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The question of what makes an object “art” is long-standing and has been approached by venerable thinkers throughout history. Inevitably, over the years, numerous courts have been obliged to determine if an object at issue in a legal dispute qualifies as art. For example, in a dispute involving the application of state libel and defamation laws, a court was asked to decide whether a painting featuring images of violence directed at a particular individual qualified as a work of art. Silberman v. Georges, 456 N.Y.S.2d 395 (1982). The court held that the painting titled The Mugging of the Musewas protected from the claim of libel as a work of art. In the context of applying the federal Visual Artists Rights Act to the negligent destruction of a clay sculpture model, the court was asked to determine whether the clay model was, in and of itself, a piece of art, or whether the title “art” was reserved exclusively for the finalized bronze form of the sculpture. Flack v. Friends of Queen Catherine Inc., 64 U.S.P.Q.2d 1281 (S.D.N.Y. 2001). The court held that in the field of art, a clay model was protected as a work of art in and of itself, just as a sketch drawing for a painting would unquestionably be viewed as a work of art. There is also the long-standing tradition of courts defining art vs. obscenity for the purpose of applying First Amendment principles. City of Cincinnati v. Contemporary Arts Center, 566 N.E.2d 207 (Ohio Mun. Ct. 1990). The court ultimately found that Robert Mapplethorpe’s photographs displayed artistic merit and, as such, could not be viewed as mere obscenity. Recently, in Hoepker v. Kruger, 200 F. Supp. 2d 340 (S.D.N.Y. 2002), the U.S. District Court for the Southern District of New York was asked to determine whether museum gift-shop items qualified as art, or if they were merely merchandise. Specifically, the court decided a dispute involving the incidental reproduction of a woman’s image, as part of an artwork from a museum’s collection, on gift-shop items, including T-shirts and postcards. In Kruger, the court evaluated whether the gift-shop items were pieces of art for the purpose of applying an individual’s right to control the commercial reproduction of her image against First Amendment principles. In Kruger, the artwork at issue was an untitled silkscreen piece by visual artist Barbara Kruger. The work featured a manipulated 1960 photograph of a woman, Charlotte Dabney, right eye partially enlarged by a magnifying glass. The photograph was taken by German photographer Thomas Hoepker and appropriated by Kruger from a German photography magazine. In addition to Hoepker’s image of Dabney, the Kruger silkscreen prominently featured large red blocks containing the black-letter slogan, “It’s a small world but not if you have to clean it.” This work, typical of Barbara Kruger, was sold to the Museum of Contemporary Art in Los Angeles (MOCA) and exhibited by MOCA and also by the Whitney Museum of American Art in New York. Besides selling the piece, Kruger provided MOCA with a nonexclusive license to reproduce it on postcards, notecubes, T-shirts, magnets and in an exhibition catalogue titled Barbara Kruger. Both MOCA and the Whitney offered the licensed museum gift-shop items and the exhibition catalogue for sale in their museum stores. The Krugercase involved all the parties above. In particular, Hoepker and Dabney sued Kruger and the two museums for infringement of, respectively, Hoepker’s copyright and Dabney’s right to control the commercial reproduction of her image. Kruger is a renowned contemporary visual artist. Her works are graphically sharp, and are regularly comprised of appropriated photographs from popular culture (often from magazines), succinct black-letter text with provocative slogans and graphic red blocks of color. Kruger’s work has been featured in prestigious museums and galleries worldwide. Hoepker is a well-known German freelance photographer and documentary filmmaker. The subject matter of his work ranges from contemporary urban architecture and landscapes to Mayan Indian culture in Guatemala. The image at issue in the Krugercase was taken by Hoepker of his personal friend, Charlotte Dabney, and published in the German photo magazine Foto Prismain 1960. COPYRIGHT AND PRIVACY ISSUES In Kruger, Hoepker claimed that the gift-shop items and other reproductions of the Kruger silkscreen constituted copyright infringement and unfair competition as to his photographic image of Dabney. However, the court dismissed his case because it found that Hoepker’s copyright had expired when Kruger created the Kruger silkscreen. Dabney’s claim, however, survived. It centered on the alleged violation of her right of privacy under New York law arising out of the reproduction of her enlarged image on the gift-shop items and others. To succeed in a right-of-privacy claim, Dabney would have had to prove that her image was used by Kruger and the museums for “advertising purposes or for the purposes of the trade.” N.Y. Civ. Rts. �� 50, 51. If the court found otherwise, i.e., that the merchandise was art, the First Amendment exception to New York’s right of privacy would apply. The Krugercourt noted that “[t]he balance struck in the privacy laws and in their application is consistent with First Amendment jurisprudence, for government may encumber or restrict commercial speech more readily than ‘pure’ First Amendment expression such as political discourse.” 200 F. Supp. 2d at 348. In other words, if the gift-shop items were found to be art, as opposed to merchandise items bearing Dabney’s image for commercial purposes, Dabney would lose her case. In connection with Dabney’s claim, and apparently with broader application, the Krugercourt expounded on the issue of whether the museum gift-shop reproductions of the Kruger silkscreen were free speech in the form of art and, as such, protected by the First Amendment. At the outset, with respect to the original Kruger work, the court announced that “the Kruger composite itself is pure First Amendment speech in the form of artistic expression … and deserves full protection, even against Dabney’s statutorily protected privacy interests.” Kruger, 200 F. Supp. 2d at 349. The court also summarily stated that reproduction of the work in the exhibition catalog is pure speech, “made to further discussion and commentary on Kruger and her body of work.” Id.Use of Kruger’s work in other documentation and promotion for the exhibit, including reproduction on a billboard in New York, was also protected by the First Amendment in the court’s opinion. THE REPRODUCTION As to whether the gift-shop reproductions of the Kruger silkscreen warranted the protection of the First Amendment, the court engaged in more detailed and thoughtful discussion. In this context, the court compared different methods of demarcating the line between art and merchandise. First, it explored making the distinction based on the number and type of reproductions made — a method used by previous New York courts. Second, it discussed making the distinction based on the extent to which the reproductions are “transformative” of the underlying intellectual property — an alternative method, used by courts in California and other states. The former test was used in Simeonov v. Tiegs, 602 N.Y.S.2d 1014 (N.Y. City Civ. Ct. 1993). In Simeonov, the items at issue were 20 bronze busts of the well-known model Cheryl Tiegs, who sought to prevent a sculptor from creating them. Tiegs sued the sculptor on the ground that the bronze busts, to be sold for $20,000 each, were not free expression in the form of art but, rather, were merely merchandise. The Simeonovcourt held that Tiegs’ right to control the commercial reproduction of her image did not trump the artist’s right to free expression in that case. The court stated that “an artist may make a work of art that includes a recognizable likeness of a person without … consent and sell at least a limited number of copies thereof without violating [New York's right of privacy statutes].” 602 N.Y.S.2d at 1018. The Simeonovcourt further indicated that although the bronze sculptures at issue were considered art, mere mannequins would likely not have been. The second test was applied recently in Comedy III Productions Inc. v. Gary Saderup Inc., 21 P.3d 797 (Calif. 2001), in which the court determined that sufficiently “transformative” reproductions of art were entitled to First Amendment protection from individual claims of unauthorized commercial reproduction of the person’s likeness. In Comedy III, the owner of the “publicity” rights for the well-known comedy trio the Three Stooges sought to prevent an artist from reproducing his drawing of the Three Stooges’ likeness on T-shirts. The court held that the Three Stooges’ right of publicity trumped the artist’s right to expression in that case because “when artistic expression takes the form of a literal depiction or imitation of a celebrity for commercial gain … without adding significant expression beyond the trespass, the [right of publicity prevails].” Id.at 808. The court went on clearly to state that when a work contains significantly transformative elements, it is both worthy of First Amendment protection, and less likely to interfere with the economic interest protected by the right of publicity. The Hoepkercourt interpreted the test in Comedy IIIto be one determining whether it is the art, or the celebrity, that is being sold or displayed in the particular reproduction at issue. In the context of art-museum merchandising, the latter test would seem to apply in favor of the visual artist and/or museum because an art museum’s mission invariably includes collecting, displaying and caring for works of art of the highest quality and significance. So long as the artwork featured in the gift-shop reproduction is actually included in the museum’s collection or exhibited by the museum, one could presume that the significance of the work is not based on its use of a celebrity image, or any other underlying intellectual property for that matter. Rather, one could presume that the significance is based on the merit of the artwork itself. Indeed, the Krugercourt stated that under either of the two tests discussed above, the gift-shop reproductions of Kruger’s graphic red, white and black artwork should be considered art. That the gift-shop items reflected an artwork that was shown in the museums’ galleries was of import to the court. The court indicated that under the Simeonovtest, since the gift shop items were sold in small quantities for modest sums in museum stores, they did not rise to the level of mere merchandise. Under the Comedy IIItest, the court indicated that the underlying Kruger silkscreen was transformative, pure, protectable free expression in the form of art, and that the reproduction of the Kruger piece on the museum gift-shop items did not change the essential nature of the underlying artistic expression. The Krugerholding with respect to Dabney’s right-of-privacy claim meant that the museum gift-shop reproductions of Kruger’s work featuring the image of Dabney were not actionable under New York’s right-of-privacy statutes. The court in Krugerfound that the MOCA and Whitney museum shops were not selling mere merchandise but, rather, art-albeit on magnets and T-shirts. The court’s overall position was that museum gift-shop reproductions are an extension of an artwork itself, easily accessible to the public, and should be entitled to many of the same protections as the underlying work itself. POPULARIZATION OF IMAGES The court also opined that selling museum gift-shop articles made the art “popular.” The opinion in Krugerincluded the statement that “[m]useum gift shops sell merchandise that, in general, replicates the art displayed in the museum, thus enabling the museum to distribute art in a common and ordinary form that can be appreciated in everyday life.” 200 F. Supp. 2d at 353. Such a collectivist view of the definition of art recalls Leo Tolstoy’s declaration of art as “a means of union among men” in his collection of essays, “What Is Art?” (1898). In its application, the Krugercourt’s holding significantly lowers the level of risk involved in art merchandising under New York privacy law. It seems to say that under New York privacy law, an artist may reproduce or authorize the reproduction of his or her museum-exhibited artwork in familiar museum gift-shop quantities and formats-including postcards, notecubes, magnets and T-shirts-and may sell such reproductions without infringing the privacy rights of third parties whose likenesses may be incorporated into the artist’s work. The import of the holding is heightened considering that museum merchandising is big business- for example, bringing in about $50 million to the Museum of Modern Art in New York in 1999 alone. Comment: Art and Commerce, Wall St. J., April 18, 2000, at A16. In the larger context of social contemplation of the question “What is art?,” Krugeradds another spice to the mix, specifically in its discussion and articulation of the boundary between art and merchandise. Heather Angelina Dunn is an associate in the San Francisco office of Palo Alto, Calif.’s Gray Cary Ware & Freidenrich ( www.graycary.com). Her practice consists primarily of domestic and international trademark counseling and prosecution, and issues relating to art law. If you are interested in submitting an article to law.com, please click herefor our submission guidelines.

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