INTERFERENCE WITH PRIVACY
ROBERSON _v._ ROCHESTER FOLDING BOX COMPANY
COURT OF APPEALS, NEW YORK, JUNE 27, 1902.
_Reported in 171 New York Reports, 538._
PARKER, C. J.[526] The Appellate Division[527] has certified that the
following questions of law have arisen in this case, and 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
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 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 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
libelled 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 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 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 law through the
instrumentality of a court of equity, the attempts 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 wound 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 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 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 either directly or mediately governs
it or which by analogy or parity of reasoning 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. sect. 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. sect. 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 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 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 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 learned judge then commented upon various English cases; also upon
several American cases, especially Schuyler _v._ Curtis, 147 N. Y. 434;
Atkinson _v._ Doherty, 121 Mich. 372; and Corliss _v._ E. W. Walker Co.,
57 Fed. Rep. 434. The point _actually decided_ in 147 N. Y. 434 and in
121 Mich. 372 was that the widow or relatives of a deceased person
cannot restrain the erection of his statue or the publication of his
picture. In the Corliss case, the court declined to grant the request of
a widow that the publication of a biography of her deceased husband
should be enjoined; and finally (64 Fed. Rep. 280) declined to restrain
the publication of his picture. The latter decision proceeded upon the
ground that Mr. Corliss was a public character.]
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 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 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 jurisprudence.
* * * * *
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 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 wilful. 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 libellous words. In such case the
alleged libel is stated in the complaint, and if the words are libellous
_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 which does not appear in
the record, to make it libellous 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.
* * * * *
GRAY, J. (dissenting).
* * * * *
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 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
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 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, page 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.
* * * * *
In an article in the Harvard Law Review, of December 15, 1890, which
contains an impressive argument upon the subject of the “right of
privacy,” it was well said by the authors “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 had 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; 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.
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 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’ act.
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, 399; Gee _v._ Pritchard, 2 Swanst. 402; Abernathy _v._
Hutchinson, 3 L. J. Ch. 209; Folsom _v._ March, 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. 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. 280–285, 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
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 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.
* * * * *
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._[528]