139: An elevated class of fridge magnet (September 25, 2002)

The above image is held here .

A number of court cases have in the past provided invaluable material for debate surrounding art concepts or values. The tussle between Whistler and Ruskin is perhaps the most frequently cited instance . Another that springs immediately to mind is that which saw Brancusi's Bird in Space have its status as an art object challenged by United States customs authorities. A large tract of this case was published by Thierry de Duve in the Centre Georges Pompidou catalogue Qu'est-ce que c'est que la sculpture moderne? to highlight the sometimes-nebulous questions provoked by modern sculpture.
Once again a US court has found itself embroiled in a debate over the nature of the work of art, or, more precisely in this case, the nature of its reproduction. The case in question was the result of a lawsuit filed against the artist Barbara Kruger, the Whitney Museum, the Museum of Contemporary Art in Los Angeles and others. Damages relating to copyright and privacy issues were sought by the photographer Thomas Hoepker and his friend Charlotte Dabney resulting from Kruger's appropriation of a photograph by the German photographer which featured Dabney, and its subsequent widespread reproduction.
The report on this case which appeared last week in The Art Newspaper is tantalising in its summation of the principle arguments and the findings of the court. While delving further into the proceedings is perhaps necessary, the outline which the report provides is nonetheless worthy of attention.
The court found against the plaintiffs. Hoepker's claims to copyright infringement were deemed illegitimate as he had failed to give Kruger required notice of his renewal of copyright. Furthermore, the court upheld that Kruger's was an original work and not, as Hoepker pleaded, purely a reproduction. In Dabney's case, Kruger's freedom of speech, in the form of artistic expression, was supported. The exhibition and reproduction of the image was found not to violate Dabney's right to privacy as it had not been used 'for advertising purposes or for the purposes of trade.'
And so to fridge magnets. The Hoepker photograph had not only been reproduced in catalogues, on large billboards and other promotional material, but also on merchandise such as t-shirts and fridge magnets. While Dabney argued that the use of her image on such objects was purely with a view to financial gain, the museums countered this claiming that these objects widened the audience for Kruger's work. The court favoured the museums and stated that through the production of such items of merchandise the museums were selling art, albeit in a different form to the original work from which they were derived.
One feels that this ruling might be proven somewhat problematic in the future. As it stands however, The Art Newspaper 's bald summation - 'Museum gift shop objects are art' - provokes an unpleasant sensation, most potently perhaps in the minds of those who have observed with distaste the growth of that gift shop itself.
Kruger's fridge magnets are not Ben's socks. While undoubtedly few people would wish to see the Whitney Museum and the LA MoCA forced to pay substantial damages, can we support their claim regarding the function of the gift shop trinket? While it might possibly be argued that a T-shirt depicting Kruger's work, comprising the Hoepker image, is a continuation of the appropriative process, what value should we place on the concept of intention in such a context? Malraux's idealism does nag at the back of my mind, suggesting that I am uncharitable to that broader class of people which the museums purport that the trinket to reaches out to. However, away from the court room, we must surely acknowledge that desperate times call for desperate measures and so give credit to the museums for their argument, while choosing to continue to view that previously insignificant fridge magnet as valuable, less for its impact beyond the museum walls as within, generating much needed revenue.