The opinion of the court was delivered by KING, J.A.D.
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
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
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.
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
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 (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 (Ch.Div. 1967),
Defendant relies on the following comment to § 652C, which states
In support of its position that placing plaintiffs' picture in its frames constituted a mere incidental use of their likeness, defendant cites Tropeano v. Atlantic Monthly Co., 379 Mass. 745, 400 N.E.2d 847 (Sup.Ct. 1980). In that case plaintiff sued under a Massachusetts statute allowing a claim for damages where a person's name or picture had been used for advertising or trade purposes. Plaintiff's picture appeared in the Atlantic Monthly in conjunction with an article on "modern sexual and social mores." Id. 400 N.E.2d at 848. The court noted that the article did not mention or identify plaintiff but that she was "merely one of several people shown in an otherwise unrelated photograph used to illustrate the article." Ibid. The court affirmed the dismissal of plaintiff's complaint, concluding that the case involved mere incidental use of plaintiff's picture, id. at 851, and said
The facts in the Tropeano case are quite distinguishable from the present case. Here plaintiffs' picture was used with the product as it was offered for sale. It was thus used directly for trade purposes. This use cannot be compared to use of a photograph in a magazine article, as opposed to an advertisement in that magazine.
A case in point is Olan Mills, Inc. of Texas v. Dodd, 234 Ark. 495, 353 S.W.2d 22 (Sup.Ct. 1962). In that case, plaintiff had engaged defendant's photographic services to take her picture which she intended to send to her daughter. Without plaintiff's consent, defendant printed her picture on advertising post-cards which it commercially circulated by mail and gave enlargements of her picture to door-to-door salesmen to use in solicitations. The court noted: "The cards did not mention Mrs. Dodd's name but merely carried her picture, implying an offer to make a picture of like kind and quality for anyone at an agreed price." 353 S.W.2d at 23. The court affirmed recovery on these facts. Id. at 24.
In our view defendant's contention that plaintiffs Fabers' picture was not used for commercial purposes is untenable. In Lane v. F.W. Woolworth Co., 171 Misc. 66, 11 N.Y.S.2d 199 (S.Ct. 1939), affirmed 256 App.Div. 1065, 12 N.Y.S.2d 352 (App. Div. 1939), the court rejected a similar argument urged in defense of plaintiff-actress' suit based on defendant's sale of lockets containing her picture.
On the issue of the scope of consent, the trial judge properly instructed the jury that the release did not "constitute consent or a waiver for use by this defendant." In Canessa v. Kislak, Inc., 97 N.J.Super. 327 (Law Div. 1977), plaintiff Canessa had difficulty finding housing because of his large family. An employee of defendant helped him find a home. Another of defendant's employees contacted a newspaper to see if it would be interested in doing a story on Canessa's plight. The newspaper obtained Canessa's consent to publish the story along with a picture of the family. Defendant then made reprints of the article, upon which it imprinted its commercial trademark and used them for advertisements. Although Judge Lynch stated that "a plaintiff may waive his right of privacy by consent to a publication of his photograph," he rejected defendant's claim of waiver, noting
There is no doubt that defendant's use of plaintiffs' picture was not contemplated by the agreement between plaintiffs and Kodak. Plaintiffs' initial consent did not bar its claim against defendant based on its markedly different use of the picture. To the extent that the judge's charge can be construed as removing that issue from the jury, no error occurred. Reasonable minds could not differ with respect to whether plaintiffs' consent to Kodak to use the picture waived their right to object to its use by defendant.
We find defendant's remaining contentions of error to be clearly without merit. R. 2:11-3(e)(1). The amount of the verdict, though perhaps generous, was within the legitimate province of the jury. Baxter v. Fairmont Food Co., 74 N.J. 588, 596 (1977). While the trial judge personally found the verdict quite high, he properly refused to substitute his judgment for that of the jury. He cited Fairfield v. American Photocopy Equipment Co., supra, for the proposition that particularly in this type of case the assessment of the damages suffered by a plaintiff is best left to the jury.
In Fairfield, 291 P.2d at 196, plaintiff-lawyer sued defendant for invasion of privacy based on its unauthorized use of his name in advertising its photocopy machine. The court rejected the claim that plaintiff should receive only nominal damages and reasoned
[Id. at 198].
The evidence, if believed, established that plaintiffs had suffered considerable embarrassment and emotional upset. John's reaction was intensified because he felt the picture's appearance