In re the Refund of Contributions under Article 18 of the Labor Law Made by Barnaba Photographs Corp. , 263 A.D. 915 ( 1942 )

Appellant, Barnaba Photographs Corporation, the employer, appeals from a decision of the Unemployment Insurance Appeal Board which denied its application for a refund of erroneous contributions paid under the Unemployment Insurance Law (Labor Law, art. 18) on the earnings of various professional models employed by it from time to time between January and March, 1937. The issue presented on this appeal is whether professional, free lance models from time to time engaged by appellant to pose for photographic illustrations made by appellant for its clients are employees of appellant within the meaning of the Unemployment Insurance Law or whether such models are independent contractors whose earnings are not subject to the statutory tax. Appellant is a photograph illustrator engaged in the business of conceiving and expressing ideas through photographic art to illustrate and advertise its clients’ products, such illustrations being used for reproduction in magazines and other commercial media. Modelling is a profession requiring ability, skill and experience, and models are persons engaged in the pursuit of an independent profession or vocation. They are free to pose for any one who desires their services or for any one who may engage them. There is no degree of regularity or continuity in the employment and they are not employed on a permanent or periodical engagement. One model may have several engagements on the same day for different photographers. On the other hand, one model may be employed by a photographer for a single engagement of an hour or two. For each engagement a model has his own fixed fee or scale of compensation which is based upon his experience, ability and popularity. The photographer has no control over the essential function for which the model is engaged, although he necessarily must exercise some control of the position of the model during the actual taking of the photograph. The photographer has not the necessary skill and ability to instruct the model as to how he shall create or conceive the required expression or how he shall act his part in bringing out the idea that is sought to be illustrated. Clearly, the photographer does not reserve or exercise such control and supervision over the model as to constitute the latter his employee. Professional models such as employed by appellant are independent contractors whose earnings are not subject to the statutory tax. The decision of the Unemployment Insurance Appeal Board should be reversed, with costs, and the claim for refund should be allowed. Decision reversed, with costs, and claim for refund allowed. Hill, P. J., Crapser, Bliss, Schenek and Foster, JJ., concur.