and placed on the body of another female pictured in bed with an elderly man. The altered picture was used to advertise a vulgar book entitled 'Clothes Make the Man' which contained obscene illustrations.
In that case Judge Levy ruled that the picture in its altered form exceeded the consent conferred by the release. He stated at page 27 of 183 N.Y.S.2d:
'* * * I would hold that the original written consent would not apply and that liability would accrue where the content of the picture has been 'so changed that it is substantially unlike the original. In this aspect of the case, I speak of content of the picture as used, not the purpose or extent of its use. If, for instance, Springs had used the original picture for its advertising of bed sheets, without the attendant objectionable writing or references, the fact that the purpose of the advertisement was not to interest readers in books would not negate the effect of the release.' (Emphasis supplied)
Applying the principles of that case to ours we conclude that Sharman's picture was not substantially altered in content. It remained a bowling picture to which was appended a glass and bottle of beer. These additions supplied the purpose of the picture, namely: to sell beer. Having in mind, as we have previously stated, that Sharman did not restrict the commercial use of his picture before it was published in order to justify his position here he would have to bring himself within the provisions of the release, which we find he cannot do. It was contemplated by all parties concerned that the picture would eventually be used for a commercial purpose. The sale of beer is a commercial purpose and is not such a use as brings the facts of this case within those of the Russell case.
In O'Brien v. Pabst Sales Co., 124 F.2d 167 (5 Cir., 1941), the United States Court of Appeals for the Fifth Circuit had reason to rule on a situation factually similar to the instant case. There, the defendant, Pabst Beer, had used a picture of All-American Quarterback, Davie O'Brien (who subsequently became a star for the Philadelphia Eagles) on a calendar which contained advertisements for its beer. O'Brien had never signed a written release and had never been paid for the use of his picture. He claimed that this use had been an invasion of privacy and defamation. The District Court found that there had been an implied consent to the use of plaintiff's photograph and dismissed the claim. The Court of Appeals in sustaining this dismissal, accepted the reasoning of the lower court in reference to the use of an athlete's picture in connection with an advertisement for beer. The District Court had stated that:
'* * * the business of making and selling beer is a legitimate and eminently respectable business and people of all walks and views in life, without injury to or reflection upon themselves, drink it, and that any association of O'Brien's picture with a glass of beer could not possibly disgrace or reflect upon or cause him damage.' pp. 169, 170.
The present state of the law regarding the right to privacy has been colorfully described by Chief Judge Biggs as being '* * * still that of a haystack in a hurricane.'
However unsettled the law, the right to privacy exists in all of the jurisdictions where Schmidt's used Sharman's picture to advertise its beer.
Therefore, no conflict of laws question arises in this case regarding the application of the law of the forum.
One universally accepted principle of the right to privacy is that a consent to an invasion is a complete defense to the appropriation of a plaintiff's likeness to sell products.
In the case at bar, by the execution of the release Sharman conclusively consented to the use of his picture.
It has also been held that a celebrity such as Sharman
has a limited right to privacy because of his prominence.
His actions and life are subject to a legitimate public curiosity.
A sports figure can complain when his name or likeness is used to advertise a product
but he can recover damages only if he has not consented to such use or the advertising exceeds the consent granted.
We hold that the use of his picture in the advertisement did not come within the reservations of the release nor was it an intrusion upon his rights which is outrageous or beyond the limits of common decency, and therefore is not an invasion which warrants relief by this Court.
In respect to the action based on an invasion of his right of publicity, this, too, is a fledgling branch of the tort of invasion of privacy. Public figures in the celebrity category have a valuable property right in their name and image.
Pennsylvania has recognized this right in the case of Hagan v. A. S. Barnes & Co., 137 Legal Intelligencer (July 11, 1957), C.P. Philadelphia County.
In this case, relied upon by the plaintiff, Walter Hagan, the famous golfer, brought suit because his name and picture had been used in a book on famous golfers after he had objected to the same. The Court allowed compensatory damages because there was an unprivileged appropriation of the elements of plaintiff's personality.
Factually, the Hagan case, with which we do not disagree, is inapposite to the instant controversy. There, Mr. Hagan's picture was taken without his knowledge while he was on the golf course. Later, the photographer sent him a letter containing a release and a check for $ 100.00. The letter requested that Mr. Hagan sign and return the release and permit the use of the pictures in the golf book. Mr. Hagan simply answered by stating: 'Are you kidding?' Also he wrote a letter to the publisher informing him that he strenuously objected to any use of these pictures and would not authorize their publication in the golf book. The publisher ignored this obvious refusal of consent and published Walter Hagan's picture. Clearly, this case is basically different from ours since Sharman did consent to the use of his picture for advertising purposes.
We come to the question as to whether Schmidt's 'maliciously' caused the picture to be used solely for the purpose of subjecting him to ridicule. From the facts presented to us at the trial, and as stated above, there is a total lack of proof of malice. Sharman contends that having given notice that the continued use of his picture constituted malice per se. It will be recalled that notice was not given until seven months after the picture was originally taken.
The fact that members of the sporting public recognized him in the advertisement does not constitute malice and the continued use of it would not create malice if it were not unlawful to begin with. The defendant spent large sums of money in what they contended then and contend now was in a lawful manner. To protect their investment by legitimate means of course resulted in the ultimate trial of the case and its disposition here, but that alone is far from a malicious act.
In conclusion, there is no allegation let alone any proof of fraud, accident or mistake which caused Sharman to execute this release and he is therefore bound by its terms.
We might add that we do not condone all that took place and in fact we are forced to conclude that some economic advantage was taken of Sharman by his own agent and the agency with which he, on Sharman's behalf, negotiated. This situation is not one for which the law provides redress in this action, even though we conclude that there may have been reprehensible conduct and an unfair advantage taken by the recipients of the picture and the release.
CONCLUSIONS OF LAW
1. We have jurisdiction of the parties and the subject matter.
2. In executing the releases in favor of Studio Associates, Inc. and Ted Bates & Company and their nominees Sharman entered into a valid and binding contract releasing and discharging Ted Bates & Company and Studio Associates, Inc. and their nominees from any liability by virtue of any reasonable and lawful use of the pictures for which the plaintiff voluntarily posed and was paid for on January 6, 1960.
3. Schmidt's used the pictures of the plaintiff in the 'One Man in Four' campaign with the consent of Studio Associates and Ted Bates & Company and defendant, C. Schmidt & Sons, Inc. was the nominee of Ted Bates & Company and Studio Associates at the time the pictures were taken and the releases executed.
4. In executing the releases Sharman released and discharged Schmidt's of and from any liability of any nature whatsoever arising out of or related to the use of Sharman's picture in connection with advertising Schmidt's products.
5. The releases executed by Sharman bar all of the claims which he has asserted in this case. Restatement of Torts, § 892.
6. The use of Sharman's picture by Schmidt's under these circumstances did not libel or defame the plaintiff.
7. The use of plaintiff's picture by the defendant did not violate plaintiff's right to privacy.
8. The use of plaintiff's picture by the defendant under these circumstances did not violate plaintiff's 'right of publicity.'
9. The verdict is in favor of the defendant on all counts.
And now, this 5th day of April, 1963, judgment is entered in favor of the defendant, C. Schmidt & Sons, Inc., on all counts of the Complaint.