N. C. 387, 15 N. Y. Supp. 787, where Jus- | contained any matter which was scandalous, tice O'Brien, of the supreme court of New libelous, or false, or that it affected any York, granted an injunction to restrain the right of property, but the relief was prayed making and public exhibition of a statue of upon the ground that the publication was a deceased person, upon the ground that it an injury to the feelings of the plaintiffs. was not shown that she was a public char- and against their express prohibition. An acter. This judgment was affirmed by the injunction was refused as to the biography supreme court, general term, by Van Brunt on the ground that Mr. Corliss was a public and Barrett, JJ., in an opinion by the for- man, in the same sense as authors or artmer, in which the rule was laid down that a ists are public men; but an injunction was person, whether a public character or not, granted as to the publication of the picture has a right to enjoin the making and plac- upon the ground that the publisher had ing on exhibition of his statue, and, he be- obtained a copy of the photograph upon cering dead, a relative has this right. 64 Hun, tain conditions, and the publication would 594, 19 N. Y. Supp. 264. When the case be a violation of those conditions. Subsecame before the supreme court, special term, quently a motion was made to dissolve the in 1893, the judgment of the general term injunction on the ground that the photowas followed, and in an opinion by Ingra- graph from which the copies were made was ham, J., the rule was announced that a not obtained in the manner above referred court of equity, at the instance of one of the to, but from a copy which was obtained in relatives of a deceased person, will enjoin a lawful way; and the injunction was disthe making and placing on public exhibi- solved upon the ground that neither a pubtion of a statue of the deceased by unau- lic character, nor his family after his death, thorized persons, which the complaining rel- has a right to enjoin the publication of his atives unite in alleging will cause them pain portrait, when the publication would not be and distress, and will be considered by them a violation of a contract or a breach of a disgrace; and this, too, whether or not trust or confidence. Judge Colt, in the the court be of the opinion that the proposed opinion, uses this language: "Independentrepresentation should produce the alleged ly of the question of contract, I believe the effect, and that such unauthorized act is law to be that a private individual has not within the provision of the state Consti- a right to be protected in the representatution which secures to each person the tion of his portrait in any form, that this right to freely speak, write, and publish his is a property, as well as a personal, right, sentiments on all subjects. 30 Abb. N. C. and that it belongs to the same class of 376, 24 N. Y. Supp. 509. The statue which rights which forbids the reproduction of a it was proposed to exhibit was in no sense private manuscript or painting, or the puba caricature, and the exhibition of the lication of private letters, or of oral lectures same would not have been a libel upon the delivered by a teacher to his class, or the deceased. revelation of the contents of a merchant's books by a clerk." Corliss v. E. W. Walker Co. 31 L. R. A. 283, 57 Fed. 434, 64 Fed. 280. It is to be noted that the ruling in this case goes no further than that a public character has so waived his right of privacy, if he ever had it, as to authorize the publication of his life and his picture, not only without his consent, but also without the consent of his family after his death, when there is nothing in the biography or the picture which will reflect discredit upon the subject.

In 1893, in Marks v. Jaffa, 6 Misc. 290, 26 N. Y. Supp. 908, an injunction was granted by the superior court of New York city, special term, to restrain the publication of a picture of the plaintiff in the defendant's newspaper, with an invitation to the readers of the paper to vote on the question of the popularity of the plaintiff, as compared with another person, whose picture was also published in such newspaper. McAdam, J., in the opinion said: "No newspaper or institution, no matter how worthy, has the right to use the name or picture of anyone for such a purpose without his consent." The decision was apparently based upon the case of Schuyler v. Curtis, above referred to.

In 1893 an application was made to Judge Colt, of the United States circuit court for the district of Massachusetts, by the widow and children of George H. Corliss, to enjoin the publication and sale of a biographical sketch of Mr. Corliss, and from printing and selling his picture in connection therewith. The bill did not allege that the publication

In 1894, in Murray v. Gast Lithographic & Engraving Co. 8 Misc. 36, 28 N. Y. Supp. 271,-a case decided by the court of common pleas of New York city and county,it was held that a person cannot sue to enjoin the publication of a portrait of his infant child, or for damages caused thereby. This decision was undoubtedly correct, for, if there was any right to sue for a violation of the right of privacy, the cause of action was in the child, and not in the parent.

In 1895 the case of Schuyler v. Curtis reached the court of appeals of New York,

and the judgment of the lower court was, picture or statue exhibited. We call atreversed. 147 N. Y. 436, 31 L. R. A. 286, tention to the ruling in Jacobus v. Congre49 Am. St. Rep. 671, 42 N. E. 22. It was gation of Children of Israel, 107 Ga. 518, 73 held that, if any right of privacy, in SO Am. St. Rep. 141, 33 S. E. 853, that damfar as it includes the right to prevent the ages may be recovered by the relative of a public from making pictures or statues deceased person, who is the owner of an commemorative of the worth and services of easement of burial in a cemetery lot, for the the subject, exists at all, it does not survive disinterment of the dead body, and that, if after death, and cannot be enforced by the the injury has been wanton and malicious, relatives of the deceased. The opinion was or the result of gross negligence and a reckdelivered by Judge Peckham, in the course less disregard of the rights of others, exof which he uses this language: "If the de- emplary damages may be awarded, in estifendants had projected such a work in the mating which the injury to the natural lifetime of Mrs. Schuyler, it would, per- feelings of the plaintiff may be taken into haps, have been a violation of her indi- consideration. If damages for wounded vidual right of privacy, because it might be feelings can be recovered in such a case for contended that she had never occupied such the wanton removal of the bleaching bones a position towards the public as would have of the deceased relative, it would seem, authorized such action by anyone so long for a stronger reason, that such damages as it was in opposition to her wishes." ought to be allowed to be recovered when Judge Gray dissented, saying in his opin- those matters which the deceased had jealion: "I cannot see why the right of privacy ously guarded from the public during his is not a form of property, as much as is the lifetime, and his portrait, which was likeright of complete immunity of one's per-wise protected from the public gaze, are son." This case settles nothing as to the existence of a right of privacy, but merely rules that, if it exists at all, it is a personal right, and dies with the person.

In Atkinson v. John E. Doherty & Co. 121 Mich. 372, 46 L. R. A. 219, 80 Am. St. Rep. 507, 80 N. W. 285,-a case decided in 1899, -the supreme court of Michigan held that the use of the name and likeness of a deceased person as a label for a brand of cigars cannot be restrained by injunction, so long as they do not constitute a libel. Many, if not at all, the cases above referred to, in reference to the right of privacy, are mentioned and reviewed in this case. While this decision apparently lays down the broad proposition that the right of privacy does not exist to such an extent as to prohibit one from publishing the picture of another without his consent, in reality the only question necessary to have been decided was whether this right of privacy was personal, and died with the person; and therefore the decision, on its facts, is authoritative no further than the decision of the New York court of appeals in Schuyler v. Curtis. While the right of privacy is personal, and may die with the person, we do not desire to be understood as assenting to the proposition that the relatives of the deceased cannot, in a proper case, protect the memory of their kinsman, not only from defamation, but also from an invasion into the affairs of his private life after his death. This question is not now involved, but we do not wish anything said to be understood as committing us in any way to the doctrine that, against the consent of relatives, the private affairs of a deceased person may be published, and his

made public property after his death.

In Roberson v. Rochester Folding Box Co. (1901) 64 App. Div. 30, 71 N. Y. Supp. 876, decided by the appellate division of the supreme court of New York, it appeared that lithographic likenesses of a young woman, bearing the words "Flour of the Family," were, without her consent, printed and used by a flour-milling company to advertise its goods. The declaration alleged that in consequence of the circulation of such lithographs the plaintiff's good name had been attacked, and she had been greatly humiliated and made sick, and been obliged to employ a physician, and prayed for an injunction against the further use of the lithographs, and for damages. It was held that the declaration was not demurrable. It was also held that, if a right of property was necessary to entitle the plaintiff to maintain the action, the case might stand upon the right of property which everyone has in his own body. This case came before the court of appeals of New York in 1902, and the judgment was reversed. 171 N. Y. 540, 59 L. R. A. 478, 89 Am. St. Rep. 828, 64 N. E. 442. This is the first and only decision by a court of last resort involving the existence of a right of privacy. The decision was by a divided court; Chief Judge Parker and three of the associate judges concurring in a ruling that the complaint set forth no cause of action, either at law or in equity, while Judge Gray, with whom concurred two of the associate judges, filed a dissenting opinion, in which it was maintained that the injunction should have been granted. While the ruling of the majority is limited in its effect to the unwarranted publication of

liberty, and, if the law will not protect him against invasion, the individual will, to protect himself and those to whom he owes protection, use those weapons with which nature has provided him, as well as those which the ingenuity of man has placed within his reach. Thus the peace and good order of society would be disturbed by each individual becoming a law unto himself to determine when and under what circumstances he should avenge the outrage which has been perpetrated upon him or a member of his family. The true lawyer, when called to the discharge of judicial functions, has in all times, as a general rule, displayed remarkable conservatism; and, wherever it was legally possible to base a judgment upon principles which had been recognized by a long course of judicial decision, this has been done, in preference to applying a principle which might be considered novel. It was for this reason that the numerous cases, both in England and in this country, which really protected the right of privacy, were not placed upon the existence of this right, but were allowed to rest upon principles derived from the law of property. trust, and contract. Any candid mind will, however, be compelled to concede that, in order to give relief in many of those cases, it required a severe strain to bring them within the recognized rules which were sought to be applied. The desire to avoid the novelty of recognizing a principle which had not been theretofore recognized was avoided in such cases by the novelty of straining a well-recognized principle to cover a state of facts to which it had never before been applied. This conservatism of the judiciary has sometimes unconsciously led judges to the conclusion that, because the case was novel, the right claimed did not exist. With all due respect to Chief Judge Parker and his associates who concurred with him, we think the conclusion reached by them was the result of an unconscious yielding to the feeling of conservatism which naturally arises in the mind of a judge who faces a proposition which is novel. The valuable influence upon society and upon the welfare of the public of the conservatism of the lawyer, whether at the bar or upon the bench, cannot be overestimated; but this conservatism should not go to the extent of refusing to recognize a right which the instincts of nature prove to exist, and which nothing in judicial decision, legal history, or writings upon the law can be called to demonstrate its nonexistence as a legal right.

the picture of another for advertising pur- | he has a right to resent any invasion of this poses, the reasoning of Judge Parker goes to the extent of denying the existence in the law of a right of privacy, "founded upon the claim that a man has the right to pass through this world without having his picture published, his business enterprises discussed, or his eccentricities commented upon, whether the comment be favorable or otherwise." The reasoning of the majority is, in substance, that there is no decided case, either in England or in this country, in which such a right is distinctly recognized; that every case that might be relied on to establish the right was placed expressly upon other grounds, not involving the application of this right in any sense; that the right is not referred to by the commentators and writers upon the common law or the principles of equity; that the existence of the right is not to be legitimately inferred from anything that is said by any of such writers; and that a recognition of the existence of the right would bring about a vast amount of litigation; and that in many instances where the right would be asserted it would be difficult, if not impossible, to determine the line of demarcation between the plaintiff's right of privacy and the well-established rights of others and of the public. For these reasons the conclusion is reached that the right does not exist, has never existed, and cannot be enforced as a legal right. We have no fault to find with what is said by the distinguished and learned judge who voiced the views of the majority as to the existence of decided cases, and agree with him in his analysis of the various cases which he reviews, that the judgment in each was based upon other grounds than the existence of a right of privacy. We also agree with him so far as he asserts that the writers upon the common law and the principles of equity do not in express terms refer to this right. But we are utterly at variance with him in his conclusion that the existence of this right cannot be legitimately inferred from what has been said by commentators upon the legal rights of individuals, and from expressions which have fallen from judges in their reasoning in cases where the exercise of the right was not directly involved. So far as the judgment in the case is based upon the argument ab inconvenienti, all that is necessary to be said is that this argument has no place in the case if the right invoked has an existence in the law. But if it were proper to use this argument at all, it could be said with great force that as to certain matters the indi- We think that what should have been a vidual feels and knows that he has a right proper judgment in the Roberson Case was to exercise the liberty of privacy, and that'that contended for by Judge Gray in his dis

senting opinion, from which we quote as assault might be. Security of person is as follows:

"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, 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.

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 "As I have suggested, that the exercise of for some property which has been invaded this peculiar preventive power of a court of by the defendants' acts. Property is not equity is not found in some precisely anal- necessarily the thing itself which is owned. ogous case furnishes no valid objection at It is the right of the owner in relation to all to the assumption of jurisdiction, if the it. The right to be protected in one's posparticular circumstances of the case show session of a thing, or in one's privileges bethe performance, or the threatened perform-longing to him as an individual, or secured ance, of an act by a defendant which is to him as a member of the commonwealth, 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. .

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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 "Instantaneous photography is a modern equity have interfered to protect the right invention, and affords the means of securing of privacy in cases of private writings, or a portraiture of an individual's facend of other unpublished products of the 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 permit-mercial purposes as she would have if they ted 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

mind.

"I think that this plaintiff has the same property in the right to be protected against the use of her face for defendants' com

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 de