Barbara Kruger case: Art trumps right to privacy

A US Federal court has thrown out the case against artist Barbara Kruger for her appropriation of a 1960 photo, and against the Whitney Museum and LA MoCA for selling goods reproducing the offending image


A Federal court in New York has thrown out a lawsuit against the artist Barbara Kruger, the Whitney Museum of American Art, the Museum of Contemporary Art in Los Angeles, and others including the MIT Press. In the lawsuit, two individuals, the photographer Thomas Hoepker and his friend Charlotte Dabney, had sought damages stemming from the use and exhibition of an image of Dabney within a work created by Barbara Kruger.

The Kruger work shows Dabney, right eye partially enlarged by a magnifying glass, with the words “It’s a small world but not if you have to clean it.” The plaintiffs claimed that the work violated Dabney’s right to privacy and Hoepker’s copyright.

The decision clarified important aspects of US copyright law, the court said. It also stated the rule for New York in cases pitting privacy rights against freedom of speech as applied to the sale of museum gift shop items. The May 2002 decision was written by Judge Alvin K. Hellerstein, of the United States District Court for the Southern District of New York.

In 1960, Hoepker, a well-known German photographer, created the photographic image of Dabney with the magnifying glass, and published it with the title “Charlotte As Seen By Thomas” in the German photography magazine FOTO PRISMA in 1960.

Thirty years later, Kruger was specialising in “appropriation art” collages which combined photographs and text. She created an untitled silkscreen, called the “Kruger Composite” by the court, incorporating Hoepker’s “Charlotte” and adding three red rectangles carrying the “It’s a small world” text. In 1990, Kruger sold the Composite to the Museum of Contemporary Art in Los Angeles (MoCA), and from 1999-2000 the museum displayed it as one of 64 works in an exhibition of Kruger’s work. Merchandising including t-shirts, note cubes, magnets and postcards decorated with the Kruger work were offered for sale in the MoCA shop, and the work was also reproduced in the exhibition catalogue published with MIT Press. In July 2000 The Kruger work travelled to New York for an exhibition at the Whitney Museum, which also sold similar items in its shop, and where the image was reproduced on five-story-high vinyl billboards at several locations in Manhattan.

Before the exhibition had completed its run, Hoepker and Dabney sued (The Art Newspaper, No. 110, January 2001, p.10).

The judge ruled orally on the copyright claim in July 2001 but has now provided a written opinion, saying that the case raised “important and complicated, but rarely explicated, provisions of the Copyright Act.” In the decision, the court traced US and treaty copyright protections.

Hoepker published the photo in Germany, and did not seek US copyright. But under a treaty between the United States and Germany, the “Uniform Copyright Convention”, Hoepker automatically got copyright to the work in the US when he obtained copyright under German law.

Under the treaty, however, Hoepker’s copyright protection in the US ended in 1988. He could have increased his copyright protection in the US by another 28 years if he had renewed it. But he did not, so the work fell into the public domain in the US–leaving artists free, the court said, to incorporate the photographic image into their own work. Kruger did so in 1990.

In 1994, however, Congress decided to restore copyright protection to works of foreign origin that had fallen into the public domain in the US. This time Hoepker’s copyright was restored until 2055.

But Congress decided to protect people like Kruger, who might have relied on the public domain status of certain works, by limiting unforeseen infringement lawsuits. Under the new law, the court said, Hoepker could only sue Kruger, who was a “reliance party,” if Hoepker notified her that he was enforcing his restored copyright and if she then continued to infringe it after one year. But he did not do that. Because he did not give notice, the court said, “at this time, Hoepker may not seek redress for any alleged acts of infringement by these parties.”

The court rejected Hoepker’s argument that Kruger’s Composite was a mere reproduction and not an original work.

Charlotte Dabney sought damages for violation of her right to privacy, a claim which must meet a statutory test in New York. Three of four requirements under that statute had been met, the court said: Dabney’s picture was used, without her consent, and within the state of New York. The only required test left for Dabney to prevail on a privacy claim, then, was whether the image was used “for advertising purposes or for the purposes of trade.” The advertising and trade tests, the court said, were designed to protect against privacy intrusions while simultaneously “protecting the quintessential American right” to freedom of speech. Commercial speech, the court said, could be restricted more readily than “pure” First Amendment speech.

While art was not as clear as political speech, New York courts have afforded First Amendment protection to art when pitted against privacy rights, the court said. A New York 1993 case held that an artist could make and sell 20 bronze busts of model Cheryl Tiegs—at $20,000 each—without her written consent, and without violating her privacy rights, which “fell” to the artist’s free speech rights. In California, the court said, the question was whether a work of art sufficiently “transformed” the person’s image, or whether instead “the celebrity” was what was being sold. Under either State law, the court said, Kruger’s work was “pure First Amendment speech in the form of artistic expression.”

The Whitney’s display of the work was therefore protected by the First Amendment, the court said, as was the reproduction of the image in the exhibition catalogue. Similarly, the court said, the leaflets, newsletters, and other exhibition advertisements, including the large vinyl “billboards,” fell outside New York’s privacy protection, because they merely “proved the worth and illustrated the content” of the show.

The use of Dabney’s image on gift shop items sold by MoCA and the Whitney was more complicated, the court said. Dabney argued that her image was emblazoned on the trinkets just to boost sales; the museums said the items brought the message of the Kruger work to a broader class of people than could view the original.

Relying on prior New York cases, the court said that Dabney’s image appeared on gift shop items “not to flaunt her visage,” but for “precisely the same reason” that it appeared in the original Kruger work which the Whitney displayed, and to reproduce that work. Here, “the museums are selling art, albeit on t-shirts and refrigerator magnets,” the court said. In contrast, in a court case involving sales of posters of wrestling stars inside a magazine, the posters were found to lack First Amendment protection, because the publishers were selling nothing more than the wrestlers’ images, the court said.

The court said that museums sell goods which generally replicate the art they display, “thus enabling the museum to distribute art in a common and ordinary form that can be appreciated in everyday life.” The fact that the art might be reproduced in formats and quantities that sell for modest sums “makes the art popular,” but does not change its First Amendment protection, the court concluded. As Dabney’s picture was not used for advertising or “the purposes of trade,” she could not sue for privacy invasion.

Originally appeared in The Art Newspaper as 'Art trumps right to privacy: A US Federal court has thrown out the case against artist Barbara Kruger for her appropriation of a 1960 photo, and against the Whitney Museum and LA MoCA for selling goods reproducing the offending image'