Marks v. Jaffa — 6 Misc. 290

Majority

p. 290

Marks v. Jaffa.

(New York Superior Court—Special Term,

December, 1893.)

Headnote

A private individual is entitled to an injunction to restrain the publication without his consent of his' portrait for the purpose of inviting votes to test popularity in comparison with another,

Plaintiff, an actor by profession, who was then engaged in the study of law, declined to give consent to the publication of his portrait with that of another well -known actor in defendant’s newspaper, with an invitation to the readers thereof to vote as to which was the more popular i notwithstanding which defendant published said pictures Held, that plaintiff was entitled to an injunction to restrain the continuance of such publication.

Motion by plaintiff for injunction restraining publication, etc.

p. 291

M. J. Gretsch, for motion.

A. H. Sarasohn, opposed.

The plaintiff, an actor by profession, is now undergoing a course of studies in the law school of the university preparatory to admission to the bar. There is another •actor by the name of “ Mogulesko ” equally well known as the plaintiff.

The defendant is the editor of a newspaper called Der Wachter, published in this city and extensively patronized.

The defendant devised a scheme by which he was to publish in his paper a picture of the two actors, with an invitation to the readers of his journal to vote with the view to determining who was the more popular of the two.

The plaintiff declined to give consent to the use of his name or picture for any such purpose, and protested against any such use thereof, notwithstanding which the defendant went -on with the publication and published the two pictures, and invited the contest aforesaid, and has threatened to continue the same.

The bill was filed to enjoin future publications.

The action may seem novel, but there can be no question •■about the plaintiff’s right to relief irrespective of the amount •of damages he might recover at law. Schuyler v. Curtis, 27 Abb. H. C. 387; 40 N. Y. St. Repr. 289 ; 15 N. Y. Supp. 387 ; 64 Hun, 594 ; 19 N. Y. Supp. 264 . If a person can be compelled to submit to have his name and profile put up in this manner for public criticism, to test his popularity with certain people, he could be required to submit to the same test as to his honesty or morality, or any other virtue or vice he was supposed to possess, and the victim selected would either have to vindicate his character in regard to the virtue or vice selected, or be declared inferior to his competitor, a •comparison which might prove most odious. Indeed, he might be placed in competition with a person whose association might be peculiarly offensive as well as detrimental to him. Such a wrong is not without its remedy. Ho news

p. 292

paper or institution, no matter how worthy, has the right to use the name or picture of anyone for such a purpose without his consent. An individual is entitled to protection in person as well as property, and now the right to life has come to mean the privilege to enjoy life, without the publicity or annoyance of a lottery contest waged without authority, on the result of which is made to depend, in public estimation at least, the worth of private character or value of ability. See. 4 Harvard L. R. 193; Scribner’s Mag. July, 1890, pp. 65, 67. Games of chance have always been discountenanced by the law, and when they are used as the pretended means of testing private character or ability, they become impositions on the public and frauds upon the individuals affected.

The courts will in such cases secure to the individual what has been aptly termed the right “ to be let alone.”

The law affords a remedy for the unauthorized circulation of portraits of private persons, and the principle has been even extended to an actress whose picture was taken surreptitiously and without her consent by means of a flash light. Vide, supra. Private rights must be respected as well as the wishes, and sensibilities of people. When they transgress the law,, invoke its aid or put themselves up as candidates for public .favor, they warrant criticism, and ought not to complain of it. But where they are content with the privacy of their homes-they are entitled to peace of mind and cannot - be suspended over the press-heated gridiron of excited rivalry and voted for against their will and protest. The right of the plaintiff to relief seems too clear, both upon principle and authority, to. require further discussion.

The motion to continue the injunction must be granted..

Application granted.