Douglas v. Stokes

• Decision Date: 27 September 1912
• Citation: 149 S.W. 849,149 Ky. 506
• Parties: DOUGLAS v. STOKES et ux.
• Court: Kentucky Court of Appeals

149 S.W. 849

149 Ky. 506

DOUGLAS v. STOKES et ux.

Court of Appeals of Kentucky.

September 27, 1912

Appeal from Circuit Court, Whitley County.

Action by G. W. Stokes and wife against S. S. Douglas. Judgment for plaintiffs, and defendant appeals. Affirmed.

Sharp Gatliff & Smith, of Williamsburg, for appellant.

P Walt. Hardin and R. S. Rose, both of Williamsburg, for appellees.

HOBSON C.J.

In December, 1908, there were born to G. W. Stokes and wife twin boy children. The children were together from the shoulders down to the end of their bodies. They had one set of bowels breast bone, or sternum, but were otherwise twins, and not one baby. They died, and after they were dead Stokes employed S. S. Douglas, a photographer, to take a photograph of the corpse in a nude condition; it being agreed that Douglas was to make for him 12 photographs and no more. Douglas made the photographs and delivered them to Stokes, but, contrary to his agreement, made other photographs from the negative, and one of these he filed in the copyright office of the United States, and a copyright was issued to him thereon on January 12, 1909. This action was brought by Stokes and wife against Douglas to recover damages for this use of the negative; they charging it had been done against their will and consent, and that by the exposure of the photographs they had been humiliated, and their feelings and sensibilites had been wounded. They prayed judgment against him for $10,000 damages. Douglas by his answer put in issue the allegations of the petition, and the case was submitted to a jury; the trial resulting in a verdict and judgment for the plaintiffs in the sum of $2,500. Douglas appeals.

The above are the facts as they were evidently found to be by the jury under the instructions of the court, and appellant does not insist that the verdict of the jury is against the evidence. Principally the only question made is that the facts do not make out a cause of action in favor of Stokes and wife against Douglas. It is insisted that the photographer has the right to copyright a photograph, as it represents his skill in his art, and we are referred to the case of Burrow v. Sarony, 111 U.S. 53, 4 S.Ct. 279 28 L.Ed. 349, as sustaining this conclusion. In that case a photographer who had copyrighted a photograph sued a lithographer for using his copyrighted photograph without his consent. The subject of the photograph used was not a party to the litigation. No question was made in that case as to the rights of the person whose photograph was taken, and it may be inferred from the facts stated by the court in that case that the person whose photograph had been taken had no objection to his photograph being copyrighted and exposed to the public. The cases of Bolles v. Outing Company, 77 F. 966, 23 C.C.A. 594, 46 L.R.A. 712, Snow v. Laird, 98 F. 813, 39 C.C.A. 311, and Werckmeister v. Lithographing Company (C. C.) 63 F. 809, are similar; but in this case the question arises between customer and the photographer.

The question was before the English Supreme Court in Pollard v. Photographing Co., 40 Chancery Division, 345, and it was held upon very full consideration of the authorities that the photographer has no right to make other copies of his customer's photograph without his consent. The court said: "The question, therefore, is whether a photographer, who has been employed by a customer to take his or her portrait, is justified in striking off copies of such photograph for his own use, and selling and disposing of them, or publicly exhibiting them by way of advertisement or otherwise, without the authority of such customer, either express or implied. I say, 'express or implied,' because a photographer is frequently allowed, on his own request, to take a photograph of a person under circumstances in which a subsequent sale by him must have been in the contemplation of both parties, though not actually mentioned. To the question thus put, my answer is in the negative--that a photographer is not justified in so doing. Where a person obtains information in the course of a confidential employment, the law does not permit him to make any improper use of the information so obtained; and an injunction is granted, if necessary, to restrain such use, as, for instance, to restrain a clerk from disclosing his master's accounts, or an attorney from making...