Abigail M. Roberson, an Infant, by Margaret E. Bell, her Guardian
ad Litem, Respondent, v. The Rochester Folding
Box Company et al., Appellants
Court of
Appeals of New York
171 N.Y. 538;
64 N.E. 442; 1902 N.Y. LEXIS 881
February 13,
1902, Argued June 27, 1902, Decided
PRIOR
HISTORY: [***1]
Appeal, by permission, from a judgment of the Appellate Division of the
Supreme Court in the fourth judicial department, entered July 30, 1901,
affirming an interlocutory judgment in favor of plaintiff entered upon a
decision of the court at Special Term overruling demurrers to the
complaint.
Roberson v. Rochester Folding Box Co., 64 App. Div. 30,
reversed.
JUDGES: Parker, Ch. J. Gray, J. (dissenting). O'Brien, Cullen and
Werner, JJ., concur with Parker, Ch. J.; Bartlett and Haight, JJ.,
concur with Gray, J.
OPINION BY: PARKER
OPINION: [*541] [**442] The Appellate Division has certified
that the following questions of law have arisen in this case, and
[*542] ought to be reviewed by this court: 1. Does the complaint
herein state a cause of action at law against the defendants or either
of them? 2. Does the complaint herein state a cause of action in equity
against the defendants or either of them? These questions are presented
by a demurrer to the complaint, which is put upon the ground that the
complaint does not state facts sufficient to constitute a cause of
action.
As a demurrer admits not only those facts which are expressly alleged in
the complaint, but everything which can be implied by fair and
reasonable intendment from its allegations ( Marie v. Garrison,
83 N. Y. 14, 23) we are to inquire whether the complaint, regarded from
the [***8] standpoint of this rule, can be said to show any right to
relief either in law or in equity.
The complaint alleges that the Franklin Mills Co., one of the
defendants, was engaged in a general milling business and in the
manufacture and sale of flour; that before the commencement of the
action, without the knowledge or consent of plaintiff, defendants,
knowing that they had no right or authority so to do, had obtained,
made, printed, sold and circulated about 25,000 lithographic prints,
photographs and likenesses of plaintiff, made in a manner particularly
set up in the complaint; that upon the paper upon which the likenesses
were printed and above the portrait there were printed, in large, plain
letters, the words, "Flour of the Family," and below the portrait in
large capital letters, "Franklin Mills Flour," and in the lower
right-hand corner in smaller capital letters, "Rochester Folding Box
Co., Rochester, N. Y.;" that upon the same sheet were other
advertisements of the flour of the Franklin Mills Co.; that those 25,000
likenesses of the plaintiff thus ornamented have been conspicuously
posted and displayed in stores, warehouses, saloons and other public
places; that they have [***9] been recognized by friends of the
plaintiff and other people with the result that plaintiff has been
greatly humiliated by the scoffs and jeers of persons who have
recognized her face and picture on this advertisement and her good name
has been attacked, causing her [*543] great distress and suffering
both in body and mind; that she was made sick and suffered a severe
nervous shock, was confined to her bed and compelled to employ a
physician, because of these facts; that defendants had continued to
print, make, use, sell and circulate the said lithographs, and that by
reason of the foregoing facts plaintiff had suffered damages in the sum
of $ 15,000. The complaint prays that defendants be enjoined from
making, printing, publishing, circulating or using in any manner any
likenesses of plaintiff in any form whatever, for further relief (which
it is not necessary to consider here) and for damages.
It will be observed that there is no complaint made that plaintiff was
libeled by this publication of her portrait. The likeness is said to be
a very good one, and one that her friends and acquaintances were able to
recognize; indeed, her grievance is that a good portrait of her, and,
[***10] therefore, one easily recognized, has been used to attract
attention [**443] toward the paper upon which defendant mill company's
advertisements appear. Such publicity, which some find agreeable, is to
plaintiff very distasteful, and thus, because of defendants'
impertinence in using her picture without her consent for their own
business purposes, she has been caused to suffer mental distress where
others would have appreciated the compliment to their beauty implied in
the selection of the picture for such purposes; but as it is distasteful
to her, she seeks the aid of the courts to enjoin a further circulation
of the lithographic prints containing her portrait made as alleged in
the complaint, and as an incident thereto, to reimburse her for the
damages to her feelings, which the complaint fixes at the sum of $
15,000.
There is no precedent for such an action to be found in the decisions of
this court; indeed the learned judge who wrote the very able and
interesting opinion in the Appellate Division said, while upon the
threshold of the discussion of the question: "It may be said in the
first place that the theory upon which this action is predicated is new,
at least in instance [***11] if not in principle, and that few
precedents can be found to sustain the claim made by the plaintiff, if
indeed it can be said [*544] that there are any authoritative cases
establishing her right to recover in this action." Nevertheless, that
court reached the conclusion that plaintiff had a good cause of action
against defendants, in that defendants had invaded what is called a
"right of privacy" -- in other words, the right to be let alone. Mention
of such a right is not to be found in Blackstone, Kent or any other of
the great commentators upon the law, nor so far as the learning of
counsel or the courts in this case have been able to discover, does its
existence seem to have been asserted prior to about the year 1890, when
it was presented with attractiveness and no inconsiderable ability in
the Harvard Law Review (Vol. IV, page 193) in an article entitled, "The
Right of Privacy."
The so-called right of privacy is, as the phrase suggests, founded upon
the claim that a man has the right to pass through this world, if he
wills, without having his picture published, his business enterprises
discussed, his successful experiments written up for the benefit of
others, or his eccentricities [***12] commented upon either in
handbills, circulars, catalogues, periodicals or newspapers, and,
necessarily, that the things which may not be written and published of
him must not be spoken of him by his neighbors, whether the comment be
favorable or otherwise. While most persons would much prefer to have a
good likeness of themselves appear in a responsible periodical or
leading newspaper rather than upon an advertising card or sheet, the
doctrine which the courts are asked to create for this case would apply
as well to the one publication as to the other, for the principle which
a court of equity is asked to assert in support of a recovery in this
action is that the right of privacy exists and is enforceable in equity,
and that the publication of that which purports to be a portrait of
another person, even if obtained upon the street by an impertinent
individual with a camera, will be restrained in equity on the ground
that an individual has the right to prevent his features from becoming
known to those outside of his circle of friends and acquaintances.
If such a principle be incorporated into the body of the [*545] law
through the instrumentality of a court of equity, the attempts [***13]
to logically apply the principle will necessarily result, not only in a
vast amount of litigation, but in litigation bordering upon the absurd,
for the right of privacy, once established as a legal doctrine, cannot
be confined to the restraint of the publication of a likeness but must
necessarily embrace as well the publication of a word-picture, a comment
upon one's looks, conduct, domestic relations or habits. And were the
right of privacy once legally asserted it would necessarily be held to
include the same things if spoken instead of printed, for one, as well
as the other, invades the right to be absolutely let alone. An insult
would certainly be in violation of such a right and with many persons
would more seriously would the feelings than would the publication of
their picture. And so we might add to the list of things that are spoken
and done day by day which seriously offend the sensibilities of good
people to which the principle which the plaintiff seeks to have imbedded
in the doctrine of the law would seem to apply. I have gone only far
enough to barely suggest the vast field of litigation which would
necessarily be opened up should this court hold that privacy
exists [***14] as a legal right enforceable in equity by injunction,
and by damages where they seem necessary to give complete relief.
The legislative body could very well interfere and arbitrarily provide
that no one should be permitted for his own selfish purpose to use the
picture or the name of another for advertising purposes without his
consent. In such, event no embarrassment would result to the general
body of the law, for the rule would be applicable only to cases provided
for by the statute. The courts, however, being without authority to
legislate, are required to decide cases upon principle, and so are
necessarily embarrassed by precedents created by an extreme, and,
therefore, unjustifiable application of an old principle.
The court below properly said that "while it may be true that the fact
that no precedent can be found to sustain an action in any given case,
is cogent evidence that a principle [*546] does not exist upon which
the right may be based, it is not the rule that the want of a precedent
is a sufficient reason for turning the plaintiff out of court," provided
-- I think should be added -- there can be found a clear and unequivocal
principle of the common law which [***15] either directly or mediately
governs it or which by analogy or parity of reasoning [**444] ought to
govern it.
It is undoubtedly true that in the early days of chancery jurisdiction
in England the chancellors were accustomed to deliver their judgments
without regard to principles or precedents and in that way the process
of building up the system of equity went on, the chancellor disregarding
absolutely many established principles of the common law. "In no other
way," says Pomeroy, "could the system of equity jurisprudence have been
commenced and continued so as to arrive at its present proportions."
(Pomeroy's Eq. Jur. § 48.) In their work the chancellors were guided not
only by what they regarded as the eternal principles of absolute right,
but also by their individual consciences, but after a time when "the
period of infancy was passed and an orderly system of equitable
principles, doctrines and rules began to be developed out of the
increasing mass of precedents, this theory of a personal conscience was
abandoned; and 'the conscience,' which is an element of the equitable
jurisdiction, came to be regarded, and has so continued to the present
day, as a metaphorical term, [***16] designating the common standard
of civil right and expediency combined, based upon general principles
and limited by established doctrines to which the court appeals, and by
which it tests the conduct and rights of suitors -- a juridical and not
a personal conscience." (Pomeroy's Eq. Jur. § 57.)
The importance of observing the spirit of this rule cannot be
overestimated, for, while justice in a given case may be worked out by a
decision of the court according to the notions of right which govern the
individual judge or body of judges comprising the court, the mischief
which will finally result may be almost incalculable under our system
which makes a [*547] decision in one case a precedent for decisions in
all future cases which are akin to it in the essential facts.
So in a case like the one before us, which is concededly new to this
court, it is important that the court should have in mind the effect
upon future litigation and upon the development of the law which would
necessarily result from a step so far outside of the beaten paths of
both common law and equity, assuming -- what I shall attempt to show in
a moment -- that the right of privacy as a legal doctrine
enforceable [***17] in equity has not, down to this time, been
established by decisions.
The history of the phrase "right of privacy" in this country seems to
have begun in 1890 in a clever article in the Harvard Law Review --
already referred to -- in which a number of English cases were analyzed,
and, reasoning by analogy, the conclusion was reached that --
notwithstanding the unanimity of the courts in resting their decisions
upon property rights in cases where publication is prevented by
injunction -- in reality such prevention was due to the necessity of
affording protection to thoughts and sentiments expressed through the
medium of writing, printing and the arts, which is like the right not to
be assaulted or beaten; in other words, that the principle, actually
involved though not always appreciated, was that of an inviolate
personality, not that of private property.
This article brought forth a reply from the Northwestern Review (Vol.
III, page 1) urging that equity has no concern with the feelings of an
individual or with considerations of moral fitness, except as the
inconvenience or discomfort which the person may suffer is connected
with the possession or enjoyment of property, and that the [***18]
English authorities cited are consistent with such view. Those
authorities are now to be examined in order that we may see whether they
were intended to and did mark a departure from the established rule
which had been enforced for generations; or, on the other hand, are
entirely consistent with it.
The first case is Prince Albert v. Strange (1 Macn. & G.
25; [*548] 2 De G. & S. 652). The queen and the prince, having made
etchings and drawings for their own amusement, decided to have copies
struck off from the etched plates for presentation to friends and for
their own use. The workman employed, however, printed some copies on his
own account, which afterwards came into the hands of Strange, who
purposed exhibiting them, and published a descriptive catalogue. Prince
Albert applied for an injunction as to both exhibition and catalogue,
and the vice-chancellor granted it, restraining defendant from
publishing "at least by printing or writing, though not by copy or
resemblance," a description of the etchings. An examination of the
opinion of the vice-chancellor discloses that he found two reasons for
granting the injunction, namely, that the property rights of
Prince [***19] Albert had been infringed, and that there was a breach
of trust by the workman in retaining some impressions for himself. The
opinion contained no hint whatever of a right of privacy separate and
distinct from the right of property.
Pollard v. Photographic Co. ( L. R. 40 Ch. Div. 345) is
certainly not an authority for granting an injunction on the ground of
threatened injury to the feelings, although it is true, as stated in the
opinion of the Appellate Division, that the court did say in the course
of the discussion that the right to grant an injunction does not depend
upon the existence of property; but the decision was, in fact, placed
upon the ground that there was a breach of an implied contract. The
facts, briefly stated, were that a photographer had been applied to by a
woman to take her photograph, she ordering a certain number of copies,
as is usual in such cases. The photographer made copies for himself and
undertook to exhibit them, and also sold copies to a stationer, who used
them as Christmas cards. Their action was restrained by the court on the
ground that there was an implied contract not to use the negative for
any other purpose than to supply the sitter [***20] with copies of it
for a price. During the [**445] argument of plaintiff's counsel, the
court asked this question: "Do you dispute that if the negative likeness
were taken on the sly, the person who took it [*549] might exhibit
copies?" Counsel replied: "In that case there would be no consideration
to support a contract."
In Gee v. Pritchard (2 Swanst. 402) B attempted to print a
private letter written him by A, and he was restrained on the ground
that the property of that private letter remained in A, B having it only
for the qualified purpose for which it was sent to him, the basis of the
decision, therefore, being the idea of plaintiff's property in the thing
published, as being the product of his mind, written by him and put into
the hands of B for a limited purpose only.
The same judge, Lord Eldon, also granted the injunction in Abernathy
v. Hutchinson (3 L. J. Ch. 209) restraining the publication
in the "Lancet" of lectures delivered at a hospital by the plaintiff.
The court expressed a doubt in that case whether there could be property
in lectures which had not been reduced to writing, but granted the
injunction on the ground that it was a breach [***21] of confidence on
the part of a pupil who was admitted to hear the lectures to publish
them, inasmuch as they were delivered for the information of the pupils
and not for sale and profit by them.
Mayhall v. Higbey (1 H. & C. 188) was also a case where an
injunction was granted and nominal damages awarded on the ground that
plaintiff had a property right in certain photographic negatives which
he had loaned to a person who, subsequently, became insolvent and whose
assignee, without right, sold them to defendant who printed copies from
them which he published and sold.
In Duke of Queensberry v. Shebbeare (2 Eden, 329) the Earl
of Clarendon delivered to one Gwynne an original manuscript of his
father's, "Lord Clarendon's History." Gwynne's administrator afterwards
sold it to Shebbeare, and the court, upon the application of the
personal representatives of Lord Clarendon, restrained its publication
on the ground that they had a property right in the manuscript which it
was not intended that Gwynne should have the benefit of by multiplying
the number of copies in print for profit.
In not one of these cases, therefore, was it the basis of the [*550]
decision that the [***22] defendant could be restrained from performing
the act he was doing or threatening to do on the ground that the
feelings of the plaintiff would be thereby injured; but, on the
contrary, each decision was rested either upon the ground of breach of
trust or that plaintiff had a property right in the subject of
litigation which the court could protect.
A more recent English case, decided in 1898, is more nearly in point and
negatives the contention that plaintiff may restrain an unauthorized
publication which is offensive to him -- namely, Dockrell v.
Dougall (78 L. T. R. 840). In that case defendant, the owner of a
medicine called "Sallyco," published the following substantially true
but unauthorized statement about plaintiff: "Dr. Morgan Dockrell,
physician to St. John's Hospital, London, is prescribing Sallyco as an
habitual drink. Dr. Dockrell says nothing has done his gout so much
good." In the course of the opinion the court said, in effect, that
plaintiff claimed to be entitled to an injunction restraining defendant
from using plaintiff's name in his advertisements on the ground that an
injunction should be granted in every such case where it can be shown
that the use [***23] of the plaintiff's name is unauthorized and is
calculated to injure him in his profession, and after saying that he did
not think that this was right, he stated the proper rule to be that "In
order that an injunction may issue to restrain a defendant from using a
plaintiff's name the use of it must be such as to injure the plaintiff's
reputation or property."
None of the other English cases brought to our attention are claimed to
have a direct bearing upon this question, and it seems to us very clear
that they do not in anywise support the position of plaintiff.
The case that seems to have been more relied upon than any other by the
learned Appellate Division in reaching the conclusion that the complaint
in this case states a cause of action, is Schuyler v. Curtis
(147 N. Y. 434). In that case certain persons attempted to erect a
statue or bust of a woman no longer living, and one of her relatives
commenced an action [*551] in equity to restrain such erection,
alleging that his feelings and the feelings of other relatives of
deceased would be injured thereby. At Special Term an injunction was
granted on that ground. (19 N. Y. Supp. 264.) The General Term affirmed
the [***24] decision. (64 Hun, 594.) This court reversed the judgment,
Judge Peckham writing, and so far as the decision is concerned,
therefore, it is not authority for the existence of a right of privacy
which entitles a party to restrain another from doing an act which,
though not actionable at common law, occasions plaintiff mental
distress. In the course of the argument, however, expressions were used
which it is now claimed indicate that the court recognized the existence
of such a right. A sufficient answer to that contention is to be found
in the opinion written on the motion for reargument in Colonial City
Tr. Co. v. Kingston City R. R. Co. (154 N. Y. 493) in which
it was said: "It was not our intention to decide any case but the one
before us. * * * If, as sometimes happens, broader statements were made
by way of argument or otherwise than were essential to the decision of
the questions presented, they are the dicta of the writer of the opinion
and not the decision of the court. A judicial opinion, like evidence, is
only binding [**446] so far as it is relevant, and when it wanders
from the point at issue it no longer has force as an official
utterance." The question [***25] up for decision in the Schuyler
case was whether the relatives could restrain the threatened action of
defendants, and not whether Mrs. Schuyler could have restrained it had
she been living. The latter question not being before the court it was
not called upon to decide it, and, as we read the opinion, there is no
expression in it which indicates an intention either to decide it or to
seriously consider it, but rather, it proceeds upon the assumption that
if such a right did exist in Mrs. Schuyler, her relatives did not
succeed to it upon her death; all of which will sufficiently appear from
the following extracts from the opinion:
"This action is of a nature somewhat unusual and dependent for its
support upon the application of certain principles which are themselves
not very clearly defined or their boundaries [*552] very well
recognized or plainly laid down. Briefly described, the action is
founded upon the alleged violation of what is termed the right of
privacy."
"It is not necessary, however, to the view which we take of this case,
to lay down precise and accurate rules which shall apply to all cases
touching upon this alleged right."
"For the purposes [***26] we have in view, it is unnecessary
to wholly deny the existence of the right of privacy to which the
plaintiff appeals as the foundation of his cause of action."
"While not assuming to decide what this right of privacy is in all
cases, we are quite clear that such a right would not be violated by
the proposed action of the defendants."
There are two other cases in this state bearing upon this question:
Marks v. Jaffa (26 N. Y. Supp. 908), decided at Special Term,
and Murray v. Gast Lithographic & Engraving Co. (8 Misc.
Rep. 36) decided at an Equity Term of the Court of Common Pleas at New
York. In the first case the relief prayed for was granted upon the
authority of the decision of the General Term in the Schuyler
case, which was subsequently reversed in this court. In the Murray
case, in a well-reasoned opinion by Judge Bischoff, it is held that a
parent cannot maintain an action to enjoin an unauthorized publication
of the portrait of an infant child, and for damages for injuries to his
sensibilities caused by the invasion of his child's privacy, because
"the law takes no cognizance of a sentimental injury, independent of a
wrong to person or property." [***27] In the course of his opinion he
quotes from the opinion of Lumpkin, J., in Chapman v. West. U.
T. Co. (88 Ga. 763) as follows: "The law protects the person and the
purse. The person includes the reputation. The body, reputation and
property of the citizen are not to be invaded without responsibility in
damages to the sufferer. But, outside these protected spheres, the law
does not yet attempt to guard the peace of mind, the feelings or the
happiness of everyone by giving recovery of damages for mental anguish
produced by mere negligence. There is no right, capable of enforcement
by process of law, to possess or maintain, without disturbance, [*553]
any particular condition of feeling. The law leaves feeling to be helped
and vindicated by the tremendous force of sympathy. The temperaments of
individuals are various and variable, and the imagination exerts a
powerful and incalculable influence in injuries of this kind. There are
many moral obligations too delicate and subtle to be enforced in the
rude way of giving money compensation for their violation. Perhaps the
feelings find as full protection as it is possible to give in moral law
and a responsive public opinion. [***28] The civil law is a practical
business system, dealing with what is tangible, and does not undertake
to redress psychological injuries."
Outside of this jurisdiction the question seems to have been presented
in two other cases in this country: Corliss v. E. W. Walker
Co. (57 Fed. Rep. 434; 64 Fed. Rep. 280) and Atkinson v.
Doherty (121 Mich. 372). The Corliss case was an action in
equity to restrain the publication of the biography and picture of Mr.
Corliss. It was based upon an alleged invasion of the right of privacy.
The court denied the injunction as to the publication of the biography
but granted it as to the use of certain plates from which the defendant
was to make a picture of Mr. Corliss, upon the ground that they had been
obtained upon conditions which defendant had not complied with. In the
course of the opinion the court said: "Under our laws one can speak and
publish what he desires, provided he commit no offense against public
morals or private reputation. * * * There is another objection which
meets us at the threshold of this case. The subject-matter of the
jurisdiction of a court of equity is civil property, and injury to
property, whether [***29] actual or prospective is the foundation on
which its jurisdiction rests. ( Re Sawyer, 124 U.S. 200, 210;
Kerr. Inj. [2d ed.] p. 1.) It follows from this principle that a court
of equity has no power to restrain a libelous publication." Both the
opinion and the decision necessarily negative the existence of an
actionable right of privacy; but subsequently upon a motion to dissolve
the injunction, which was granted upon the ground that Mr. Corliss was a
[*554] public character, and hence the publishers were entitled to use
his picture, the learned court expressed the opinion that a private
individual has the right to be protected from the publication of his
portrait in any form. Now, while this suggestion was obiter, it
merits discussion, and an examination of that which it promulgates as
doctrine discloses what we deem a fatal objection to the establishment
of a rule of privacy. The learned judge says: "I believe the law to be
that a private individual has a right to be protected in the
representation of his portrait in any form; that this is [**447] a
property as well as a personal right, and that it belongs to the same
class of rights which forbids the reproduction [***30] of a private
manuscript or painting, or the publication of private letters, or of
oral lectures delivered by a teacher to his class, or the revelation of
the contents of a merchant's book by a clerk. * * * But, while the right
of a private individual to prohibit the reproduction of his picture or
photograph should be recognized and enforced, this right may be
surrendered or dedicated to the public by the act of the individual,
just the same as a private manuscript, book or painting becomes (when
not protected by copyright) public property by the act of publication.
The distinction in the case of a picture or photograph lies, it seems to
me, between public and private characters. A private individual should
be protected against the publication of any portrait of himself, but
where an individual becomes a public character the case is different. A
statesman, author, artist or inventor, who asks for and desires public
recognition, may be said to have surrendered his right to the public."
This distinction between public and private characters cannot possibly
be drawn. On what principle does an author or artist forfeit his right
of privacy and a great orator, a great preacher, or a [***31] great
advocate retain his? Who can draw a line of demarcation between public
characters and private characters, let that line be as wavering and
irregular as you please? In the very case then before the judge, what
had Mr. Corliss done by which he surrendered his right of privacy? In
what respect did he [*555] by his inventions "ask for and desire
public recognition" any more than a banker or merchant who prosecutes
his calling? Or is the right of privacy the possession of mediocrity
alone, which a person forfeits by giving rein to his ability, spurs to
his industry or grandeur to his character? A lady may pass her life in
domestic privacy when, by some act of heroism or self-sacrifice, her
name and fame fill the public ear. Is she to forfeit by her good deed
the right of privacy she previously possessed? These considerations
suggest the answer we would make to the position of the learned judge
and at the same time serve to make more clear what we have elsewhere
attempted to point out, namely, the absolute impossibility of dealing
with this subject save by legislative enactment, by which may be drawn
arbitrary distinctions which no court should promulgate as a part of
general [***32] jurisprudence.
Atkinson v. Doherty was a suit in equity brought by the
widow of Colonel John Atkinson, a well-known lawyer in Detroit, to
enjoin the defendant, a cigar manufacturer, from using the name and
portrait of Colonel Atkinson upon boxes of cigars manufactured by
defendant. The suit was dismissed by the Circuit Court, and its decree
was unanimously affirmed by the Supreme Court. The case quite closely
resembles the Schuyler case, which was brought to the attention
of that court, and in the course of the opinion the contention that the
Schuyler case intimated the existence of a right of privacy was
met as follows: "We think it should not be considered as containing a
dictum even in support of the doctrine contended for." The method
adopted by the court in the Atkinson case in treating the
question was different from that employed by this court in the
Schuyler case, however, for the opinion proceeds to a review of the
authorities upon which the right of privacy is said to rest, reaching
the conclusion that all of the authorities which are entitled to respect
are based upon property or contract rights, and hence "that Colonel
Atkinson would himself [***33] be remediless were he alive, and the
same is true of his friends who survive." The opinion concludes as
follows: "This law of privacy seems to [*556] have gained a foothold
at one time in the history of our jurisprudence -- not by that name, it
is true -- but in effect. It is evidenced by the old maxim, 'the greater
the truth the greater the libel,' and the result has been the emphatic
expression of public disapproval, by the emancipation of the press and
the establishment of freedom of speech, and the abolition in most of the
states of the maxim quoted by constitutional provisions. The limitations
upon the exercise of these rights being the law of slander and libel,
whereby the publication of an untruth that can be presumed or shown to
the satisfaction, not of the plaintiff, but of others (i. e., an
impartial jury), to be injurious, not alone to the feelings, but to the
reputation, is actionable. Should it be thought that it is a hard rule
that is applied in this case, it is only necessary to call attention to
the fact that a ready remedy is to be found in legislation. We are not
satisfied, however, that the rule is a hard one, and think that the
consensus of opinion [***34] must be that the complainants contend for
a much harder one. The law does not remedy all evils. It cannot, in the
nature of things; and deliberation may well be used in considering the
propriety of an innovation such as this case suggests. We do not wish to
be understood as belittling the complaint. We have no reason to doubt
the feeling of annoyance alleged. Indeed, we sympathize with it, and
marvel at the impertinence which does not respect it. We can only say
that it is one of the ills that under the law cannot be redressed."
An examination of the authorities leads us to the conclusion that the
so-called "right of privacy" has not as yet found an abiding place in
our jurisprudence, and, as we view it, the doctrine cannot now be
incorporated without doing violence to settled principles of law by
which the profession and the public have long been guided.
I do not say that, even under the existing law, in every case of the
character of the one before us, or indeed in this case, a party whose
likeness [**448] is circulated against his will is without remedy. By
section 245 of the Penal Code any malicious publication by picture,
effigy or sign which exposes [*557] [***35] a person to contempt,
ridicule or obloquy is a libel, and it would constitute such at common
law. Malicious in this definition means simply intentional and willful.
There are many articles, especially of medicine, whose character is such
that using the picture of a person, particularly that of a woman, in
connection with the advertisement of those articles might justly be
found by a jury to cast ridicule or obloquy on the person whose picture
was thus published. The manner or posture in which the person is
portrayed might readily have a like effect. In such cases both a civil
action and a criminal prosecution could be maintained. But there is no
allegation in the complaint before us that this was the tendency of the
publication complained of, and the absence of such an allegation is
fatal to the maintenance of the action, treating it as one of libel.
This case differs from an action brought for libelous words. In such
case the alleged libel is stated in the complaint, and if the words are
libelous per se it is unnecessary to charge that their effect
exposes the plaintiff to disgrace, ridicule or obloquy. The law
attributes to them that result. But where the libel is a
picture [***36] which does not appear in the record, to make it
libelous there must be a proper allegation as to its character.
The judgment of the Appellate Division and of the Special Term should be
reversed and questions certified answered in the negative, without
costs, and with leave to the plaintiff to serve an amended complaint
within twenty days, also without costs.
DISSENTBY: GRAY
DISSENT: Gray, J. (dissenting). The question arises on the
defendants' demurrer to the sufficiency of the complaint to state a
cause of action. The complaint alleges that, without the knowledge of
the plaintiff, the defendants, "knowing that they had no right or
authority so to do, had obtained, made, printed, sold and circulated
about 25,000 lithographic prints, photographs or likenesses of
plaintiff, for the purpose of profit and gain to themselves;" that upon
the paper upon which [*558] the likeness was printed, are the words
above the portrait, in large, plain letters, "Flour of the Family," and
below, in large capital letters, "Franklin Mills Flour," and in the
lower right-hand corner, in small capital letters, are the words
"Rochester Folding Box Company;" that upon the same paper are the
advertisements [***37] of the flour of the Franklin Mills Company; that
these 25,000 likenesses of the plaintiff thus ornamented have been
"conspicuously posted and displayed in stores, warehouses and saloons,
throughout the United States and other countries, and particularly in
the vicinity where the plaintiff resides;" that the result has been to
greatly humiliate her, by the scoffs and jeers of persons who have
recognized her face upon these advertisements, and her good name has
been attacked and that, because of these facts, "she was made sick and
suffered a severe nervous shock, was confined to her bed and was
compelled to employ a physician." The plaintiff, further, alleges that
the defendants "are now wrongfully printing, making, using, selling and
circulating these lithographs," and that, by reason of these facts, she
has suffered damages in the sum of $ 15,000. The relief demanded is that
the defendants be enjoined from making, printing, publishing, obtaining,
or using, in any manner, any likeness of the plaintiff in any form
whatever. The facts contained within these allegations must be regarded
as admitted, under the defendant's demurrer; as must all other facts
which can be implied, by reasonable [***38] and fair intendment. (
Marie v. Garrison, 83 N. Y. 14.) These defendants stand
before the court, admitting that they have made, published and
circulated, without the knowledge or the authority of the plaintiff,
25,000 lithographic portraits of her, for the purpose of profit and gain
to themselves; that these portraits have been conspicuously posted in
stores, warehouses and saloons, in the vicinity of the plaintiff's
residence and throughout the United States, as advertisements of their
goods; that the effect has been to humiliate her and to render her ill
and, yet, claiming that she makes out no cause of action. They say
[*559] that no law on the statute books gives her a right of action
and that her right to privacy is not an actionable right, at law or in
equity.
Our consideration of the question thus presented has not been foreclosed
by the decision in Schuyler v. Curtis, (147 N. Y. 434). In
that case, it appeared that the defendants were intending to make, and
to exhibit, at the Columbian Exposition of 1893, a statue of Mrs.
Schuyler, formerly Miss Mary M. Hamilton and conspicuous in her lifetime
for her philanthropic work, to typify "Woman as the Philanthropist"
[***39] and, as a companion piece, a statue of Miss Susan B. Anthony,
to typify the "Representative Reformer." The plaintiff, in behalf of
himself, as the nephew of Mrs. Schuyler, and of other immediate
relatives, sought by the action to restrain them from carrying out their
intentions as to the statue of Mrs. Schuyler; upon the grounds, in
substance, that they were proceeding without his consent, (whose
relationship was conceded to be such as to warrant such an action, if it
were maintainable at all), or that of the other immediate members of the
family; that their proceeding was disagreeable to him, because it would
have been disagreeable and obnoxious to his aunt, if living, and that it
was annoying to have Mrs. Schuyler's memory associated with principles,
which Miss Susan B. Anthony typified and of which Mrs. Schuyler did not
approve. His right to maintain the action was denied and the denial
[**449] was expressly placed upon the ground that he, as a relative,
did not represent any right of privacy which Mrs. Schuyler possessed in
her lifetime and that, whatever her right had been, in that respect, it
died with her. The existence of the individual's right to be protected
against [***40] the invasion of his privacy, if not actually affirmed
in the opinion, was, very certainly, far from being denied. "It may be
admitted," Judge Peckham observed, when delivering the opinion of the
court, "that courts have power, in some cases, to enjoin the doing of an
act, where the nature, or character, of the act itself is well
calculated to wound the sensibilities of an individual, [*560] and
where the doing of the act is wholly unjustifiable, and is, in legal
contemplation, a wrong, even though the existence of no property,
as that term is usually used, is involved in the subject."
That the individual has a right to privacy, which he can enforce and
which equity will protect against the invasion of, is a proposition
which is not opposed by any decision in this court and which, in my
opinion, is within the field of accepted legal principles. It is within
the very case supposed by Judge Peckham in Schuyler v. Curtis.
In the present case, we may not say that the plaintiff's complaint is
fanciful, or that her alleged injury is, purely, a sentimental one. Her
objection to the defendants' acts is not one born of caprice; nor is it
based upon the defendants' act [***41] being merely "distasteful" to
her. We are bound to assume, and I find no difficulty in doing so, that
the conspicuous display of her likeness, in various public places, has
so humiliated her by the notoriety and by the public comments it has
provoked, as to cause her distress and suffering, in body and in mind,
and to confine her to her bed with illness.
If it were necessary, to be entitled to equitable relief, that the
plaintiff's sufferings, by reason of the defendants' acts, should be
serious, and appreciable by a pecuniary standard, clearly, we might well
say, under the allegations of the complaint, that they were of such
degree of gravity. However, I am not of the opinion that the gravity of
the injury need be such as to be capable of being estimated by such a
standard. If the right of privacy exists and this complaint makes out a
case of its substantial violation, I think that the award of equitable
relief, by way of an injunction, preventing the continuance of its
invasion by the defendants, will not depend upon the complainant's
ability to prove substantial pecuniary damages and, if the court finds
the defendants' act to be without justification and for selfish gain
and [***42] purposes, and to be of such a character, as is reasonably
calculated to wound the feelings and to subject the plaintiff to the
ridicule, or to the [*561] contempt of others, that her right to the
preventive relief of equity will follow; without considering how far her
sufferings may be measurable by a pecuniary standard.
The right of privacy, or the right of the individual to be let alone, is
a personal right, which is not without judicial recognition. It is the
complement of the right to the immunity of one's person. The individual
has always been entitled to be protected in the exclusive use and
enjoyment of that which is his own. The common law regarded his person
and property as inviolate, and he has the absolute right to be let
alone. (Cooley on Torts, p. 29.) The principle is fundamental and
essential in organized society that every one, in exercising a personal
right and in the use of his property, shall respect the rights and
properties of others. He must so conduct himself, in the enjoyment of
the rights and privileges which belong to him as a member of society, as
that he shall prejudice no one in the possession and enjoyment of those
which are exclusively his. [***43] When, as here, there is an alleged
invasion of some personal right, or privilege, the absence of exact
precedent and the fact that early commentators upon the common law have
no discussion upon the subject are of no material importance in awarding
equitable relief. That the exercise of the preventive power of a court
of equity is demanded in a novel case, is not a fatal objection. (
Niagara Falls Int. Bridge Co. v. Great Western Ry. Co., 39
Barb. 212; Sherman v. Skuse, 166 N. Y. 352; Hamilton
v. Whitridge, 11 Md. 145.) In the social evolution, with the
march of the arts and sciences and in the resultant effects upon
organized society, it is quite intelligible that new conditions must
arise in personal relations, which the rules of the common law, cast in
the rigid mould of an earlier social status, were not designed to meet.
It would be a reproach to equitable jurisprudence, if equity were
powerless to extend the application of the principles of common law, or
of natural justice, in remedying a wrong, which, in the progress of
civilization, has been made possible as the result of new social, or
commercial conditions. [*562] Sir Henry Maine, in his work [***44] on
Ancient Law, has observed of equity, that it is an agency "by which law
is brought into harmony with society," and that it is one of the
factors, which operate in judicial evolution. It succeeds legal
fictions, or those judicial assumptions, through which a rule of law is
modified in its operation, and it precedes legislation. (See Maine's
Ancient Law, pp. 22 to 28.) Equity has neither fixed boundaries, nor
logical subdivisions and its origin, both in Rome and in England, was
that there was a wrong for which there was no remedy at law. (See 1st
Story Eq. Juris. secs. 49 and 50.) It supplements the deficiencies of
the common law, by applying, where otherwise there would result a wrong,
those principles of natural justice, which are analogous to settled
principles of the common law. (See Story's Eq. Jur. sec. 671, note.)
Lord Chancellor Cottenham observed, in Wallworth v. Holt,
(4 Myl. & C. 619), "I think it is the duty of this court, (meaning
equity), to adopt [**450] its practice and course of proceeding to the
existing state of society and not, by a strict adherence to forms and
rules, under different circumstances, to decline to administer justice
and enforce rights [***45] for which there is no other remedy. * * * If
it were necessary to go much further than it is, in opposition to some
sanctioned opinions, in order to open the doors of this court to those
who could not obtain it elsewhere, I should not shrink from the
responsibility of doing so." As I have suggested, that the exercise of
this peculiar preventive power of a court of equity is not found in some
precisely analogous case, furnishes no valid objection, at all, to the
assumption of jurisdiction, if the particular circumstances of the case
show the performance, or the threatened performance, of an act by a
defendant, which is wrongful, because constituting an invasion, in some
novel form, of a right to something, which is, or should be conceded to
be, the plaintiff's and as to which the law provides no adequate remedy.
It would be a justifiable exercise of power, whether the principle of
interference be rested upon analogy to some [*563] established
common-law principle, or whether it is one of natural justice. In an
article in the Harvard Law Review, of December 15th, 1890, which
contains an impressive argument upon the subject of the "right of
privacy," it was well said by the authors [***46] "that the individual
shall have full protection in person and in property is a principle as
old as the common law; but it has been found necessary from time to time
to define anew the exact nature and extent of such protection. * * * The
right to life has come to mean the right to enjoy life -- the right to
be let alone; the right to liberty secures the exercise of extensive
civil privileges; and the term 'property' has grown to comprise every
form of possession -- intangible, as well as tangible."
Instantaneous photography is a modern invention and affords the means of
securing a portraiture of an individual's face and form, in invitum
their owner. While, so far forth as it merely does that, although a
species of aggression, I concede it to be an irremediable and
irrepressible feature of the social evolution. But, if it is to be
permitted that the portraiture may be put to commercial, or other, uses
for gain, by the publication of prints therefrom, then an act of
invasion of the individual's privacy results, possibly more formidable
and more painful in its consequences, than an actual bodily assault
might be. Security of person is as necessary as the security of
property; [***47] and for that complete personal security, which will
result in the peaceful and wholesome enjoyment of one's privileges as a
member of society, there should be afforded protection, not only against
the scandalous portraiture and display of one's features and person, but
against the display and use thereof for another's commercial purposes or
gain. The proposition is, to me, an inconceivable one that these
defendants may, unauthorizedly, use the likeness of this young woman
upon their advertisement, as a method of attracting widespread public
attention to their wares, and that she must submit to the mortifying
notoriety, without right to invoke the exercise of the preventive power
of a court of equity.
[*564] Such a view, as it seems to me, must have been unduly
influenced by a failure to find precedents in analogous cases, or some
declaration by the great commentators upon the law of a common-law
principle which would, precisely, apply to and govern the action;
without taking into consideration that, in the existing state of
society, new conditions affecting the relations of persons demand the
broader extension of those legal principles, which underlie the immunity
of one's person [***48] from attack. I think that such a view is unduly
restricted, too, by a search for some property, which has been invaded
by the defendants' acts. Property is not, necessarily, the thing itself,
which is owned; it is the right of the owner in relation to it. The
right to be protected in one's possession of a thing, or in one's
privileges, belonging to him as an individual, or secured to him as a
member of the commonwealth, is property, and as such entitled to the
protection of the law. The protective power of equity is not exercised
upon the tangible thing, but upon the right to enjoy it; and, so, it is
called forth for the protection of the right to that which is one's
exclusive possession, as a property right. It seems to me that the
principle, which is applicable, is analogous to that upon which courts
of equity have interfered to protect the right of privacy, in cases of
private writings, or of other unpublished products of the mind. The
writer, or the lecturer, has been protected in his right to a literary
property in a letter, or a lecture, against its unauthorized
publication; because it is property, to which the right of privacy
attaches. ( Woolsey v. Judd, 4 Duer, [***49] 399; Gee
v. Pritchard, 2 Swanst. 402; Abernathy v.
Hutchinson, 3 L. J. Ch. 209; Folsom v. Marsh, 2 Story,
100.) I think that this plaintiff has the same property in the right to
be protected against the use of her face for defendant's commercial
purposes, as she would have, if they were publishing her literary
compositions. The right would be conceded, if she had sat for her
photograph; but if her face, or her portraiture, has a value, the value
is hers exclusively; until the use be granted away to the public.
[*565] Any other principle of decision, in my opinion, is as repugnant
to equity; as it is shocking to reason. Judge Colt, of the United States
Court, in Corliss v. Walker Co., (64 Fed. Rep. 280-5), a
case involving the same question of an invasion of the right of privacy,
with respect to the publication of a printed likeness of Mr. Corliss,
expressed the opinion that "independently of the [**451] question of
contract, I believe the law to be that a private individual has a right
to be protected in the representation of his portrait in any form; that
this is a property as well as a personal right, and that it belongs to
the same class [***50] of rights which forbids the reproduction of a
private manuscript or painting, or the publication of private letters,
or of oral lectures delivered by a teacher to his class, or the
revelation of the contents of a merchant's books by a clerk." The case
itself is not in point in its facts; because the complainant was the
widow of Mr. Corliss and thus it came within the limitations of
Schuyler v. Curtis.
The right to grant the injunction does not depend upon the existence of
property, which one has in some contractual form. It depends upon the
existence of property in any right which belongs to a person. In
Pollard v. Photographic Co., (40 Ch. Div. 345), it was held
that the right to grant an injunction against selling copies of
plaintiff's photographs did not depend upon the existence of property
and that "it is quite clear that independently of any question as to the
right at law, the Court of Chancery always had an original and
independent jurisdiction to prevent what that court considered and
treated as a wrong, whether arising from a violation of an
unquestionable right, or from breach of confidence, or contract, as was
pointed out by Lord Cottenham in Prince [***51] Albert
v. Strange, (1 Macn. & G. 25)." In Prince Albert v.
Strange, Lord Chancellor Cottenham sustained the issuance of an
injunction, upon the ground that the right of privacy had been invaded
by the publication and sale of etchings, made by Prince Albert and Queen
Victoria. Upon the original [*566] hearing, Vice-Chancellor
Knight-Bruce, in granting the injunction, observed that, "upon the
principle of protecting property, it is that the common law, in cases
not aided or prejudiced by statute, shelters the privacy and seclusion
of thoughts and sentiments committed to writing, and desired by the
author to remain not generally known."
It would be, in my opinion, an extraordinary view which, while conceding
the right of a person to be protected against the unauthorized
circulation of an unpublished lecture, letter, drawing, or other ideal
property, yet, would deny the same protection to a person, whose
portrait was unauthorizedly obtained, and made use of, for commercial
purposes. The injury to the plaintiff is irreparable; because she cannot
be wholly compensated in damages for the various consequences entailed
by defendants' acts. The only complete relief is [***52] an injunction
restraining their continuance. Whether, as incidental to that equitable
relief, she should be able to recover only nominal damages is not
material; for the issuance of the injunction does not, in such a case,
depend upon the amount of the damages in dollars and cents.
A careful consideration of the question presented upon this appeal leads
me to the conclusion that the judgment appealed from should be affirmed.
COUNSEL:
Elbridge L. Adams for appellants. The complaint does not allege
that the publication or circulation of the lithographic "likeness" of
plaintiff was willful; or even that either of the defendants knew that it
was, in fact, the portrait of plaintiff, or, indeed, of any living woman.
( Squier v. Press Pub. Co., 58 App. Div. 362; Bogardus
v. N. Y. Life Ins. Co., 101 N. Y. 329; Valentine v.
Lunt, 115 N. Y. 496; Cook v. Warren [***3] , 88 N. Y.
37; Segelken v. Meyer, 94 N. Y. 473.) The complaint does not
state a cause of action for libel. ( White v. Nichols, 3
How. [U.S.] 66; Townshend on Libel, 2, 3, 118; Holt on Libel, 244; 1
Hilliard on Torts, ch. 7, § 13; Root v. King, 7 Cow. 613;
People v. Croswell, 3 Johns. Cas. 354.) The complaint states no
cause of action known to the common law, either at law or in equity. (
Pierce v. Proprietors, etc., 10 R. I. 227; Pom. Eq. Juris. §§
43, 57; Story's Eq. Juris. § 14; Manning v. Manning, 1
Johns. Ch. 530; Black. Com. 443; Day v. Brownrigg, L. R. [10
Ch. Div.] 294; Ajello v. Worsley, L. R. [1898, 1 Ch. Div.]
274; Donovan v. Finn, 1Hopk. Ch. 59; Greene v.
Keene, 14 R. I. 388; Kujek v. Goldman, 150 N. Y. 176.)
The "right of privacy" is not a legal actionable right. (Pollard v.
P. Co., L. R. [40 Ch. Div.] 345; Gee v. Pritchard, 2
Swanst. 402; Abernethy v. Hutchinson, 3 L. J. Ch. 209;
Mayall v. Highbey, 1 H. & C. 188; Duke of Queensbury v.
Shebbeare, 2 Eden, 329; Dockrell v. Dougall, 78 L. T.
Rep. 40; Schuyler v. Curtis, 147 [***4] N. Y. 434;
Atkinson v. Doherty, 121 Mich. 372; Corliss v. E. W.
W. Co., 57 Fed. Rep. 434; Mitchell v. R. Ry. Co., 151 N.
Y. 110.) An injunction cannot be granted in this case, for equity deals
only with matters of contract or property, and does not exercise
jurisdiction in matters of morals or conduct. (Kerr on Injunctions, 1;
High on Injunctions, § 1012; Eden on Injunctions, 295, 296; Woolsey
v. Judd, 11 How. Pr. 54; Brandeth v. Lance, 8 Paige,
24; N. Y. J. G. Society v. Roosevelt, 7 Daly, 188; Mauger
v. Dick, 55 How. Pr. 132; B. D. Co. v. F. Mfg. Co.,
114 Mass. 169; Francis v. Flynn, 6 U.S. 1148; Raymond
v. Russell, 143 Mass. 295; Whitehead v. Kitson, 119
Mass. 484; Pope v. Curl, 2 Atk. 342; Thompson v.
Stanhope, Ambler, 737; Percival v. Phipps, 2 V. & B.
19.) The plaintiff cannot have damages, for the law takes no cognizance of
mere injury to feelings. ( Cohn v. Goldman, 76 N. Y. 284;
Bliss Code Pleading, § 211; Pattison v. Adams, 7 Hill, 126;
Mitchell v. R. Ry. Co., 151 N. Y. 107; Chapman v.
W. U. T. Co., 88 Ga. 763.)
Milton E. Gibbs [***5] for respondent. Defendants' use of
plaintiff's portrait for advertising purposes, without her consent,
constitutes an unwarrantable invasion of her right of privacy for which an
action lies. ( Schuyler v. Curtis, 15 N. Y. Supp. 787, 64
Hun, 594; 24 N. Y. Supp. 509; 147 N. Y. 434; Marks v. Jaffa,
6 Misc. Rep. 290; Pollard v. Photographic Co., L. R. [40 Ch.
Div.] 345; Corliss v. Walker, 57 Fed. Rep. 434; 64 Fed. Rep.
280; 31 L. R. A. 283; Pierce v. Proprietors, etc., 10 R. I.
227.) It is not necessary that a property right should exist in order to
call into action a court of equity. ( Pierce v. Proprietors,
etc., 10 R. I. 227; Snyder v. Snyder, 60 How. Pr. 368;
Woolsey v. Judd, 4 Duer, 379; Pollard v. P. Co.,
L. R. [40 Ch. Div.] 345; 1 Story's Eq. Juris. §§ 49, 50; Albert v.
Strange, 1 Macn. & G. 25; Pope v. Curl, 2 Atk. 342;
Gee v. Pritchard, 2 Swanst. 402; Percival v. Phipps,
2 V. & B. 19; Prince Albert v. Strange, 2 DeG. & S. 652.)
Every person has a property right in his own photograph, and until that
right is surrendered he is its exclusive owner, and also of the [***6]
additional right to make and circulate all copies of that photograph. (Pollard
v. P. Co., L. R. [40 Ch. Div.] 345; Prince Albert v.
Strange, 1 Macn. & G. 25; 12 Wash. Law Rep. 353 [1884]; Corliss
v. Walker, 31 L. R. A. 283; Wynehamer v. People, 13
N. Y. 433; Schuyler v. Curtiss, 64 Hun, 596; Docker
v. Somes, 2 M. & K. 674.) The fact that this case may be new in
instance is not a sufficient reason for turning the plaintiff out of
court. ( Piper v. Hoard, 107 N. Y. 73; Kujek v.
Goldman, 150 N. Y. 176; Sorensen v. Balaban, 11 App.
Div. 164; Hoefler v. Hoefler, 12 App. Div. 84; Marks
v. Jaffa, 6 Misc. Rep. 290.) The plaintiff is entitled to damages
for her mental distress and annoyance, besides the recovery of the profits
made by the use of her picture. ( Mayer v. Gordon, 113 Ind.
282; 8 Am. & Eng. Ency. of Law [2d ed.], 659, 669, 672; Sedg. on Dam. 35;
Byrne v. Gardner, 33 La. Ann. 6; Hamilton v. T. A.
R. R. Co., 53 N. Y. 28; Prince v. Ridge, 32 Misc. Rep.
666; Lewis v. Hoover, 3 Blackf. 407; Newell v.
Whitcher, 53 Vt. 589; Leach v. Leach [***7] , 11 Tex.
699; Barbie v. Reese, 60 Miss. 906; Williams v.
Underhill, 63 App. Div. 223; Preiser v. Weilandt, 48
App. Div. 569; Moore v. Rugg, 44 Minn. 28.)
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