Appropriating Copyrighted Works: When Is It Legal?

Appropriating Copyrighted Works: When Is It Legal?

by Michelle Kaminsky, Esq., December 2009

Painter Darby Bannard once said that “Originality is way overrated. To make, you need to take. All great artists do.” Franklin P. Jones states that “Originality is the art of concealing your source.” And no less than Ernest Hemingway echoed this when he wrote that all modern literature comes from Huckleberry Finn.  So how much new art is truly original, and when does it matter?

In recent times, artists have taken the sentiments expressed above and run rather farther with them than those quoted intended. It's one thing to be inspired by Huckleberry Finn and try to write the next great American novel with Huck in mind as the proto-protagonist. Exhibit A: Appropriation Artists. Appropriated art is created when one artist "borrows" another artist's work to create something new. But when is the result really “new,” and when is it legal?

In 2002, a federal district court in New York had to battle with this very question in Hoepker v. Kruger. The source of the dispute was an untitled work by the famous and controversial artist Barbara Kruger. Kruger is known for collages that combine photographs and words, and the work in question incorporated a cropped photograph by German photographer Thomas Hoepker. Hoepker's photo—titled “Charlotte As Seen By Thomas”—showed his friend Charlotte Dabney holding a magnifying glass over her right eye. Kruger cropped this image and added her signature red block lettering over the image. The image of Charlotte Dabney now bore the legend "It's a small world but not if you have to clean it."

Hoepker's original photograph was published once in 1960 in the German magazine "Foto Prisma." Kruger created her untitled work in 1990. She then sold it to the Los Angeles Museum of Contemporary Art. The museum featured it as part of a larger exhibit of Kruger's works, which then traveled to New York's Whitney Museum for a 3-month run. In conjunction with these exhibits, T-shirts, postcards, note-cubes and other memorabilia featuring Kruger's work were sold. And the Whitney reproduced the work on billboards around Manhattan that were five stories high.

In 2000, Hoepker sued Kruger, her dealer (the iconic Mary Boone), and the museums that had shown the work—all for copyright infringement and unfair competition. The basis for his claim was copyright infringement. Dabney joined as a plaintiff in the suit and added a claim against Kruger for violation of privacy.

The New York court dismissed both claims. Under the copyright law in force at the time of the photo's creation, Hoepker's copyright on the photograph lasted 28 years from its creation, expiring in 1988. With the photo therefore in the public domain (meaning that anyone could use it, for free, without getting permission from the author), Kruger's 1990 creation did not infringe Hoepker's rights. Well, sort of.

You see, in 1994, Congress extended copyright protection to foreign works not in the public domain in their source countries that had previously entered the public domain in the U.S. due to copyright holders' failures to follow certain formalities (in this case, renewal of Hoepker's copyright—arguably not exactly a “formality”). This law offered 95 years of protection from the time of creation. Under the revised 1994 law, then, Hoepker's photograph is copyrighted until 2055—er, not so fast.

In the legislation, Congress anticipated those like Kruger, MOCA, Boone and the Whitney, who had relied on the old public domain law. These former defendants would be subject to infringement actions only if Hoepker provided notice of reinstatement of his copyright and of his intent to enforce the newly restored copyright (either by filing for publication with the U.S. Copyright Office or serving such a notice on Kruger and the others) and Kruger et al. continued to use the copyrighted piece after one year from that notice. Hoepker never notified Kruger about his restored copyright. And so, he lost. Dabney did, too: she failed to tie her claim to the laws of any particular state—something judges don't favor—and thus her claim was dismissed following a lengthy discussion of the importance of the First Amendment.

Kruger's case is a well-known example and involved special copyright circumstances. In the years since that case, several more high-profile appropriation cases have arisen, and have presented their own unique and interesting aspects. But the bulk of potential copyright issues occurs on a more basic, everyday level Here are some basic things to keep in mind about copyrights: An original work is protected for the life of the creator plus 70 years before it enters the public domain. For older works and works made for hire, rules differ, so check to see what law applies to a particular piece.

Also, copyright protection is automatic—it accrues to the author the minute he or she finishes a creative work—but that doesn't mean that unregistered work is necessarily in the public domain. The advantage to registering a copyright is that you can bring suit in federal court for infringement, and if the registration pre-dates the infringement, statutory damages are available.

So: want to use someone else's work? Here's some advice: First, consider asking the artist. You might be able to license the work for your desired use. If you don't want to take that route, or if you do and you're rebuffed, consider learning about “fair use,” which can be a defense against infringement claims. In the “appropriation art” context, the question as to whether a particular use is “fair” often comes down to whether the new work or new use is “transformative.” In other words, is the appropriated work being used in a way that, in effect, makes it a different work—or are you just pawning off someone else's work as your own? This is a highly subjective question, so take care when entering this arena.

One final question: could Hoepker have given subsequent notice to Kruger, MOCA, Mary Boone and the Whitney of his reinstated copyright and then stopped them from using his image one year from that notice? The New York court repeatedly wrote that Hoepker could not bring his infringement claims “at this time.” Did this leave the gate wide open for Hoepker? This editor honestly does not know the answer to this—it would seem that the statute of limitations (3 years for civil copyright claims) was still open at the time of this decision…did Hoepker miss the boat?

This article was originally published in September 2008 and updated in November 2011.