Hoepker v. Kruger

Decision Date03 May 2002
Docket NumberNo. 00 CIV. 6619(AKH).,00 CIV. 6619(AKH).
Citation200 F.Supp.2d 340
PartiesThomas HOEPKER a/k/a Thomas Hopker and Charlotte Dabney, Plaintiffs, v. Barbara KRUGER, Whitney Museum of American Art, Museum of Contemporary Art L.A., Paula Goldman, M.I.T. Press, a department of Massachusetts Institute of Technology, Mary Boone, d/b/a Mary Boone Gallery, Educational Broadcasting Systems d/b/a Public Service Television Thirteen Wnet, d/b/a American Visions, Defendants.
CourtU.S. District Court — Southern District of New York

Stephen A. Weingrad, Weingrad & Weingrad, LLP, New York City, for Plaintiffs.

Robert W. Clarida, Cowan, Liebowitz & Latman, P.C., New York City, for Barbara Kruger, Mary Boone, Public Service Television Thirteen WNET.

Peter Herbert, Lankler, Siffert & Wohl, LLP, New York City, for Whitney Museum of American Art.

Michael H. Bierman, Ian M. Wallach, Mitchell L. Lathrop, Luce, Forward, Hamilton & Scripps, LLP, New York City, for Museum of Contemporary Art L.A., M.I.T. Press.


HELLERSTEIN, District Judge.

This right of privacy case is before the Court on defendants' motion to dismiss the Amended Complaint, on the ground that plaintiff Dabney has failed to state a claim upon which relief can be granted, and on the ground that plaintiff has not alleged a sufficient jurisdictional amount to support diversity jurisdiction. Defendants have also moved for an order awarding costs and fees against plaintiffs for an earlier stage of the proceedings. For the reasons discussed below, I grant defendants' motion dismissing the Amended Complaint, and deny their motion for costs and fees.


Plaintiff Thomas Hoepker is a well-known German photographer. In 1960, during the early days of his career, Hoepker created a photographic image of plaintiff Charlotte Dabney. The image, "Charlotte As Seen By Thomas," pictures Dabney from the waist up, holding a large magnifying glass over her right eye. Dabney's eye fills the lens of the magnifying glass, and the lens covers a large portion of Dabney's face. The image was published once in the German photography magazine FOTO PRISMA in 1960.

Defendant Barbara Kruger also is a well-known artist, specializing in collage works combining photographs and text. In 1990, Kruger created an untitled work incorporating Hoepker's "Charlotte As Seen By Thomas." To create her work (the "Kruger Composite"), Kruger cropped and enlarged Hoepker's photographic image, transferred it to silkscreen and, in her characteristic style, superimposed three large red blocks containing words that can be read together as, "It's a small world but not if you have to clean it."

In April of 1990, Kruger sold the Kruger Composite to defendant Museum of Contemporary Art L.A. ("MOCA"). MOCA thus acquired the right to display the Kruger Composite without violating Kruger's copyright by virtue of 17 U.S.C. § 109(c)1 and, by separate license, acquired a non-exclusive right to reproduce the work. From October 17, 1999 to February 13, 2000, MOCA displayed the Kruger Composite as one of sixty-four works of art in an exhibit dedicated to Kruger (the "Kruger Exhibit"). In conjunction with the exhibition, MOCA sold gift items in its museum shop featuring the Kruger Composite in the form of postcards, note cubes, magnets and t-shirts. MOCA also sold a book respecting Kruger's works and ideas entitled "Barbara Kruger" (the "Kruger Catalog") that was published jointly with defendant M.I.T. Press. The Kruger Catalog contains three depictions of the Kruger Composite among the hundreds of pictures in the 200-plus page book.

MOCA's gross proceeds from sales of the gift items (except the t-shirts) were $12,020, with net revenues (proceeds minus cost of goods) of $7,485. Revenues from t-shirt sales apparently were less than $7,300. MOCA's gross proceeds from sales of the Kruger Catalog were approximately $236,950, with approximately $53,644 in net revenues (proceeds minus printing costs). M.I.T. Press claims $134,323 in gross proceeds and $39,084 in net revenues (proceeds minus acquisition costs and direct support costs) in connection with its own sales of the Kruger Catalog.

After closing in Los Angeles, the Kruger Exhibit traveled to New York and was presented at defendant Whitney Museum of American Art (the "Whitney") from July 13 through October 22, 2000. The Whitney advertised the Kruger Exhibit in various ways, including newsletters and brochures that incorporated the Kruger Composite. The Whitney also purchased from MOCA an inventory of the Kruger Catalog and various gift items to sell at its museum shop in conjunction with the exhibition.2 The Whitney's approximate profits from sales of the Kruger Catalog were less than $37,000, and profits from its sales of gift items were less than $800.

Around the time the Whitney presented the Kruger Exhibit, reproductions of the Kruger Composite appeared as five-story-high "billboard art"3 at one or more locations in Manhattan. The Amended Complaint alleges that these billboard installments were commissioned by the Whitney to advertise the Kruger exhibition. The Whitney denies that it paid for the billboards or that the billboards were used to advertise its exhibit, but admits (at least it is evidenced from the Whitney's submissions) that the "Barbara Kruger: Big Picture" billboards were an art project "coproduc[ed]" by "the Public Art Fund and the Whitney Museum of American Art, with additional support from MegaArt," and that the Whitney's name, along with Kruger's and the other sponsors' names, appeared at the bottom of the billboards in comparatively small font. Presumably, by denying that the billboards were advertisements, the Whitney contends they were instead art.

Defendant Education Broadcasting Systems ("EBS") maintained a now-retired website entitled "American Visions" at . From approximately June 1997 through mid-December 2000, the American Visions virtual "gallery" included a reproduction of the Kruger Composite in its digital collection of contemporary American art. The credit line below the digital reproduction stated that the image was "[c]ourtesy of Mary Boone Gallery, New York," and submissions by EBS confirm that the use was licensed by the gallery.

Defendant Mary Boone d/b/a Mary Boone Gallery ("Boone") is, according to materials supplied by defendants, Kruger's dealer and acts as Kruger's agent for granting permission to display or reproduce Kruger's works. Plaintiffs allege that Boone "promot[ed], assist[ed] and enabl[ed] the sale" of the Kruger Composite to MOCA, and "willfully remov[ed] [Hoepker's] copyright management information and s[old] the image with the false designation of origin." Kruger's affidavit denied that Boone was involved in the sale to MOCA, but, as will appear from the discussion below, this issue of fact is not material in light of my disposition.

The final defendant, Paula Goldman, allegedly "falsely claim[ed] authorship to the photograph and willfully remov[ed] Hoepker's copyright management information from his original published image and then willfully provid[ed] a false designation of origin." Amended Compl. ¶ 8. In other words, plaintiffs seem to be alleging that Goldman took credit as the originator of the photograph used in the Kruger Composite. Like Boone, the issue of fact is not material.


Hoepker and Dabney filed suit in September 2000, alleging copyright infringement and unfair competition as to Hoepker's photographic image, and violation of Dabney's right of privacy. In April 2001, defendants moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. On July 26, 2001, after reviewing the parties' papers and hearing oral argument, I granted defendants' motion to dismiss the copyright claim and granted plaintiff Dabney opportunity to replead the right of privacy claim,4 and reflected my decision in a written summary order dated and filed July 30, 2001. Plaintiff Hoepker subsequently moved for reconsideration of the July 26 order, a motion I denied by order of August 28, 2001.

Following dismissal of the copyright claims, defendants moved for an order pursuant to Rule 54(d) awarding them fees and costs. By memo endorsement of August 20, 2001, I ordered the issue deferred.

Plaintiffs filed an Amended Complaint on August 14, 2001. Defendants now move to dismiss the Amended Complaint for failure to state a claim upon which relief can be granted pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Defendants argue that Dabney failed to satisfy the amount-in-controversy requirement for diversity jurisdiction, and that the First Amendment bars Dabney's right of privacy claim.

During the course of these proceedings, the parties have submitted, and I have accepted and considered, affidavits and other submissions addressing factual matters outside the pleadings. Therefore, pursuant to Fed. R. Civ. Proc. 12(b), I treat the defendants' motion for failure to state a claim as a motion for summary judgment under Fed. R. Civ. Proc. 56. The parties, by their several submissions, have presented all material pertinent to the legal and factual sufficiency of plaintiff's claims.

For the reasons stated below, I grant to defendants summary judgment dismissing the Amended Complaint, and deny them attorneys' fees and costs. I also now write to reflect my previous rulings dismissing Hoepker's copyright claim, made from the bench on July 26, 2001 and reaffirmed by written order of August 28, 2001. Hoepker's claim of copyright infringement raises important and complicated, but rarely explicated, provisions of the Copyright Act, and a written opinion may therefore be useful.

I. Infringement of Hoepker's Copyright
A. Status of Hoepker's Copyright

Hoepker, a German photographer, first published "Charlotte As Seen By Thomas" in Germany in 1960. Pursuant to the Uniform Copyright Convention ("U.C.C."), to which both the United States and Germany...

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