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 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 25,000 lithographic likenesses of her for the purpose of profit and gain to themselves. That the 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. The central portion of the paper above the likeness contains 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 letters are the words, “ Rochester Folding Box Company, Rochester, N. Y.” In the lower left-hand comer is a picture of a large flour chest upon which appear the words “ The Franklin Mills,” also in the same comer is a picture of a barrel and a flour sack with the words printed thereon, “ 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 was made sick and suffered a severe nervous shock and was confined to her bed and compelled to employ a physician. That she has been greatly humiliated 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 and mind. That by reason of the foregoing facts she has suffered damages in the sum of $15,000, 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, likeness, photograph or lithograph of the plaintiff.
The principal question in this case is whether the defendants have the right to print and circulate lithograph copies of plaintiff’s likeness for the purpose of profit and gain to themselves without her
There may be a distinction, however, between private and public characters, as pointed out by Lord Cottenham in Prince Albert v. Strange, 1 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 reasonable 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 she is of a modest and
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 customs with well defined and respected domestic relations. The privacy of the home in every civilized 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 extension and development of the law so as to protect, the right of privacy should keep abreast with the advancement of civilization. When private and domestic life is invaded, which brings pain and distress of mind and destroys the pleasure and happiness of domestic lifes the courts ought to have power to protect the individual from such an invasion. 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 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 invites public criticism and brings her name into more or less unenviable notoriety, and, to a certain extent, inflicts 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 complete immunity to be let
The rule that an individual shall have full protection in person and property is as old as the common law.
It seems to me that the sale and circulation of the lithographic copies of plaintiff’s likeness, without her consent, is an invasion of her private rights. Every woman has a right to keep her face concealed from the observation of the public. Her face is her own private property, and no photographer would have a right to take advantage 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 photographer, and, I might add, a breach of an implied contract that he would not sell or exhibit them to the public without her consent. The right of privacy was recognized in the early development of the English law. In May all v. Higbey, 1 H. & C. 148, the plaintiff lent some photographs to a person who became insolvent, and his assignee having offered the photographs for sale at auction, the defendant purchased them, and by printing from the negative he obtained copies which he published and sold. The plaintiff brought an action against him and recovered nominal damages. 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 Oottenham held in Prince Albert v. Strange, 1 Macn. & G. 25, that the publication of a catalogue of private etchings is 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.
Tuck v. Priester, L. R., 19 Q. B. Div. 629, is very much in point. The plaintiffs were the unregistered owners of a copyright in a picture and employed the defendant to make 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
The learned counsel for the defendants relies upon the case of Atkinson v. Doherty & Co., 46 L. R. A. 219, decided by the Supreme Court of Michigan, and contends that it is controlling in this case. The court 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 with the views expressed by Judge Peckham in Schuyler v. Curtis, 147 N. Y. 434. He said that the relatives 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. In Corliss v. Walker Co., 57 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 Centennial Exhibition, held at Philadelphia, to restrain the publication of a biography and picture of himself. 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 pictures or photographs of private individuals it held the rule was different. Colt, J., said: “ Independently of the question of contract, I believe the' law to be that a private individual has a right to be protected in the representation of his portrait in any form, that this is a property as well as a personal right, 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.” He also said: “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
The demurrer, therefore, is overruled, with leave to the defendants to answer on payment of the costs.
Demurrer overruled, with leave to defendants to answer on payment of costs.