Holmes v. Underwood & Underwood, Inc.

O’Malley, J. The complaint dismissed by the order appealed from contains two alleged causes of action. The first alleges that [361] the defendant, engaged in the business of taking and making photographs for hire, was employed to take pictures of guests at a social function held in the plaintiff’s home and was paid its agreed price or charge therefor; that two photographs were taken of the plaintiff; that at such time an agreement was made between plaintiff, her husband and defendant that the plaintiff, if she should so wish, might purchase any of such photographs; that the said photographs and all plates, films, proofs or negatives thereof and all rights to dispose of the same were and continued to be the plaintiff’s personal property. It is further pleaded that the defendant, in violation of plaintiff’s rights and without her consent either written or oral, sold the proof or negative to a newspaper of large circulation in the borough of Manhattan, city of New York, which thereafter published the same in connection with a false, scandalous and defamatory news article concerning the plaintiff, portions of which article were copied by other newspapers circulating throughout the United States, all to the plaintiff’s damage. Plaintiff also alleges that she has duly performed all of the terms and conditions of said contract with the defendant on her part to be performed. The allegations of the second cause of action are to the effect that the defendant, without having first obtained plaintiff’s written consent, knowingly used a picture of plaintiff for the purposes of trade, in that it sold said picture to a newspaper for publication which was published by said newspaper in connection with a false, scandalous and defamatory news article of and concerning the plaintiff. It is also pleaded that defendant sold said picture with the knowledge that it was to be published in said newspaper. Damages in the sum of $50,000 are demanded. We are of the opinion that the complaint states two good causes of action, the first ex contractu, and the second based on sections 50 and 51 of the Civil Rights Law. We are confronted with a question of pleading merely and may not advert to- or consider facts existing or assumed, but not expressly pleaded or inferable by fair intendment. What the evidence may or may not disclose is immaterial at this stage of the action. The ordinary contract between a photographer and his customers is a contract of employment. “ The conception as well as the production of the photograph is work done for the customers and they, not their employee, are the exclusive owners of all proprietary rights.” (White Studio, Inc., v. Dreyfoos, 156 App. Div. 762, 763, and cases there cited.) The fact that it is not expressly alleged that the monetary consideration received by the defendant came from the plaintiff does not establish any exception to the gen [362] eral rule. It still remains that defendant has “ no right to sell and dispose of reproductions from its negative without the consent of its sitter.” (White Studio, Inc., v. Dreyfoos, supra, 764.) Moreover, plaintiff furnished consideration in offering to and actually sitting for the photograph. Having sold or disposed of the proof or negative, the defendant has, on the face of the complaint, breached its contract of employment. The restricted rights of a photographer are emphasized by the provisions of section 51 of the Civil Rights Law (as amd. by Laws of 1921, chap. 501). He must, after notice of objection thereto by the person portrayed, desist from even exhibiting a photograph in his own establishment. The right to object being given to the person portrayed, further force is lent to the conclusion that a contract exists between the sitter and the photographer, irrespective of whether or not the sitter furnishes any monetary consideration. The first cause of action is, therefore, valid. The second cause is attacked on the ground that there has been pleaded no use for advertising purposes or for purposes of trade. The contention is unsound. It is not the publishing of plaintiff’s photograph that is at this stage so much material. Rather, it is the sale of such photograph by defendant. That was in furtherance of defendant’s trade. It has commercialized the photograph, the rights to which are in the plaintiff. The newspaper is not here sought to be held liable. While the general allegations were broader in Kunz v. Bosselman (131 App. Div. 288) the case is quite similar to the one under consideration. In the cited case the complaint alleged that the defendant, engaged in the business of publishing and selling portraits and photographs, had used, circulated and offered for sale, and for the purposes of trade, the portrait and picture of plaintiff. The complaint was sustained. What was there said may well be repeated here: “ While perhaps more scientific care ought to have been exercised in drawing this complaint, it states, nevertheless, a cause of action under the statute, * * *." (P. 291.) It follows that the judgment and order appealed from should be reversed, with costs to the appellant, and the motion denied, with ten dollars costs, with leave to the defendant to answer within ten days from service of the judgment .to be entered hereon upon payment of said costs. Dowling, P. J., Finch and Proskauer, JJ., concur; Merrell, J., dissents.