I concur in the conclusion of the majority opinion but not in all its rationale. Fundamentally this is not a novel case, for the record exhibits an invasion of an ancient right. Whatever novelty there is arises from the fact that the invader is equipped with a modern instrumentality. The majority opinion's purport is that plaintiff's interpretation of musical compositions constitutes "a product of such novel and artistic creation as to invest him with a property right therein" and that since "ordinary musicians" do "nothing more than render articulate the silent composition of the author," they do not have a property right in their interpretations and therefore would not be entitled to such relief as the plaintiff herein sought. I do not agree that a plaintiff's right to such protection in a court of equity depends on whether his production constitutes "a novel and artistic creation" which "elevates interpretations to the realm of independent works of art." *Page 457
It is clear to me that any interpreter of a musical or any other kind of composition has an interest in his interpretation to which the law accords the status of a right and which it will protect. If his interpretation is commonplace, his right therein is of little pecuniary value; if it rises above the commonplace, the value of his right rises correspondingly. By analogy, an individual's right to protection against an invasion of his real property never depends on its value; that is a factor only in the measurement of damages. Drone on the Law of Copyright, page 5, says: There is "no distinction between the poet and the peasant in the ownership of their productions." The true test is whether the thing in question is "capable of identification so that exclusive ownership may be asserted" (Drone, supra, p. 98).
It is conceivable that an artist like Paderewski and some obscure pianist might be equally averse to having their musical renditions broadcast. Such broadcasting would trench upon their right to privacy and each would be equally entitled to have that right protected against invasion. An amateur who declines remuneration would be as much entitled to have his renditions of music or literature protected against unauthorized broadcasting as would be the most highly paid professional performer. A score of years ago the daughter of the then President of the United States was a vocalist whose renditions of songs though pleasing would probably not have been classed by experts as "novel and artistic creations" amounting to "independent works of art," yet it is obvious that had she made phonographic records of her singing for certain restricted purposes and had there been broadcasting at that time, some enterprising broadcaster would on account of the eminence of the position held by this vocalist's father, probably have found it to his advantage to broadcast this young woman's vocal interpretations. Can any one reasonably contend that this vocalist would not have been as much entitled to equity's aid in enjoining such broadcasts as would have *Page 458 been her more talented contemporaries such as Madam Melba or Geraldine Farrar?
I think plaintiff's right which was invaded by defendant was his right to privacy, which is a broader right than a mere right of property. A man may object to any invasion of his right to privacy or to its unlimited invasion. He may choose to render interpretations to an audience of one person in a private home or to an audience in a great ampitheatre. When a writer of a letter objects, as he may with legal effectiveness, to any publication of that letter by its recipient, or to its publication more widely than he authorized, his purpose is not to protect his property but his privacy. The publication of his letter might not and probably would not cause him one cent's worth of damages, but it might upset his peace of mind and disturb his social relations exactly as would the tapping of his telephone wire or the rifling of his diary or his correspondence. A person who insists that his telephone wire be not tapped is not solicitous about his property rights any more than is a person who asks police authorities to furnish him a bodyguard to protect him against intrusions. A person who asks a court of equity to prevent his photographs or his artistic renditions from being indiscriminately distributed is likewise seeking the repulsion of intrusions.
Samuel D. Warren and Louis D. Brandeis in an article on The Right to Privacy,15 say: "The legal doctrines relating to infractions of what is ordinarily termed the common-law right to intellectual and artistic property, are, it is believed, but instances and applications of a general right to privacy. . . . The common-law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments and emotions shall be communicated to others. . . . Even if he has chosen to give them expression, he generally retains the power to fix the limits of the publicity which *Page 459 shall be given them [italics supplied]. The existence of this right does not depend upon the particular method of expression adopted. It is immaterial whether it be by word or by signs, in painting, by sculpture, or in music. Neither does the existenceof the right depend upon the nature or value of the thought oremotion, nor upon the excellence of the means of expression [italics supplied]. The same protection is accorded to a casual letter or an entry in a diary and to the most valuable poem or essay, to a botch or daub and to a masterpiece. In every such case the individual is entitled to decide whether that which is his shall be given to the public. No other has the right to publish his productions in any form, without his consent. This right is wholly independent of the material on which, or the means by which, the thought, sentiment, or emotion is expressed. It may exist independently of any corporeal being, as in words spoken, a song sung, a drama acted. Or if expressed on any material, as a poem in writing, the author may have parted with the paper, without forfeiting any proprietary right in the composition itself. . . . The principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality."
It requires but little argument to show that since a man has a right to withhold from all dissemination, his thoughts, sentiments and emotions no matter what their media of expression, he has a right to restrict or limit this dissemination. It is well settled that a man may write letters to one person or to a hundred or more persons and yet possess the right to prevent the publication of those letters to the public in general; and that he may consent to having his picture taken and distributed among his friends and still prevent the unauthorized publication of those pictures. If a photographer is employed by a patron to take the latter's *Page 460 portrait, the photographer is not justified in making additional copies of such photograph for himself or in distributing them or publicly exhibiting them by way of advertising or otherwise, without the authority of the customer, either expressed or implied. See Pollard v.Photographic Co., 40 Ch. D. 345.
In Prince Albert v. Strange et al., 2 De Gex Smale's Reports 652 (1848), it was held that where a workman, intrusted with copper-plates for the purpose of taking impressions for the plaintiff of etchings made by the latter, and not intended for publication, took impressions for himself, in violation of the trust, and sold the impressions to the defendant, who published a catalogue of them, accompanied by remarks of his own, the plaintiff was entitled at the hearing to a perpetual injunction to restrain the publication of the catalogue, and to a decree ordering the impressions to be destroyed; and that the defendant was not entitled to a preliminary trial of his title at law. In that case the Vice-Chancellor, the Right Hon. Sir J. L. KNIGHT BRUCE, said: "The author of manuscripts, whether he is famous or obscure, low or high, has a right to say of them, if innocent, that, whether interesting or dull, light or heavy, salable or unsalable, they shall not, without his consent, be published; and I think, as I have said, that to use a dishonest knowledge of them for the purpose of composing and publishing, and so to compose and publish a catalogue of them, amounts to a publication of them within the principle of the rule. Assuming the law to be so, what is its foundation in this respect? It is not, I conceive, referable to any consideration peculiarly literary. 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 necessity of protecting property, and with that general object laid down rules providently expansive — rules capable of adapting themselves to the various forms and modes of property which peace and cultivation might discover and introduce. . . . *Page 461 Upon the principle, therefore, of protecting property, it is that the common law, in cases not aided nor prejudiced by statute, shelters the privacy and seclusion of thoughts and sentiments committed to writing, and desired by the author to remain not generally known. . . . To consider, then, the case of mechanical works, of works of art, executed by a man for his private amusement or private use; whatever protection these, or some of these, may have by Act of Parliament, they are not, I apprehend, deserted by the common law. . . . It is for them [i. e., the owners of plates] to use, or bestow or withhold, . . .They alone are entitled to decide [italics supplied] whether, and when, and how, and for whose advantage, their property shall be made use of."
Applying that principle to the instant case it is my view that the plaintiff is entitled "to decide whether, and when, and how, and for whose advantage," his rendition of musical compositions shall be mechanically reproduced. The right to restrict the use of these disks to private use is unquestionably his. It is a well-known historic fact that Edwin Booth, the eminent actor, refused, after his brother assassinated Abraham Lincoln, to appear thereafter in Washington, D.C., in any play. Let us assume that in his time there existed the present day mechanical devices for recording sights and sounds and Edwin Booth permitted a talking picture to be made of his rendition of one of Shakespeare's plays, can it be contended that he could not have effectively stipulated that such a talking picture should never be exhibited in Washington, D.C.? I think it is clear that he could have so restricted the reproduction of such a picture and that a court of equity would have made that restriction effective, as an invasion of his right of privacy, and regardless of whether its invasion would cause him a pecuniary loss or not.
If the plaintiff in the instant case had agreed to play at some central telephone station for the benefit of all *Page 462 the telephone-owning patrons of that system, and if the defendant, without plaintiff's consent, had tapped one of those telephone wires so that plaintiff's rendition of musical compositions could be heard by patrons of a theatre owned by defendant, we would have a situation analogous to that presented here. There is no moral or legal difference between tapping telephone wires for the purpose of "listening in" than there is in using for broadcasting a phonographic disk made by plaintiff in defiance of the maker's injunction written across that disk, to wit: "Not licensed for radio broadcasting." It appears to me that the "tapping" of a restricted phonographic disk is closely related in law and morals to the unauthorized tapping of telephone wires, and the latter is merely old-fashioned eavesdropping brought up to date with the aural assistance of modern devices. At common law eavesdropping was considered such an invasion of peoples' right to privacy that it was treated as something even baser than a civil wrong, to wit, a crime. See Blackstone, Vol. 4 (Lewis's ed.), page 1570. The essence of eavesdropping was the invasion of others' privacy, that is, "the lurking about dwelling-houses" and other places where persons met for private discourse, "secretly listening to what is said and then tattling it abroad." See Wharton Cr. L., Vol. 2 (12th Ed., 1932), Sec. 1718, p. 2003. The defendant, by buying a phonographic disk on which plaintiff had impressed his orchestral rendition of musical compositions, which disk was expressly not to be used for radio broadcasting, and then by "tattling abroad" by means of broadcasting what was on that disk, was invading the same right to privacy which the common law protected against eavesdroppers.
The phrase, "the right to privacy," is one that is easily misunderstood; it does not possess the implication that appellant apparently gives it. It is not a protection only of those who "seek privacy," in the usual sense of that word. One who comes into equity demanding protection *Page 463 of his right to privacy is not preliminarily required to show that he has tried to live the life of a recluse and to "hide his light under a bushel." The "right to privacy" is, as already pointed out, best illustrated in those cases where letter-writers who objected to having them broadcast, where those who objected to having their photographs copied, and where those who objected to having their telephone wires tapped, have severally sought and obtained equity's protection against such invasions of their "right to privacy." Whether a "star" is brilliant or dim, equity should prevent unauthorized persons from mechanically "hitching their [creaking] wagons" to "it."
I do not accept the reasoning of the majority opinion on the subject of "Unfair Competition" and I do not think the case at bar is ruled by the cited case of International News Service v.The Associated Press, 248 U.S. 215. The Supreme Court of the United States characterized the respective parties in that case as "competitors in business," and said further: "To transmit that news [gathered by complainant] for commercial use, in competition with complainant . . . is what defendant has done and seeks to justify." The bill in the instant case describes the plaintiff as an "Orchestra Conductor" and the defendant as the "owner of a radio station." Mr. Justice HOLMES in his concurring opinion in the case cited referred to the element of deception practiced by defendant in that case, to wit, the "implication that it [the news] has been acquired by the defendant's enterprise and at its expense." He added: ". . . that such a representation is implied may be inferred with some confidence from the unwillingness of the defendant to give the credit and tell the truth. . . . But as, in my view, the only ground of complaint that can be recognized without legislation is the implied misstatement, it can be corrected by stating the truth; and a suitable acknowledgment of the source is all that the plaintiff can require." *Page 464
In 63 C. J., page 324, sec. 21, "unfair competition" is defined as follows: "It consists in passing off or attempting to pass off, on the public, the goods or business of one person as and for the goods or business of another. It consists essentially in the conduct of a trade or business in such a manner that there is either an express or impliedrepresentation to that effect [italics supplied]. In fact it has been said that it is nothing but a convenient name for the doctrine that no one should be allowed to sell his goods as those of another. . . . Ordinarily, unfair competition is found only where one person is palming off his goods as those of another. . . ." Sec. 26: "The purpose of relief against unfair competition . . . is to prevent deceit and fraud. . . ." In 26 R. C. L., page 875, sec. 53, is found the following statement: "Unfair competition ordinarily consists in the simulation by one person, for the purpose of deceiving the public, of the name, symbols, or devices employed by a business rival, or the substitution of the goods or wares of one person for those of another, thus falsely inducing the purchase of his wares and thereby obtaining for himself the benefits properly belonging to his competitor. . . ." Sec. 57: "It is the injury to a competitor caused by such deceptive and fraudulent conduct [italics supplied] that is the ground upon which courts of equity act in affording relief."
One can conceive of a situation where a broadcaster of phonograph disks might conduct his business in such a manner that there would be either an express or implied representation to the public that it was listening to a broadcast not of a disk, but of the talent which made the disk, and thus be guilty of unfair competition, but the record before us does not in its present state present any such case.
However, for the reasons stated by me in discussing the right to privacy, I concur in the affirmation of the decree of the court below.
15 Page 289 in "The Curse of Bigness." *Page 465