'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." The case that seems to have been more relied privacy to which the plaintiff appeals as the foundaupon than any other by the learned Appellate tion of his cause of action." 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 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 decision (64 Hun, 594). This court reversed the judgment, Judge Peckham writing, and so far as the decision is concerned, therefore, 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 T. R. Co. v. Kingston City R. R. (154 N. Y., 493), in which it was said: “It was not our intention to decide any case but the one before 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 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 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: us. * * * "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 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." 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 process of law, to possess or maintain, without disturbance, 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. 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 For the purposes we have in view, it is unneces- publication of the biography, but granted it as to sary to wholly deny the existence of the right of the use of certain plates from which the defendant "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." " A no was to make a picture of Mr. Corliss, upon the surrendered his right of privacy? In what respect ground that they had been obtained upon conditions did he, by his inventions, “ask for and desire public which defendant had not complied with. In the recognition" any more than a banker or merchant course of the opinion the court said: "Under our who prosecutes his calling? Or is the right of laws one can speak and publish what he desires, privacy the possession of mediocrity alone, which a provided he commit no offense against public morals person forfeits by giving rein to his ability, spurs or private reputation. *** There is another to his industry or grandeur to his character? objection which meets us at the threshold of this lady may pass her life in domestic privacy when, by case. The subject-matter of the jurisdiction of a some act of heroism or self-sacrifice, her name and court of equity is civil property, and injury to prop- fame fill the public ear. Is she to forfeit by her erty, whether actual or prospective, is the founda- good deed the right of privacy she previously postion on which its jurisdiction rests (Re Sawyer, sessed? These considerations suggest the answer 124 U. S., 200, 210; Kerr. Inj., 2d ed., p. 1). It we would make to the position of the learned judge, fellows from this principle that a court of equity and at the same time serve to make more clear has no power to restrain a libelous publication." what we have elsewhere attempted to point out, Both the opinion and the decision necessarily nega- namely, the absolute impossibility of dealing with tive the existence of an actionable right of privacy; this subject save by legislative enactment, by which but, subsequently, upon a motion to dissolve the may be drawn arbitrary distinctions which injunction, which was granted upon the ground court should promulgate as a part of general that Mr. Corliss was a public character, and hence jurisprudence. the publishers were entitled to use his picture, the Atkinson v. Doherty was a suit in equity brought learned court expressed the opinion that a private by the widow of Colonel John Atkinson, a wellindividual has the right to be protected from the known lawyer in Detroit, to enjoin the defendant, publication of his portrait in any form. Now, while a cigar manufacturer, from using the name and this suggestion was obiter, it merits discussion, and portrait of Colonel Atkinson upon boxes of cigars an examination of that which it promulgates as manufactured by defendant. The suit was disdoctrine discloses what we deem a fatal objection | missed by the Circuit Court, and its decree was to the establishment of a rule of privacy. The unanimously affirmed by the Supreme Court. The learned judge says: "I believe the law to be that case quite closely resembles the Schuyler case, a private individual has a right to be protected in which was brought to the attention of that court, the representation of his portrait in any form; that and in the course of the opinion the contention that this is a property as well as a personal right, and the Schuyler case intimated the existence of a right that it belongs to the same class of rights which of privacy was met as follows: "We think it should forbids the reproduction of a private manuscript or not be considered as containing a dictum even in painting, or the publication of private letters, or support of the doctrine contended for." The method of oral lectures delivered by a teacher to his class, adopted by the court in the Atkinson case in treator the revelation of the contents of a merchant's ing the question was different from that employed book by a clerk. * * * But, while the right of by this court in the Schuyler case, however, for the a private individual to prohibit the reproduction of opinion proceeds to a review of the authorities upon his picture or photograph should be recognized and which the right of privacy is said to rest, reaching enforced, this right may be surrendered or dedicated the conclusion that all of the authorities which are to the public by the act of the individual, just the entitled to respect are based upon property or consame as a private manuscript, book or painting be- tract rights, and hence "that Colonel Atkinson comes (when not protected by copyright) public would himself be remediless were he alive, and the property by the act of publication. The distinction same is true of his friends who survive." The opinin the case of a picture or photograph lies, it seems ion concludes as follows: "This law of privacy to me, between public and private characters. A seems to have gained a foothold at one time in the private individual should be protected against the history of our jurisprudence- not by that name, publication of any portrait of himself, but where it is true- but in effect. It is evidenced by the an individual becomes a public character the case old maxim, 'the greater the truth the greater the is different. A statesman, author, artist or inventor, libel,' and the result has been the emphatic exwho asks for and desires public recognition, may pression of public disapproval, by the emancipation be said to have surrendered his right to the public." of the press and the establishment of freedom of This distinction between public and private char- speech, and the abolition in most of the States of acters cannot possibly be drawn. On what principle the maxim quoted by constitutional provisions. The does an author or artist forfeit his right of privacy limitations upon the exercise of these rights being and a great orator, a great preacher or a great the law of slander and libel, whereby the publication advocate retain his? Who can draw a line of de- of an untruth that can be presumed or shown to marcation between public characters and private the satisfaction, not of the plaintiff. but of others characters, let that line be as wavering and irregular | (i. e., an impartial jury), to be injurious, not alone as you please? In the very case, then, before the to the feelings, but to the reputation, is actionable. judge, what had Mr. Corliss done by which he Should it be thought that it is a hard rule that is applied in this case, it is only necessary to call GRAY, J. (dissenting.)- The question arises on attention to the fact that a ready remedy is to be the defendants' demurrer to the sufficiency of the found in legislation. We are not satisfied however, complaint to state a cause of action. The complaint that the rule is a hard one, and think that the con- alleges that, without the knowledge of the plaintiff, sensus of opinion must be that the complainants the defendants, "knowing that they had no right contend for a much harder one. The law does not or authority so to do, had obtained, made, printed, remedy all evils. It cannot, in the nature of things; sold and circulated about 25,000 lithographic prints, and deliberation may well be used in considering photographs or likenesses of plaintiff, for the purthe propriety of an innovation such as this case sug- pose of profit and gain to themselves; " that upon gests. We do not wish to be understood as be- the paper upon which the likeness was printed are littling the complaint. We have no reason to doubt the words above the portrait, in large, plain letters, the feeling of annoyance alleged. Indeed, we sym-"Flour of the Family," and below, in large capital pathize with it and marvel at the impertinence which letters, Franklin Mills Flour," and in the lower does not respect it. We can only say that it is right-hand corner, in small capital letters, are the one of the ills that under the law cannot be words 'Rochester Folding Box Company;" that redressed." upon the same paper are the advertisements 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 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 stores, warehouses and saloons, throughout the 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 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 which does not appear in the record, to make it libelous there must be a proper allegation as to its character. are now wrong United States and other countries, and particularly The judgment of the Appellate Division and of the Special Term should be reversed and questions Our consideration of the question thus presented certified answered in the negative, without costs, has not been foreclosed by the decision in Schuyler and with leave to the plaintiff to serve an amended v. Curtis (147 N. Y., 434). In that case it apcomplaint within twenty days, also without costs. peared that the defendants were intending to make, and to exhibit, at the Columbian Exposition of the defendants' acts, should be serious, and appre1893, a statue of Mrs. Schuyler, formerly Miss Mary ciable by a pecuniary standard, clearly, we might M. Hamilton, and conspicuous in her lifetime for well say, under the allegations of the complaint, her philanthropic work, to typify "Woman as the that they were of such degree of gravity. However, Philanthropist," and, as a companion piece, a statue I am not of the opinion that the gravity of the injury of Miss Susan B. Anthony, to typify the "Repre- need be such as to be capable of being estimated sentative Reformer." The plaintiff, in behalf of by such a standard. If the right of privacy exists, himself, as the nephew of Mrs. Schuyler, and of and this complaint makes out a case of its substanother immediate relatives, sought by the action to tial violation, I think that the award of equitable restrain them from carrying out their intentions as relief, by way of an injunction, preventing the conto the statue of Mrs. Schuyler; upon the grounds, tinuance of its invasion by the defendants, will not in substance, that they were proceeding without his depend upon the complainant's ability to prove consent (whose relationship was conceded to be substantial pecuniary damages, and if the court finds such as to warrant such an action, if it were main- the defendants' act to be without justification and tainable at all), or that of the other immediate for selfish gain and purposes, and to be of such a members of the family; that their proceeding was character as is reasonably calculated to wound the disagreeable to him, because it would have been feelings and to subject the plaintiff to the ridicule disagreeable and obnoxious to his aunt, if living, or to the contempt of others, that her right to the and that it was annoying to have Mrs. Schuyler's preventive relief of equity will follow; without conmemory associated with principles which Miss Susan, sidering how far her sufferings may be measurable B. Anthony typified and of which Mrs. Schuyler by a pecuniary standard. did not approve. His right to maintain the action The right of privacy, or the right of the individual 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 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, and where the doing of the act is wholly unjustifiable, and is, in legal contemplation, a wrong, even though the existence of the 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 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 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 everyone, 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., 39 Barb., 212; Sherman v. Skuse, 166 N. Y., 352; Hamilton v. Whitridge, 11 N. Y., 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 mold 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. Sir Henry Maine, in his work 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 Walworth v. Holt (4 Myl. & C., 619): "I think it is the duty of this court (meaning equity) to adapt 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 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 would 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 established commonlaw principle or whether it is one of natural justice. 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 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." 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' 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, 399; Gee v. Pritchard, 2 Swanst., 402; Abernethy v. Hutchinson, 3 L. J. Instantaneous photography is a modern invention Ch., 209; Folsom v. Marsh, 2 Story, 100). I think and affords the means of securing a portraiture of that this plaintiff has the same property in the right an individual's face and form, in invitum their to be protected against the use of her face for While, so far forth as it merely does that. defendant's commercial purposes as she would have although a species of aggression, I concede it to if they were publishing her literary compositions. Owner. |