Young v. J.M. Hickerson, Inc.

• Decision Date: 11 September 1957
• Citation: 9 Misc.2d 932,170 N.Y.S.2d 168
• Parties: Katherine YOUNG, Plaintiff-Respondent, v. J. M. HICKERSON, Inc., Defendant-Appellant.
• Court: New York Supreme Court

Page 168

170 N.Y.S.2d 168

9 Misc.2d 932

Katherine YOUNG, Plaintiff-Respondent, v. J. M. HICKERSON, Inc., Defendant-Appellant.

Supreme Court, Appellate Term, First Department.

Sept. 11, 1957.

Peter W. Quinn, New York City, for appellant.

Jacob F. Gottesman, New York City, for respondent.

Before HOFSTADTER, STEUER, and TILZER, JJ.

HOFSTADTER, Justice.

The plaintiff recovered $200 for the alleged wrongful use by the defendant of a photograph of one Reinhardt which the plaintiff had made and in which she claimed ownership of the literary property.

The plaintiff is a professional photographer specializing in taking portraits of well-known people. In 1948, incident to her promotion of an exhibit of portraits of persons of note in the field of art, she requested one Reinhardt, a well-known architect, to pose for a photograph for use in the exhibit. Reinhardt complied and also contributed $25 towards the expense of the exhibit as did most, if not all, of the others whose portraits formed part of the exhibit. At that time Reinhardt bought no prints. However, in January, 1950 he purchased two large prints and in March, 1951 several smaller glossy prints. The last mentioned prints bore on their reverse side notice of copyright by the plaintiff in 1951.

The defendant, an advertising agency, was instrumental in having published in the November, 1955 issue of the Architectural Record, an article dealing with the merits of copper and intended to promote its use in industry. Reinhardt delivered one of the glossy prints to a representative of the Architectural Record and gave his written consent to its use, both to the defendant and to the magazine. Accordingly, it was published as part of the article referred to. Such publication was made without the plaintiff's knowledge or consent and in the portrait as so published there was neither notice of copyright nor credit of any kind to the plaintiff as its author. Hence, this action.

The plaintiff effected United States copyright registration on April 29, 1951.

Ordinarily the relation between the sitter for a photograph and the photographer is that of employer and employee and the proprietary right resides in the customer, not the photographer, and the latter may not make or distribute further copies without the customer's consent (Holmes v. Underwood & Underwood, 225 App.Div. 360, 233 N.Y.S. 153; White Studio, Inc. v. Dreyfoos, 156 App.Div. 762, 142 N.Y.S. 37; Lawrence v. Ylla, 184 Misc. 807, 55 N.Y.S.2d 343; Avedon v. Exstein D.C., 141 F.Supp. 278), though the photographer's right to retain custody of the negative in accordance with trade custom has been upheld (Hochstadter v. H. Tarr, Inc., 188 Misc. 561, 68 N.Y.S.2d 762). The parties may expressly agree otherwise or a contrary agreement may be found from the circumstances of a particular case, as where an actress is photographed and is furnished with copies for her own use without charge (Press Publishing Co. v. Falk, C.C., 59 F. 324). The trial justice held that the facts of this case brought it within the latter rule and that the proprietary right belonged to the plaintiff and not to Reinhardt. It is unnecessary to determine whether this ruling was correct, for even assuming that the plaintiff owned the property the present action is not maintainable.

As already stated, the plaintiff obtained a...