Faber v. Condecor, Inc.

• Decision Date: 09 July 1984
• Citation: 477 A.2d 1289,195 N.J.Super. 81
• Parties: John FABER, Gertrude Faber and John Faber as Guardian of Erich Faber, an infant, Plaintiffs-Respondents, v. CONDECOR, INC., Defendant-Appellant.
• Court: New Jersey Superior Court — Appellate Division

Page 81

195 N.J.Super. 81

477 A.2d 1289

John FABER, Gertrude Faber and John Faber as Guardian of Erich Faber, an infant, Plaintiffs-Respondents, v. CONDECOR, INC., Defendant-Appellant.

Superior Court of New Jersey Appellate Division.

Submitted June 12, 1984.

Decided July 9, 1984.

Stephen Schnitzer, Livingston, for defendant-appellant.

Rand & Algeier, Morristown, for plaintiffs-respondents (Gary C. Algeier, Morristown, of counsel and on brief).

Before Judges KING, DREIER and BILDER.

The opinion of the court was delivered by

KING, J.A.D.

This appeal is taken from a jury award of $45,000 for invasion of privacy. The claim was based on the use of the plaintiffs' family photograph for commercial purposes without consent. We find no error and affirm the jury's verdict.

These are the facts. Plaintiff John Faber had been employed by the Eastman Kodak Company for 33 years as a photography consultant. His job involved working with major newspapers and providing technical assistance with news photographs. His work involved considerable traveling; he met many people involved in the photography industry; he was active in news photography organizations, and published books on photography, one of which had been used as a university textbook. He retired on March 1, 1983.

In 1973, while attending a Kodak conference with his wife and eight-year old son Erich, John asked a friend as a personal favor to take a picture of the family. Plaintiffs had a large print of the photograph made which they hung in their living room. They also had the picture printed on 300 Christmas cards.

A Kodak employee saw one of the Christmas cards and wrote to John asking for permission to use the picture in a new publication called "Printing Color Negatives" as an example of the process for correcting a contrast problem. The plaintiffs agreed and signed a release dated January 17, 1974 which expressed their consent to Kodak's use of the picture as follows

For good and valuable consideration, the receipt of which is hereby acknowledged, We [sic] hereby consent that the photograph of John, Gertrude, and Erich Faber, taken by Andy Purdon (Eastman Kodak Company) proofs of which are hereto attached, or any reproduction of the same, may be used by the EASTMAN KODAK COMPANY or assignees, or licensees for the purpose of illustration, advertising, trade or publication in any manner; is consented to.

John explained that he made the decision to allow Kodak to use the photograph because he had been associated with the company for many years, had been treated well, and had viewed it as a gesture of goodwill. He understood that the release was for a one-time use by Kodak.

The photograph appeared in two editions of the publication. The professional photographers' division at Kodak released the publication, which was sold in photography stores and was used by amateur and professional photographers to improve their technique. John admitted that he anticipated that people would copy the photograph in an attempt to process it according to the technique demonstrated.

John was not aware of any unauthorized use of the photograph between 1973 and 1978. However, in 1978, a friend, who was chief of the Newark Star Ledger photographic operation, brought him a picture frame which contained a family tree. The family tree included a picture of John and Gertrude Faber listed as grandfather and grandmother next to pictures of people whom they did not know. According to plaintiff Gertrude, the friend asked John whether he was "moonlighting." John was distressed because the picture had been used without permission, the reproduction was of very poor quality and it gave the appearance that he was endorsing another manufacturer's product, which could jeopardize his job. He felt that his name and face were strongly associated with Kodak. He explained that he was disturbed because those who saw the photograph might assume that he had given permission for its use and that he was being compensated. He also believed that the publication of the picture damaged his credibility in the field of news photography, especially because the picture was of very poor quality.

John then discovered that defendant Condecor had taken the picture from the Kodak publication. He had never given Condecor permission to use the photograph. The day after his friend showed him the picture frame John went to the New York City manager for Kodak and explained that he had nothing to do with his picture being used in defendant's frames for commercial purposes.

John thereafter discovered that the family's picture was contained in frames being sold locally in flea markets, supermarkets and other stores and in various outlets throughout the country. The picture also was used in Condecor's 1980 and 1981 price catalogues.

In December 1978 John consulted an attorney, who contacted defendant and told it that plaintiffs did not want the photograph used. However, the picture still was being used in frames sold in December 1979, and the picture was in defendant's 1980 and 1981 catalogues.

Young Erich testified that friends in school made fun of him because of the picture and that he became very upset as a result of this teasing. Prior to the picture's appearance Erich had been voted a patrol leader of his boy scout troop, but after he was teased about the picture he was voted out of the position. The other children referred to him as the "little kid" because he was considerably younger in the pictures being displayed by defendant. At the end of the year, in which he lost his position as patrol leader, he quit scouting.

Gertrude testified that John was embarrassed and upset about defendant's use of their picture and that he was concerned that it might lead to trouble with his job. She felt that the picture's appearance disturbed the peace of their family life with both her husband and her son frequently coming home upset, which made her upset. She worked as a real estate associate, and she wondered if people were talking behind her back about the picture.

According to Don Hagmeyer, vice president of sales and marketing for defendant, plaintiffs' picture was used in defendant's five by seven-inch frame. He testified that approximately 239 frames containing plaintiffs' picture were distributed in New Jersey. When he found out that plaintiffs objected to the use of their picture, he summoned the company's art director and asked whether a signed release had been obtained. Hagmeyer explained that defendant's usual policy was to obtain releases before using photographs. Upon being told that no release had been signed, he instructed personnel in charge of manufacturing to remove the inserts of plaintiffs' picture from the frames. He explained that the family-tree promotion was a "one-shot deal" which was a failure, with sales to only three customers. In 1979 defendant grossed $15,500,000, three-percent of which was attributable to the New Jersey's sales of the type of frame in which plaintiffs' picture appeared.

Defendant basically claims that: (1) no ground for recovery for invasion of privacy existed, (2) Gertrude should not have been allowed to testify about Kodak's policy against "moonlighting," (3) various other evidence rulings were erroneous, (4) counsel's comments on summation were improper and (5) the damages were excessive.

As we stated in Bisbee v. John C. Conover Agency, 186 N.J.Super. 335, 339, 452 A.2d 689 (App.Div.1982): "The Restatement of Torts lists the four areas of invasion of privacy as generally including (a) unreasonable intrusion, (b) appropriation of the other's name or likeness, (c) unreasonable publicity given to one's private life and (d) publicity that normally places the other in a false light before the public." See Restatement, Torts 2d, § 562A at 376 (1977). The thrust of plaintiffs' cause of action in this case is set forth in Restatement, supra, § 652C at 380: "One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of privacy." As Judge Horn said in Palmer v. Schonhorn Enterprises, Inc., 96 N.J.Super. 72, 232 A.2d 458 (Ch.Div.1967),

There is little doubt that a person is entitled to relief when his name has been used without his consent, either to advertise the defendant's product or to enhance the sale of an article.

Some illustrations:

Where defendant sold lockets with removable photographs of plaintiff in each one, it was held that plaintiff-actress could recover for this invasion of her privacy. Lane v. F.W. Woolworth Co., 171 Misc. 66, 11 N.Y.S.2d 199 (S.Ct.1939), affirmed 257 App.Div. 1065, 12 N.Y.S.2d 352 (App.Div.1939).

[Id. at 77-78, 232 A.2d 458].

See also Devlin v. Greiner, 147 N.J.Super. 446, 461-465, 371 A.2d 380 (Law Div.1977) for historical reference to right of privacy.

Defendant relies on the following comment to § 652C, which states

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d. Incidental use of name or likeness.

The value of the plaintiff's name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity. No one has the right to object merely because his name or his appearance is brought before the public, since neither is in any way a private matter and both are open to public observation. It is only when the publicity is given for the purpose of appropriating to the defendant's benefit the commercial or other values associated with the name or the likeness that the right of privacy is invaded. The fact that the defendant is engaged in the business of publication, for example of a newspaper, out of which he makes or seeks to make a profit, is not enough to make the incidental publication a commercial use of the name or likeness. Thus a...