"It's a small world, but not if you have to clean it"
exhibited at the Los Angeles Museum of Contemporary Art in 1999
exhibited at the Whitney of American Art from July to October 2000,
Los Angeles, CA: Los Angeles Museum of Contemporary Art
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By Martha Lufkin
NEW YORK. In a lawsuit filed against two museums, a university press, "appropriation" artist Barbara Kruger and others, questions are being raised about the legal consequences of making and exhibiting collages alleged to contain copyrighted material.
The lawsuit, filed in federal district court in New York, seeks damages for copyright infringement from the Whitney Museum of American Art, the Los Angeles Museum of Contemporary Art (LA MoCA), Public Service Television, the MIT Press, artist Barbara Kruger and others. The plaintiffs are seeking to hold the defendants liable for promoting and selling the disputed image, which they say was distributed on T-shirts, magnets, books, brochures, cards, websites and street billboards, including two immense building displays in New York arranged by the Whitney.
"The Whitney Museum does not believe that the claims against the museum have merit", a spokeswoman for the Whitney told The Art Newspaper.
The plaintiffs are Thomas Hoepker, who says that Kruger infringed his copyright in his image, “Charlotte as seen by Thomas”, which was published in the German photography magazine Foto Prisma in about 1960. The image shows a woman holding a magnifying glass. The plaintiffs say that Kruger used the image in untitled works dated 1999 and 2000, adding to it the words, "It's a small world but not if you have to clean it". One of the Kruger works was exhibited at the Whitney from July to October 2000, in a travelling exhibit organised by LA MoCA, which bought and owns the Kruger. Charlotte Dabney, whose face appears in the image, is joining Hoepker in the suit. The defendants used Dabney's face commercially without her consent in violation of civil rights laws in New York and California, including sales and marketing, the plaintiffs say, making her "a public spectacle".
In addition to seeking impoundment of the alleged infringing material, the plaintiffs are seeking an injunction against further exploitation of the image, statutory and punitive damages and attorney’s fees. The complaint seeks damages of up to $100,000 per wilful infringement, and $20,000 per statutory infringement, or alternatively the defendants' gains or the plaintiffs’ loss and damages under civil rights laws.
In the 1980s, American "appropriation" artists, including Kruger, Richard Prince and Sarah Charlesworth, used and altered images from popular culture, including photo archives, newspapers and television, challenging the notion that photographs told an objective truth. While photographs might be documentation in one context, they could easily be altered, these artists showed, by inserting text phrases that changed the message.
The lawsuit raises the question of what happens if an underlying image used in such a work is not in the public domain. But to win significant damages, presumably the plaintiffs would have to show that they would have earned profits by licensing the work to Kruger, and also how much of the defendants' profits were attributable to the presence of the Hoepker photograph in Kruger's work. If the copyrighted image instead lay dormant for decades with no commercial exploitation, there may have been little to infringe.
"All of the Defendants [are] sophisticated in the art world and familiar with the laws of copyright and privacy and had full knowledge that [they] could not use [the] image without written consent or permission" from the plaintiffs, the complaint says. It is hard to see however, how a borrowing museum would have such knowledge about an image included in a collage borrowed as part of a loan show.
Both Public Service Television (PTS) and MIT Press, the plaintiffs say, displayed or disseminated the image without permission to their detriment, including display of the image on the PTS web site and publication by MIT Press of a catalogue containing the image.
"The work the defendants chose to express could have been expressed in many other ways without copying the plaintiffs’ unique expression of an idea," the complaint says.
Some of the defendants intentionally removed Hoepker's copyright management information, the plaintiffs say. They argue that they did not discover the infringements earlier because of this and because the image was wilfully displayed with a false designation of origin with no credit to Hoepker.
In August 2000, the plaintiffs complied with US copyright law securing exclusive rights and privileges to the image, they say. Prior US copyright registration was not required for the lawsuit, they say, because Hoepker, a German national, created the image in Germany.
By Martha Lufkin
NEW YORK. 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.
Enter Barbara Kruger
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.
How Hoepker got US copyright to the work
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.
The right to privacy
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.
Art over privacy
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.
Museum gift shop objects are art
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.