## Facts

- Thomas Hoepker took a 1960 black-and-white photograph of model Charlotte Dabney (“Charlotte As Seen By Thomas”), showing her holding a magnifying glass over her right eye; the photo was published once in a German magazine in 1960.
- In 1990, artist Barbara Kruger created an untitled collage incorporating the photograph by cropping and enlarging it, transferring it to silkscreen, and adding prominent red text blocks reading, “It’s a small world but not if you have to clean it.”
- Kruger sold the work to the Museum of Contemporary Art, Los Angeles (MOCA), which obtained rights to display the physical work and, by license, a nonexclusive right to reproduce it.
- MOCA later displayed the work in a major Kruger exhibition and sold exhibition-related items (including postcards, magnets, note cubes, and t-shirts) and an exhibition catalog co-published with MIT Press that reproduced the work.
- The exhibition traveled to the Whitney Museum of American Art, which displayed the work, used it in newsletters and brochures, sold remaining gift items, and was associated with public billboards reproducing the work.
- Hoepker and Dabney sued defendants (including Kruger, MOCA, the Whitney, and related entities) alleging copyright infringement and, as to Dabney, violations of New York Civil Rights Law §§ 50–51 (privacy/publicity).
- Defendants moved to dismiss for failure to state a claim (including Dabney’s §§ 50–51 claim), challenged the jurisdictional amount, and sought costs and fees.

## Issues

1. Whether Dabney stated a claim under N.Y. Civil Rights Law §§ 50–51 based on use of her image in Kruger’s artwork and the museums’ exhibition publicity and merchandise.
2. Whether the complained-of uses were “for advertising purposes or for the purposes of trade” under §§ 50–51.
3. Whether the First Amendment barred liability for the artwork and related reproductions.
4. Whether Hoepker had an enforceable U.S. copyright in the 1960 photograph or whether it was in the public domain when Kruger created the collage.
5. Whether plaintiffs adequately alleged the amount in controversy for diversity jurisdiction and whether defendants were entitled to costs and fees.

## Decision

- The court granted defendants’ motion to dismiss the amended complaint.
- Dabney’s §§ 50–51 claim was dismissed because the challenged uses were not “advertising” or “trade” uses in the statutory sense and were protected as artistic expression; promotional materials and souvenirs were treated as ancillary to protected expression.
- Hoepker’s copyright infringement claim was dismissed because the photograph was in the U.S. public domain when Kruger created the collage.
- The court denied defendants’ motion for costs and fees.

## Legal Principles

- N.Y. Civil Rights Law §§ 50–51 creates a narrow statutory cause of action requiring use of a person’s “name, portrait, picture or voice” “for advertising purposes or for the purposes of trade,” without consent.
- Expressive works of art generally fall outside “advertising” and “trade” for §§ 50–51 purposes, particularly where the work communicates an artistic message rather than exploiting the subject’s identity as the product.
- “Ancillary use” doctrine may shield promotional materials and related items when they merely publicize or disseminate a protected expressive work rather than independently exploiting an individual’s likeness.
- First Amendment protections limit application of privacy/publicity statutes to avoid burdening noncommercial artistic expression.
- A copyright claim fails where the asserted work was in the public domain in the United States at the time of the alleged copying, including where historical copyright formalities and foreign publication status precluded protection.

## Conclusion

The court dismissed claims arising from an artist’s incorporation of a model’s image into a collage and museums’ related exhibition uses, holding that the uses were protected artistic expression (and ancillary thereto) rather than statutory “advertising” or “trade,” and that the underlying photograph lacked enforceable U.S. copyright protection because it was in the public domain when the collage was created.


Hoepker v. Kruger, 200 F. Supp. 2d 340 (S.D.N.Y. 2002)