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In his May 3 decision in Hoepker v. Kruger,[1] Judge Alvin Hellerstein of the Southern District of New York applied the Copyright Act to hold that noted artist Barbara Kruger did not infringe the copyright in a 1960 German photograph by plaintiff Thomas Hoepker, despite incorporating a large portion of the Hoepker work into her 1990 silkscreen, “Untitled 1990 (It’s a small world but not if you have to clean it).” Further, the court held that the model whose image was incorporated into both works, Charlotte Dabney, had no claim under New York’s privacy statute for unauthorized use of her likeness, since the Kruger work was artistic speech, not a “use for purposes of trade.” For the same reasons, the Whitney Museum, the M.I.T. Press, the Los Angeles Museum of Contemporary Art (MOCA), Channel 13 and Mary Boone Gallery were also absolved of both the copyright and privacy claims with respect to their respective sales or displays of the Kruger work or of books or gift-shop items reproducing the work.

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