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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 com- “While not assuming to decide what this right plaint in this case states a cause of action is Schuy- of privacy is in all cases, we are quite clear that ler v. Curtis (147 N. Y., 434). In that case certain such a right would not be violated by the proposed persons attempted to erect a statue or bust of a action of the defendants." woman no longer living, and one of her relatives There are two other cases in this State bearing commenced an action in equity to restrain such erec- upon this question: Marks v. Jaffa (26 N. Y. Supp., tion, alleging that his feelings and the feelings of 908), decided at Special Term, and Murray v. Gast other relatives of deceased would be injured thereby. Lithographic & Engraving Co. (8 Misc. Rep., 36), At Special Term an injunction was granted on that decided at an Equity Term of the Court of Comground (19 N. Y. Supp., 264). The General Term mon Pleas at New York. In the first case the relief affirmed the decision (64 Hun, 594). This court prayed for was granted upon the authority of the reversed the judgment, Judge Peckham writing, and decision of the General Term in the Schuyler case, so far as the decision is concerned, therefore, is which was subsequently reversed in this court. In not authority for the existence of a right of privacy the Murray case, in a well-reasoned opinion by which entitles a party to restrain another from Judge Bischoff, it is held that a parent cannot maindoing an act which, though not actionable at com- tain an action to enjoin an unauthorized publication mon law, occasions plaintiff mental distress. In of the portrait of an infant child, and for damages the course of the argument, however, expressions for injuries to his sensibilities caused by the invasion were used which it is now claimed indicate that the of his child's privacy, because the law takes no court recognized the existence of such a right. A cognizance of a sentimental injury, independent of sufficient answer to that contention is to be found a wrong to person or property.” In the course of in the opinion written on the motion for reargument his opinion he quotes from the opinion of Lumpkin, in Colonial City T. R. Co. v. Kingston City R. R. J., in Chapman v. West. U. T. Co. (88 Ga., 763) as (154 N. Y., 493), in which it was said: “It was not follows: “ The law protects the person and the our intention to decide any case but the one before purse. The person includes the reputation. The
* If, sometimes happens, broader body, reputation and property of the citizen are statements were made by way of argument or other not to be invaded without responsibility in damwise than were essential to the decision of the ques- ages to the sufferer. But, outside these protected tions presented, they are the dicta of the writer of spheres, the law does not yet attempt to guard the the opinion and not the decision of the court. A
of mind, the fcelings or the happiness of everyjudicial opinion, like evidence, is only binding so one by giving recovery of damages for mental far as it is relevant, and when it wanders from the anguish produced by mere negligence. There is no point at issue it no longer has force as an official right, capable of enforcement by process of law, utterance." The question up for decision in the to possess or maintain, without disturbance, any Schuyler case was whether the relatives could re- particular condition of feeling. The law leaves strain the threatened action of defendants, and not feeling to be helped and vindicated by the trewhether Mrs. Schuyler could have restrained it had mendous force of sympathy. The temperaments of she been living. The latter question not being before individuals are various and variable, and the imthe court, it was not called upon to decide it, and, agination exerts a powerful and incalculable influas we read the opinion, there is no expression in it ence in injuries of this kind. There are many moral which indicates an intention either to decide it or to obligations too delicate and subtle to be enforced seriously consider it, but rather, it proceeds upon in the rude way of giving money compensation for the assumption that if such a right did exist in Mrs. their violation. Perhaps the feelings find as full Schuyler, her relatives did not succeed to it upon protection as it is possible to give in moral law and her death; all of which will sufficiently appear from a responsive public opinion. The civil law is a the following extracts from the opinion:
practical business system, dealing with what is “ This action is of a nature somewhat unusual tangible, and does not undertake to redress psychoand dependent for its support upon the application logical injuries." of certain principles which are themselves not very Outside of this jurisdiction the question seems clearly defined or their boundaries very well recog- to have been presented in two other cases in this nized or plainly laid down. Briefly described, the country: Corliss v. E. W. Walker Co. (57 Fed. action is founded upon the alleged violation of Rep., 434, 64 Fed. Rep., 280) and Atkinson v. what is termed the right of rivacy.”
Doherty (121 Mich., 372) The Corliss case “It is not necessary, however, to the view which an action in equity to restrain the publication of we take of this case, to lay down precise and accu- the biography and picture of Mr. Corliss. rate rules which shall apply to all cases touching based upon an alleged invasion of the right of upon this alleged right."
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
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 i 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? А obiection 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. I). 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 no 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 dictuin 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 principie 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 An examination of the authorities leads us to the Hour of the Franklin Mills Company; that these conclusion that the so-called “right of privacy” has 25,000 likenesses of the plaintiff thus ornamented not as yet found an abiding place in our jurispru- have been “conspicuously posted and displayed in dence, and, as we view it, the doctrine cannot now
warehouses and saloons, throughout the be incorporated without doing violence to settled United States and other countries, and particularly principles of law by which the profession and the in the vicinity where the plaintiff resides;” that public have long been guided.
the result has been to greatly humiliate her, by the I do not say that, even under the existing law, scoffs and jeers of persons who have recognized in every case of the character of the one before us, her face upon these advertisements, and her good or indeed in this case, a party whose likeness is name has been attacked and that, because of these circulated against his will is without remedy. By facts," she was made sick and suffered a severe section 245 of the Penal Code any malicious publica- nervous shock, was confined to her bed and was tion by picture, effigy or sign which exposes a compelled to employ a physician." The plaintiff, person to contempt, ridicule or obloquy is a libel, further, alleges that the defendants “are now wrongand it would constitute such at common law. Ma- fully printing, making, using, selling and circulating licious in this definition means simply intentional these lithographs," and that, by reason of these facts, and willful. There are many articles, especially of she has suffered damages in the sume of $15,000. medicine, whose character is such that using the pic
The relief demanded is that the defendants be ture of a person, particularly that of a woman, in enjoined from making, printing, publishing, obtainconnection with the advertisement of those articles ing or using, in any manner, any likeness of the might justly be found by a jury to cast ridicule plaintiff in any form whatever. The facts contained or obloquy on the person whose picture was thus within these allegations must be regarded as adpublished.
The manner or posture in which the mitted, under the defendant's demurrer; as must person is portrayed might readily have a like effect. all other facts which can be implied by reasonable In such cases both a civil action and a criminal and fair intendment (Marie v. Garrison, 83 N. Y., prosecution could be maintained. But there is no 14). These defendants stand before the court, adallegation in the complaint before us that this was mitting that they have been made, published and the tendency of the publication complained of, and circulated, without the knowledge or the authority the absence of such an allegation is fatal to the of the plaintiff, 25,000 lithographic portraits of her, maintenance of the action, treating it as one of libel. | for the purpose of profit and gain to themselves ; This case differs from an action brought for libelous that these portraits have been conspicuously posted words. In such case the alleged libel is stated in in stores, warehouses and saloons, in the vicinity the complaint, and if the words are libelous per se of the plaintiff's residence and throughout the it is unnecessary to charge that their effect exposes United States, as advertisements of their goods; the plaintiff to disgrace, ridicule or obloquy. The that the effect has been to humiliate her and to law attributes to them that result. But where the render her ill and, yet, claiming that she makes out libel is a picture which does not appear in the no cause of action. They say that no law on the record, to make it libelous there must be a proper statute books gives her a right of action and that allegation as to its character.
her right to privacy is not an actionable right, at The judgment of the Appellate Division and of law or in equity. 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 (1.47 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 tiai 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 to be let alone, is a personal right, which is not upon the ground that he, as a relative, did not without judicial recognition. It is the complement represent any right of privacy which Mrs. Schuyler or the right to the immunity of one's person. The possessed in her lifetime, and that, whatever her individual has always been entitled to be protected right had been, in that respect, it died with her. I in the exclusive use and enjoyment of that which The existence of the individual's right to be pro- is his own. The common law regarded his person tected against the invasion of his privacy, if not and property as inviolate, and he has the absolute actually affirmed in the opinion, was, very certainly, right to be let alone (Cooley on Torts, p. 29). The far from being denied. " It may be admitted," principle is fundamental and essential in organized Judge Peckham observed, when delivering the opinion society that everyone, in exercising a personal right of the court, “that courts have power, in some and in the use of his property, shall respect the cases, to enjoin the doing of an act, where the rights and properties of others. He must so conduct nature, or character, of the act itself is well cal- himself, in the enjoyment of the rights and privilculated to wound the sen lities an individual, eges which belong to him as a member of society, and where the doing of the act is wholly unjustifi- as that he shall prejudice no one in the possession able, and is, in legal contemplation, a wrong, even and enjoyment of those which are exclusively his. though the wristence of the property, as that term When, as here, there is an alleged invasion of some is usually used, is involved in the subject."
personal right or privilege, the absence of exact That the individual has a right to privacy, which precedent and the fact that early commentators upon he can enforce and which equity will protect against the common law have no discussion upon the subthe invasion of, is a proposition which is not op-ject are of no material importance in awarding posed by any decision in this court and which, in equitable relief. That the exercise of the preventive my opinion, is within the field of accepted legal power of a court of equity is demanded in a novel principles. It is within the very case supposed by case is not a fatal objection (Niagara Falls Int. Judge Peckham in Schuyler v. Curtis. In the present Bridge Co. v. Great Western Ry., 39 Barb., 212; case, we may not say that the plaintiff's complaint Sherman v. Skuse, 166 N. Y., 352; Hamilton v. is fanciful, or that her alleged injury is purely a Whitridge, 11 N. Y., 145). In the social evolution, sentimental one. Her objection to the defendants' with the march of the arts and sciences and in the acts is not one born of caprice; nor is it based upon resultant effects upon organized society, it is quite the defendants' act being merely distasteful” to intelligible that new conditions must arise in perher. We are bound to assume, and I find no diffi- scnal relations which the rules of the common law, culty in doing so, that the conspicuous display of cast in the rigid mold of an earlier social status, her likeness, in various public places, has so humili- were not designed to meet. It would be a reproach ated her by the notoriety and by the public com- to equitable jurisprudence if equity were powerless ments it has provoked as to cause her distress and to extend the application of the principles of comsuffering. in body and in mind, and to confine her mon law or of natural justice in remedying a wrong, to her bed with illness.
which, in the progress of civilization, has been made If it were necessary, to be entitled to equitable possible as the result of new social or commercial relief, that the plaintiff's sufferings, by reason of conditions. Sir Henry Maine, in his work on
Ancient Law, has observed of equity that it is an be an irremediable and irrepressible feature of the agency“ by which law is brought into harmony with social evolution. But, if it is to be permitted that society," and that it is one of the factors which the portraiture may be put to commercial or other operate in judicial evolution. It succeeds legal fic- uses for gain, by the publication of prints therefrom, ticns, or those judicial assumptions, through which then an act of invasion of the individual's privacy a rule of law is modified in its operation, and it results, possibly more formidable and more painful precedes legislation (see Maine's Ancient Law, pp. in its consequences than an actual bodily assault 22 to 28). Equity has neither fixed boundaries nor might be. Security of person is as necessary as the logical subdivisions, and its origin, both in Rome security of property; and, for that complete perand in England, was that there was a wrong for sonal security, which will result in the peaceful and which there was no remedy at law (see ist Story' wholesome enjoyment of one's privileges as a memEq. Juris., secs. 49 and 50). It supplements the ber of society, there should be afforded protection, deficiencies of the common law by applying, where not only against the scandalous portraiture and otherwise there would result a wrong, those princi- display of one's features and person, but against the ples of natural justice which are analogous to settled display and use thereof for another's commercial principles of the common law (see Story's Eq. Jur., purposes or gain. The proposition is, to me, an sec. 671, note). Lord Chancellor Cottenham ob- inconceivable one, that these defendants may, unserved, in Walworth v. Holt (4 Myl. & C., 619): authorizedly, use the likeness of this young woman “I think it is the duty of this court (meaning upon their advertisement, as a method of attracting equity) to adapt its practice and course of proceed- widespread public attention to their wares, and that ing to the existing state of society, and not, by she must submit to the mortifying notoriety, without a strict adherence to forms and rules under different right to invoke the exercise of the preventive power circumstances, to decline to administer justice and of a court of equity. enforce rights for which there is no other remedy. Such a view, as it seems to me, must have been
If it were necessary to go much further unduly influenced by a failure to find precedents in than it is in opposition to some sanctioned opinions analogous cases, or some declaration by the great in order to open the doors of this court to those commentators upon the law of a common-law prinwho could not obtain it elsewhere, I should not ciple which would, precisely, apply to and govern shrink from the responsibility of doing so." As I the action; without taking into consideration that, have suggested, that the exercise of this peculiar in the existing state of society, new conditions affectpreventive power of a court of equity is not found ing the relations of persons demand the broader in some precisely analogous case, furnishes no valid extension of those legal principles, which underlie objection at all to the assumption of jurisdiction if the immunity of one's person from attack. I think the particular circumstances of the case show the that such a view is unduly restricted, too, by a performance or the threatened performance of an search for some property, which has been invaded act by a defendant which is wrongful because con-, by the defendants' acts. Property is not, necess
essarily, stituting an invasion in some novel form of a right the thing itself which is owned; it is the right of to something which is, or would be conceded to be, the owner in relation to it. The right to be prothe plaintiff's, and as to which the law provides no tected in one's possession of a thing, or in one's adequate remedy. It would be a justifiable exercise privileges, belonging to him as an individual, or of power whether the principle of interference be secured to him as a member of the commonwealth, rested upon analogy to some established common- is property, and as such entitled to the protection of law principle or whether it is one of natural justice. the law. The protective power of equity is not exerIn an article in the Harvard Law Review of De- cised upon the tangible thing, but upon the right cember 15, 1890, which contains an impressive argu- to enjoy it; and, so, it is called forth for the proment upon the subject of the “right of privacy,” tection of the right to that which is one's exclusive it was well said by the authors “that the individual possession, as a property right. It seems to me that shall have full protection in person and in property the principle, which is applicable, is analogous to is a principle as old as the common law; but it has that upon which courts of equity have interfered to been found necessary from time to time to define protect the right of privacy, in cases of private writanew the exact nature and extent of such protection. ings, or of other unpublished products of the mind.
The right to life has come to mean the The writer, or the lecturer, has been protected in right to enjoy life — the right to be let alone; the his right to a literary property in a letter, or a right to liberty secures the exercise of extensive lecture, against its unauthorized publication; because civil privileges; and the term 'property' has grown it is property, to which the right of privacy attaches to comprise every form of possession - intangible (Woolsey v. Judd, 4 Duer, 399; Gee v. Pritchard, as well as tangible.”
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.