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Faber v. Condecor Inc.

Decided: July 9, 1984.

JOHN FABER, GERTRUDE FABER AND JOHN FABER AS GUARDIAN OF ERICH FABER, AN INFANT, PLAINTIFFS-RESPONDENTS,
v.
CONDECOR, INC., DEFENDANT-APPELLANT



On appeal from the Superior Court of New Jersey, Law Division, Morris County.

King, Dreier and Bilder. The opinion of the court was delivered by King, J.A.D.

King

This appeal is taken from a jury award of $45,000 for invasion of privacy. The claim was based on the use of the plaintiffs' family photograph for commercial purposes without consent. We find no error and affirm the jury's verdict.

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

For good and valuable consideration, the receipt of which is hereby acknowledged, We [sic] hereby consent that the photograph of John, Gertrude, and Erich Faber, taken by Andy Purdon (Eastman Kodak Company) proofs of which are hereto attached, or any reproduction of the same, may be used by the EASTMAN KODAK COMPANY or assignees, or licensees for the purpose of illustration, advertising, trade or publication in any manner; is consented to.

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

a gesture of goodwill. He understood that the release was for a one-time use by Kodak.

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.

John thereafter discovered that the family's picture was contained in frames being sold locally in flea markets, supermarkets and other stores and in various outlets throughout the country. The picture also was used in Condecor's 1980 and 1981 price catalogues.

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 ...


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