The opinion of the court was delivered by: WOOD
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:
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.
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 ...