Semler v. Ultem Publications, Inc.

170 Misc. 551, 9 N.Y.S.2d 319, 1938 N.Y. Misc. LEXIS 2294

• Court: City of New York Municipal Court
• Decided: November 9, 1938
• Status: Published

Opinion

Conroy, J.

The plaintiff is a professional model and brings this action to recover for the use of her photograph in negligee appearing on a page of the publication of the defendants called Silk Stocking Stories. It would appear from all the evidence that it was the pictures of partly draped women appearing in this magazine that sold the magazine as well as the stories. ■ It would further appear that the magazine was intended to and did make an appeal to sex. On each page of the publication there appears a picture. Certainly these pictures would be considered as use for the purposes of trade.

The defendant contended that the photographer who took the picture in question had obtained the consent of the plaintiff. The plaintiff, however, was an infant and could not give her consent. The consent of the parents or guardian was not obtained. The story on the same page where plaintiff’s picture was used was rather risqué. I find that the plaintiff has established the burden of proof and that the use of her photograph was unauthorized. I find a verdict for the plaintiff in the sum of $500, and direct that judgment be entered accordingly.