Roberson v. Rochester Folding Box Co.

The Appellate Division has certified that the following questions of law have arisen in this case, and

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 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 businéss 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 whiph 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, “ Bochester Folding Box Co., EoChester, FT. Y.; ” that upon the same sheet were othel* advertisements of thp 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 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

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, therefore, one easily recognized, has been used to attract attention 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 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

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 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

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

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, 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

So in a case like the one before us, which is concededly new to tliié 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 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. Ill, 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 English authorities cited are consistent with such view. Those authorities are now to be examined in order that we may17 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.

Pollard v. Photographic Co. (L. R. 40 Ch. Div. 345) is certainly not an authority for granting an in junction on the ground o‘f 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 with copies of it for a price. During the argument of plaintiff’s counsel, the court asked this question: “ Do yon dispute that if the negative likeness were taken on the sly, the person who took it

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 y>laintiff. 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 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

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 he shown that the use of the plaintiff’s name is unauthorized and is calculated to injure him in His profession, and after saying that lie did not think that this was right, he stated the proper rule to he 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.”

Hone 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

“ 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 bound

aries 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 we have in view, it is unnecessary to wholly deny the existence of the right of primacy 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.” 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 jDrocess of law, to possess or maintain, without disturb

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 Gorliss 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 saidUnder 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 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

Atkinson v. Doherty ivas 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 ivas 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 Avould himself be remediless Avere he alive, and the same is true of his friends avIio survive.” The opinion concludes as follows: “ This Irav of privacy seems to

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 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

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.

(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 licliographic prints, photographs or likenesses of plaintiff, for the purpose of profit and gain to themselves; ” that upon the paper upon which

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 ” 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 -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 the invasion of his privacy, if not actually affirmed in the opinion, was, very certainly, far from being denied. “It may be admitted,” Judge Beckham 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 indi

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 plaintiffs 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 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 byxa 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 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

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. 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 con

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; 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.

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 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 origi-.

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 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.

O’Brien, Cullen and Werner, JJ., concur with Parker, Ch. J.; Bartlett and Haight, JJ., concur with Gray, J.

Judgment reversed, etc. .