Kruger case explained - Front Page

Art in America, Nov, 2002 by David Ebony

In early 2001, a copyright infringement suit was mounted against Barbara Kruger and other defendants, stemming from her appropriation of a photographic image [see "Artworld," Mar. '01]. A federal judge in New York orally threw out the charge in July 2001, but the court recently issued a written version of the decision by judge Alvin K. Hellerstein, which explicates the complex details of the action. It is likely to become a standard by which future copyright cases will be gauged.

The case revolves around Kruger's 1990 work Untitled (It's a small world but not if you have to clean it). In the piece, she uses a 1960 image by German photographer Thomas Hoepker of his friend and model Charlotte Dabney holding a magnifying glass; the photo had appeared in the German magazine Foto Prisma. Kruger radically cropped Hoepker's image and added the work's subtitle in her familiar red and white block lettering. The photographer sued Kruger for copyright infringement and Dabney sued the artist for violating her civil right to privacy under New York's name and likeness law. Kruger's dealer Mary Boone, the Whitney Museum, the Los Angeles Museum of Contemporary Art and MIT Press were also named in the suit for exhibiting the work and/or selling merchandise related to the piece.

The court determined that the photo image was in the public domain at the time Kruger created the piece. U.S. copyright on the image had expired in 1988 and the photographer failed to renew it. But complicating matters was the fact that Congress restored copyright protection to all U.S. and foreign works in 1994. The U.S. adopted the new laws to comply with the General Agreement on Tariffs and Trade (GATT) international ruling that assures copyright protection for all works for 95 years from the time of production. The law thus retroactively reinstated Hoepker's copyright and extended it until 2055. According to U.S. law, however, Hoepker could sue Kruger only if he notified her of his reinstated copyright, and if she had continued to use the image after one year of his notification. Hoepker, the court found, had failed to follow this procedure. Having produced only one work in 1990 incorporating his photo, Kruger, at any rate, would not be liable for copyright infringement. The court ruling also declares Kruger's piece an original work and not simply a reproduction of Hoepker's photo.

In its decision on Dabney's case, the court also upheld Kruger's freedom of speech in the form of artistic expression. The exhibition and reproduction of the image were found not to violate Dabney's right to privacy. In the end, the court granted First Amendment protection to works of art challenged by privacy claims.