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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.
Defendants.
MILTON E. GIBBS,
- Attorney for Plaintiff,
808 Wilder Building, Rochester, N. Y.
(Duly verified.)
5
ELBRIDGE L. ADAMS,
Attorney for Defendant, 23
The Rochester Folding Box Co.
Office and P. O. Address, 31 State Street,
Rochester, N. Y.
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.
Second.
85
I8
87 -
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.
THE COMPLAINT.
I.
II.
III.
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.
IV.
V.
VI.
Respectfully submitted,
ELBRIDGE L. ADAMS,
SUPREME COURT,
STATE OF NEW YORK.
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.
POINT II.
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
POINT III.
POINT IV.
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.
POINT V.
POINT VI.
POINT VII.
POINT VIII.
MILTON E. GIBBS,
Attorney for Plaintiff-Respondent,
808 Wilder Building,
Rochester, New York.