Cases study 9 : Hoepker v. Kruger ( 2002 )

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Case 
The plaintiffs Hoepker, a German photographer. 
Barbara Kruger, a well-known artist specializing in composite works combining photographs and texts. 
Hoepker and his model sued Barbara Kruger for copyright infringement and invasion of privacy due to Barbara Kruger take 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. 
Kruger gave the Museum of Contemporary Art L.A. and the Whitney Museum of American Art in New York permission to publish his work in newsletters and brochures as well as featuring it on postcards, note cubes, magnets and t-shirts as well as in exhibit catalogues. 

Held 
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 the use of one’s name, portrait, picture, or voice. 
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 and not an advertisement. 
The Court dismissed the claim of copyright infringement. We cannot put all the blame on Kruger as Hoepker’s work was found in the public domain without a copyright protection. As the owner of an artwork, one ie responsible to protect it to avoid such consequences. Therefore, both are said to be at fault.

Copyright Act 1987 Section 36(1)
The Copyright Act 1987 states that an infringement occurs when a person does something without the licence or permission or consent of the copyright owner.

The copyright in a work is infringed when a person who:
(i)not being the owner of the copyright 
(ii)without consent or license of the owner of the copyright,

Copyright Act 1987 Section 13(2)
Certain conduct will not be considered as infringement of copyright. This provision provide defences to any allegation of infringement. 

FAIR USE
Where a copyrighted material is used for for purposes of non-profit research, private study, criticism, review or the reporting of current events. If such use is public, then it must be accompanied by an acknowledgement of the title of the work and its authorship.

Point of view 
Based on the case, I have learnt that we must be ethical. We need to be ethical because it defines who we are individually and as a society.From my point of view, both Kruger and Hoepker are at fault as Kruger used Hoepker work without permission although it was not for the purpose of trade. Yet, it is very unethical act. Meanwhile, Hoepker never protect his own work. He should protect his own work and get a copyright protection. As I mentioned earlier on the previous post, every artwork that we did for any kind of purpose, you must get permission or inform the owner to be a professional at your field of job.

References

http://ncac.org/resource/significance-hoepker-v-kruger/

http://ncac.org/resource/hoepker-v-kruger

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