Sharman v. C. Schmidt & Sons, Inc.

• Decision Date: 05 April 1963
• Docket Number: Civ. A. No. 28968.
• Citation: 216 F. Supp. 401
• Parties: William SHARMAN v. C. SCHMIDT & SONS, INC.
• Court: U.S. District Court — Eastern District of Pennsylvania

216 F. Supp. 401

William SHARMAN v. C. SCHMIDT & SONS, INC.

Civ. A. No. 28968.

United States District Court E. D. Pennsylvania.

April 5, 1963.

Richman, Price & Jamieson, by James L. Price, Philadelphia, Pa., for plaintiff.

Morgan, Lewis & Bockius, by Thomas A. Masterson, Philadelphia, Pa., for defendant.

WOOD, District Judge.

Plaintiff, William Sharman, hereinafter referred to as "Sharman," is a nationally known professional, amateur athlete and coach. The defendant, C. Schmidt & Sons, Inc., hereinafter referred to as "Schmidt's," is engaged in the business of manufacturing and selling beer and malt beverages. The gist of the Complaint is that there is an unauthorized libel by reason of the use of Sharman's picture in an advertising campaign put on by Schmidt's and that in addition thereto his rights of privacy and publicity were invaded. Trial was to the Court without a jury and we make the following Findings of Fact and Conclusions of Law:

FINDINGS OF FACT

1. That at the time of the institution of this action, plaintiff was a citizen of the State of Massachusetts, residing in the City of Needham, and is presently a resident of the State of California, residing in Covina.

2. The defendant is a corporation organized and existing under the laws of the Commonwealth of Pennsylvania, having its principal place of business in Philadelphia, Pennsylvania.

3. The defendant is and was at all times relevant hereto the operator of a brewery engaged in the business of manufacturing, advertising, selling and distributing beer and other malt beverages in and throughout the States of Pennsylvania, New Jersey, New York, Delaware, Maryland, Virginia, District of Columbia and in the New England States, except Vermont, New Hampshire and Rhode Island.

4. On or about January 6, 1960 plaintiff was a professional basketball player, playing with a professional team known as "The Boston Celtics."

5. About a year before the occurrence in question, plaintiff retained one John Harkrider, 341 E. 43rd Street, New York, New York, to act as his agent in soliciting professional photographic studios to use Sharman as a model for advertising. Harkrider was then engaged in the business of acting as an agent for male models.

6. Several weeks before January 6, 1960, Sharman, in the company of Harkrider, personally called at a number of commercial photographic studios for the purpose of interesting these studios in the use of Sharman's picture in connection with advertising.

7. One of these studios at which they called was Studio Associates, Inc., where Sharman had test photographs taken.

8. There is no affirmative evidence from which the Court can find as a fact that Sharman or anyone on his behalf made known to anyone at Studio Associates, Inc., of any restrictions on the use of his picture in advertisements for the sale of beer.

9. Sharman's picture together with a number of others were subsequently sent to Ted Bates & Company, an advertising agency, for the purpose of selecting the picture of an individual to be used in conjunction with a campaign which they were putting on for Schmidt's.

10. The representative of Ted Bates & Company selected at least three from a group of pictures which they felt would be desirable and among them was the picture of Sharman later used as more particularly set forth herein.

11. On January 6, 1960, as a result of a telephone call from Harkrider's office, the plaintiff's picture was taken at the photographic studio of Studio Associates, Inc., in New York City, New York, and for such picture Sharman was posed in a red shirt holding a bowling ball and without any particular backdrop and no other props in the picture.

12. At no time during the final sitting did Sharman state to anyone at Studio Associates, Inc. that he was unwilling to have his picture used in connection with a beer advertisement.

13. After the pictures were taken Sharman was given two releases which he read and signed in the presence of Patricia Griffing. He was paid $125.00 for the picture used in the advertisement, the subject of this controversy.

14. At no time during the course of signing these releases did Sharman indicate to anyone at Studio Associates, Inc., or Ted Bates & Company that there was any qualification to the general language of these releases or that he did not intend to be legally bound by the written terms thereof.

15. After Sharman's pictures were taken at Studio Associates on January 6, 1960, they were then sent to Ted Bates & Company. Ted Bates thereafter did the necessary art work and furnished the finished product to the Schmidt Company for approval.

16. Schmidt's advertising manager approved the final art work which had Sharman's face in the bowling ad. Later the beer glass and bottle were engraved on the composite advertisement.

17. Uncontradicted evidence causes us to find as a fact that the representative of the Ted Bates agency did not know that at the time he selected Sharman's picture that he was an athlete of national standing. On the contrary, from the evidence, we must find that his picture was chosen because of the photograph itself and on the basis of their judgment that a person of his features would be most conducive to the advertising campaign which they were promoting.

18. Plaintiff first objected to the defendant's beer advertisement in July of 1960, through his counsel in a letter addressed to the defendant.

19. As a result of the use of the picture in the beer advertisement, he suffered to some extent ridicule and criticism during a few basketball games and, particularly, in the City of Philadelphia. This subjectively caused him concern and worriment. He was particularly concerned over the possible loss to him of many endorsements in the field of sports and its effect on children and parents. He suffered further anguish by reason of his contemplated future career as a college coach, participation in boys' camps activities and personal appearances before audiences comprised of parents and children.

DISCUSSION

With the advent of 1960 Schmidt's launched an extensive advertising campaign to sell its beer by outlining "The One Man in Four" who possessed the discerning good taste to purchase its product. For this project they contemplated using rugged, masculine "faces" to illustrate certain athletic recreational backgrounds, such as a skiing scene, a fishing scene, a trapshooting scene and a bowling scene.

Meanwhile, Sharman had been properly attempting to supplement his income by the use of his picture or by endorsements in the advertising field.

As we have found, one of the pictures for which he was paid was used in this campaign. At the time of the taking of the picture Sharman was paid a fee of $125.00 for which he executed two releases, which, inter alia, permitted the use of his picture "distorted in character, or form."¹ The releases also recited that the picture was to be used for advertising purposes and gave unrestricted rights to all persons and corporations to use the subject's name in conjunction with his picture. Schmidt's did not use Sharman's name, and we are merely concerned with the use of his picture.

The issue in this case rests solely on the legal interpretation of the releases in conjunction with the facts which we have found above. The only protection reserved to Sharman after execution thereof is contained in the words "unless it can be shown that said reproduction was maliciously caused, produced and published solely for the purpose of subjecting me to conspicuous ridicule, scandal, reproach, scorn and indignity."

It is Sharman's contention that because of his close association with youth activities and his previous youth directed endorsements that the advertising has legally subjected him to conspicuous ridicule and scorn, thereby vitiating his written consent.

We must decide, therefore, as the issues are framed, whether in any event the picture is defamatory in its portrayal of the plaintiff in connection with the beer advertisement and also whether or not such portrayal is a serious and unreasonable invasion of the plaintiff's right of privacy and publicity beyond the terms of his express written consent.

Theorizing in the libel action that Schmidt's through their advertising agency, probably posed him with a bowling ball to disguise his identity as a basketball player but realizing full well that he would be immediately recognized by a large segment of a sports-conscious public because of the reputation which he had achieved, he contends that this constituted a "false prop" and they in fact published his picture under an alias.

Be that as it may, we are compelled to conclude that he willingly and voluntarily permitted his picture to be taken for a consideration and executed at that time the aforementioned releases. It is inescapable that he knew his picture was to be used in connection with bowling. Whether he knew that it was to be used in a beer advertisement or a particular type of advertisement may be open to some doubt; but, regardless, it is not controlling in this case.

The consent of a plaintiff will avoid liability for any defamation.² Such consent negatives the existence of any tort in the first instance. There was initial consent by signing the release and by acquiescence in the taking of his picture with a bowling ball.

Coming to his second cause of action for invasion of his right to privacy, he argues that while he posed for a bowling picture he never consented to the use of the picture to promote the sale of beer. In this connection, he contends that it is detrimental to a professional athlete, and particularly to him and others in a similar status, to be in any way connected with the promotion of the sale of alcoholic beverages, including beer.

We find it impossible to come to such a conclusion. It may very well be that Sharman was economically or financially affected by what took place, but it cannot be maintained as a...