111 N.Y.S. 86 | N.Y. App. Div. | 1908
This action was brought under chapter 132 of the Laws of 1903. The complaint alleges that the defendant is a domestic corporation, engaged in the retail business of selling dry goods, objects of art, household decorations and other wares in the city of Mew York; that for several weeks in the autumn and winter of 1906 the defendant “ publicly, knowingly and without the consent, written or otherwise, of the plairjtiff, or of her parent or guardian, have used, displayed, circulated and offered for sale the portrait, picture or photograph of the plaintiff,” and “ have used, displayed, circulated and published on the said portraits, pictures and photographs and every copy thereof, the name of the said plaintiff;” and that plaintiff has been injured thereby in the sum of $5,000 for which she demands judgment, and also asks that the defendant be restrained and enjoined from using the photograph, picture or portrait of the plaintiff in any form whatsoever for the purpose of trade or for advertising or for any other purpose. The defendant after denying the material allegations of the complaint alleges as a separate defense that the plaintiff applied to one Hall, a photographer, to have her photograph taken in the ordinary course of his business as such photographer ; that the plaintiff in consideration of the reduced rate or price made to her by said Hall orally agreed with said Hall that he should have the right to sell, give away, dispose of or otherwise use a copy of the plaintiff’s said photograph in the general course of his business for profit or otherwise at his pleasure and in his discretion; that under such agreement the said Hall took a photographic representation of the plaintiff which is the original of the photograph
By the 1st section of the statute in question a person, firm or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person or if a minor of his or her parent or guardian, is guilty of a misdemeanor. By section 2 of the act it is provided that: “ Any person whose name, portrait or picture is used within this State for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the Supreme Court of this State against the person, firm or corporation so using his nanie, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use, and if the defendant shall have knowingly used such person’s name, portrait, or picture in such manner as is forbidden or declared to be unlawful by this act, the jury, in its discretion, may award exemplary damages.” This act became a law April 6, 1903, and was to take effect on September 1, 1903. The objection of the defendant to this act is that it is a violation of sections 1 and 6 of article 1 of the Constitution of this State, and sub
Other objections were taken to this statute, one of which is that it impairs the obligation of verbal contracts under which the use of, photographs or portraits had been authorized prior to the passage of this act. But the act is not in express terms retroactive nor does it expressly affect such a contract'; and although it might well be that it would be declared inoperative as far as affects contracts which existed at the time it took effect, that would not justify the court in holding the act unconstitutional as affecting contracts made subsequent to its passage. There can be no question as to the right of the Legislature to require such formalities as that they should be in
It follows that the judgment sustaining the demurrer must be affirmed, with costs, with leave to the defendant to amend its answer within twenty days upon payment of costs in this court and in the court below.
Laughlin, Clarke, Houghton and Soott, JJ., concurred.
Judgment affirmed, with costs, with leave to defendant to amend on payment of costs.
Sic.