Roberson v. Rochester Folding Box Co and The Franklin Mills Company

Supreme Court.
Appellate Division—Fourth Department.
ABIGAIL M. ,ROBERSON, AN INFANT, Ev HER

' GUARDIAN AD LITEM, MARGARET E. BELL,
Respondent,
AGAINST
THE ROCHESTER FOLDING BOX CO., AND

THE FRANKLIN MILLS COMPANY,
‘ Appellants.
Papers on Appeal from lnter=

locutory Judgment.
ELBRIDGE L. ADAMS,
Attorney for Appellants,
Rochester, N. Y.‘
MILTON E. GIBBS,
Attorney for Respondent,
Rochester, N. Y.
ROCHESTER, N. Y. .
THE GENESEE- PRESS, THE POST EXPRESS PRINTING COMPANY.
- 1900.
Supreme Court,
STATE OF NEW YORK—County of Monroe.
ABIGAIL M. ROBERSON, AN INFANT, BY

HER GUARDIAN AD LITEM, MARGARET
E. BELL, 3
Plaintiff,
AGAINST
THE ROCHESTER FOLDING BOX CO.

AND THE FRANKLIN MILLS CO.
Defendants.
To the above named Defendants :

You are hereby summoned to answer the com."
plaint in this action, and to serve a copy of your
answer on the plaintiff's attorney within twenty
days after the service of this summons, exclusive of
the day of service; and, in case of your failure to
appear or answer, judgment will be taken against
you by default for the relief demanded in the com
plaint. Trial to be held in the County of Monroe. 5
Dated this 5th day of April, 1900.
MILTON E. GIBBS,
Plaintiff’s Attorney,
Office and P. O. Address, 808 Wilder Building,
Rochester, N. Y. -
2
6 SUPREME COURT-MONROE COUNTY.

E. BELL,
Plaintiff,
AGAINST Complaint.

Defendants.
The plaintiff complains of the defendants, and re

spectfully shows to the court upon information and
belief, as follows:
First. That on or about the 31st day of March,
1900, the above named Margaret E. Bell was, by an
8 order of the Supreme Court of the State of New
York, duly appointed guardian of the plaintiff, for
the purposes of this action.
Second. That The Rochester Folding Box Co.
was at all the times hereinafter mentioned a domes
tic corporation, having its principal office and place
of business at Rochester, Monroe county, N.Y., and
was engaged in the manufacture of boxes, and a
general lithographic business.
That The Franklin Mills Company was at all the
times hereinafter mentioned a domestic corporation,
having its principal office and place of business at
Lockport, Niagara county, N.Y., and was engaged
in a general milling business, and especially in the
manufacture and sale of flour.
Third. That without the knowledge or consent

of the plaintiff, the defendants have, within the last
three years, knowing they had no right or authority
so to do, obtained, made, printed, sold and circu
lated about twenty-five thousand lithographic prints,
photographs and likenesses of the plaintiff, for the
purpose of profit and gain to themselves.
3
Fourth. That the lithographic photograph or I I
likeness of the plaintiff, obtained, made, printed and

circulated by defendants, as above set forth, is brief
ly thus described: It is made upon white, rough
paper, which is about twenty-two inches wide, and
about thirty inches long; the likeness of the plain
tiff, which is a large profile view, being on the cen
tral portion of said paper; above the likeness of the
plaintiff are the words, in large, plain letters, “Flour
of the Family.” Below the likeness are the words,
in large capital letters “Franklin Mills Flour,” and
in the lower right hand corner, in small capital let
ters, are the words, “Rochester Folding Box Co.,
Rochester, N. Y.” In the lower left hand corner
are represented by pictures, a large flour chest, upon
which appear words and phrases, advertising the I 3
flour of the Franklin Mills; also in the same corner
is a picture of a barrel and a flour sack, with words
and printing thereon, advertising the flour of the
Franklin Mills of Lockport, N.Y., which said Frank
lin Mills are the property of the defendant Franklin
Mills Company, and operated by said company.
Fifth. That the defendants herein have sold and
caused to be circulated about twenty-five thousand
copies of said likeness, and have caused the same to
be conspicuously posted and displayed in stores,
warehouses, saloons, and other public places,
throughout the United States and other countries,
and particularly in the vicinity where plaintiff re
sides.
Sixth. That when plaintiff was informed of the

said use of her likeness and photograph, she was
made sick, and suffered a severe nervous shock and
was confined to her bed; and was compelled to em
ploy a physician. That plaintiff has been greatly
humiliated by the scoffs and jeers of persons who
have recognized plaintiff's face and picture in the
lithograph above described, and her good name has
4
16 been attacked, causing her great distress and suffer

ing in both body and mind.
Seventh. That the defendants are now wrongfully
printing, making, using, selling and circulating the
said lithograph in large numbers.
Eighth. That by reason of the foregoing facts,
plaintiff has suffered damages in the sum of fifteen
thousand dollars ($15,000.00).
WHEREFORE, plaintiff demands judgment of this
court as follows:
First. That the defendants be perpetually en

joined from making, printing, publishing, circulating,
or using, in any manner whatsoever, any picture,
18 likeness, photograph, lithograph or print, in any
manner or form whatever, of this plaintiff.
Second. That the court cause the destruction of
any and all plates, stones, prints, proofs, wax forms,
and all dies, discs, and machinery from which any
lithograph, photograph or likeness of plaintiff are
now being made, or have been made by the defend
19 ants herein.
Third. That the court command forth with the

destruction of any and all photographs, lithographs,
crayons, prints, proofs, negatives, and any and all
likenesses of the plaintiff, now in their possession or
control of defendants.
Fourth. That plaintiff have judgment against the

20 defendants for fifteen thousand dollars ($15,000.00), .
besides the costs of this action.
MILTON E. GIBBS,
- Attorney for Plaintiff,
808 Wilder Building, Rochester, N. Y.
(Duly verified.)
5
SUPREME COURT-MONROE COUNTY. 2I

E. BELL,
Plaintiff,
AGAINST Demurrer.

Defendants. 22
The above named defendant, The Rochester Fold

ing Box Co., hereby demurs to the complaint herein
on the ground that it does not state facts sufficient
to constitute a cause of action against said defend
ant. -
ELBRIDGE L. ADAMS,
Attorney for Defendant, 23
The Rochester Folding Box Co.
Office and P. O. Address, 31 State Street,
Rochester, N. Y.
SUPREME COURT-MONROE COUNTY.

HER GUARDIAN AD LITEM, MARGARET 24
E. BELL,
Plaintiff,
AGAINST Demurrer.

Defendants.
The above named defendant, The Franklin Mills

Co., hereby demurs to the complaint herein on the 25
ground that it does not state facts sufficient to con
stitute a cause of action against said defendant.
ELBRIDGE L. ADAMS,
Attorney for Defendant,
The Franklin Mills Company,
Rochester, N. Y.
-
26 At a Regular Special Term of the Supreme Court,

held at the court house in the City of Rochester,
N. Y., June 25, 1900:
HON. JOHN M. DAVY, Justice Presiding.

E. BELL,
Plaintiff, Interlocutory
27 AGAINST Judgment.
Defendants.
This cause of action having been regularly

brought on for trial by the plaintiff, on defendants'
demurrer to the complaint herein on the ground
28 that said complaint did not state facts sufficient to
constitute a cause of action, and said trial having
been had at a regular special term of the Supreme
Court, held at Rochester, New York, June 25, 1900,
held by the Hon. John M. Davy, justice of said
court, and after hearing Elbridge L. Adams, Esq.,
for the defendants, in support of the demurrer, and
Milton E. Gibbs, in behalf of the plaintiff and in op
position to the demurrer, and a decision having been
rendered herein, and having been duly filed in Mon
roe County Clerk's office, whereby it was decided
that plaintiff is entitled to the interlocutory judg
ment hereinafter set forth.
Now, on motion of Milton E. Gibbs, attorney for

plaintiff,
3° It is hereby ordered, adjudged and decreed, that
defendants' demurrer herein be, and the same here
by is, overruled with costs to the plaintiff, to be
taxed by the County Clerk of Monroe County, and
included in this interlocutory judgment.
The defendants may withdraw their demurrer
herein, upon the payment of the costs, and may an
7
swer the complaint within twenty days after the ser- 31

vice of a copy of this interlocutory judgment, with
notice of entry thereof, on defendants' attorney. If
the defendants default in the payment of the costs,
and in serving their answer within the said twenty
days, the plaintiff may have final judgment, over
ruling the demurrer with costs.
Costs taxed herein at $70.62.
32
CHAS. L. HUNT,
Clerk.

HER GUARDIAN AD LITEM, MARGARET Monroe Special 33
E. BELL, Term,
AGAINST July, 1900.
THE ROCHESTER FOLDING BOX Opinion.
COMPANY AND THE FRANKLIN
MILLS COMPANY.
MILTON E. GIBBS, for Plaintiff. 34
ELBRIDGE L. ADAMS, for Defendants.

DAVY, J.
…
This is a demurrer to the complaint on the ground
- - -
that it does not state facts sufficient to constitute a

cause of action.
It is a rule of law well settled that a demurrer to

a complaint on the ground of insufficiency admits 35
all the material facts therein stated.
The plaintiff alleges in her complaint that without

her knowledge or consent the defendants have made,
printed, sold, and circulated about . twenty-five
thousand lithographic prints, photographs, and like
nesses of her for the purpose of profit and gain to
36 themselves. That the lithographic likeness is
made upon white, rough paper, which is about
twenty-two inches wide and about thirty inches
long, which contains a large profile view of the
plaintiff. On the central portion of the paper above
the likeness are the words in large, plain letters,
“Flour of the Family.” Below the likeness are the
words in large capital letters, “Franklin Mills Flour,”
37 and in the lower right-hand corner in small capital
letters are the words “Rochester Folding Box Com
pany, Rochester, N. Y.” In the lower left-hand
corner are represented by pictures a large flour
chest, upon which appear the words “The Franklin
Mills,” also in the same corner is a picture of a bar
rel and a flour sack, with the words printed thereon,
38" The Franklin Mills of Lockport, N. Y.”
The complaint also alleges that the defendants
have caused the said lithographs to be conspicuously
posted and displayed in stores, warehouses, saloons,
and other public places throughout the United
States and other countries, and particularly in the
vicinity where the plaintiff resides. That when
plaintiff was informed of the use of her likeness she
39 was made sick and suffered a severe nervous shock,
and was confined to her bed and was compelled to
employ a physician. That she has been greatly
humilated by the scoffs and jeers of persons who
have recognized her face in the lithograph above
described. That her good name has been attacked,
causing her great distress and suffering both in body
o and mind. That by reason of the foregoing facts
she has suffered damages in the sum of fifteen thou
sand dollars, for which sum she demands judgment,
and also that the defendants be perpetually enjoined
from making, printing, publishing, circulating, or
using in any manner whatsoever any picture, like
ness, photograph, lithograph, or print of the plaintiff.
The principal question in this case is whether the
9
defendants have the right to print and circulate 41

lithograph copies of plaintiff's likeness for the pur
pose of profit and gain to themselves without her
approval and consent. The defendants contend that
she is powerless to prevent it. That there is no law
that can restrain them from doing the act complained
of. The substance of this contention is that the
feelings of the plaintiff may be outraged with im
punity by any person who may desire to circulate 4°
her likeness as an advertising scheme, and there is
no power in the courts to protect her. If such were
a fact, it would certainly be a blot upon our boasted
system of jurisprudence, that the courts were power
less to prevent the doing of a wrongful act which
would wound in the most cruel manner the feelings
of a sensitive person. 43
The infliction of mental pain and distress by the
wrongful or unauthorized act of another gives a
cause of action in many cases, such as libel and
slander, and in all actions of tort where the wrong
ful act of another causes an injury, a recovery is
allowed for mental pain and distress, and disgrace
caused by such wrongful act. So also in an action
for breach of contract of marriage, the law recog-44
nizes that the infliction of such distress and disgrace
caused by the wrongful act of another is ground for
a recovery against the wrong-doer. I am aware
that many of the text writers say that a person can
not recover damages for mental anguish alone, and
that he can recover such damages only where he is
entitled to recover some damages upon some other
45
ground. It will generally be found, however, that
they are speaking of cases of personal injury. If in
jury to the feelings be an element of actual damages in
slander, libel, and breach of promise cases, it would
seem that it should equally be so considered in cases
of this character. It has been remarked by a learned
author that the mind is no less a part of the person
IO
46 than the body, and the sufferings of the former are

sometimes more acute and lasting than those of the
latter. The theory of the case which calls for
equitable relief is not that of mere protection to
wounded feelings, but the protection of plaintiff's
right of privacy and the right of property in her
own likeness.
47 There may be a distinction, however, between

private and public characters, as pointed out by
Lord Cuttingham in Prince Albert vs. Strange, I
Macn. & G. 25. The moment one voluntarily places
himself before the public, either in accepting public
office or in becoming a candidate for office, or as an
artist or literary man, he surrenders his right to
privacy and cannot complain of any fair or reason
4*able description or portraiture of himself.
It does not appear from the complaint in this
action that the plaintiff is within the category of
what might be denominated a public character.
She is undoubtedly a young woman of rare beauty,
and this she enjoys as a private citizen. It is very
natural, if the plaintiff is of a modest and retiring
49 nature, that any such publicity would be extremely
disagreeable and offensive to her. It is not impos
sible, therefore, that she has suffered and continues
to suffer great mental injury and distress. In other
words, there is plausible ground for the existence of
the distress and injury alleged in her complaint. It
cannot be said that it is a pure fabrication or fancy.
The act is such that every person can readily
see might cause, and probably did cause, mental
distress and injury to her nervous system. Take
any modest and refined young woman, possessed of
more than ordinary beauty and intelligence, situate
in like circumstances as the plaintiff; she might
naturally be extremely shocked and wounded in
seeing a lithographic likeness of herself posted in
II
public places as an advertisement of some enter 5I

prising business firm.
To permit every person to use a lithographic like
ness of the plaintiff to advertise their business, and
yet say there is no power in the courts to prevent it,
would be asserting a proposition at war with the
principles of justice and equity, and in violation of
the sacred right of privacy. Every personal inter 52
est which she possesses must be regarded as private,
especially when the public has acquired no right in
them.
Privacy is regarded as a product of civilization.

It was unsought and unknown among the barbarous
tribes. It implies an improved and progressive
condition of the people in cultivated manners and
53
customs with well defined and respected domestic
relations. The privacy of the home in every civil
ized country is regarded as sacred, and when it is
invaded it tends to destroy domestic and individual
happiness. It seems to me, therefore, that the ex
tension and development of the law so as to protect
the right of privacy should keep abreast with the
advancement of civilization. When private and 54
domestic live is invaded, which brings pain and
distress of mind and destroys the pleasure and hap
piness of domestic life, the courts ought to have
power to protect the individual from such an inva
sion. For years there has existed in the public mind
a feeling that the law was too lax in affording some
remedy for the unauthorized circulation of portraits
of private persons, and this invasion of privacy has 55
been keenly felt by the public.
It may be asked, how does the circulation of these
lithograph advertisements affect the plaintiff in her
right of privacy? It is evident that the acts of the
defendants in printing and posting her likeness in
public places as an advertisement to sell their flour
I2
56 invites public criticism and brings her name into

more or less unenviable notoriety, and, to a certain
extent, inflict injury to her reputation and feelings,
especially if she desires a life of privacy, which she
has a right to enjoy.
Cooley, in his work on Torts, page 29, says: “The
‘right of one's person may be said to be a right of
57 ‘complete immunity to be let alone.” The law also
gives to every person a right of security in his repu
tation. A good reputation is desired by every re
fined and modest woman. It gives her social con
sideration and standing among her neighbors, and
surrounds her with an atmosphere of happiness
which she could not enjoy if her right of privacy
was invaded.
5* The rule that an individual shall have full protec

tion in person and property is as old as the common
law.
It seems to me that the sale and circulation of

lithographic copies of plaintiff's likeness without her
consent is an invasion of her private rights. Every
woman has a right to retire from the observation of
59 the public. Her face is her own private property,
and no photographer would have a right to take ad
vantage of the privilege of taking her photograph
for her own private use, to make copies from the
negative and sell them to the public. It would be a
breach of trust and confidence placed in the photo
grapher, and, I might add, a breach of an implied
contract that he would not sell or exhibit them to
6O the public without her consent.
The right of privacy was recognized in the early

development of the English law. In Mayall vs.
Highbey, I H. & C. 148, the plaintiff lent some photo
graph portraits to a person who became insolvent,
and his assignee having offered the photographs for
sale at auction, the defendant purchased them, and
I3
by printing from the negative he obtained copies 61

which he published and sold. The plaintiff brought
an action against him and recovered nominal dam
ages. It was also held that the plaintiff was entitled
to an injunction to restrain the defendant from taking
or selling any more copies of the photograph.
Lord Cuttingham held in Prince Albert vs. Strange,
I Macn. & G. 25, that the publication of a catalogue 62
of private etchings are to be protected. That the
right and property of an author or composer of any
work, whether of literature, art, or science, in such
work unpublished and kept for his private use or
pleasure, entitled the owner to withhold the same
altogether, or so far as he may please from the
knowledge of others, and the court will interfere to
prevent the invasion of this right. 63
Tuck vs. Preister, 19 Q. B. D. 629, is very much in
point. The plaintiffs were the unregistered owners
of a copyright in a picture and employed the defend
ant to made a certain number of copies for them. He
did so, and he also made a number of other copies for
himself and offered them for sale in England for a lower
price. The plaintiffs subsequently registered their 64
copyright and then brought an action against the
defendant for an injunction and for penalties and
damages. The Lord Justices differed as to the ap
plication of the copyright acts to the case, but held
unanimously that independently of these acts the
plaintiffs were entitled to an injunction and damages.
Pollard vs. Photographic Company, 40 Ch. Div. 345, 6
5
is another instance where an injunction was issued
against the unauthorized exhibition or sale of photo
graphs or other likenesses of private persons. The
photographer who had taken a negative likeness of a
lady to supply her with copies for money was re
strained from selling or exhibiting copies both on
the ground that there was an implied contract not
I4
66 to use the negative for such a purpose, and also on

the ground that such sale or exhibition was a breach
of confidence.
Assuming that a photographer printed copies from

the negative of the plaintiff's likeness without her
knowledge or consent, and had sold them as the pho
tograph of some notorious woman, could the injured
67 plaintiff have no redress? It would be unjust to hold
that she could not. I am unable to discover what
right the Franklin Mills Company have to use the
lithographic likeness of the plaintiff as a trade-mark
to sell its flour.
As remarked by Folger, J., in Congress Spring Co.

vs. High Rock Spring Co., 45 N. Y. 298, if one use the
name of another for the purpose of securing to
himself in the disposition of property, advantages
which belong to that other, the fraud is complete
and the remedy ought to be complete.
If her lithographic likeness, owing to its beauty,
is of great value as a trade-mark, or an advertising
medium, it is a property right which belongs to her
and cannot be taken from her without her consent.
69 She has a right to say that without her consent these
lithographic copies of her likeness shall not be circu
lated or used by the defendants.
In Jay vs. Ladler, 40 Ch. Div. 654, it was held that
a man is not entitled, whether in trade or out of
trade, to take that which is another man's. It seems
to me that a photograph likeness of the plaintiff is
7o her peculiar property, and no man can take it from
her or make use of it without her consent. To per
mit every person to print and use the likeness of the
plaintiff to advertise their business, and yet say
there is no power in the court to protect her, would
be asserting a proposition at war with the principles
of justice and equity. Are we to rely upon the courts
for the protection of one's goods and chattels, and is
I5
there no power to protect the plaintiff's reputation 71

or right of privacy against circulating and posting
these lithographs in public places unless it be by the
horse whip or some other unlawful act?
Mr. Justice Story observed in Webb vs. Portland
Manufacturing Company, 3 Summer 189, that actual
perceptible damage is not indispensable as the foun
dation of an action. The law inquires whether there 72
has been a violation of a right; if so, the party is
entitled to maintain his action to recover damages
for a violation of that right. -
The learned counsel for the defendants relies upon

the case of Atkinson vs. Doherty & Co., 46 L. R. S. 319,
decided by the Supreme Court of Michigan, and con
tends that it is controlling in this case. The court 73
-
in that case held that an injunction against the use
of the name and portrait of a deceased person on a
cigar label cannot be granted at the suit of his
widow, as the injury to the feelings in such a case is
not one which the law can redress. The facts in
that case are not analogous to the facts in this case.
But, independent of that question, it seems to me
that the decision in the Atkinson case is in conflict 74
with the views expressed by Judge Peckham in
Schuyler vs. Curtis, 147 N. Y. 434. He said that rela
tives of a deceased person might maintain an action
to enjoin the painting of a picture or the making of
a statue of the deceased which would be regarded as
inappropriate by reasonable people because the use
for which it was destined or the place where it was
to be kept was obviously improper. 75
In Corliss vs. Walker Co., 5.7 Fed. Rep. 434, a bill

was filed in the Circuit Court of Massachusetts by
the widow and children of Mr. Corliss, celebrated as
the builder of the great engine exhibited at the Cen
tennial Exhibition, held at Philadelphia, to restrain
the publication of a biography and picture of him
I6
76 self. The court held that Corliss was a public man

in the same sense as authors or artists are public
men; that it would be a remarkable exception to the
liberty of the press if the lives of great inventors
could not be given to the public. But as to the
pictures or photographs of private individuals, it
held the rule was different. Colt, J., said: “Inde
‘pendently of the question of contract, I believe the
77 ‘law to be that a private individual has a right to be
‘protected in the representations of his portrait in
“any form, that this is a property as well as a per
‘sonal right, that it belongs to the same class of rights
‘which forbids the reproduction of a private manu
‘script or painting, or the publication of private let
‘ters, or of oral lectures delivered by a teacher to
“his class, or the revelation of the contents of a mer
“chant's books by a clerk.” He said: The distinc
‘tion in the case of a picture or a photograph lies, it
‘seem to me, between public and private characters.
“A private individual should be protected against
‘the publication of any portraiture of himself, but
‘where an individual becomes a public character the
‘case is different. A statesman, author, artist, or in
79 ‘ventor, who asks for and desires public recognition,
‘may be said to have surrendered this right to the
‘public.”
After a careful consideration of the novel and in
teresting questions raised on this demurrer, I have
reached the conclusion that the plaintiff is entitled
to the relief demanded in her complaint, and to re
8O
fuse her that relief would be to admit that a wrong
had been committed which causes her severe mental
pain and distress and pecuniary injury, and yet the
law can afford her no relief. Such a rule is contrary
to my views of equity jurisprudence.
The demurrer, therefore, is overruled, with leave
to the defendants to answer on payment of the costs.

E. BELL, Monroe
AGAINST Special Term,
THE ROCHESTER FOLDING BOX COM- July, I900.
PANY AND THE FRANKLIN MILLS
COMPANY.
DECISION.
DAVY, J.
The issues of law raised by the demurrer to the
complaint herein having been heard by the court at
a Special Term thereof, held at the Court House in
the City of Rochester, in the County of Monroe, on
the seventh day of July, 1900, and after hearing
Elbridge L. Adams, Esq., of counsel for the defend
ants in support of the demurrer, and Milton E.
Gibbs, Esq., of counsel for the plaintiff in opposition
thereto, I decide and find as follows:
CONCLUSIONS OF LAW.
First.
That the plaintiff is entitled to an interlocutory

judgment which shall adjudge that the demurrer to
the complaint is overruled with costs to be adjusted
by the Clerk of the County of Monroe and to be
included in said interlocutory judgment, with leave,
however, to the defendants to withdraw the demurrer
upon payment of the costs, and to answer the com
plaint within twenty days after the service of a copy
of the interlocutory judgment on defendants' attor
ney, with notice of its entry. In default thereof,
plaintiff may have final judgment overruling the
demurrer with costs.
Second.
I hereby direct judgment to be entered accord

ingly.
Dated Rochester, N. Y., July 30, 1900.
JOHN M. DAVY,
Justice Supreme Court.
17
SUPREME COURT-MONROE COUNTY. 8I

E. BELL, Notice of
AGAINST Appeal.
82
The above named defendants hereby appeal to
the Appellate Division of the Supreme Court from
the interlocutory judgment of the Supreme Court
in the above entitled action, entered in Monroe
County Clerk's office, August 2d, 1900, overruling
defendants' demurrer to the complaint herein, with
costs to the plaintiff, and from each and every part
of said interlocutory judgment. 83
Yours, etc.,
ELBRIDGE L. ADAMS,
Attorney for Defendants,
- Rochester, N. Y.
To Milton E. Gibbs, Plaintiff's Attorney, and to"
Charles L. Hunt, Monroe County Clerk. -
85
I8
86 SUPREME COURT-MONROE COUNTY.

E. BELL, \
AGAINST

87 -
It is hereby stipulated that the foregoing are true

copies of the summons, complaint, demurrer of each
defendant, interlocutory judgment, opinion and
notice of appeal in the above entitled action and of
the whole thereof.
MILTON E. GIBBS,
88 Attorney for Plaintiff.
ELBRIDGE L. ADAMS,
Attorney for Defendants.
89
90
if if if i
SUPREME COURT
OF THE STATE OF NEW YORK.
Fourth Appellate Division.
ABIGAIL M. ROBERSON, AN INFANT BY HER

GUARDIAN ad Litem, MARGARET E. BELL,
Respondent,
against
THE ROCHESTER FOLDING BOX COMPANY

AND THE FRANKLIN MILLS COMPANY.,
- Appellants.
BRIEF FOR APPELLANTS.
Defendants appeal from an interlocutory judgment

entered June twenth-fifth, 1900, upon the decision of
the Monroe Special Term, Mr. Justice Davy presiding,
overruling defendants' demurrer to the sufficiency of
the complaint. An opinion was handed down by the
justice who tried the case, which will be found at
pp. 7-16 in the appeal papers.
THE COMPLAINT.
The material allegations of the complaint, which

must, of course, be deemed to be admitted by the
demurrer are as follows:
That Margaret E. Bell was appointed guardian of

the plaintiff for the purpose of this action by an order
of the Supreme Court. (It follows from this alle
gation, although not specifically alleged in the
complaint, that plaintiff is an infant.)
2 THE COMPLAINT.
That the defendant, Rochester Folding Box Com

pany is a corporation engaged in a general litho
graphic business, and that the defendant Franklin
Mills Company is a corporation engaged in the mill
ing business.
That without the knowledge or consent of the plaint
iff, the defendants have, within the last three years,
knowing that they had no right so to do, obtained, made,
printed, sold and circulated about twenty-five thous
and lithographic prints, photographs and likenesses of
the plaintiff for the purpose of gain to themselves.
That the lithograph, photograph or likeness of the
plaintiff so printed and circulated is a large profile
view printed upon white rough paper, twenty-two
inches wide and thirty inches long, above the likeness
being the words in large plain letters “The Flour of
the Family,” and below the likeness being the words
in large capital letters “Franklin Mills Flour” and
pictures of a flour chest, a barrel and a flour sack,
advertising the flour of the Franklin Mills. In the
lower right hand corner in small letters is the imprint
“The Rochester Folding Box Company, Rochester,
N. Y.”
That the defendants have sold, and caused to be
circulated and conspicuously posted and displayed in
stores, warehouses and saloons and other public places
throughout the United States and other countries,
and particularly in the vicinity where plaintiff resides,
about twenty-five thousand copies of said likeness.
That when plaintiff was informed of this use of her
likeness, she was made sick and suffered a severe
nervous shock and was confined to her bed and was
compelled to employ a physician; that she has been
humiliated by the scoffs and jeers of persons who have
recognized her face and picture in the lithograph, and
her good name has been attacked causing her great
distress and suffering in both mind and body, to her
damage in the sum of fifteen thousand dollars.
INSUFFICIENCY OF COMPLAINT. 3.
Judgment is demanded for a perpetual injunction

restraining the use of any picture, likeness, photo
graph, lithograph or print of the plaintiff, and for
fifteen thousand dollars damages.
I.
The complaint does not allege distinctly and

unqualifiedly that the picture in question is in
fact the picture of the plaintiff.
To be sure the complaint refers to the picture as
plaintiff’s “photograph " and “likeness,” but these
words of description which are mere conclusions, and
are used synonomously with “lithograph,” must give
way to the specific description of the picture—which
is a “lithographic print,” “a large profile view printed
upon white rough paper.”
Whether the lithograph was made from a photograph
of the plaintiff, or from a sketch or painting of her,
whether indeed the plaintiff ever had her photograph
taken, or her portrait painted, is not alleged. For
aught that appears in the complaint, the “likeness” to
the plaintiff may be only a fancied resemblance, and
may have been made from the picture of some other
woman whom plaintiff resembles in some degree, or
indeed from a sketch of an ideal head, which had its
origin in the brain of an artist who never saw the
plaintiff.
The mere inspection of the print (if respondent's
counsel will not object to its exhibition to the court)
will indicate that it requires some stretch of the im
agination to say that it is the picture of any woman's
features, for it is nothing more than a study of a woman's
neck and back hair. There are doubtless a thousand
women in the world who might fancy, if there were a
sufficient inducement so to do, that it was a “likeness”
of their own necks and back hair. May each of them
in turn be permitted to sue the defendants upon an
4 INSUFFICIENCY OF COMPLAINT.
allegation that the print is her likeness, and if she can

satisfy a jury that it does closely resemble her, may
she have damages against the defendants?
The defendants in such an action have a right to
expect that the plaintiff should allege unequivocally,
as a fact which may be traversed, that the print is a
reproduction of a photograph or painting of the plain- -
tiff, and that it is, in very truth, and without doubt,

her counterfeit presentment.
The rule as to what is admitted by a demurrer is
well settled. The defendant, in demurring to the com
plaint, does not admit the truth of a conclusion of law,
nor of any inference of law drawn from the facts ad
mitted.
Bogardus v. N. Y. Life Ins. Co., IoI N. Y., 329.
Valentine v. Lunt, II5 N. Y., 496.
Cook v. Warren, 88 N. Y., 37.
Segelken v. Meyer, 94 N. Y., 473–483.
There is another noticeable omission in the com

plaint. It does not allege specifically, or by necessary
implication, that the defendants, or either of them,
knew that the lithograph was a likeness of the plain
tiff; nor that she ever called their attention to the fact
Abefore suit was brought.
The allegation “that without the knowledge or con
sent of the plaintiff, the defendants, within the last
three years, knowing they had no right so to do, obtained,
made, printed, sold and circulated, etc.,” is obviously
a mere conclusion of law, which is not admitted by the
demurrer. The defendants could not have known
they had no right to circulate the prints, unless they
had also known that the picture was the picture of the
plaintiff. If the defendants had procured the picture
from an artist as a fancy sketch, without having the
faintest suspicion that it in any way resembled any
living woman, least of all the plaintiff, who was an en
tire stranger to them, they could not have known they
had no right to use it. Or, if they had seen it in a
NO. STATUTE LAW. 5
book of photographs of famous actresses, they could not

have known that they had no right to reproduce it.
Assuredly it would not be contended, or if con
tended, it would not be held by any court, that the de
fendants could be mulcted in damages for the innocent
use of a picture which bears some resemblance, real or
fancied, to the plaintiff. This point was not pre
sented to the learned court below, because appellants
were content to rest their case on the general proposi
tion, to be hereafter discussed, that the complaint
stated no cause of known action to the law. If it had
been, the result must necessarily, we submit, have been
that the demurrer had been sustained.
Assuming, however, that the complaint sufficiently

sets forth the facts from which it may reasonably
be inferred that the defendants have printed and circu
lated, against her wishes, a portrait of the plaintiff,
knowing it to be such, we are brought to a considera
tion of the question: What cause of action thereby
arises against the defendants 2
II.
There is no law on the statute books of the

state which gives a right of action upon the
facts alleged in the complaint.
It may be frankly conceded that a statute which
should punish the unauthorized public use of a per
son's portrait would be a wholesome law in these days
of newspaper and advertising sensationalism. Such a
law has apparently been found necessary in England
(24 Solicitor's Journal and Reporter, 4); and I under
stand that some attempt has been made in the state of
California to regulate by statute the use of photo
graphs. Within a year or two a bill was introduced
in our own legislature, known as the “Ellsworth Anti
Cartoon Bill,” which was intended to prevent the hold
ing up of a man to public contempt and ridicule by
6 NOT A LIBEL.
means of pictorial cartoons. The bill failed of passage,

and if I remember correctly, it was because of doubts
expressed as to the constitutionality of such a law.
Plaintiff does not claim a copyright in her picture
under the laws of Congress,
III.
The complaint states no cause of action

known to the common law.
It is, of course, elementary that every cause of

action at common law must spring from a breach of
contract, or else from an actionable wrong or tort.
It is not claimed or pretended in the complaint that
there is any contractual relation between the parties
in this case, or that plaintiff's picture, if it be her
picture, was procured from her or from anyone repre
senting her. This consideration distinguishes this
case from all of the photograph cases cited by the
learned justice below, where a photographer had made
and sold prints from a negative, and it was held
that this constituted breach of an implied contract
that he would keep the negative for the sole use of
the sitter. These cases will be more fully considered
later on,
We must, therefore, find the plaintiff's cause of

action, if she has any, in the law of torts.
At first blush, it might seem that the action could
be brought within the law of libel, but the most casual
examination of the complaint will not disclose any
allegations to support such an action. So far from
claiming that the picture is a false publication calcu
lated to bring the plaintiff into disrepute, the whole
theory of the plaintiff's case is that the picture is a
faithful reproduction of plaintiff's features, that is, that
it is the truth. Nor is there anything, in the lettering
surrounding the picture, that is indecent or offensive.
NOT A LIBEL. 7
Nor is there any allegation of malice, actual or in

ferential. The publication of a woman's photograph,
unaccompanied by any defamatory words, is no more
libelous than a society note in a newspaper, describing
the personal beauty and costume of the belle of the ball
would be libelous. It might be offensive to a very
modest woman, but it would not give her a cause of
action, for defamation of her reputation, against the
publisher of the paper.
It may be conceded that a defamatory picture or
statue of a person, whether he be living or dead, is a
libel.
Townshend on Libel, pp. 2, 3, II8.
Holt on Libel, p. 244.
I Hilliard on Torts. Ch. 7, sec. 13.
White v. Nichols, 3 How. U. S. 266.
Root v. King, 7 Cow. 613.
People v. Croswell, 3 Johns. Cas. 354.
Alexander Hamilton, who was counsel in the case
last cited, gives us the following definition of libel :
“A libel is a censorious or ridiculous writing, picture
or sign, made with a mischievous and malicious intent,
towards governments, magistrates or individuals.”
The Penal Code of this state, section 242, defines
libel as follows:
“Malicious publication by writing, picture, effigy, sign

or otherwise than by mere speech, which exposes any
living person, or the memory of any person deceased,
to hatred, contempt, ridicule or obloquy, or which
causes or tends to cause any person to be shunned or
avoided, or which has a tendency to injure any person,
corporation or association of persons, in his or
their business or occupation, is a libel.”
It is manifest that this case cannot, by any twisting or
torturing of the language of the complaint, be brought
within the law of libel, and plaintiff's counsel so con
ceded upon the argument below, and it is to be
presumed, will so concede now.
If I correctly understand the theory of the case
which was advanced by plaintiff's counsel, and seems
8 DISCUSSION IN LEGAL PERIODICALS.
to have been wholly adopted by the learned court

below, it is based (I) upon what is said to be an in
vasion of plaintiff's right of privacy, and also (2) upon
what is claimed to be her property right in her own
features. We shall discuss first, -
THE ALLEGED RIGHT OF PRIVACY.
The “right of privacy” was first exploited

in this country by an article in the Harvard Law
Review (Vol. IV., p. 193) written by two young
lawyers recently graduated from the law school, and
published in 1890. The article seems to have been
inspired by a paper by Mr. E. L. Godkin in Scrib
ner's Magazine, entitled “The Rights of a Citizen—To
His Reputation,” and possibly also by a case which
arose that same year in New York, entitled Marion
Manola v. Stevens, in which the plaintiff complained
that while she was playing in a Broadway theatre, in
a role which required her appearance in tights, she
was, by means of a flash-light, photographed surrep
titiously from one of the boxes, by the defendant
Stevens, and prayed that the defendant might be
restrained from making use of the photograph so
taken. The case seems never to have passed beyond
the newspaper stage, and doubtless, like most of such
cases, had its origin in a desire to be advertised.
The article in the Harvard Law Review is undeniably
clever and ingenious, but the argument is based
wholly upon analogy (a dangerous form of
reasoning), and the authors of it virtually concede that
the common law is not adequate to redress the wrong,
by proposing a draft of a statute defining the right of
privacy and creating a cause of action for the invasion
of it.
The argument may be briefly summarized as fol

lows: Political, social and economic changes entail
the recognition of new rights, and the common law
grows to meet the demands of society. For years
DISCUSSION IN LEGAL PERIODICALS. 9
there has been a feeling that the law must afford some
remedy for the unauthorized circulation of portraits of
private persons. The freedom of the press is over
stepping the obvious bonds of decency and propriety,
Owing to the nature of the instruments by which
privacy is invaded, the injury inflicted bears a super
ficial resemblance to the wrongs dealt with by the law
of slander and libel. The difference is that the latter
wrongs are material—damage to reputation—while
the former are spiritual—damage to one's own
feelings. It is conceded that our law recognizes no
principle upon which compensation can be granted for
mere injury to feelings.
The right to privacy is said to have its basis in the
right to intellectual and artistic property. An analogy
is found in the right to privacy in thoughts, emotions,
and sensations reduced to writing. It is admitted that
the basis of the right to prevent the publication of
manuscript or works of art is found by the courts in
the right which every man has to his own property,
the conscious product of his labor; but the courts are
criticised for basing their decisions upon property or
contract rights in cases where the value of the produc
tion is found not in the right to take the profits arising
from publication, but in the peace of mind or relief
afforded by the ability to prevent any publication at
all. Many English cases, especially that of Prince
Albert v. Strange, which we shall refer to later on, are
analyzed, and the authors conclude, that, notwith
standing the unanimity of the courts in resting their
decisions upon property rights, the protection afforded
to thoughts, sentiments and emotions expressed
through the medium of writing, printing or of the arts,
so far as it consists in preventing publication, is like
the right not to be assaulted or beaten, and that the
principle really involved is not the principle of private
property, but that of an inviolate personality.
The Harvard Law Review article was answered with
no little heat by a writer in the Northwestern Law
IO ENGLISH CASES REVIEWED.
Review (Vol. III., p. 1). He says that the right to

privacy does not exist as a legal right, and that the
arguments in favor of its existence are based upon a
mistaken understanding of the authorities cited in its
support; that equity has no concern with the feelings
of the individual, or with considerations of moral fit
ness, except as the inconvenience or injury that the
person may suffer is connected with the enjoyment or
possession of property. The writer pleads for the ap
plication of new remedies to meet the exigencies of
modern life upon the basis of settled principles of law
and not upon considerations of conscience, propriety
or moral fitness. “Once cast aside the fundamental prin
ciple of English law, precedent, and make the adminis
tration of justice depend upon the conscience and sense
of equity of the judge who hears the case, and there
will be banished from our law that certainty and defi
niteness on which are built the property rights of the
people.”
The authors of the Harvard Law Review article, to
maintain their theory, relied upon several English
cases, chief among which is the famous case of Prince
Albert v. Strange (1 Macn. & G., 25; 2 DeG. & S.,
652).
In that case the Queen and Prince Albert had been
in the habit of making etchings and drawings for their
own amusement, and of having copies struck off from
the etched plates by workmen. They had no inten
tion of publishing these works, and designed the copies
for their private use and for presentation to a few inti
mate friends. The workman they employed struck off
copies on his own account, and retained them; he after
wards parted with the collection he had thus formed,
which finally came into the hands of Strange, who pro
posed to exhibit it to the public, and to publish a descrip
tive catalogue. Prince Albert applied for an injunction
as to both the exhibition and the catalogue, which was
granted by Vice-Chancellor Shadwell, whose order was
ENGLISH CASES REVIEWED. - II.
affirmed on appeal by Lord Cottenham. The Lord

Chancellor based his decision on the two grounds of
property infringed, and breach of trust. He said:
“The property of an author or composer of any work,
whether of literature, art, or science, in such work, un
published and kept for his private use or pleasure, can
not be disputed, after the many decisions in which that
proposition has been affirmed or assumed, I say as
sumed, because in most of the cases which have been
decided, the question was not as to the original right
of the author, but whether what had taken place did
not amount to a waiver of such right * * * a ques
tion which could not have arisen if there had not been
such original right or property;" and again, “the ex
clusive rights in the author of unpublished composi
tions, which depend entirely upon the common law
right of property.” The Lord Chancellor also laid
stress on the breach of trust in the workmen who
printed the copies, in retaining some impressions for
himself, and finally granted the injunction on both
grounds, the right of property infringed, and the
breach of trust.
The injunction restrained the defendant from pub

lishing “at least by printing or writing though not by
copy or resemblance” a description of the etchings.
There was no discussion, either in the arguments of
counsel or in the opinion of the court, of any “right of
privacy” distinct from or independent of the right of
property.
In Pollard v. Photographic Co. (40 Ch. Div., 345), a
photographer who had taken a woman's photograph,
under the ordinary circumstances, was restrained from
exhibiting and also from selling copies of it to a sta
tioner who used it as a Christmas card, on the ground
that there was an implied contract not to use the nega
tive for any other purpose than to supply the sitter
with copies of it for a price. During the course of the
argument, Mr Justice North interjected this question
I2 ENGLISH CASES REVIEWED.
to the plaintiff's counsel: “Do you dispute that if the

inegative likeness were taken on the sly, the person
who took it, might exhibit copies?” Counsel replied:
“In that case there would be no consideration to sup
port a contract.” The decision was put squarely upon
the breach of an implied contract.
In Gee v. Pritchard (2 Swanst, 402), it was held that
if A write a private letter to B, the property of that
private letter remains to a great extent in A, and that
B has it only for a certain qualified purpose for which
it is sent to him, and that unless there is conduct on
the part of A giving B a right to use the letter and
to print it, A in respect to the property of the letter,
has a right to claim the interference of the court. The
decision was based upon the idea of the property in
the thing published as being the product of the mind
of the sender, written by him and put into the hands
of another person for a qualified purpose only. Lord
Eldon disclaimed any right to interfere on the ground
either that the publication would be a breach of con
fidence or would tend to wound the feelings of the
plaintiff.
Abernethy v. Hutchinson (3 L. J. Ch., 209), was where
the plaintiff, a surgeon, sought to restrain the publica
tion in the “Lancet” of unpublished lectures delivered
at a hospital. Lord Eldon doubted whether there
could be property in lectures which had not been re
duced to writing, but granted the injunction on the
ground of breach of confidence, holding that when per
sons were admitted as pupils to hear these lectures,
they could take them down by shorthand only for
their own information, and not for sale or profit.
In Mayall v. Highbey, (I H. & C. 188), plaintiff lent
some photographic negatives to a person who became
insolvent and whose assignee sold them to the de
fendant who printed copies from them which he pub
lished, and sold. Plaintiff recovered nominal damages
and was granted an injunction restraining defendant
ENGLISH CASES REVIEWED. I3
from printing or selling any more copies of the photo

graph on the ground of the property right in the
negatives.
In Duke of Queensbury v. Shebbeare (2 Eden 329),
Henry, Earl of Clarendon, delivered to Gwynne an
original manuscript of his father's, Lord Clarendon's
history, in 1823; in 1758, the adminstrator of Gwynne
sold it to Shebbeare for publication and the represen
tatives of Lord Clarendon applied for an injunction
against such publication, the court holding that they
had a property in the manuscript, and that it was not
to be presumed that when Lord Clarendon gave a
copy of his work to Gwynne, he intended that he
should have the profit of multiplying it in print.
In a very recent English case (1898), Dockrell v.
Dougall, (78 L. T. R. 40), plaintiff was a physician and
defendant the owner of a medicine called “Sally.co.”
In all advertisement of his medicine, the defendant
published of the plaintiff, with substantial truth, but
without anthorization: “Dr. Morgan Dockrell, physi
cian to St. John's Hospital, London, is prescribing
Sallyco as an habitual drink. Dr. Dockrell says noth
ing has done his gout so much good.” For this
the plaintiff brought an action; but the suit was
dismissed.
Ridley, J., in Queen's Bench Division, said:

“Assuming that the published matter is true in fact,
the plaintiff is driven to rely on the admitted fact that
the use of his name by the defendant was unauthor
ized. He says that he is entitled to an injunction
upon it to restrain the defendant from using the plaint
iff's name in his advertisements on the grounds that
an injunction should be granted in every such case
where it can be shown that the use of plaintiff's name
is unauthorized by the plaintiff, and is calculated to
injure him in his profession. I do not think this is
right. It seems to me to be a broader rule than any
which can be extracted from the authorities. I have
been seeking for one more precise and accurate and I
have come to the conclusion that the proper rule is
I4 AMERICAN CASES REVIEWED,
that stated by Mr. Witt [defendant's counsel]. In

order that an injunction may issue to restrain a defend
ant from using a plaintiff's name the use of it must be
such as to injure the plaintiff's reputation or property.”
This case seems to be an authority squarely decisive
of the right of privacy, and it is so regarded by the
Harvard Law Review (Vol. XIII., p. 415).
The most famous American case on this subject is
Schuyler v. Curtis, which arose in this state in 1892.
An unincorporated society, called the “Woman's
Memorial Fund Association,” of which Miss Susan B.
Anthony was a member, undertook to build two
statues for exhibition at the Columbian Exposition in
Chicago, one of which was to represent “Woman as a
Philanthropist," and the other “Woman as a Re
former.” The association solicited subscriptions to
promote this object, and employed Hartley, the
sculptor, to make an ideal statue of Mrs. Mary Ham
ilton Schuyler as the typical philanthropist. Miss
Anthony was to be the model for the statue of the
representative reformer. It seems that Mrs. Schuyler
had taken no interest, during her life, in the women's
rights movements, and though she had been dead
fourteen years, her relatives conceived that her mem
ory would be desecrated by having her name and bust
coupled with that of Miss Anthony at the World's
Fair. They therefore requested the Woman's Memo
rial Fund Association to desist from their plan, and
their request being refused on the ground that Mrs.
Schuyler, by her character, her work and her life, be
longed to all who live after her, and who sympathize
with culture, art, philanthropy and reform, Mr. Philip
Schuyler, the nephew and stepson of Mary Hamilton
Schuyler, with the approval of all her nearest relatives,
brought an action against the defendants to restrain
them from making or exhibiting the statue, and from
soliciting or receiving subscriptions for the execution
of the project of exhibiting Mrs. Schuyler at the Expo
sition.
SCHUYLER V. CURTIS. I5
Mr. Justice Morgan O'Brien, to whom the applica

tion for a temporary injunction was made, granted the
same on the ground that annoyance and pain would
be caused, by the threatened acts of the defendants, to
the relatives of Mrs. Schuyler and that great and irre
parable injury would be done to her memory, and to
her surviving relatives, unless the defendants were en
joined from the prosecution of the acts complained of.
(Schuyler v. Curtis, 19 N. Y. Supp., 264.)
This decision was affirmed by the General Term.
(Schuyler v. Curtis, 64 Hun, 594.)
Van Brunt, P. J., writing the opinion of the court,
said:
“While concurring with the conclusion arrived at by

the learned justice below, I cannot subscribe to the
doctrine which seems to pervade the opinion rendered
upon the decision of the motion, that if Mrs. Schuyler
had been a public character, as defined by him, this
motion should have been denied. The claim that a
person who voluntarily places himself before the
public, either by accepting public office or by becom
ing a candidate for office, or as an artist or a literary
man, thereby surrenders his personality while living,
and his memory when dead, to the public to be used
or abused as any one of that irresponsible body may
see fit, cannot for a moment be entertained. It is un
doubtedly true that by occupying a public position, or
by making an appeal to the public, a person surrenders
such part of his personality or privacy as pertains to
or affects the position which he fills or seeks to
occupy, but no further. And certainly, his memory,
when dead, does not necessarily thereby become pub
lic property.
“It is urged upon the part of the appellants that
even if Mrs. Schuyler were alive, and had the same
objections to the defendants' proposed action that the
plaintiff now has, she would be remediless and power
less. If such were the fact, it would certainly be a
blot upon our boasted system of jurisprudence that
the courts were powerless to prevent the unwarranted
doing of things by persons who are mere volunteers,
which would wound in the most cruel manner the feel
ings of many a sensitive nature.”
I6 SCHUYLER V. CURTIS.
This judgment was reversed by the Court of Appeals

(Schuyler v. Curtis, 147 N. Y., 434). Judge Peckham,
writing the opinion of the court which concurred in
by all of the Court except Judge Gray, places the
decision on the ground
“that the mere fact that a person's feelings may be
injured by the erection of a statute to a deceased
relative is not ground for an injunction against its
erection, unless there is reasonable and plausible
ground for the existence of this mental distress and
injury. It must not be the creation of mere caprice,
nor of pure fancy, nor the result of a supersensitive
and morbid mental organization, dwelling with undue
emphasis upon the exclusive and sacred character of
this right of privacy.”
Judge Gray uttered a most vigorous dissent from
the views of a majority of the court. He said :
“I cannot see why the right to privacy is not a form
of property as much as is the right of complete im
munity of one's person.
“The theory of the case which calls for equitable
relief is not that of a mere protection for wounded
feelings; but the protection of a right which those who
represent the deceased have to her name and memory
as a family heritage, and which had not become public
property.”
The attorney for the unsuccessful plaintiff in this lit
igation carried his case into the forum of public opinion
in an article in the American Law Review, published
in December, 1897, in which he reviews the conflicting
decisions of the courts, and concludes that the Court
of Appeals really reversed the case, not because of
any theoretical difficulty of the plaintiff's claim, but
because of the triviality of his grievance.
He gives full credit to the authors of the article in
the Harvard Law Review for having pointed the way
for both court and counsel in the Schuyler case, and
says that those who deny the existence of the right to
privacy are inclined to be over strict in adherence to
the letter of the law, and too technical and narrow in
their conception of the real legal nature of property,
SCHUYLER V. CURTIS. 17
which he regards, with Austin, as a bundle of legal

rights, indefinite in point of use, unrestricted in point
of disposition over a determinate thing.
This case is relied upon by the respondent to sus
tain the judgment below. I am unable to find in the
opinion of Judge Peckham anything which amounts
to a determination that there is any such thing as a
legal right of privacy. The opinion proceeds upon the
assumption that, even if it be conceded that there is
such a right, the case presented was not an appropri
ate one in which to ask for its enforcement. This is
made plain by several phrases occurring throughout
the opinion, such as those italicized in the following
quotations:
“This action is of a nature somewhat unusual and
dependent for its support upon the application of cer
tain 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.”
“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. If the facts in any case fail to furnish
any clear or sure foundation for a reasonable man to
claim that any injury to his feelings has been or would
be caused by the action taken or to be taken by the
defendant, we can at least say in such a case that there
has not been and cannot be any such rule for mental
distress or injury as a court of equity ought to recog
nize as within judicial relief. For the purposes we have
in view, it is unnecessary to wholly deny the existence of
the right of privacy to which the plaintiff appeals as the
foundation of his cause of action. It may be admitted
that the 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 no property, as
that term is usually used, is involved in the subject.”
I8 ATKINSON V DOHERTY.
“While not assuming to decide what this right of pri

zacy is in all cases, we are quite clear that such a right
would not be violated by the proposed action of the de
fendants.”
The same view of this case as an authority for the
alleged right of privacy was taken by the Supreme
Court of Michigan in the recent case of Atkinson v.
Doherty (121 Mich., 372; 46 L. R. A., 219).
The action was brought by the widow of Colonel
John Atkinson, who was a well known lawyer and
politician in Detroit, to enjoin the defendant, a cigar
manufacturer, from using the name and portrait of
Colonel Atkinson upon cigars manufactured by him.
The bill in equity was dismissed by the Circuit Court
of Wayne County and the Supreme Court of the state
unanimously affirmed the decree, with an opinion writ
ten by Hooker, J., from which the following quotations
are made.
“As a rule names are received at the hands of
parents, surnames by inheritance, and Christian names
at their will. But this is not an invariable rule, for
many names are adopted or assumed by those that
bear them. But in neither case is the right to the use
of a name exclusive. A disreputable person or crimi
nal may select the name of the most exemplary for his
child, or for his horse, or dog, or monkey. We have
never heard this questioned. No reason occurs to us
for limiting the right to apply a name, though borne
by another person, to animate objects. Why not a
John Atkinson wagon as well as a John Atkinson
Jones or horse or dog? Society understands this, and
may be depended upon to make proper allowances in
such cases; and although each individual member
may, in his own case, suffer a feeling of humiliation
when his own name or that of some beloved or
respected friend is thus used, he will usually, in the
case of another, regard it as a trifle. We feel sure that
society would not think the less of Colonel John
Atkinson if cigars bearing his name were sold in the
shops. Nor are his friends brought into disrepute
thereby. So long as such use does not amount to a
libel, we are of the opinion that Colonel John Atkin
son would himself be remediless were he alive, and the
same is true of his friends who survive.
ATKINSON V. DOHERTY. I9.
“It is urged in this case that the connection of the

name with cigars wounds the feelings of the widow,
and extreme and improbable illustrations of the pos
sibilities of a rule which should permit the indiscrimi
nate use of names of deceased persons are given. We
appreciate the indelicacy of the man who should join
the funeral procession of Colonel John Atkinson in a
carriage bearing the legend ‘The Colonel John Atkin
son Cigar and we can readily understand that it
would annoy the friends of the deceased. The senti
ment which prompts the feeling of annoyance at such
an act is aroused by any asperson of the dead. It is
natural and commendable, as are all recognitions of
the proprieties of life; but it does not follow that such
an act is an actionable wrong, or that equity will inter
vene by injunction to prevent it, though we are quite
sure that the disapproval of society would ordinarily
have the latter effect.
“Stress is laid upon the fact that the picture of
Colonel John Atkinson is to be displayed upon this
label. It is claimed that a man has no right to print
and circulate pictures of another except by his con
sent, or where by reason of his celebrity, the public
has an interest in him. This is a proposition of modern
origin and is said to have the support of some cases."
The opinion then proceeds to a review of the
authorities upon which the right of privacy is said to
rest, and concludes that all which are entitled to
respect are based upon property or contract rights.
The article in the Harvard Law Review is criticised
as an attempt to deduce from the decisions of the
courts which are uniformly rested upon property rights,
a broader principle than the cases themselves will war
rant. The decision of the Court of Appeals in the
Schuyler case is regarded as in no way disposing of the
existence of the alleged actionable right of privacy, the
Court saying: “We think it should not be considered
as containing even a dictum in support of the doctrine
contended for.”
The opinion concludes as follows:
“This law of privacy seems to have obtained a foot
hold at one time in the history of our jurisprudence—
not by that name, it is true—but in effect. It is evi
2O CORLISS V. WALKER CO.
denced by the old maxim ‘The greater the truth the

greater the libel, and the result has been the em
phatic expression of public disapproval, by the eman
cipation of the press, and the establishment of freedom
of speech, and the abolition in most of the states of
the maxim quoted, by constitutional provisions. The
limitation upon the exercise of these rights being the
law of slander and libel, whereby the publication of an
untruth that can be presumed or shown to the satisfac
tion, not of the plaintiff, but of others (i. e., an impar
tial jury), to be injurious, not alone to the feelings, but
to the reputation, is actionable. Should it be thought
that it is a hard rule that is applied in this case, it is
only necessary to call attention to the fact that a ready
remedy is to be found in legislation. We are not sat
isfied, however, that the rule is a hard one, and think
that the consensus of opinion must be that the com
plainants contend for a much harder one. The law
does not remedy all evils. It cannot, in the nature of
things; and deliberation may well be used in consider
ing the propriety of an innovation such as this case
suggests. We do not wish to be understood as belit
tling the complaint. We have no reason to doubt the
feeling of annoyance alleged. Indeed, we sympathize
with it, and marvel at the impertinence which does not
respect it. We can only say that it is one of the ills
that, under the law, cannot be redressed.”
Corliss v. E. W. Walker Co., (57 Fed. Rep. 434),
This was a bill filled in the Federal Circuit Court of Mas
chusetts by the widow and children of Corliss, the
celebrated engine inventor, to restrain the publication
of the biography and picture of Mr. Corliss. The
action was distinctly based upon the alleged invasion
of the right of privacy. The court (Colt, J.) said,
among other things:
“I cannot assent to the proposition that Mr. Corliss
was a private character. He held himself out to the
public as an inventor and his reputation became world
wide. He was a public man in the same sense as
authors or artists are public men. It would be a re
markable exception to the liberty of the press if the
lives of great inventors could not be given to the public
without their own consent while living, or the approval
of their family when dead. But whether Mr. Corliss is
to be regarded as a public or a private character
CORLISS V. WALKER C(). 2I
(a distinction often difficult to define) is not important

in this case. Freedom of speech and of the press is
secured by the Constitution of the United States and
the Constitution of most of the states. This consti
tutional privilege implies a right to freely utter
and publish whatever the citizen may please, and to
be protected from any responsibility for so doing,
except so far as such publication, by reason of its blas
phemy, obscenity or scandalous character, may be a
public offense, or by its falsehood and malice may in
juriously affect the standing, reputation or pecuniary
interests of individuals. (Cooley, Const. Lim. 6th
Ed. 518). In other words under our laws one can
speak and publish what he desires, provided he com
mit no offense against public morals or private repu
tation * * * There is another objection
which meets us at the threshold of this case. The
subject-matter of the jurisdiction of a court of equity
is civil property, and injury to property, whether
actual or prospective is the foundation on which its
jurisdiction rests. (Re Sawyer, 124 U. S. 200-2 10;
Kerr Inj. 2nd Ed. p. 1.) It follows from this principle
that a court of equity has no power to restrain a
libelous publication.
* * * * As to the picture which accompanies the
published sketch, the case stands on a different foot
ing. The defendants obtained from the plaintiffs a
copy of a portrait and a photograph of Mr. Corliss,
from which they have made two plates, one of which
they propose to insert in the publication. But it appears
from the evidence that these pictures were obtained on
certain conditions, which the defendants have not com
plied with. This matter directly concerns the exclu
sive right of property which the plaintiffs have in the
painting and photograph, and it would be a violation
of confidence or breach of contract between the par
ties to permit the defendants, under these circumstan
ces, to use either of the plates. Pollard v. Photographic
Co. (L. R. 40, Ch. Div., 345); Prince Albert v. Strange
(1 Macn. & G., 25). The injunction is denied as to the
publication, and granted as to the use of the plates.”
Subsequently a motion to dissolve the injunction
was granted upon the ground that the deceased was a
public character, and the public entitled to use his
picture. Corliss v. E. W. Walker Co. (64 Fed. Rep.
280).
22 CORLISS V. WALKER CO.
Colt, J., said:

“Independently of the question of contract, I be
lieve 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. [Citing the English cases which have already
been referred to, and some others].
“But while the right of a private individual to pro
hibit the reproduction of his picture or photograph
should be recognized and enforced, this right may be
surrendered or dedicated to the public by the act of
the individual, just the same as a private manuscript,
book or painting becomes, when not protected by copy
right, public property by the act of publication. The
distinction in the case of a picture or photograph lies,
it seems to me, between public and private characters.
A private individual should be protected against the
publication of any portraiture of himself, but where an
individual becomes a public character, the case is dif.
ferent. A statesman, author, artist or inventor, who
asks for and desires public recognition, may be said to
have surrendered this right to the public. When any
one obtains a picture or photograph of such a person,
and there is no breach of contract or violation of con
fidence in the method by which it was obtained, he
has the right to reproduce it, whether in a newspaper,
magazine or book. It would be extending this right
of protection too far to say that the general public can
be prohibited from knowing the personal appearance
of great public characters.”
Two other cases of minor importance remain to be
mentioned. In Marks v. 9affa (26 N. Y. Supp. 908),
the defendant, who was an editor of a German news
paper, undertook to initiate a popularity contest be
tween Marks, a law student, who had formerly been on
the stage, and an actor named Mogulesko. The
plaintiff, who evidently deluded himself with the opin
ion that he had got into a more respectable vocation,
was unwilling to have his past thus paraded before the
MINOR NEW YORK CASES. 23.
public, and asked for an injunction against the use of

his picture and name in connection with the contest.
The relief asked for was granted, upon the authority
of the decision of the General Term in the Schuyler
CaSC.
Judge McAdam, at Special Term of the Superior

Court of New York City, said:
“The action may seem novel, but there can be no
question about the plaintiff’s right to relief, irrespective
of the amount of damages he might recover at law.
Private rights must be respected as well as the wishes
and sensibilities of the people. When they transgress
the law, invoke its aid, put themselves up as candidates
for public favor, they warrant criticism and ought not
to complain of it; but when they are content with the
privacy of their homes, they are entitled to peace of
mind and cannot be suspended over the press-heated
gridiron of excited rivalry, and voted for against their
will and protest.” -
In Murray v. Gast Lithographic & Engraving Co. (8

Misc. 36), it was held at Common Pleas for New York
City, that a parent cannot maintain an action to enjoin
the unauthorized publication of the portrait of an in
fant child, and for damages for injury to his sensibili
ties caused by the invasion of his child's privacy; for
the law takes no cognizance of a sentimental injury,
independent of a wrong to person or property. The
opinion in this case, by Bischoff, J., is a well considered
exposition of the subject.
We have thus examined the authorities, both Eng
lish and American, bearing on the question of the
“right of privacy,” including all those cited in the opin
ion of the learned court below. In only three of these
cases is there to be found any recognition of such a
right as a legal right, viz: in the opinions of the lower
courts in Schuyler v. Curtis, in the second opinion of
Judge Colt, on the motion to dissolve the injunction in
Corliss v. Walker, and in the opinion of Judge McAdam
in Marks v. 9affa. These three instances, taken
separately or collectively, do not amount to an adjud
24 THE AUTHORITIES COMPARED.
ication that there is such a thing in law as a “right

to privacy.” The judgments of the lower courts in
Schuyler v. Curtis were reversed by the Court of Ap
peals, and the question of the existence of an action
able right of privacy was not determined. The dicta
of Judge Colt in Corliss v. Walker, are clearly obiter;
they are contradicted by the reasoning in his first
opinion, and are reduced to absurdity by the attempted
distinction between the rights of private and those of
public characters, as we shall hereafter endeavor to
show. The opinion in Marks v. 5'affa, emanating as it
does from a court of inferior jurisdiction, and based as
it was upon the opinion of the general term in Schuy
ler v. Curtis, afterwards overruled, carries with it no
other weight than that which the cogency of its reason
ing might give it; and reasoning is not so conspicuous
in the opinion as rhetoric.
As against these dicta and overruled cases, we have,
as denying the existence of a legal right of privacy, the
following authorities:
1. The numerous English cases which have been
reviewed, holding that the right to privacy in a picture,
or letters, can be sustained only upon property or con
tract rights as those terms are commonly understood;
and particularly the important dictum of Lord Eldon in
Gee v. Pritchard, that he had no right to interfere with
the publication of private letters on the ground that
their publication would tend to injure the feelings of
the plaintiff.
2. The recent English case of Dockrell v. Dougall,
which is directly in point.
3. The first decision of the Federal Circuit Court
of Massachusetts in Corliss v. Walker.
4. The lawyer-like opinion of Bischoff, J., in Murray

z. Gast Lithographic Co., which, while it is perhaps not
entitled to much weight as coming from a court of in
ferior jurisdiction, will at least offset the authority of
Marks v. Jaffa,
THE AUTHORITIES COMPARED. 25
5. The unanimous judgment of the Supreme Court

of Michigan in Atkinson v. Doherty, pronounced after
a full presentation of the case and an exhaustive exam
ination of the authorities. (The report of this case in
46 L. R. A. 219, shows that in addition to their own
brief, counsel presented to the court the brief sub
mitted for the plaintiff in Schuyler v. Curtis.) I believe
the Supreme Court of Michigan is now considered to
be among the four greatest state courts of last resort.
Its opinion in the case referred to is certainly a learned,
thoughtful, well-reasoned discussion of the subject and
as such is entitled to great weight. That it settles the
law on the question of privacy we now appeal to the
fountain head of the whole discussion.
The Harvard Law Review (Vol. XIII., p. 415, Jan.

1900), referring to the case of Atkinson v. Doherty,
says:
“This is the first American decision squarely involv

ing the so-called right to privacy, toward the support
of which the law seemed at one time to be tending,
and after a full discussion of the subject, it refuses to
admit the existence of that right. It is in accord with
the late English authority of Dockrell v. Dougall, (78
L. T. R. 40). See XII. Harvard Law Review, 207.
Together these cases make it improbable that any court
will in the future rest a decision on this ground.
If the subject is to be treated at all therefore, it is
handed over to the legislature, and on principle, per
haps, this is a desirable result.”
The same conclusion is reached by Mr. James L.
Hopkins, in a recently published work entitled “The
Law of Unfair Trade” (1900), which is probably the
first text book to treat of “The Right of Privacy.”
After reviewing the discussion in the periodicals, and
the cases of Schuyler v. Curtis, Marks v. 9 affa, Murray
v. Gast, Atkinson v. Doherty and Corliss v. Walker, he
concludes as follows:
“These cases practically negative the existence of

any ‘right of privacy' that the courts will enforce.
Under different facts and with the growth of the law,
26 THE ARGUMENT UPON PRINCIPLE.
the subject may possibly develop into one of con

sequence in the future.” (§70.)
The cases touching the question of the right to use
negatives or photographic plates without the consent
of the party who has paid for the same, are collated in
a note by Mr. Irving Taylor, the efficient librarian
of the Rochester Law Library, in 50 L. R. A., 397.
Mr. Taylor concludes that it is clear that the question
considered in this note, is in the main a question of
implied contract or trust.
Upon authority, therefore, we submit that the decis
ion of the court below, is wrong.
We have no doubt that it is also wrong on prin
ciple.
THE ARG UMENT UPON PRINCIPLE.
It is creditable, perhaps, to the strong sense of pro

priety and the profound faith in the omnipotence of a
court of equity, which always characterizes the judg
ments of the learned justice at special term, that he
should have overruled the demurrer in this case; but
it is submitted with great deference that his decision
is not good law. “Like the scholastic theories of
negligence which at one time prevailed, it is the
product of a visionary jurisprudence scheming for an
ideal humanity, instead of being the product of a practi
cal and regulative jurisprudence based on humanity
as it really is.” The question at issue is not to be
decided upon considerations of moral or ethical pro
priety and fitness. We have to do with a question of
law, pure and simple, and this appeal is addressed to a
bench of lawyers who sit to determine the law as it is,
and not to create it anew. The law is not the creature
of impulse; it is built upon living principles, and these
principles cannot be ignored without bringing the law
into uncertainty and disrepute. The maxim, which
is the boast of the common law, that “there is no wrong
without a remedy,” refers, of course, to legal wrongs,
WRONGS WITHOUT REMEDIES. 27
and not to those that offend merely against good

morals and good taste. All men are not possessed of
the same delicacy of feeling or of the same consider
ation for the feelings of others. Some men are sensi
tive, and suffer keenly from the publicity and notoriety
which others, more callous, would invite and welcome.
Manifestly the law cannot make a right of action de
pend upon the sensitiveness of the person injured.
Mere injury to feelings has never been recognized as
affording a ground for action, although, when an
injury, of which the court does take cognizance, has
been done, injury to the feelings may be taken into
consideration on the question of damages. Our law,
unlike the Roman law, does not afford a remedy even
for mental suffering resulting from contumely and
insult, or from an intentional and unwarranted vio
lation of the “honor” of another. (Salkowski Roman
Law, p. 668.)
There are many wrongs which are most aggravating
and reprehensible that the law does not pretend to
redress. Some of the conditions on which the happi
ness of life and the well-being of society may depend,
are not and cannot be the subjects of positive law; nor
can they be enforced by any human tribunal.
A sensitive woman would indignantly resent being

stared at by a strange man in a public conveyance, but
there is no law against impertinence. A man of retir
ing disposition would feel very much annoyed if, while
seated in a public theatre, surrounded by his friends,
he should find himself, good-naturedly, but none the
less unpleasantly, made the butt of a joke by the min
strels on the stage, but he would not find satisfaction
were he to consult a lawyer upon his legal rights.
Everyone would condemn the spirit which would make
of a man's failure in business an occasion to preach in
the press and the pulpit, homilies upon the sin of covet
uousness; but no one would think of bringing an action
at law to recover damages for the unpleasant notoriety.
28 CARICATURES IN LITERATURE.
No wrong which we can imagine would seem more

unpardonable than the failure of a telegraph company,
through the most inexcusable negligence, to deliver a
message summoning one to the bed-side of a dying
mother; yet the law has seen fit to deny a remedy in
such a case.
If a man erects a wall upon his own property, and

thereby destroys the view from the house of his neigh
bor, he may damage him to an enormous extent, he
may destroy three-fourths of the value of the house;
and still, if he has the right to erect the wall, the mere
fact of thereby causing damage to his neighbor does
not give him a right of action. There must be injury,
as it is understood in law, as well as damage.
The history of literature is full of instances of the
outraged sensibilities of those who believed themselves
to be caricatured and lampooned in books. We all re
member the tempest that was stirred up when the
artist Whistler conceived himself to be the original of
Joe Sibley, the “idle apprentice,” the lazy and brilliant
frequenter of the studios of the “Three Musketeers of
the Brush" in Trilby; and how another English
artist, Frederick Walker, if I remember correctly,
fancied that he was intended to be caricatured by the
character of Little Billee; but we haven't heard that
any law suits resulted.
Dickens drew his little Miss Mowcher and her
characteristics from a person well known to his friends,
and caused such pain to the original of the character,
that he was led, subsequently, to alter his plan, and
paint her as a most attractive and worthy person;
which may account for the rather strange and inartistic
transformation in the character of this little woman,
which readers of David Copperfield have not failed
to notice.
Leigh Hunt was terribly cut up because many of

his friends recognized some of his weaknesses in the
character of Harold Skimpole in Bleak House, and
PUBLIC AND PRIVATE CHARACTERS. 29
the affair caused a breach between him and Dickens—

but no litigation.
Every one knows now that “David Harum” was
drawn from life, and accurately portrays in character,
and almost in name, David Hannum, a well known
banker of Central New York. If Mr. Hannum had
not relished this sort of publicity, would any lawyer be
rash enough to advise him he might have damages for
his injured feelings against the author or publishers of
the book?
The exceeding vagueness of the alleged “right of

privacy” is best shown, it seems to me, by the absurdity
of the attempt to limit it to so-called private charac
ters.
Just where, we wonder, is the dividing line between

a public and a private citizen P. When does a man
become a statesman, and so dedicate to the public the
right to use his picture ? Is not an artist who paints a
picture, or an author who writes a book, and who, by
so doing, asks for and desires public recognition, as
much entitled to privacy as the man or woman whose
talents are directed to the maintenance of a successful
private business or a well ordered household 2
If this plaintiff has perchance published a book of
poetry, or painted some water-colors which have been
hung in the annual exhibition of the Art Club, has she
thereby forfeited any of her rights to privacy? Are
the lawyers who argue cases before this court to be
considered private citizens, whose portraits cannot be
printed in the newspapers without their consent, and
the judges upon the bench to be regarded as public
characters who have dedicated their lives and their
physiognomies to the public? Upon whom rests the
burden of proof, in an action like this, to show the
private or public character of the plaintiff P If the de
fendant relies upon the fact that plaintiff is not a pri
vate citizen, and plaintiff insists that he is not a public
citizen, who is to decide the issue? Why is it not in
30 PUBLIC AND PRIVATE CHARACTERS.
cumbent on the plaintiff to plead and prove that he is

a private citizen, and has never dedicated his life and
his features to the public? In the absence of any such
allegation in this complaint, how are we to know that
this plaintiff is not a famous actress (actresses usually
appear on the boards under assumed names, we be
lieve); or perhaps an authoress whose pseudonym is
on everybody's lips ? If a photograph be taken of a
crowd, has everyone whose features are recognizable
in it, a cause of action against the person who uses
that picture as an advertisement P A multiplication of
such questions as these will but emphasize the utter
impossibility of basing legal rights upon such uncer
tain foundations.
As was said in Atkinson v. Doherty:

“We are loath to believe that a man who makes him
self useful to mankind surrenders any right to privacy
thereby; or that because he permits his picture to be
published by one person and for one purpose, he is
forever thereafter precluded from enjoying any of his
rights.”
We apprehend that a judicial determination that all
public characters are embraced within the classification
of Judge Colt, namely, “statesmen, authors, artists or
inventors,” and that everyone else is a private citizen,
of whom we must speak with bated breath, and from
whom the newspapers must steer clear, would come
with a shock to a great many people who have de
luded themselves with the belief that they are public
characters, entitled to all the honors and subject to all
the inconveniences that flow therefrom.
It has been urged that privacy is the essence of

property, and that the deprivation of privacy would
make it in fact cease to be property. Quite true, but
it is just here, as we believe, that a confusion of ideas
exists in the minds of those who attempt to deduce a
law of privacy from the principles applicable to prop
erty. There may be no such thing as property with
NO POWER IN COURTS. 3I
out privacy, but the converse is equally true—without

property, there is no such thing, in law, as privacy.
We do not desire to be understood as making light
of the proposition, so eloquently stated in the opinion
below, that the privacy of the home in every civilized
country ought to be regarded as sacred; that the inva
sion of it tends to destroy domestic and individual
happiness, and that therefore, the courts ought to have
power to prevent such invasion and to protect the indi
vidual. We quite agree with all that the learned jus
tice has said on this point. The courts ought to have
power but they haven't ; and we are concerned now
with the law as it is—not as it should be. Let the leg
islature, if there be need of such a remedy, fix and
define its limits. The courts cannot take it into their
hands to make the law without departing from fixed
principles, unsettling authorities, and opening the gates
to a flood of speculative litigation. If this court
should decide that this complaint states a good cause
of action, how many women all over the country, who
think they resemble the portraits which are getting to
be one of the features of the advertising columns of
the magazines, would rush into the courts for $15,000,
yes, and $50,000 damages for the injury to their feel
ings? How easy it would be, too, for any woman to
pose for her photograph, and through a confederate,
sell it to a lithographer for advertising purposes, with
the avowed object of bringing suit for its use ! How
could any lithographer, with safety, buy a fancy water
color sketch from the artists who supply the trade P
And suppose after one woman had sued and recovered
her damages, another should bring suit on the theory
that the picture was her likeness, and should satisfy a
jury that it was, how could the unlucky defendant save
himself from being the second time mulcted in
damages?
The conclusion, then, to which we are brought, is
that there is no power in the courts to remedy the wrong
which is the foundation of this action, and that it re
32 PROPERTY IN FEATURES.
mains for the legislature to create a remedy. This is

the conclusion reached by the Supreme Court of Mich
igan; it is the conclusion reached by the Harvard Law
Review after a ten years' agitation of the subject,
and it is the conclusion which the principles and poli
cies of the law demand.
Let the courts, if they will, point out defects in the

body of the law and suggest the propriety of rem
edial acts, but let them not encroach upon the functions
of the legislature and make the law themselves (Man
ning v. Beck, 129 N. Y. I, 16).
It remains to discuss another phase of the subject
suggested on the argument and adopted by the court
below.
PLAINTIFF'S PROPERTY IN HER

FEATURES.
The trial justice says in his opinion (fol. 68):

“I am unable to discover what right the Franklin
Mills Company have to use the lithograph likeness of
the plaintiff as a trade mark to sell its flour. * * *
If her lithographic likeness, owing to its beauty, is
of great value as a trade-mark, or as an advertising me
dium, it is a property right which belongs to her and
cannot be taken from her without her consent;”
and he quotes the remark of Folger, J., in Congress
Spring Co. v. High Rock Spring Co., (45 N.Y. 298)
that “if one use the name of another for the purpose
of securing to himself in the disposition of property,
advantages which belong to that other, the fraud is
complete and the remedy ought to be complete.”
We submit, with great respect for the learned trial
justice, that he has permitted himself to fall into
serious error here. In the first place, the Franklin
Mills Company is not using the lithographic likeness
of the plaintiff as a trade-mark to sell its flour and
there is no such allegation in the complaint. But even
if there were, it is not claimed that plaintiff's likeness
NO TRADE MARK RIGHTS. 33
is in any way connected with an article of merchan

dise sold by her or by anybody else. We concede, of
course, that plaintiff might, by the use of her likeness
in connection with some article of commerce, manu
factured and sold by her, have a property right therein
as a trade-mark, which would be protected by a court
of equity. The fundamental principle governing the
jurisdiction of equity in restraint of the infringement
of trade-marks, is that when one produces an article of
merchandise, calling it by a particular name and sell.
ing it with a particular mark, he thereby acquires such
an exclusive right to the use of that name or mark as en
titles him to restrain all others from its use to designate
articles of a similar appearance or kind, and courts of equi
ty in granting relief by injunction in this class of cases,
proceed upon the principle that it is a fraud upon one
who has established a trade and carried it on, under a
given name, to permit another to assume that name or
the same name with a slight alteration, in such man
ner as to induce persons to deal with him in the belief
that they are dealing with the one who has given a
reputation to that name.
High on Injunctions, sec. 1085.
Hopkins on Law of Unfair Trade, sec, 7.
Amoskeag Mfg. Co. v. Spear, 2 Sandf. S. C., 599.
Colman v. Crump, 70 N. Y., 573.
McLean v. Flemming, 96 U.S., 245.
Gilman v. Hunnwell, 122 Mass., 139.
That equity only interferes in such matters to pro

tect commercial rights of the praintiff, and not his
sentimental rights, is shown by the judgment in Day v.
Brownrigg (10 Ch. D., 294), where it was held that an
action for an injunction cannot be maintained to re
strain the defendant from calling his house by the
name of plaintiff's residence in the absence of any im
proper or malicious intention upon the part of the de
fendant, amounting to a slander of title.
It must be plain, we submit, that plaintiff has no
trade-mark rights which have been invaded.
34 NOT A CASE FOR AN INJUNCTION.
It is not clear how she could have any other prop

erty in her features. She might, indeed, have a prop
erty right in a reproduction of her features, by virtue
of a contract with the artist or photographer who made
the portrait or photograph, but, as we have seen, there
is not the slightest intimation in the complaint of such
a right. She might also have a property right in a
reproduction of her features, by virtue of the copyright
laws of the United States, which now provide that
both the author and the proprietor of a photograph or
negative thereof shall have the sole liberty of printing,
re-printing, publishing and vending the same for twen
ty-eight years by complying with the conditions of the
law. (Sec. 4952 U. S. Rev. Stat.) But no such right
is claimed by the complaint. We cannot conceive of
any other manner in which the plaintiff could acquire
a property right in her own features. This is not a
question of philological nicety. Doubtless property in
the etymological sense is “that which is one's own,”
and it is not to be denied that one's features are one's
own. So, indeed, are one's thoughts and emotions,
but until they are expressed in the form of story or
poem, they are not what the law terms property.
IV.
An injunction cannot be granted in this case,

for equity deals only with questions of property
and does not exercise jurisdiction in matters of
morals or conduct.
Kerr on Injunctions, p. 1.
High on Injunctions, sec. IoI2.
Eden on Injunctions, pp. 295, 296.
The mere want of a legal remedy does not create an
equitable right for a remedy in equity. A court of
equity will in certain cases supply a remedy where in
consequence of the infirmity of the law or legal remedy,
there is neither a right nor a remedy at law, but only
PROPERTY THE BASIS OF INJUNCTIVE RELIEF. 35
for what the law, in principle, acknowledges to be

a wrong. (Kerr on Injunctions, p. 5.)
“A court of equity is not the general guardian of
the morals of society. It has not an unlimited author
ity to enforce the performance or prevent the violation
of every moral duty. It would be extravagant to say
that it may restrain by an injunction the perpetration
of every act which it may judge to be corrupt in its
motives or demoralizing or dangerous in its tendency.
(Duer, J., in Woolsey v. 5udd, II How. Pr., 54.)
In accordance with this rule it has been settled by a
long line of authorities that equity will not enjoin the
publication of a libel.
Brandeth v. Lance, 8 Paige Ch., 24.
N. Y. Juvenile Guardian Society v. Roosevelt, 7 Daly, 188.
Mauger v. Dick, 55 How. Pr., 132.
Boston Diatite Co. v. Florence Mfg. Co. I 14 Mass., 169.
Francis v. Flynn, 6 U. S. Sup. Ct. Rep., 1148.
Raymond v. Russell, 143 Mass., 295.
Whitehead v. Kitson, 119 Mass., 484.
Chancellor Walworth said in Brandreth v. Lance:
“It is very evident that this court cannot assume juris
diction of the case presented by the complainant's bill,
or any other case of the like nature, without infringing
upon the liberty of the press, and attempting to exer
cise a power of preventive justice, which, as the legisla
ture has decided, cannot safely be entrusted to any
tribunal consistently with the principles of free gov
ernment.”
In the infamous “Star Chamber” of England, such

injunctions were allowed, but since that iniquitous
tribunal was abolished, there has been but one case
where an injunction was granted to restrain a libel,
and the notorious Judge Scroggs, who granted the in
junction, was thereafter impeached by the House of
Commons for so doing. (8 Howel/s State Trials, 198.)
If the publication of a writing or picture which is
libelous cannot be enjoined, it follows a fortiort that a
publication which is not libelous cannot be enjoined.
36 PROPERTY IN LETTERS.
Equity has often been resorted to to restrain the

publication of private letters, manuscripts and lectures.
Injunctions in such cases are invariably granted when
the plaintiff can show a property right in the subject
matter.
Thus in the early case of Pope v. Curl (2 Atk.,

342), where the defendants, who were piratical pub
lishers in London, had purchased and advertised for
sale a book of private and familiar letters which had
passed between Pope and Dean Swift, the poet Gay
and others, and which by some means, never ex
plained, had been surreptitiously secured and printed,
Lord Hardwick continued the injunction on the
ground of the plaintiff's property in the letters.
So in Thompson v. Stanhope (Ambler 737), Lord
Bathurst (then Lord Apsly) continued the injunction
which the executors of Lord Chesterfield had obtained
against the widow of his son, restraining the publica
tion of the now famous letters, and rested his decision
on the property right in the letters which passed to
Lord Chesterfield's representatives after his death.
And the courts have gone the iength of insisting
that letters must have some literary value before
equity will interfere by injunction.
In the case of Lord and Lady Percival v. Phipps (2
Ves. & Beames, 19) the Vice-Chancellor, Sir Thomas
Plumer, in vacating the injunction, lays down the
doctrine that it is only when the letters “are stamped
with the character of literary compositions that the
writer can be protected by an injunction.” He asserts
that the character and value of the letters of Pope and
Lord Chesterfield, as literary compositions, was the
true and only ground of the decision in Pope v. Curl
and Thompson v. Stanhope.
This doctrine was followed by Chancellor Walworth
in Hoyt v. McKenzie (3 Barb. Ch., 320), and by Vice
Chancellor McCoun in Wetmore v. Scovell (3 Edw.
PROPERTY IN LETTERS. 37
Ch. Rep., 515), and must be admitted to be the law

both of England and of this country to-day, notwith
standing the vigorous dissent of Mr. Justice Story in
Folsom v. Marsh (2 Story, 100) and of Mr. Justice Duer
in Woolsey v. Judd (II How. Pr., 49).
High, in his work on Injunctions, says:
“Equity will restrain the publication of private let
ters on the ground of a right of property in the author,
it being held that the receiver of the letters only ac
quires a special property in them which does not justify
their unauthorized publication. Even though the
receiver of the letters be considered in the position of
a joint owner with the writer, yet his publication of
the letters without the writer's consent, is such a vio
lation of the rights of literary property as to warrant
the exercise of the strong arm of equity for its restraint.
It is to be observed, however, that the interference
will not be exercised on the ground of wounded feel
ings or of violated friendship, but only for the protec
tion of property rights. And the jurisdiction rests
upon no broader foundation than that of copyright in
the letters as literary productions, or of property in
the paper on which they are written, a distinction be
ing observed between letters having the characteristics
of literary compositions, and mere friendly or private
letters on domestic or business affairs. And while the
unauthorized publication of the former class will be
restrained, on the principles above stated, equity will
not interfere with the latter, even though the publica
tion constitutes a gross violation of honor and trust.”
($ 1012.)
In a note to the above section, the author says:
“Mr. Justice Story, however, has expressed himself
strongly and feelingly in favor of a contrary doctrine,
and has sought to sustain the jurisdiction of equity to
restrain the publication of merely private and personal
letters, lacking the attributes of literary compositions,
on the ground of wounded feelings and injured confi
dence. (See 2 Story's Eq., Secs. 946, 947, 948.) (See
also Folsom v. Marsh, 2 Story R., 1oo.) But while we
must agree with this learned commentator that ‘in a
moral view the publication of such letters, unless in
cases where it is necessary to the proper vindication of
the rights or conduct of the party against unjust claims
38 PROPERTY IN LETTERS.
or injurious imputations, is, perhaps, one of the most

odious breaches of private confidence, of social duty,
and of honorable feelings, which can well be imagined,’
yet the weight of authority is clearly opposed to the
exercise of jurisdiction on such grounds. With the
exception of Woolsey v. Judd (4 Duer, 389; II How.
Pr. 49), and Eyre v. Higbee (35 Barb. 502; 22 How. Pr.
I98), neither of which cases was in a court of last
resort, it is believed that no decisions, English or Amer
ican, can be found to sustain the doctrine of Mr. Jus
tice Story. Even the cases cited would seem to rest
largely upon the foundation of literary property. The
doctrine as stated in the text has the sanction of an
unbroken current of authority, beginning with the
decision of Lord Eldon in Gee v. Pritchard (2 Swanst.
428). The rule as laid down by McCoun, Vice-Chan
cellor, in Wetmore v. Scovell (3 Edw. Ch. 515), may
therefore be considered as well established, that “inde,
pendent of property, and disconnected therefrom
there is no ground or principle on which the jurisdic
tion to restrain the publication of private letters can
properly rest.’”
But whatever we may conclude with reference to
the distinction between letters having the character
istics of literary compositions and mere friendly or
private letters on domestic or business affairs, we must
concede (and that is the point which I now wish to
emphasize) that all the courts agree that it is only be
cause both kinds of letters have some value, be it
great or small, and are property in the full meaning of
that word, that equity will interfere.
Nor is it by a fiction of law that letters are deemed
property. Vice-Chancellor McCoun said in Wetmore
v. Scovell (3 Edw. Ch. 515–52O):
“I find no instance, and I believe none can be
found, where the Court of Chancery has exercised the
power of preventing the publication of private letters
of business on the ground of copyright or literary
property, when they possess none of the attributes of
literary compositions—such an attribute is not a mere
fiction which the court will lay hold of to obtain juris
diction. It is a property which a man has in the pro
ductions of his own genius as real and substantial as
NO DAMAGES FOR INJURY TO FEELINGS. 39
though it were the work of his hands, and in many

cases is of great value to the possessor. It is not upon
the mere supposition or presumption of such a right
that a court will act. The right must be shown to
exist in reality, or the court will not undertake its
protection.”
Lord Eldon in Gee v. Pritchard, disclaimed any
right to interfere by an injunction upon the ground
either that the publication of the letters would be a
breach of confidence or would tend to wound the feel
ings of the plaintiff, and expressly said that he could
exercise jurisdiction on no other ground than that of
property in the plaintiff.
And the same learned Chancellor said in the case of
Southey v. Sherwood (2 Merivale, 437): “The court
does not interfere in the way of injunctions to pun
ish or prevent injuries done to the character of in
dividuals, but it leaves the party to his remedy at law.
It is to prevent the use of that which is the exclusive
property of another that an injunction is granted.
* * * I have examined the cases that I have been
able to meet with containing precedents of injunctions
of this nature, and I have found that they all proceed
upon the ground of the title to the property in the
plaintiff.” And he refused the poet Southey's ap
plication for an injunction to restrain the publication
of one of his youthful poems called “Watt Tyler,” be
cause it did not appear either that the plaintiff owned
the manuscript, or that the work was of such a nature
that an action could be maintained upon it for dam
ages.
In Curtis on Copyright, it is said that the exclusive

right of an author in a manuscript, yet unpublished,
rests upon the same foundation as that which sustains
every other species or description of property—“the
right which every man has to the exclusive possession
and control of the products of his own labor.” (p. 84.)
Having shown, then, as we think has been done, that
plaintiff has no property or contract rights which have
4O NO DAMAGES FOR INJURED FEELINGS.
been invaded, it follows that she is not entitled to the

intervention of a court of equity.
V.
The plaintiff cannot have damages, for the

law takes no cognizance of sentimental injuries.
The complaint alleges that when plaintiff was in
formed of the publication of her likeness, “she was
made sick and suffered a severe nervous shock, and
was confined to her bed and was compelled to employ
a physician,” and that she “has been greatly humili
ated by the scoffs and jeers of persons who have
recognized plaintiff's face and picture in the lithograph
above described, and her good name has been at
tacked causing her great distress and suffering in both
body and mind,” and that “by reason of the fore
going facts, plaintiff has suffered damages in the sum
of $15,000."
It will be observed that no injury to plaintiff's repu
tation has been alleged. The attack on her good name
has caused her mental and physical distress, but has
not injuriously affected her reputation.
Our law recognizes no principle upon which com
pensation can be granted for mere injury to feelings.
However painful the mental effects upon another of
an act, through purely wanton or even malicious, yet
if the act itself is otherwise lawful, the suffering in
flicted is damnum absque injuria. Injury to the feel
ings, may, however, be taken into account in ascer
taining the amount of damages for what is recognized
as a legal injury.
Fright, unattended by bodily injury, cannot be
relied upon as an element of damages even where a
valid cause of action exists. *
Thus in Lehman v. BrooklynCity Ry. Co. (47 Hun,

365), where the plaintiff, who was a married woman,
was standing at the door of her husband's house, when
NO DAMAGES FOR FRIGHT. 4I
a horse belonging to the defendant company, and

which had been negligently permitted to run away,
plunged towards her, but was arrested before touching
her, by a post, and she suffered a severe shock from
her fright which brought on a long train of nervous
diseases, a non-suit was sustained by the General
Term.
So in Ewing v. Pittsburg, C., C. & St. L. Co. (147

Pa. St., 40), a demurrer was sustained to the com
plaint which alleged that a collision had taken place
on the defendant's railroad and that the cars were
thrown off the track and fell on plaintiff's premises
and against her dwelling and “thereby and by reason
thereof subjected her to great fright, alarm, fear and
nervous excitement, whereby she then and there
became sick and disabled and continued to be
sick and disabled from attending to her usual
work and duties, and continues to suffer great mental
and physical pain and anguish, and is thereby perma
nently weakened and disabled.” The decision of the
Supreme Court of Pennsylvania was put squarely upon
the ground that for a negligent act producing fright
alone, unaccompanied by some personal injury, an
action would not lie.
Again in Victoria R. R. Co. v. Coultas (L. R. 13

Ap. Cas., 222), the Privy Council reversed the judg
ment of the Supreme Court of Victoria, and unani
mously held that the action would not lie on the fol
lowing state of facts: Plaintiff and her husband were
driving upon the highway and coming to a railroad
crossing, a servant of the railroad company, placed
there to warn travelers, signalled to them that they
could safely cross, and while upon the track an ex
press train came down, and it was at the imminent peril
of their lives that they got off the track before being
struck. The consequence to the plaintiff was that the
fright and shock severely injured her nervous system
and brought on a long train of nervous diseases from
which she suffered at the time of the trial, and it was
42 NO DAMAGES FOR FRIGHT.
shown that her eyesight was permanently impaired as a

direct result of the shock to her nervous system, re
sulting from the fright. Other cases to the same point
are
Wyman v. Leavitt, 71 Me., 227.

Renner v. Canfield, 36 Minn., 90.
Canning v. Williamstown, I Cush., 451.
Mitchell v. Rochester St. Ry. Co., 151 N. Y., 107.
In the case last cited, plaintiff was standing upon a

cross walk awaiting an opportunity to board one of the
defendant's cars which had stopped to take her on, and
just as she was about to step upon the car, another car
drawn by horses came up so close that the horses when
pulled out of the track to avoid collision with the car
ahead, all but touched the plaintiff, who was so fright
ened by the proximity of the team that she became
unconscious, and suffered a miscarriage and consequent
illness. The Court of Appeals held that no recovery
can be had for injuries sustained by fright, and said:
“If the right of recovery in this class of cases should
be once established, it would naturally result in a flood
of litigation in cases where the injury complained of
may be easily feigned without detection, and where the
damages must rest upon mere conjecture or specula
tion. The difficulty which often exists in cases of
alleged physical injury, in determining whether they
exist, and if so, whether they were caused by the neg
ligent act of the defendant, would not only be greatly
increased, but a wide field would be opened for ficti
tious or speculative claims. To establish such a doc
trine would be contrary to principles of public policy.”
The same principle has been applied in numerous
cases against telegraph companies where attempts
have been made to recover damages for the mental
anguish caused by failure to send correctly or deliver
properly messages announcing the critical illness or
death of some near and dear relative. With the ex
ception of the courts of Texas, it has been held by an
unbroken line of authorities that such mental suffer
ings are not a sufficent basis for an action to recover
damages.
THE LAW A BUSINESS SYSTEM. 43
Chase v. Telegraph Co., 44 Fed. Rep., 554.

Tyler v. Telegraph Co., 54 Fed. Rep., 634.
Kester v. Telegraph Co., 55 Fed. Rep., 603.
Wilcox v. Telegraph Co., 56 Fed. Rep., 264.
Wood v. Telegraph Co., 57 Fed. Rep., 471.
Rogers v. Telegraph Co., 9 S. E. Rep., 823.
Connell v. Telegraph Co., 22 N. W. Rep., 345.
Francis v. Telegraph Co., 25 L. R. A., 406,
Chapman v. Telegraph Co., 15 S. E. Rep., 901.
No better statement of the reason why the law does

not reach the class of grievances of which we have
been speaking, may be found than this of Lumpkin, J.,
in Chapman v. W. U. T. Co., (88 Ga. 763).
“The law protects the person and the purse. The
person includes the reputation. The body, reputation
and property of a citizen are not to be invaded with
out responsibility in damages to the sufferer, but out
side of this sphere the law does not yet attempt to
guard the peace of mind, the feeling 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 par
ticular condition of feeling. The law leaves the feel
ing to be helped and vindicated by the tremendous
force of sympathy. The temperaments of individuals are
various and variable, and the imagination exercises 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 in 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.”
44 THE ARGUMENT SUMMED UP.
VI.
The interlocutory judgment overruling the

demurrer should be reversed and the demurrer
sustained.
We may sum up the argument as follows:

I. The complaint does not sufficiently allege that
the picture in question is, in fact, a picture of the
plaintiff and not a fancied likeness of her; nor does it
allege that the defendants used the picture with the
knowledge that it was the plaintiff's likeness, or
indeed, the likeness of any living woman.
2. Assuming, however, that the complaint alleges
that the defendants have printed and circulated,
against her wishes, a portrait of the plaintiff, knowing
it to be such, we say that no cause of action thereby
arises against the defendants, for (a) there is no
statute which creates such a cause of action; (b) the
case does not come within the law of libel; (c) the
alleged right of privacy upon which it is sought to
sustain the action is not a legal right which the courts
can enforce, according to the great weight of authority
and well settled principles of law, and (d) plaintiff has
no property right in her own features, there being no
allegation that she uses them as a trade-mark to
identify an article of commerce sold by her.
3. The injunctive relief demanded by the complaint
cannot be had because no property right is involved.
4. Damages cannot be given because the law takes
no cognizance of sentimental injuries.
5. The remedy for such a wrong as plaintiff claims
to have suffered is to be found in legislation.
In conclusion, we submit that the decision below is a
radical departure from well-beaten paths of jurispru
dence, which, if it were to be sustained, would lead to
confusion and uncertainty.
THE “HARD CASE” MAKES BAD LAW. 45
“It is hardly possible,” said Austin, “to imagine a

case in which the application of a general rule might
not be productive of some result which a good-natured
judge would wish to avoid.”
“The doctrines of this court,” said Lord Eldon,
“ought to be as well settled and as uniform almost as
those of the common law, laying down fixed principles,
but taking care that they are to be applied according
to the circumstances of each case. I cannot agree that
the doctrines of this court are to be changed by every
succeeding judge. Nothing would inflict on me greater
pain than the recollection that I had done anything to
justify the reproach that the equity of this court varies
like the chancellor's foot.”
Sorrow sometimes comes to jurisprudence when

“the hard case” is permitted to make bad law. In the
noble words of a late distinguished member of the
Rochester Bar: “Whenever law is subverted by the in
dividual, whose outraged sense of justice is not content
with what law will do for him, or who will not wait for
its slow movement; or by the courts, declining their
noble function jus dicere for that, jus dare, which they
are forbidden to exercise * * * * society has
suffered a blow—civilization, whose highest crown
and development is Law, has received a check, not less
but more pernicious and perilous when administered
in the house of its friends.”
Respectfully submitted,
ELBRIDGE L. ADAMS,
of Counsel for Appellants.

March 1, 1901.
Argued for Plaintiff-Respondent
By MILTON E. GIBBS,
Rochester, N. Y.
SUPREME COURT,
STATE OF NEW YORK.
Appellate Division===Fourth Department.
ABIGAIL M. ROBERSON, AN INFANT, BY HER

GUARDIAN AD LITEM, MARGARET E. BELL,
Plaintiff-Respondent,
Z/S.
THE ROCHESTER FOLDING BOX COMPANY

AND THE FRANKLIN MILLS COMPANY.,
Defendant-Appellants.
BRIEF OF RESPONDENT.
The defendants have appealed to this Court from an
interlocutory judgment, entered June 25, 1900, upon
the decision of the Monroe Special Term, Mr. Justice
Davy, presiding, overruling defendant's demurrer to
the complaint on the ground that said complaint did
not state facts sufficient to constitute a cause of action.
An opinoin was written by the learned justice, and
forms part of the appeal book herein.
2
POINT I.
On demurrer a pleading will be held to

state all facts that can be implied from
the allegations by reasonable and fair in
tendment.
Sage vs. Culver, 47 N. Y., 214.

Lorillard vs. Clyde, 86 N. Y., 384.
Meyer vs. Staten Island R. R. Co., 7 N. Y.
State Rep., 245.
If sufficient facts can be gathered from allegations of
complaint, made positively, inferentially, impliedly,
argumentatively and by reasonable intendment, de
murrer will be overruled.
Meyer vs. Staten Island R. R. Co. (supra).
The complaint alleges, specifically, that “The de

fendants * * * obtained, made, printed,
sold and circulated about 25,000 lithographic prints,
Photographs and likenesses of the plaintiff, for the pur
pose of profit and gain to themselves.” (Fol. Ho.)
By the allegation, the picture is called plaintiff's
Photograph, and I respectfully submit that there is no
other English word or expression which so directly
and accurately conveys the idea that the picture in
question is an exact representation of the plaintiff.
The fact that the picture or photograph in question is
a profile view of the plaintiff, or in fact, any other
view, makes no difference whatever. It is admitted by
the demurrer that it is an accurate photograph of
plaintiff, and that is decisive on this appeal.
The complaint states: “That without the knowledge
or consent of the plaintiff, the defendants, within the
last three years, knowing they had no right so to do,
obtained, made, sold and circulated * * *
3
photographs * * * of the plaintiff for the

purpose of profit,” etc. (Fol. 10.)
This is a plain, simple and concise statement of the
fact that the defendants used plaintiff's photograph,
knowing that it was her photograph, and without her
consent. The allegation does not even approach the
border line of a conclusion of either law or fact.
POINT II.
The acts of the defendants in obtaining,

making and circulating lithographic por
traits of plaintiff without her consent, and
for advertising purposes, for the benefit of
defendants only, constitute an unwarrant
able invasion of the “Right of Privacy,”
for which no adequate remedy exists at
common law, and which, therefore, falls
within the jurisdiction of a Court of Equity
to redress.
Schuyler vs. Curtis, 15 N. Y. Supp., 787 (1891).

Schuyler vs. Curtis, 19 AW. Y. Supp., 264 (1892).
Schuyler vs. Curtis, 24 AV. Y. Supp., 509 (1892).
Schuyler vs. Curtis, 147 W. Y. Sapp., 434 (1895).
Marks vs. Joffa, 6 Misc., 290 (1893).
Manola vs. Stevens, cited in 4 Harvard Law
Review, at 409 (1890).
4 Harvard Law Review, 193.
Pollard vs. Photographic Co., 4o L. R. Ch.
Div., 345.
Corliss vs. Walker, 5.7 Fed. Rep., 434.
4
Corliss vs. Walker, 6.4 Fed. Rep., 280.

Corliss vs. Walker, 31 L. R. A., at 2&3.
It may be understood at the beginning that there is
no contention on the part of the plaintiff that this is
an action for libel, and the essentials of a complaint in
an action for libel are not, therefore, discussed, and an
argument as to whether or not injunctive relief can or
cannot be had in an action for libel is likewise foreign
to the issues in this case, and therefore, is wholly
omitted.
Neither is this an action based on a statutory copy

right; nor upon any statute whatever. Thus the dis
cussion of copyrights, statutes and libel, is dismissed.
THE THEORY OF THE ACTION.
The theory of this action, upon which plaintiff relies,

is two-fold.
(1) That she has a right of privacy which a Court

of Equity will protect: and
(2) She has a property right in her own features
and beauty which is absolute until surrendered
by her in some manner.
An Action in Equity as Opposed to one

at Common Law.
In so far as this action asks for injunctive relief, it is

not affected by the strict, rigid and fixed rules of the
common law. This is not an action for the breach of
an express contract, as there never was any express
contract between the plaintiff and the defendants.
The Court of Equity and Equity Jurisprudence had
its origin in the fact that the fixedness of the common
law rules and principles did not allow it to give a
remedy for every wrong. To meet the demand and
give an adequate remedy for those wrongs outside the
5
principles of the common law was and is the peculiar

province of equity.
“It has been the boast of many sages of the law,
that there is no wrong without a remedy. The very
origin of equity in Rome and in England, was that
there was a wrong for which there was no remedy
at law. (I Story Eq. Jur., Secs. 49 and 50.) Lord
Cottenham, in Walworth vs. Holt, 4 My L. L. and C.,
619, said: ‘I think it the duty of this Court to adapt
its practice and course of procceding to the existing
state of society, and not by too strict an adherence to
form and rules established under different circum
stances, to decline to administer justice and enforce
rights for which there is no other remedy * * *
if it were necessary to go much farther than it is, in
opposition to some highly 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. (I Storey Eq. /ur., Sec.
671, note.) It is not necessary that a property right
should exist in order to call into action a Court of
Aquity."
Snyder vs. Snyder, 6o How. Pr., 368, at 371.
The reasoning to the effect that if the common law
does not grant a remedy in an action like the one at
bar, therefore there is no remedy and this action must
fail, is unsound, for the reason that it assumes that our
Courts can not adapt well established principles to new
facts and conditions, when carefully analyzed; indeed,
it rests upon the absurd proposition that Courts must
be regulated in their enforcement of justice by pre
cedents of fact and not precedents of principle. The
difficulty with the whole argument or the whole super
structure is that error is made at the very foundation
in this: that this action is equitable in its nature and
is, therefore, based upon equitable principles, and is not
a common law action and is not based upon the com
mon law doctrines.
6
Starting with a false premise the appellants' counsel

is bound to arrive at an erroneous conclusion, however
logically he may reason.
This is the error of the appellants' counsel, and this

error accounts for the conclusion reached by him.
Irrespective of the property right, as that term prop
erty is commonly used, the above cited cases hold
undeniably that there is a legal right, aptly termed
“The Right of Privacy,” of which a Court of Equity
will take cognizance and give the proper relief. The
Harvard Law Review article is inspired by the develop
ment, the new conditions, the expansion and the growth
of modern times. There is not an opinion, not a dic
tum, not a syllable, in the reports of the State of New
York that can be considered as authority, which does
not stamp with approval the principles of that article.
The Schuyler vs. Curtis case distinctly recognizes and
openly approves the Right of Privacy, and the Court
of Appeals' opinion in that case points irresistably in
the direction that where the person aggrieved comes
himself to that Court, he shall be adequately and
properly protected.
In the Marks case, the plaintiff was a law student
and was formerly an actor. The defendant was editor
of a newspaper. The defendant published a portrait
of plaintiff, and invited its readers to vote on the com
parative popularity of plaintiff and another whose pic
ture was also published. The action was brought in
equity to restrain the publication. The plaintiff was
successful in procuring an injunction. The learned
Court say: “The Courts will in such cases secure to
the individual what has been aptly termed the right
‘to be let alone.’”
In Schuyler vs. Curtis, the Right of Privacy is dis

tinctly recognized, and it is said that a Court of Equity
will uphold and protect that right in a proper case.
The plaintiffs therein were relatives of Mrs. Mary
7
Hamilton Schuyler, deceased, who in her life-time was

a philanthropic person, but most modest and retiring.
She died in 1877. The defendants were very reputa
ble persons, who sought to have a bust of Mrs. Schuy
ler made and placed on exhibition at the World's Fair,
held in Chicago in 1893. The action was brought in
equity to restrain the collection of funds for that pur
pose, and also the making and exhibition of the statue.
The Court of Appeals held that the right of privacy is
a purely personal right, and does not survive to legal
representatives or next of kin. In this case the acts of
the defendants were calculated to do honor to a noble
woman as well as to womankind, and not for pecuniary
advantage to themselves or others. The Court said:
“If the facts in any case fail to furnish any clear or
sure foundation for a reasonable man to claim that any
injury to his feelings has been or would be caused by
the action taken, or to be taken, by a defendant, then
we can at least say in such a case that there has not been
and cannot be any such real mental distress or injury as
a Court of Equity ought to recognize as within judicial
relief. For the purpose we have in view it is unneces
sary to wholly deny the existence of the right of
privacy to which the plaintiff appeals as the founda
tion of his cause of action. It may be admitted 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 indi
vidual, and where the doing of the act is wholly unjusti
fiable, and is, in legal contemplation, wrong, even though
the existence of no property, as that term is usually used,
is involved in the subject.” The Court, continuing, say
that an action might be maintained “to enjoin the
painting of a picture or the making of a statue of the
deceased which would be regarded as inappropriate by
reasonable people because of the use for which it was
destined or the place where it was to be kept was obviously
improper.”
8
The complaint alleges that “The defendants *
* * have caused the same (meaning the photo

graphs of the plaintiff) to be conspicuously posted and
displayed in stores, warehouses, saloons and other public
places,” etc. (fol. 14), and to advertise defendants'
business (fol. 13).
Are these acts of the defendants in posting in saloons
and stores the photographs of plaintiff for the purpose
of selfish profit, such conduct as “would be regarded
as appropriate by reasonable people.” Would not a
saloon be regarded by reasonable people as a place
“obviously improper” in which to hang the picture of
a retiring and beautiful young lady of eighteen years?
“A proposed act which a Court will enjoin because
it would be a violation of a legal right, must, among
other conditions, be of such a nature as a reasonable
man can see might and probably would cause mental
distress and injury to anyone possessed of ordinary
feelings and intelligence, situated in like circumstances
as the complainant, and this question must always be
to some extent, one of law.” That severe mental dis
tress was suffered by the plaintiff, however, is alleged
in the complaint (fol. 15), and must, therefore, be
deemed conclusively established on this appeal.
Notice the acts of the defendants. They obtain,
without plaintiff's consent, her picture, and enlarge it;
make thousands of them and circulate them for the
purpose of making money, and for that only. Do the
defendants intend to honor the plaintiff by these acts?
Is it showing respect to a beautiful young woman to
hang her picture as an advertisement in restaurants
and saloons? Is it to teach mankind lessons in philan
thropy and morality? To ask these questions is to
answer them. Does not every impartial person stand
aghast at such acts on the part of the defendants or
any other person who have the boldness to take the
pretty face of a young woman without the slightest
9
intimation of a “by your leave,” and send it broadcast

for the purpose of making money? No stronger case
could appear over which a Court of Equity should ex
ercise its jurisdiction and control. In the same case,
at 448, the Court say: “If the defendants had pro
jected such a work in the life-time of Mrs. Schuyler, it
would, perhaps, have been a violation of her individual
right of privacy, because it might be contended that
she never occupied such a position towards the public
as would have authorized such action by anyone, so
long as it was in opposition to her wishes."
Here, then, is the difference between the Schuyler

case and the one at bar: The Schuyler case was
brought on behalf of her family after Mrs. Schuyler
had been dead fourteen years, and the case was de
cided directly upon the point that the “Right of
Privacy” is personal and does not survive the death of
a person.
This action is brought by the injured girl herself, on

a much stronger state of facts than the Schuyler case
presented.
In Corliss vs. Walker, 5.7 Fed. Rep., 434, the facts

briefly are these : The plaintiff was the widow of
George H. Corliss, a hoted inventor. The action was
brought to restrain the defendants from publishing
and selling a sketch of Mr. Corliss, and from printing
and selling his picture in connection therewith. It is
like the Schuyler case, in being brought after the death
of the person whose name and picture were said to be
unlawfully used. In this case the Court held and de
cided the case upon the theory that the publication of
the life of a public man, as it was shown Mr. Corliss
was, could not be restrained, as it would be contrary to
the Constitutional privilege—the right to utter and
publish whatever the citizen may please. The fact
that Mr. Corliss was a public character is emphasized
throughout the opinion, and the learned Judge spe
|O
cially holds that were it not for the fact that Mr. Cor
liss was a public man, the use of his photograph could
be enjoined. In this case Colt, J., said: “Independ
ently 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 be
longs 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. (Cita
tions.) But while the right of a private individual to
prohibit the reproduction of his picture or photograph
should be recognized and enforced, this right may be
surrendered or dedicated to the public by the act of
the individual just the same as a private manuscript,
book or painting becomes, when not protected by copy
right, public property by the act of publication. The
distinction in the case of a picture or photograph lies,
it seems to me, between public and private characters.
A private individual should be protected against the
publication of any portraiture of himself, but where an
individual becomes a public character, the case is dif
ferent. A statesman, author, artist or inventor, who
asks for and desires public recognition, may be said to
have surrendered this right to the public. When any
one obtains a picture or photograph of such a person,
and there is no breach of contract or violation of con
fidence in the method by which it was obtained, he
has the right to reproduce it, whether in a newspaper,
magazine or book. It would be extending this right
of protection too far to say that the general public can
be prohibited from knowing the personal appearance
of great public characters."
In Murray v. Gast Lithographic Co., & Misc. 36, and
upon which much stress is laid by the appellant the
Court held that a parent in his own name cannot re
[.. I
cover for the invasion of the Right of Privacy of his

child, and the learned Judge distinctly said that he
gave no opinion as to the rights of the child.
In the Marks v. Jaffa case, 16 Misc. 290, Judge Mc
Adam in granting the injunction, said: “This action
may seem novel, but there can be no question about
the plaintiff's right to relief, irrespective of the amount
of damages he might recover at law. Private rights
must be respected as well as the wishes and sensibilities
of the people. When they transgress the law, invoke
its aid, put themselves up as candidates for public favor,
they warrant criticism and ought not to complain of it;
but when they are content with the privacy of their
homes, they are entitled to peace of mind and cannot
be suspended over the press-heat gridiron of excited
rivalry, and voted for against their will and protest.”
In the Schuyler v. Curtis case, 64 Hun, 594, Van
Brunt, J., writing the opinion of the Court, said: “It
is urged upon the part of the appellants that even if
Mrs. Schuyler were alive, and had the same objections
to the defendants' proposed action that the plaintiff
now has, she would be remediless and powerless. If
such were the fact, it would certainly be a blot upon
our boasted system of jurisprudence that the courts
were powerless to prevent the unwarranted doing of
things by persons who are mere volunteers, which
would wound in the most cruel manner the feelings of
many a sensitive nature.”
The Court, in the case at bar, is not asked to go so

far as the Courts did go in the Schuyler case; there the
effort was made to preserve the right of privacy of a
person fourteen years dead. Here the Court is asked
to enjoin the defendants from continually and wilfully
wounding the sensibilities of a young woman in her
life time, and especially as the acts of the defendants
are for the one and only purpose of selfish and private
gain.
I2
Let it be understood that the Courts of the State of

New York have not to this time for a moment hesitated
to recognize the “Right of Privacy,” and to protect
the same when the person whose said ‘right' was in
vaded, has petitioned the Court for relief.
Marks v. Jaffa, 6 Misc. 290,
Manola v. Stevens, cited in 4 Harvard Law
Review, 193.
The following cases, Schuyler v. Curtis, Murray v.
Gast Lithographic Co., Corliss v. Walker, and Atkinson
v. Doherty (46 L. R. A., 219), were brought, except the
Murray v. Gast case, which was brought by a father
individually and not in the name of the chlld, by per
sonal representatives, after the death of the person
whose right of privacy, if he had been living, was in
vaded.
This makes it necessary, if the Courts of this State

are not to reverse themselves and take a step backward,
for them to uphold and protect the Right of Privacy
regardless of the damage sustained.
Atkinson v. Doherty is a Michigan case and it does
not seem so well considered an opinion as the Massa
chusetts case of Corliss vs. Walker (supra).
The learned Judge who wrote the opinion said it was
dangerous to decide cases upon the obiter dicta of other
cases and then proceeds to give an elaborate obiter
dictum himself, in which he says: “So long as such
usé does not amount to a libel, we are of the opinion
that Col. John Atkinson would himself be remediless
were he alive, and the same is true of his friends who
survive.” See Atkinson v. Doherty, 46 L. R. A., p. 222.
The appellant rests most exclusively on this case,
but as it is entirely at war with the careful opinion of
Judge Peckham in our own court of appeals, and as it
was dealing with the rights of a dead man, it can have
no weight at all in determining this case.
I3
All of the English cases cited bear out the arguments

of the respondent, and yet the right of privacy was
then in its infancy.
The conditions surrounding the case at bar are as
different from those of the old English cases as these
times are from the times of the last generation. The
expansion of conditions and the enlargement of inter
ests are continually making most imperative demands
upon our Courts to adapt themselves to the new order
of things. If a man or a Court say, “It has not been,
therefore it cannot be,” that man or court has failed to
keep apace with the day and generation and has become
a burden instead of an aid to the general community.
I do not ask the application of a new principle—I
ask the application of an old and equitable principle to
new and changed conditions.
This leads to the question whether or not a Court of
Equity can grant an injunction, if there be no prop
erty rights involved, in the sense that the term ‘prop
erty' is commonly used.
POINT III.
It is not necessary that a property right

should exist in order to call into action a
Court of Equity.
Pierce v. Proprietors, etc.. to R. J. 227, at 240
and 241 (1872).
Snyder v. Snyder, 6o How. Pr., 368 at 371.
Woolsey v. Judd, 4 Duer, 38/.
Pollard vs. Photo Co., 40 Ch. D., 345, at 353
and 354.
I Storey Eq. /ur., Sections 49 and 50.
Albert v. Strange, 1 MacN. & G, 25.
Wynerhamer v. People, 13 N. Y., 433–434.
I4
In the last cited case “property” is defined as fol

lows (page 433): “The term although frequently ap
p/ted to the thing itself, in strictness means only the
right of the owner in relation to it. (Bouvier's Law
Dic.; I Bl. Com., 138, and Webster's Dic.) A man
may be deprived of his property in a chattel, without its
being seized or physically destroyed or taken from his
Possession. Whatever subverts his rights in regard to it
annihilates his property in it.”
Even then, if it were necessary to have a “property”

right of the plaintiff involved in this case in order that
she might maintain it, the Wynehamer case is directly
in point and is conclusive.
It is most strongly urged that even though the

“property” right is lacking, yet the plaintiff is entitled
to an injunction, and the respondent contends that
there is ample and direct authority in the decided cases
in this State to uphold her position. Notwithstanding
the direct authorities on the Right of Privacy, it is
well to examine a few cases analogous to the one
at bar.
The theory that an injunction can only be granted

in a case where there is injury to property for which
damages could be recovered in an action at law, has
long since been exploded.
Precisely the same objection was raised to the grant

ing of an injunction in the photograph case referred to
(Pollard vs. Photographic Company), and it was thus
effectually disposed of by Mr. Justice North :
“But the counsel for the defendant did not hesitate
to contend boldly that no injunction could be granted
in a case where there could be no injury to property
in respect to which damages could be recovered in an
action at law; and he alleged that this is such a
CalSC. * + *
15
I have already pointed out why, in my opinion, this

is not such a case; but if it were, the alleged conse
quences would not follow. * + *
The right to grant an injunction does not depend

in any way on the existence of property, as alleged;
nor is it worth while to consider carefully the grounds
upon which the old Court of Chancery used to inter
fere by injunction.
But it is quite clear that independently of any ques

tion 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 un
questionable right, or from breach of confidence or
contract, as was pointed out by Lord Cottenham in
Prince Albert vs. Strange, (1 McM. & G., 25).”
Pollard vs. Photographic Co., 4o Ch. D.,
345, 35.3-354.
The same doctrine as to “property” has been en

tirely repudiated in burial cases, in which cases Courts
of Equity have without question exceeded the de
mands which the present case makes upon them.
In Pierce vs. Proprietors, etc., to R. J., 227, the
Court says:
“That there is no right of property in a dead body,
using the word in its ordinary sense, may well be ad
mitted. Yet the burial of the dead is a subject which
interests the feelings of mankind to a much greater
degree than many matters of actual property. There
is a duty imposed by the universal feelings of man
kind, to be discharged by some one towards the dead;
a duty, and we may also say a right, to protect from
violation; and a duty on the part of others to abstain
from violation. It may therefore be considered a sort
of quasi property: and it would be discreditable to
16
any system of law not to provide a remedy in such a

CalSC. * * * (pp. 237–238.)
Equity can only give a full and complete remedy;
and we think the jurisdiction is fully adequate to it.
(p. 242). * * *
Although, as we have said, the body is not property
in the usually recognized sense of the word, yet we
may consider it as a sort of quasi property, to which
certain persons may have rights, as they have duties
to perform towards it, arising out of our common
humanity. But the person having charge of it cannot
be considered as the owner of it in any sense what
ever; he holds it only as a sacred trust for the benefit
of all who may, from family or friendship, have an in
terest in it; and we think that a Court of Equity may
well regulate it, as such.” (pp. 242-243).
The same principles were laid down by Judge Lan
don, in a similar case in this State, in the following
term S :
“It is believed that this question must be solved

upon equitable grounds.
While there is property in the burial lot, in the
monuments, in the ornaments and decorations of the
deceased or his grave, there is none in the remains
themselves.
Since the common law cannot protect or bestow

them as property, or afford an adequate remedy in
cases which sometimes occur, equity has been invoked
to grant such protection and give such remedies as
seem to be required by the circumstances, and are in
consonance with the feelings of mankind; and equity
has assumed jurisdiction. * **
In the case of Pierce vs. Proprietors, etc., it was

said that the person having charge of the remains held
them as a sacred trust for the benefit of all who may,
17
from family ties or friendship, have an interest in

them; that in case of a contention, the Court should
assume an equitable jurisdiction over the subject,
somewhat in analogy to the care and custody of in
fants, and make such a disposition as should seem to be
best and right, under all the circumstances.
I entirely concur in this view.”
Snyder vs. Snyder, 60 How. Pr., 368, 371
(1880).
All of the above citations show that Equity will
assume jurisdiction in a proper case. “To grant such
protection and give such remedies as seem to be required
by the circumstances and are in consonance with the
feelings of mankind,” or that Equity interferes by in
junction in proper cases, becuse there is no adequate
remedy at law.
Lord Cottenham in Walworth v. Holt (4 Myl. & C.,

619) said among other things: “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."
The appellants' counsel contends that the law is
built on “living principles.” With this I heartily
agree. But let it be firmly understood that that means,
if it means anything at all, principles capable of expan
sion to cover a new order of things. To say that legal
principles cannot touch and fully cover modern inven
tions and modern problems, is to set a boundary about
them which no Court can recognize; it is to say that
there are legal wrongs which the principles of law can
not cover. The simple statement of the fact is the
best answer to that argument.
The whole subject relating to burials and the right
of the Court of Equity of the State of New York to
protect the rights of the living in the dead bodies of
relatives, and also the right and duty of the Court of
Equity to act in such cases, where there is concededly
18
no property right involved, was very carefully investi

gated in this State about forty-five years ago, in the
matter of the widening of Beekman Street in New York
City. The report was made in this case by the late
Hon. Samuel B. Ruggles.
The Report, which is dated January 15, 1856, was
made pursuant to an order of reference made to Mr.
A'uggles, February 4, 1854, in a proceeding entitled:
In the Matter of the Application of the Mayor, etc..
of the City of AVew 7%rk, relative to the widening of
Beekman Street, from Pearl Street to Park Row, in
the City of AVew 7 ork.
The referee, Mr. Ruggles, states the question which
was presented, as follows: “Had anyone any legal
interest in that grave, or any right to preserve the re
pose of its occupant, or any legal interest in the mon
ument, or right to preserve its repose ?”
In the opinion he said at pages 521 and 522 : “The
necessity for the exercise of such authority, not only
over the burial, but over the corpse itself, by some com
petent legal tribunal, will appear at once, if we
consider the consequences of its abandonment. If
no one has any legal interest in a corpse, no one can
legally determine the place of its interment, nor ex
clusively retain its custody. A son will have no legal
right to retain the remains of a father, nor a husband
of his wife, one moment after death. A father can
not legally protect his daughter's remains from ex
posure or insult, however indecent or outrageous, nor
demand their reburial if dragged from the grave. The
dead deprived of the legal guardianship, however par
tial, which the church so long has thrown around them,
and left unprotected by the civil courts, will become,
in law, nothing but public nuisances, and their custody
will belong only to the guardians of the public health,
to remove and destroy the offending matter, with all
practical economy and dispatch. The criminal courts
I9
may punish the bodysnatcher who invades the grave,

but will be powerless to restore its contents. The
honored remains of Alexander Hamilton, reposing in
our oldest churchyard, wrapped in the very bosom of
the community built up by his consummate genius,
will become nul/ius in bonis and belong to that com
munity no longer. The sacred relics of Mount Vernon
may be torn down from their “mansion of rest" and ex
hibited for hire in our very midst, and no civil authority
can remand them to the tomb.
In England, with judicial functions divided between

the State and the Church, the secular tribunals would
protect the monument, the winding-sheet, the grave
clothes, even down to the ribbon (now extant) which
tied the queue, but the church would guard the skull
and bones. Which of these relics best deserves the
legal protection of the Supreme Court of law and equity
of the State of New York? Does not every dictate of
common sense and common decency demand a com
mon protection for the grave and all its contents and
appendages? Is a tribunal like this under any legal
necessity for measuring its judicial and remedial action
by the narrow rule and fettered movement of the com
mon law of England, crippled by ecclesiastical inter
ference? But may it not put forth its larger powers
and nobler attributes as a court of enlightened equity
and reason 2”
And again, (page 529):

“It will be seen that much of the apparent difficulty
of this subject arises/rom a /a/se and needless assump
tion in holding that nothing is property that has not a
fecuniary value. The real question is not of the dis
posable, marketable value of a corpse or its remains as
an article of traffic, but it is of the sacred and inherent
right to its custody, in order decently to bury it and
secure its undisturbed repose. The insolent dogma of
the English ecclesiastical law that a child has no such
2O
claim, no such exclusive power, no peculiar interest in

the dead body of its parent, is so utterly inconsistent
with every enlightened perception of personal right, so
inexpressibly repulsive to every proper moral sense,
that its adoption would be an eternal disgrace to
'American jurisprudence. The establishment of a right
so sacred and precious ought not to need any judicial
precedent. Our courts of justice should place it at
once where it should fundamentally rest forever, on the
deepest and most unerring instincts of human nature,
and hold it to be a self-evident right of humanity, en
titled to legal protection by every consideration of feel
ing, decency, and Christian duty.”
There is one other class of rights analogous to those
of the plaintiff in this case which it is worth while to
briefly consider, namely, the rights of the writer of a
private letter to restrain the receiver from publishing it.
Pope vs. Curl, 2 Atkyns, 342 (1741).
Gee vs. Pritchard, 2 Swanst , 402 (1818).
Lord and Lady Percival vs. Phipps, 2 Vesey
& B., 19.
Prince Albert vs. Strange, 2 DeGrex & Sm.,
652, at 691–696; s. c. on appeal, 1 McM.
& G., 25, at 42 (1849).
The leading case on this subject in this State is
Woolsey vs. Judd, 4 Duer, 379 (1855),
in which the cases on this subject were carefully exam
ined, and the law stated in a very able opinion of
Judge Duer.
In Gee vs. Prichard, Sir Samuel Romilly, arguing
for the plaintiff, said:
“It has been decided, fortunately for the welfare of
society, that the writer of letters, though written with
out any purpose of profit or of any idea of literary
2 I
property in them, that they cannot be published with

out his consent, unless the purposes of justice, civil or
criminal, require the publication.” (2 Swanst, at 418).
In granting the injunction in that case, Lord Eldon
sought for familiar ground on which to base the relief
given, holding that the receiver of a letter has only a
special property in it, “at most, a joint-property with
the writer. He has not a license to publish it to the
world.”
Woolsey vs. judd, 4 Duer, at 402.

This analogy was again applied in the famous case of
Prince Albert vs. Strange, 2 DeG. & Sm.,
652; s. c. affirmed on appeal, I McM. &
G., 25,
in which the defendant was enjoined not only from
selling certain etchings made by Prince Albert and
Queen Victoria, but also from even publishing a de
scriptive catalogue of the etchings.
In that case, Vice-Chancellor Knight-Bruce said:
“Those with whom our common law originated had
not, probably, among their many merits, that of being
patrons of letters, but they knew the duty and neces.
sity of protecting property, and with that general ob
ject, laid down rules providentially expansive—rules
capable of adapting themselves to the various forms
and modes of property which peace and cultivation
might discover and introduce.” (2 DeG. & Sm., at pp.
694-5.)
Then, referring to the growth of the idea of property
as the product of mental labor, he continued:
“The species or kind of the things in which property
was claimed, has of course to be particularly consid
ered in considering the question whether a right in it
was invaded, and how invasion should, in the partic
ular case, be prevented or redressed; and this class of
22
property, by nature not corporea/ at all, or not exclu

sively corporeal, required to be defended against incor
poreal attacks, and not at all or not exclusively against
bodily assaults. Upon the principle, therefore, of pro
tecting 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 writ
ing, and desired by the author to remain not generally
known " (page 695).
And it is clear from a careful reading of the cases
above cited, that the right which is protected is not a
right of property, but a “personal right,” which may
properly be termed a right of privacy.
Sir John Romilly (then Solicitor-General, and after
wards Master of Rolls), the distinguished counsel for
the plaintiff in Prince Albert vs. Strange, based the
argument in favor of the relief there granted, upon that
ground, which is precisely the same ground upon
which this cause rests, namely, invasion of a right of
Privacy, saying:
“It has been said that there has been here no viola
tion of the right of private property. But there has
been the abstraction of one attribute of property,
which was often its most valuable quality, namely,
privacy. All the cases in which the Court has inter
fered to protect unpublshed letters or manuscripts, or
that ideal property which a man acquires in the re
marks made by himself, proceed upon that principle of
protecting privaey.” (2 DeGex & Sm., 670-671).
And again (at pp, 677–8):
“If the principle is to prevail, that a person may get
the productions of another in any manner, and then
publish such accounts of them to the world as he likes,
a fatal blow will be struck at all privacy, no matter
whether it exists in a lofty station, where it is confined
within the narrow limits of a domestic circle, at all
times necessarily much encroached upon, admidst the
23
round of public duty, or whether it exists in the

humblest ranks of life. Whether it adds pecuniary
value to the property, as it does in many cases, or is
only prized as a matter of affection and remembrance
of feeling—whether the result of destroying privacy
may be to inflict pain upon the feelings of the individual,
or, as in the present case, to increase the honor and
affection in which he is held—such considerations are
altogether immaterial to the question at issue."
And the Vice-Chancellor, although he based his de
cision, as above stated, upon the principle of protect
ing property, held 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 gener
ally known.” (p. 695).
When the case came before the Lord Chancellor, on
appeal, Lord Cottenham expressly declared that “pri
vacy is the right invaded." (I McM. & G., 25, at 49.)
The above decisions lead irresistibly to the conclusion
that the Court of Equity in the State of New York
has full and complete jurisdiction to grant the relief
asked for by this plaintiff, and certainly no more touch
ing appeal can be made to the consciences of enlight
ened men than the case of this plaintiff makes.
Let me say again, in the language of the eminent
Jurist, the Hon. Samuel B. Ruggles:
“As a tribunal like this under any legal necessity for
measuring its judicia/ and remedia/ action by the narrow
rule and fettered movement of the common law of Eng
land, crippled by ecclesiastical interference 2 But may
it not put forth its larger powers and nobler attributes
as a court of enlightened equity and reason 2"
24
POINT IV.
Every person has a property right in his

own photograph, and until that right is sur
rendered, he is its exclusive owner, and also
of the additional right to make and circulate
all copies of that photograph.
Pollard v. Photographic Co., L. R. 40 ch. Div.,
345.
Tuck v. Priester, L. R. 19, D. B. Div., 629.

& Am. Law Reg. M. S., p. l. (1869).
Prince Albert v. Strange, 1 McM. & G., 25.
12 Wash. Law Rep., 353, (1884).
24 Vol. J., & Rep., 4, (1879).
Cor/iss v. Walker, 3 I L. R. A., 2&5.
Same case, 57 & 64 Fed. Rep., and cases cited.
Wynehamer v. People, 13 N. Y.,433–4.
“So, if a likeness, once lawfully taken, were, without
permission, to be multiplied for gain, the artist reckon
ing on the beauty or distinction of the original for an
extensive sale, it might be considered whether there
were not a violation of a sort of natural copy-right pos
sessed by every person in his or her own features for
which the courts would be bound to furhish redress.
If the newspapers are to be trusted, a case of that kind
has lately occurred in Europe. An artist multiplied
the likeness of a lady of high rank at the Austrian
court, and sold the copies as the photograph of some
notorious woman in another city. Suit was brought
by the injured lady and a judgment recovered. What
was the ground or the nature and extent of the recov
ery, we are not told, Special damage may have formed
the basis of it. But it cannot be doubted that had there
been none, her right to control the market of her own
25
beauty could not have been denied her by any court and
that that right had been infringed, if on no other.”
& Am. Law Reg., M. Y., page I. (1869).
In the Corliss v. Walker case, at page 285 Colt, J.,
said among other things:
“I believe the law to be that a private individual has
a right to be protected in the representation of his por
trait in any form, that this is a ‘property' as well as a
personal right.”
And again on page 286: While the right of a private
individual to prohibit the reproduction of his picture or
Photograph should be recognized and enforced, the right
may be surrendered and dedicated to the public,” etc.
Considerable has been said in the Schuyler vs.
Curtis case, and the Corless v. Walker case, as to the
difference in the rights of public and private persons to
this Right of Privacy, and their property rights in their
photographs. The cases in the State of New York are
tunanzmous on the point that a public character sur
renders more or less of his privacy and his rights to the
public, and this view is simply plain common sense.
If the plaintiff were a public character, as an actor,
an artist, a litterateur, or a politician, she might then,
under the decisions, have no remedy in law. But the
fact is that the plaintiff is not a public character in any
sense of the word. The publication of her picture was
not for the public benefit, social, political, or other
wise; it was for the purpose of creating wealth for the
defendants.
The only opinion at war with this general rule is

found in the Atkinson v. Doherty case (Michigan), and
the apellants endorse this opinion in full and seem to
rely wholly upon it. The appellants' counsel devotes
much space in his brief in endeavoring to point out
that because it may be difficult in some cases to draw
the line between public and private characters, there
26
fore the effort ought not to be made under any

circumstances.
The rule of law is that the difficulty of a task in any

of its features is no reason whatever why a court should
not consider the matter and render a proper decision.
Lord Brougham, in Docker v. Somes, 2 Myl. & K.
674, said: “When did a Court of justice whether ad
ministered according to the rules of equity or law, ever
listen to a wrongdoer's argument, to stay the arm of
justice, grounded on the steps he himself had success
fully taken to prevent his iniquity from being traced ?
Rather, let me ask, when did any wrongdoer ever yet
possess the hardihood to plead, in aid of his escape
from justice the extreme difficulties he had contrived
to throw in the way of pursuit and detection, saying,
you had better not make the attempt, for you will find
I have made the search very troublesome 2 The
answer is, ‘The court will try.’”
To say, as the appellants' counsel does, that two or
more persons could recover damages in a Court of law
in this State, by claiming that a certain picture was a
photograph of each one, is to belittle and to ridicule in
no mild manner, our judicial tribunals, and to make
them appear as mere playthings in the hands of any
one seeking to use them as such.
I cannot subscribe to such a transparent argument.
It is not even specious to say nothing of its
reasonableness.
An effort is made by appellants' counsel to waft us

away into the realm of fiction by illustrations from lit
erature. (Appellants' brief, pp. 27–29). The appel
lants' brief at this point is entertaining, but in no wise
instructive on the legal questions in this action. In
fact, much of the brief of the appellants' counsel per
tains to entirely irrelevant matters. Libel, statutory
trademarks, and statutes generally, are so entirely
27
foreign to the issues that it is useless to touch upon

them.
The defendants are estopped from denying that the

lithographic likenesses of plaintiff are not of value and
are not property, because they admit that they have
“sold and circulated” 25,000 lithographic prints, photo
graphs and likenesses of the plaintiff for the purpose
of profit and gain to themselves.” If the lithographs
are not of value, why have the defendants paid for
them? Is it reasonable to suppose that the defendant
corporations have sold 25,000 of these lithographs if
they are not of value? The value is not in the paper;
it is in the picture. Does it lie in the mouths of de
fendants to say that although the lithographs are of
value to them for the purpose of making money, yet
they are of no value to the plaintiff P
Such a contention, it seems to me, is most unreason

able and absurd. If the plaintiff has such a beautiful
countenance that her photographic likeness is salable
in the markets, who is entitled to the proceeds of such
sales Is any person who first steals the likeness, or
obtains it in any manner without permission of the
original, entitled to the pecuniary benefit derivable from
its use? If that is so, then a new and strange theory
of property must be read into the law. -
In the case at bar, without her consent, plaintiff's

photograph has been procured by the defendants and
used by them for advertising purposes. This, under
the above decisions, is wrong, and deprives plaintiff of
her individual and property right, without recompense,
and without due process of law. If the right to make
and control the circulation of plaintiff's photograph be
longs exclusively to her, why should not the defend
ants be restrained from using her photograph, and
why should they not at the same time account to her
/or all sales and benefits derived from the use of the
photograph *
28
A statement made in the opinion In re Sawyer, 124

U. S., 213, is working mischief by being cited by attor
neys and Courts in all cases where the principle stated
therein is cited without the limitations, which the facts
surrounding its utterance put upon it, being taken into
consideration.
The Court said:
“It is elementary law, that the subject matter of the

jurisdiction of a Court of Chancery is civil property.
The Court is conversant only with questions of prop
erty and the maintenance of civil rights. * * *
The Court has no jurisdiction in matters merely crim
inal,” etc.
By this it is plainly seen, as well as from the whole

opinion, that the Court was distinguishing between
civil and criminal matters, relative to the jurisdiction
of a Court of Equity, and the Court said that equity
has no jurisdiction over criminal matters. There is no
discussion in that opinion at all of the various kinds of
civil rights or civil property, and there can be no
doubt whatever that the statement made in that
opinion, when criminal matters are not considered,
would be greatly modified and limited.
POINT V.
The lithographic portraits of plaintiff were

the property of the plaintiff, and she has a
right to an accounting of sales and uses of
the same by the defendants.
Am. & Eng. Enc. of Law, 2d Ed., Vol. 7, pp.
584 and 5.88.
Hier v. Abrahams, 82 N. Y., 5.19.
29
Privity between the plaintiff and the defendants is in

nowise necessary to compel them to account to her for
the profits arising from the use of her picture, and it
makes no difference whatever that she has no sratutory
copyright or trade-mark rights in her photograph.
The photograph is that of the plaintiff and used by
the defendants without her consent, and upon that,
and that alone, she is entitled to an injunction and
any provable damages.
“Every infraction of a legal right in contemplation
of law causes injury. This is practically and legally
an incontrovertible fact,” .
Suth. on Dam., Vol. 1. pp. 2 and 9.
The general principles of natural justice, as admin
istered in Courts of Equity from the origin of that
Court to the present day, impose upon those Courts
the duty of restoring to the plaintiff the profits made
from the use of her property. The law relating to
patents, trade-marks, and copyrights, before and since
the statutes on those subjects, so firmly establish that
principle that to discuss it here is unnecessary. It is
an application of the old maxim that no man shall be
allowed to profit by his own wrong.
POINT VI.
The plaintiff is entitled to sue for an

injunction.
Pirst. Because she individually is injured in
many ways, as set forth in the complaint. It is
plain to be seen that the plaintiff, without being
supersensitive in any manner whatever, being a
young woman of standing and intelligence, has
been, still is, and apparently is destined further
to be, most deeply humiliated by the acts of
the defendants.
3O
Second. Because the plaintiff has no adequate

redress or remedy at law.
The acts of the defendants firmly establish that
they intend, knowingly and willfully, to con
tinue to parade plaintiff's photograph before the
public; to hang it in disreputable places, if they
like, and as they have done, and then flippantly
say, “What are you going to do about it?”
The nature of every man, not deadened by
greed, revolts at such acts.
POINT VII.
The plaintiff is entitled to damages for her

mental distress and annoyance, besides the
recovery of the profits made by the use of
her picture.
Mayer v, Gordon, 113 Ind. 282.
Am. & Ang. Ænc. of Law, 2nd Ed., Vol.
8 pp. 659, and 669–672.
Sedg on Dam., p. 35.
Byrne v. Gardner, 33 La. Ann., 6.
AHamilton v. Third Ave. A' A' Co., 53 AV.
7. at 28.
The general rule is, no doubt, that damages cannot

be recovered for mere fright or mental anguish, where
a property right or a personal injury is not involved.
It is also as well settled that mental anguish or pain
and annoyance are elements of actual damage in
actions for personal injuries, and in many cases for in
juries to property, the particular requirement being
that there be some particular property, or personal
damage upon which to base the mental damage.
3I
“So where the manner of commission of a tort to

Property is such as naturally to cause mental suffering,
there can, it seems, be a recovery in damages therefor.”
Am. & Eng. Enc. of Zaw, 2nd Ed., Vol. 8,
page 671 and citations.
Let it be particularly noted that malice on the part
of defendants is not necessary in order to allow a re
covery for mental injury based upon a tort to property.
Plaintiff's property right in her photograph was and
is wrongfully taken by the defendants without her
consent and without recompense. Is not this a pecul
iarly annoying and willful tort? The defendants, in
persisting to use the plaintiff's photograph, seem de
void of the delicate instincts that should characterize
every nature at least in some degree.
The appellants' counsel contends that damages for
mental suffering or “sentimental damages" are recov
erable only in actions for negligence or personal in
juries. In this I submit he is wholly wrong, A neg
ligent act is the act of a moment or a very short period,
in the large majority of cases; and the cause of the
fright or mental distress in such cases is therefore
quickly removed, and in most cases the cause ceases
entirely to exist.
In the case at bar, the cause of the plaintiff's mental
distress is a continuing one, and so made by the will
ful acts of the defendants.
The rule preventing a recovery for mental suffering

only as announced in some negligence actions has no
application in such an action as this.
In cases of negligence, the cause of the accident or

injury is removed with all the speed that human ingen
uity can devise. In this case the cause of the distress
is continued with knowledge of its effect and with all
the energy possessed by modern business corporations.
32
In other words the distinction is that in the former

class of actions the injury is involuntary and uninten
tional, while in this case it is willfully persisted in after
full knowledge of plaintiff's suffering.
Special damages to property interests have been
alleged, and for the purpose of this appeal, have been
admitted. It is entirely unnecessary as far as the
appeal is concerned to consider the question of senti
mental damages, as plaintiff has both a personal right
of privacy and a right of property which a Court of
Equity will protect.
POINT VIII.
The judgment of the Special Term should

be affirmed with costs.
The plaintiff's argument may be summed up as

follows:
1. The complaint directly and positively alleges

that the defendants used plaintiff's photograph
for their own benefit, without her consent, and
knowing that it was her photograph.
2. Notwithstanding that there are no statutes

governing the right of privacy; that libel is not
alleged in the complaint; that plaintiff claims
no statutory trade-mark or copyright, as the
basis of her action, yet she has a good and com
plete cause of action in the violation of her
“Right of Privacy.”
3. An injunction can and should be granted to

protect plaintiff's right of privacy.
4. An injunction should be granted to protect

plaintiff's property rights in her own features.
33
5. Under the circumstances of this case, plaintiff

is entitled to recover damages for mental pain
and anguish, and her personal annoyance and
inconvenience.
6. Defendants have no right in morals, in con

science, in law or in equity, for the sole purpose
of selfish gain, to harass and cheapen a beautiful
young woman by circulating her photograph
without her consent.
MILTON E. GIBBS,
Attorney for Plaintiff-Respondent,
808 Wilder Building,
Rochester, New York.

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Supreme Court.

Appellate Division—Fourth Department.

ABIGAIL M. ,ROBERSON, AN INFANT, Ev HER

THE ROCHESTER FOLDING BOX CO., AND

Papers on Appeal from lnter=

ABIGAIL M. ROBERSON, AN INFANT, BY

THE ROCHESTER FOLDING BOX CO.

To the above named Defendants :

6 SUPREME COURT-MONROE COUNTY.

ABIGAIL M. ROBERSON, AN INFANT, BY

THE ROCHESTER FOLDING BOX CO.

The plaintiff complains of the defendants, and re

Third. That without the knowledge or consent

Fourth. That the lithographic photograph or I I

likeness of the plaintiff, obtained, made, printed and

Sixth. That when plaintiff was informed of the

16 been attacked, causing her great distress and suffer

First. That the defendants be perpetually en

Third. That the court command forth with the

Fourth. That plaintiff have judgment against the

SUPREME COURT-MONROE COUNTY. 2I

ABIGAIL M. ROBERSON, AN INFANT, BY

THE ROCHESTER FOLDING BOX CO.

The above named defendant, The Rochester Fold

SUPREME COURT-MONROE COUNTY.

ABIGAIL M. ROBERSON, AN INFANT, BY

THE ROCHESTER FOLDING BOX CO.

The above named defendant, The Franklin Mills

26 At a Regular Special Term of the Supreme Court,

ABIGAIL M. ROBERSON, AN INFANT, BY

This cause of action having been regularly

Now, on motion of Milton E. Gibbs, attorney for

swer the complaint within twenty days after the ser- 31

SUPREME COURT-MONROE COUNTY.

ABIGAIL M. ROBERSON, AN INFANT, BY

MILTON E. GIBBS, for Plaintiff. 34

ELBRIDGE L. ADAMS, for Defendants.

that it does not state facts sufficient to constitute a

It is a rule of law well settled that a demurrer to

The plaintiff alleges in her complaint that without

defendants have the right to print and circulate 41

46 than the body, and the sufferings of the former are

47 There may be a distinction, however, between

public places as an advertisement of some enter 5I

Privacy is regarded as a product of civilization.

56 invites public criticism and brings her name into

5* The rule that an individual shall have full protec

It seems to me that the sale and circulation of

The right of privacy was recognized in the early

by printing from the negative he obtained copies 61

66 to use the negative for such a purpose, and also on

Assuming that a photographer printed copies from

As remarked by Folger, J., in Congress Spring Co.

there no power to protect the plaintiff's reputation 71

The learned counsel for the defendants relies upon

In Corliss vs. Walker Co., 5.7 Fed. Rep. 434, a bill

76 self. The court held that Corliss was a public man

ABIGAIL M. ROBERSON, AN INFANT, BY

That the plaintiff is entitled to an interlocutory

I hereby direct judgment to be entered accord

SUPREME COURT-MONROE COUNTY. 8I

ABIGAIL M. ROBERSON, AN INFANT, BY

86 SUPREME COURT-MONROE COUNTY.

ABIGAIL M. ROBERSON, AN INFANT, BY