Roberson v. . Rochester Folding Box Co.

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 lithographic prints, photographs or likenesses of plaintiff, for the purpose of profit and gain to themselves;" that upon the paper upon which the likeness was printed, are the words above the portrait, in large, plain letters, "Flour of the Family," and below, in large capital letters, "Franklin Mills Flour," and in the lower right hand corner, in small capital letters, are the words "Rochester Folding Box Company;" that 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 stores, warehouses and saloons, throughout the United States and other countries, and particularly in the vicinity where the plaintiff resides;" that the result has been to greatly humiliate her, by the scoffs and jeers of persons who have recognized her face upon these advertisements, and her good name has been attacked and that, because of these facts, "she was made sick and suffered a severe nervous shock, was confined to her bed and was compelled to employ a physician." The plaintiff, further, alleges that the defendants "are now wrongfully printing, making, using, selling and circulating these lithographs," and that, by reason of these facts, she has suffered damages in the sum of $15,000. The relief demanded is that the defendants be enjoined from making, printing, publishing, obtaining, or using, in any manner, any likeness of the plaintiff in any form whatever. The facts contained within these allegations must be regarded as admitted, under the defendant's demurrer; as must all other facts which can be implied, by reasonable and fair intendment. (Marie v.Garrison, 83 N.Y. 14.) These defendants stand before the court, admitting that they have made, published and circulated, without the knowledge or the authority of the plaintiff, 25,000 lithographic portraits of her, for the purpose of profit and gain to themselves; that these portraits have been conspicuously posted in stores, warehouses and saloons, in the vicinity of the plaintiff's residence and throughout the United States, as advertisements of their goods; that the effect has been to humiliate her and to render her ill and, yet, claiming that she makes out no cause of action. They say that no law on the statute books gives her a right of action and that her right to privacy is not an actionable right, at law or in equity.

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 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 noproperty, as that term is usually used, is involved in thesubject."

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 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, 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 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 Wallworth v. Holt, (4 Myl. C. 619), "I think it is the duty of this court, (meaning equity), to adopt 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 should 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 common-law principle, or whether it is one of natural justice. In an article in the Harvard Law Review, of December 15th, 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."

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' 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; Abernathy v. Hutchinson, 3 L.J. Ch. 209; Folsom v. Marsh, 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. 280-5), 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. 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 original hearing, Vice-Chancellor KNIGHT-BRUCE, in granting the injunction, observed that, "upon the principle of protecting property, it is that the common law, in cases not aided or prejudiced by statute, shelters the privacy and seclusion of thoughts and sentiments committed to writing, and desired by the author to remain not generally known."

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.