whether to “exercise supplemental jurisdiction over any state law claim

21   surviving preemption.” Phillips v. Audio Active Ltd., 494 F.3d 378, 392 (2d Cir. 2007).

                                                  4
1                                       CONCLUSION

2         We have considered all of the parties’ remaining arguments and find them to be

3   without merit. We therefore VACATE the district court’s judgment to the extent that it

4   dismissed Gordon’s state law claims, and REMAND with instructions that the district

5   court determine which of those claims are preempted by federal law. In all other respects,

6   the judgment of the district court is AFFIRMED.

7                                            FOR THE COURT:
                                             Catherine O’Hagan Wolfe, Clerk




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