Plaintiffs Hoepker, a German photographer, and his model sued Barbara Kruger for copyright infringement and invasion of privacy. Kruger, a well-known artist specializing in composite works combining photographs and texts, had taken Hoepker’s photograph of the model holding a magnifying glass over her eye, and superimposed the words “It’s a small world but not if you have to clean it” on top of it. With Kruger’s permission, the Museum of Contemporary Art L.A. and the Whitney Museum of American Art in New York (also defendants) publicized the exhibit in newsletters and brochures and featured the composite on postcards, note cubes, magnets and t-shirts and in exhibit catalogues.
The Court found that the model’s right to privacy was not violated. To succeed on a right to privacy claim in New York, one must prove (1) the use of one’s name, portrait, picture, or voice; (2) for advertising purposes or for the purposes of trade; (3) without consent; and (4) within the state of New York. The Court found that Kruger had used Hoepker’s picture without consent within the state of New York but had not done so for the purposes of trade. Rather, Kruger’s work, when displayed in books or in galleries, was pure artistic expression (not commercial speech), and the newsletters and souvenirs were permissible because they simply publicized to a wider audience Kruger’s permissible use of the collage, meaning that the newsletters and souvenirs constituted “ancillary use.” Similarly, with respect to the merchandise items, it was the broader dissemination of the artistic expression that primarily motivated the transaction, not the personality of the model for purposes of selling merchandise, as might have been the case if the merchandise had been marketed on a mass basis with a photograph of Marilyn Monroe, for example. Thus, the First Amendment shielded Kruger’s work from the right to privacy claim.
The Court dismissed the claim of copyright infringement. Due to the historical development of the Copyright Act and Hoepker’s status as a foreign artist, his work was in the public domain, or without copyright protection, during the time in which Kruger created her composite.
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