THE RIGHT TO PRIVACY
by
SAMUEL WARREN & LOUIS D. BRANDEIS
Originally published in
4 Harvard Law Review 193 (1890) "It
could be done only on principles of private justice, moral fitness, and
public convenience, which, when applied to a new subject, make common law
without a precedent; much more when received and approved by usage." Willes,
J., in Millar v. Taylor, 4 Burr, 2303, 2312 That
the individual shall have full protection in person and in property is a
principle as old as the common law; but it has been found necessary from time
to time to define anew the exact nature and extent of such protection.
Political, social, and economic changes entail the recognition of new rights,
and the common law, in its eternal youth, grows to meet the demands of
society. Thus, in very early times, the law gave a remedy only for physical
interference with life and property, for trespasses vi et armis. Then
the "right to life" served only to protect the subject from battery
in its various forms; liberty meant freedom from actual restraint; and the
right to property secured to the individual his lands and his cattle. Later,
there came a recognition of man's spiritual nature, of his feelings and his
intellect. Gradually the scope of these legal rights broadened; and now the
right to life has come to mean the right to enjoy life--the right to be let
alone, the right to liberty secures the exercise of extensive civil
privileges; and the term "property" has grown to comprise every
form of possession-- intangible, as well as tangible. Thus,
with the recognition of the legal value of sensations, the protection against
actual bodily injury was extended to prohibit mere attempts to do such
injury; that is, the putting another in fear of such injury. From the action
of battery grew that of assault.1 Much later there
came a qualified protection of the individual against offensive noises and
odors, against dust and smoke, and excessive vibration. The law of nuisance
was developed.2 So regard for human emotions soon
extended the scope of personal immunity beyond the body of the individual.
His reputation, the standing among his fellow men, was considered and the law
of slander and libel arose.3 Man's family
relations became a part of the legal conception of his life, and the
alienation of a wife's affections was held remediable.4
Occasionally the law halted--as in its refusal to recognize the intrusion by
seduction upon the honor of the family. But even here the demands of society were
met. A mean fiction, the action per quod servitium amisit, was
resorted to, and by allowing damages for injury to the parents' feelings, an
adequate remedy was ordinarily afforded.5 Similar
to the expansion of the right to life was the growth of the legal conception
of property. From corporeal property arose the incorporeal rights issuing out
of it; and then there opened the wide realm of intangible property, in the
products and processes of the mind,6 as works of
literature and art,7 good-will,8
trade secrets, and trade-marks.9 This
development of the law was inevitable. The intense intellectual and emotional
life, and the heightening of sensations which came with the advance of
civilization, made it clear to man that only a part of the pain, pleasure,
and profit of life lay in physical things. Thoughts, emotions, and sensations
demanded legal recognition, and the beautiful capacity for growth which
characterizes the common law enabled the judges to afford the requisite
protection, without the interposition of the legislature. Recent
inventions and business methods call attention to the next step which must be
taken for the protection of the person, and for securing to the individual
what Judge Cooley calls the right "to be let alone."10 Instantaneous photographs and newspaper enterprise
have invaded the sacred precincts of private and domestic life; and numerous
mechanical devices threaten to make good the prediction that "what is
whispered in the closet shall be proclaimed from the house-tops." For
years there has been a feeling that the law must afford some remedy for the
unauthorized circulation of portraits of private persons;11
and the evil of the invasion of privacy by the newspapers, long keenly felt,
has been but recently discussed by an able writer.12
The alleged facts of a somewhat notorious case brought before an inferior
tribunal in New York a few months ago,13
directly involved the consideration of the right of circulating portraits;
and the question whether our law will recognize and protect the right to
privacy in this and in other respects must soon come before our courts for
consideration. Of
the desirability--indeed of the necessity--of some such protection, there
can, it is believed, be no doubt. The press is overstepping in every direction
the obvious bounds of propriety and of decency. Gossip is no longer the
resource of the idle and of the vicious, but has become a trade, which is
pursued with industry as well as effrontery. To satisfy a prurient taste the
details of sexual relations are spread broadcast in the columns of the daily
papers. To occupy the indolent, column upon column is filled with idle
gossip, which can only be procured by intrusion upon the domestic circle. The
intensity and complexity of life, attendant upon advancing civilization, have
rendered necessary some retreat from the world, and man, under the refining
influence of culture, has become more sensitive to publicity, so that
solitude and privacy have become more essential to the individual; but modern
enterprise and invention have, through invasions upon his privacy, subjected
him to mental pain and distress, far greater than could be inflicted by mere
bodily injury. Nor is the harm wrought by such invasions confined to the
suffering of those who may be made the subjects of journalistic or other
enterprise. In this, as in other branches of commerce, the supply creates the
demand. Each crop of unseemly gossip, thus harvested, becomes the seed of
more, and, in direct proportion to its circulation, results in a lowering of
social standards and of morality. Even gossip apparently harmless, when
widely and persistently circulated, is potent for evil. It both belittles and
perverts. It belittles by inverting the relative importance of things, thus
dwarfing the thoughts and aspirations of a people. When personal gossip
attains the dignity of print, and crowds the space available for matters of
real interest to the community, what wonder that the ignorant and thoughtless
mistake its relative importance. Easy of comprehension, appealing to that
weak side of human nature which is never wholly cast down by the misfortunes
and frailties of our neighbors, no one can be surprised that it usurps the
place of interest in brains capable of other things. Triviality destroys at
once robustness of thought and delicacy of feeling. No enthusiasm can
flourish, no generous impulse can survive under its blighting influence. It
is our purpose to consider whether the existing law affords a principle which
can properly be invoked to protect the privacy of the individual; and, if it
does, what the nature and extent of such protection is. Owing
to the nature of the instruments by which privacy is invaded, the injury
inflicted bears a superficial resemblance to the wrongs dealt with by the law
of slander and of libel, while a legal remedy for such injury seems to involve the
treatment of mere wounded feelings, as a substantive cause of action. The
principle on which the law
of defamation rests, covers, however, a radically different class of effects
from those for which attention is now asked. It deals only with damage to
reputation, with the injury done to the individual in his external relations
to the community, by lowering him in the estimation of his fellows. The
matter published of him, however widely circulated, and however unsuited to
publicity, must, in order to
be actionable, have a direct tendency to injure him in his intercourse with
others, and even if in writing or in print, must subject him to the hatred,
ridicule, or contempt of his fellow men--the effect of the publication upon
his estimate of himself and upon his own feelings not forming an essential
element in the cause of action. In short, the wrongs and correlative rights
recognized by the law of slander and libel are in their nature material
rather than spiritual. That branch of the law simply extends the protection
surrounding physical property to certain of the conditions necessary or
helpful to worldly prosperity. On the other hand, our law recognizes no
principle upon which compensation can be granted for mere injury to the
feelings. However painful the mental effects upon another of an act, though
purely wanton or even malicious, yet if the act itself is otherwise lawful,
the suffering inflicted is damnum absque injuria. Injury of feelings
may indeed be taken account of,14 in
ascertaining the amount of damages when attending what is recognized as a
legal injury; but our system, unlike the Roman law, does not afford a remedy
even for mental suffering which results from mere contumely and insult, from
an intentional and unwarranted violation of the "honor" of another.15 It
is not, however, necessary, in order to sustain the view that the common law
recognizes and upholds a principle applicable to cases of invasion of
privacy, to invoke the analogy, which is but superficial, to injuries
sustained, either by an attack upon reputation or by what the civilians
called a violation of honor; for 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, which properly understood afford a remedy for the
evils under consideration. 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.16 Under our system of government, he
can never be compelled to express them (except when upon the witness stand);
and even if he has chosen to give them expression, he generally retains the
power to fix the limits of the publicity which shall be given them. The
existence of this right does not depend upon the particular method of
expression adopted. It is immaterial whether it be by word 17
or by signs,l8 in painting,19
by sculpture, or in music.20 Neither does the
existence of the right depend upon the nature or value of the thought or
emotion, nor upon the excellence of the means of expression.21
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.22 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 right is lost only when the author himself communicates his
production to the public--in other words, publishes it.23
It is entirely independent of the copyright laws, and their extension
into the domain of art. The aim of those statutes is to secure to the author,
composer, or artist the entire profits arising from publication; but the
common-law protection enables him to control absolutely the act of
publication, and in the exercise of his own discretion, to decide whether
there shall be any publication at all.24 The
statutory right is of no value, unless there is a publication; the
common-law right is lost as soon as there is a publication. What
is the nature, the basis, of this right to prevent the publication of
manuscripts or works of art? It is stated to be the enforcement of a right of
property; 25 and no difficulty arises in
accepting this view, so long as we have only to deal with the reproduction of
literary and artistic compositions. They certainly possess many of the
attributes of ordinary property: they are transferable; they have a value;
and publication or reproduction is a use by which that value is realized. But
where the value of the production is found not in the right to take the
profits arising from publication, but in the peace of mind or the relief
afforded by the ability to prevent any publication at all, it is difficult to
regard the right as one of property, in the common acceptation of that term.
A man records in a letter to his son, or in his diary, that he did not dine
with his wife on a certain day. No one into whose hands those papers fall
could publish them to the world, even if possession of the documents had been
obtained rightfully and the prohibition would not be confined to the
publication of a copy of the letter itself, or of the diary entry; the
restraint extends also to a publication of the contents. What is the thing
which is protected? Surely, not the intellectual act of recording the fact
that the husband did not dine with his wife, but that fact itself. It is not
the intellectual product, but the domestic occurrence. A man writes a dozen
letters to different people. No person would be permitted to publish a list
of the letters written. If the letters or the contents of the diary were
protected as literary compositions, the scope of the protection afforded
should be the same secured to a published writing under the copyright law.
But the copyright law would not prevent an enumeration of the letters, or the
publication of some of the facts contained therein. The copyright of a series
of paintings or etchings would prevent a reproduction of the paintings as
pictures; but it would not prevent a publication of a list or even a
description of them.26 Yet in the famous case of
Prince Albert v. Strange the court held that the common-law rule
prohibited not merely the reproduction of the etchings which the plaintiff
and Queen Victoria had made for their own pleasure, but also "'the
publishing (at least by printing or writing) though not by copy or resemblance,
a description of them, whether more or less limited or summary, whether in
the form of a catalogue or otherwise."27
Likewise, an unpublished collection of news possessing no element of a
literary nature is protected from piracy.28 That
this protection cannot rest upon the right to literary or artistic property
in any exact sense, appears the more clearly when the subject-matter for
which protection is invoked is not even in the form of intellectual property,
but has the attributes of ordinary tangible property. Suppose a man has a
collection of gems or curiosities which he keeps private: it would hardly be
contended that any person could publish a catalogue of them, and yet the
articles enumerated are certainly not intellectual property in the legal
sense, any more than a collection of stoves or of chairs. 29 The
belief that the idea of property in its narrow sense was the basis of the protection
of unpublished manuscripts led an able court to refuse, in several cases,
injunctions against the publication of private letters, on the ground that
"letters not possessing the attributes of literary compositions are not
property entitled to protection"; and that it was "evident the
plaintiff could not have considered the letters as of any value whatever as
literary productions, for a letter cannot be considered of value to the
author which he never would consent to have published."30
But these decisions have not been followed,31
and it may now be considered settled that the protection afforded by the
common law to the author of any writing is entirely independent of its
pecuniary value, its intrinsic merits, or of any intention to publish the
same, and, of course, also, wholly independent of the material, if any, upon
which, or the mode in which, the thought or sentiment was expressed. Although
the courts have asserted that they rested their decisions on the narrow
grounds of protection to property, yet there are recognitions of a more
liberal doctrine. Thus in the case of Prince Albert v. Strange,
already referred to, the opinions both of the Vice-Chancellor and of the Lord
Chancellor, on appeal, show a more or less clearly defined perception of a
principle broader than those which were mainly discussed, and on which they
both placed their chief reliance. Vice-Chancellor Knight Bruce referred to
publishing of a man that he had "written to particular persons or on
particular subjects" as an instance of possibly injurious disclosures as
to private matters, that the courts would in a proper case prevent; yet it is
difficult to perceive how, in such a case, any right of property, in the
narrow sense, would be drawn in questions, or why, if such a publication
would be restrained when it threatened to expose the victim not merely to
sarcasm, but to ruin, it should not equally be enjoined, if it threatened to
embitter his life. To deprive a man of the potential profits to be realized
by publishing a catalogue of his gems cannot per se be a wrong to
him. The possibility of future profits is not a right of property which the
law ordinarily recognizes; it must, therefore, be an infraction of other
rights which constitutes the wrongful act, and that infraction is equally
wrongful, whether its results are to forestall the profits that the
individual himself might secure by giving the matter a publicity obnoxious to
him, or to gain an advantage at the expense of his mental pain and suffering.
If the fiction of property in a narrow sense must be preserved, it is still
true that the end accomplished by the gossip-monger is attained by the use of
that which is another's, the facts relating to his private life, which he has
seen fit to keep private. Lord Cottenham stated that a man "is entitled
to be protected in the exclusive use and enjoyment of that which is
exclusively his," and cited with approval the opinion of Lord Eldon, as
reported in a manuscript note of the case of Wyatt v. Wilson, in
1820, respecting an engraving of George the Third during his illness, to the
effect that "if one of the late king's physicians had kept a diary of
what he hear and saw, the court would not, in the king's lifetime, have
permitted him to print and publish it"; and Lord Cottenham declared, in
respect to the acts of the defendants in the case before him, that
"privacy is the right invaded." But if privacy is once recognized
as a right entitled to legal protection, the interposition of the courts
cannot depend on the particular nature of the injuries resulting. These
considerations lead to the conclusion that the protection afforded to
thoughts, sentiments, and emotions, expressed through the medium of writing
or of the arts, so far as it consists in preventing publication, is merely an
instance of the enforcement of the more general right of the individual to be
let alone. It is like the right not to be assaulted or beaten, the right not
to be imprisoned, the right not to be maliciously prosecuted, the right not
to be defamed. In each of these rights, as indeed in all other rights
recognized by the law, there inheres the quality of being owned or
possessed--and (as that is the distinguishing attribute of property) there
may be some propriety in speaking of those rights as property. But,
obviously, they bear little resemblance to what is ordinarily comprehended
under that term. 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.32 If
we are correct in this conclusion, the existing law affords a principle which
may be invoked to protect the privacy of the individual from invasion either
by the too enterprising press, the photographer, or the possessor of any
other modern device for recording or reproducing scenes or sounds. For the
protection afforded is not confined by the authorities to those cases where
any particular medium or form of expression has been adopted, nor to products
of the intellect. The same protection is afforded to emotions and sensations
expressed in a musical composition or other work of art as to a literary
composition; and words spoken, a pantomime acted, a sonata performed, is no
less entitled to protection than if each had been reduced to writing. The
circumstance that a thought or emotion has been recorded in a permanent form
renders its identification easier, and hence may be important from the point
of view of evidence, but it has no significance as a matter of substantive
right. If, then, the decisions indicate a general right to privacy for
thoughts, emotions, and sensations, these should receive the same protection,
whether expressed in writing, or in conduct, in conversation, in attitudes,
or in facial expression. It
may be urged that a distinction should be taken between the deliberate
expression of thoughts and emotions in literary or artistic compositions and
the casual and often involuntary expression given to them in the ordinary
conduct of life. In other words, it may be contended that the protection
afforded is granted to the conscious products of labor, perhaps as an
encouragement effort.33 This contention, however
plausible, has, in fact, little to recommend it. If the amount of labor
involved be adopted as the test, we might well find that the effort to
conduct one's self properly in business and in domestic relations had been
far greater than that involved in painting a picture or writing a book; one
would find that it was far easier to express lofty sentiments in a diary than
in the conduct of a noble life. If the test of deliberateness of the act be adopted,
much casual correspondence which is now accorded full protection would be
excluded from the beneficent operation of existing rules. After the decisions
denying the distinction attempted to be made between those literary
productions which it was intended to publish and those which it was not, all
considerations of the amount of labor involved, the degree of deliberation,
the value of the product, and the intention of publishing must be abandoned,
and no basis is discerned upon which the right to restrain publication and
reproduction of such so-called literary and artistic works can be rested,
except the right to privacy, as a part of the more general right to the
immunity of the person--the right to one's personality. It
should be stated that, in some instances where protection has been afforded
against wrongful publication, the jurisdiction has been asserted, not on the
ground of property, or at least not wholly on that ground, but upon the
ground of an alleged breach of an implied contract or of a trust or
confidence. Thus,
in Abernethy v. Hutchinson, 3 L. J. Ch. 209 (1825), where the
plaintiff, a distinguished surgeon, sought to restrain the publication in the
Lancet of unpublished lectures which he had delivered at St.
Bartholomew's Hospital in London, Lord Eldon doubted whether there could be
property in lectures which had not been reduced to writing, but granted the
injunction on the ground of breach of confidence, holding "that when
persons were admitted as pupils or otherwise, to hear these lectures,
although they were orally delivered, and although the parties might go to the
extent, if they were able to do so, of putting down the whole by means of
shorthand, yet they could do that only for the purposes of their own
information, and could not publish, for profit, that which they had not
obtained the right of selling." In
Prince Albert v. Strange, 1 McN. & G. 25 (1849), Lord
Cottenham, on appeal, while recognizing a right of property in the etchings
which of itself would justify the issuance of the injunction, stated, after
discussing the evidence, that he was bound to assume that the possession of
the etchings by the defendant had "its foundation in a breach of trust,
confidence, or contract," and that upon such ground also the plaintiff's
title to the injunction was fully sustained. In
Tuck v. Priester, 19 Q. B. D. 639 (1887), the plaintiffs were owners
of a picture, and employed the defendant to make a certain number of copies.
He did so, and made also a number of other copies for himself, and offered
them for sale in England at a lower price. Subsequently, the plaintiffs
registered their copyright in the picture, and then brought suit for an
injunction and damages. The Lords Justices differed as to the application of
the copyright acts to the case, but held unanimously that independently of
those acts, the plaintiffs were entitled to an injunction and damages for
breach of contract. In
Pollard v. Photographic Co., 40 Ch. Div. 345 (1888), a
photographer who had taken a lady's photograph under the ordinary
circumstances was restrained from exhibiting it, and also from selling copies
of it, on the ground that it was a breach of an implied term in the contract,
and also that it was a breach of confidence.. Mr. Justice North interjected
in the argument of the plaintiff's counsel the inquiry: "Do you dispute
that if the negative likeness were taken on the sly, the person who took it
might exhibit copies?" and counsel for the plaintiff answered: "In
that case there would be no trust or consideration to support a
contract." Later, the defendant's counsel argued that "a person has
no property in his own features; short of doing what is libellous or
otherwise illegal, there is no restriction on the photographer's using his
negative." But the court, while expressly finding a breach of contract
and of trust sufficient to justify its interposition, still seems to have
felt the necessity of resting the decision also upon a right of property,34 in order to bring it within the line of those cases
which were relied upon as precedents.35 This
process of implying a term in a contract, or of implying a trust
(particularly where the contract is written, and where there is no established usage or custom), is
nothing more nor less than a judicial declaration that public morality,
private justice, and general convenience demand the recognition of such a
rule, and that the publication under similar circumstances would be
considered an intolerable abuse. So long as these circumstances happen to
present a contract upon which such a term can be engrafted by the judicial
mind, or to supply relations upon which a trust or confidence can be erected,
there may be no objection to working out the desired protection through the
doctrines of contract or of trust. But the court can hardly stop there. The
narrower doctrine may have satisfied the demands of society at a time when
the abuse to be guarded against could rarely have arisen without violating a
contract or a special confidence; but now that modern devices afford abundant
opportunities for the perpetration of such wrongs without any participation
by the injured party, the protection granted by the law must be placed upon a
broader foundation. While, for instance, the state of the photographic art
was such that one's picture could seldom taken without his consciously
"sitting" for the purpose, the law of contract or of trust might
afford the prudent man sufficient safeguards against the improper circulation
of his portrait; but since the latest advances in photographic art have
rendered it possible to take pictures surreptitiously, the doctrines of
contract and of trust are inadequate to support the required protection, and
the law of tort must be resorted to. The right of property in its widest
sense, including all possession, including all rights and privileges, and
hence embracing the right to an inviolate personality, affords alone that
broad basis upon which the protection which the individual demands can be
rested. Thus,
the courts, in searching for some principle upon which the publication of
private letters could be enjoined, naturally came upon the ideas of a breach
of confidence, and of an implied contract; but it required little
consideration to discern that this doctrine could not afford all the
protection required, since it would not support the court in granting a
remedy against a stranger; and so the theory of property in the contents of
letters was adopted.36 Indeed, it is difficult
to conceive on what theory of the law the casual recipient of a letter, who
proceeds to publish it, is guilty of a breach of contract, express or
implied, or of any breach of trust, in the ordinary acceptation of that term.
Suppose a letter has been addressed to him without his solicitation. He opens
it, and reads. Surely, he has not made any contract; he has not accepted any
trust. He cannot, by opening and reading the letter, have come under any
obligation save what the law declares; and, however expressed, that obligation
is simply to observe the legal right of the sender, whatever it may be, and
whether it be called his right of property in the contents of the letter, or
his right to privacy.37 A
similar groping for the principle upon which a wrongful publication can be
enjoined is found in the law of trade secrets. There, injunctions have
generally been granted on the theory of a breach of contract, or of an abuse
of confidence.38 It would, of course, rarely happen
that anyone would be in the possession of a secret unless confidence had been
reposed in him. But can it be supposed that the court would hesitate to grant
relief against one who had obtained his knowledge lay an ordinary
trespass--for instance, by wrongfully looking into a book in which the secret
was recorded, or by eavesdropping? Indeed, in Yovatt v. Winyard, 1
J. & W. 394 (1820), where an injunction was granted against making any
use of or communicating certain recipes for veterinary medicine, it appeared
that the defendant, while in the plaintiff's employ, had surreptitiously got
access to his book of recipes, and copied them. Lord Eldon "granted the
injunction, upon the ground of there having been a breach of trust and
confidence"; but it would seem to be difficult to draw any sound legal
distinction between such a case and one where a mere stranger wrongfully
obtained access to the book.39 We
must therefore conclude that the rights, so protected, whatever their exact
nature, are not rights arising from contract or from special trust, but are
rights as against the world; and, as above stated, the principle which has
been applied to protect these rights is in reality not the principle of
private property, unless that word be used in an extended and unusual sense.
The principle which protects personal writings and any other productions of
the intellect or of the emotions, is the right to privacy, and the law has no
new principle to formulate when it extends this protection to the personal
appearance, sayings, acts, and to personal relations, domestic or otherwise.40 If
the invasion of privacy constitutes a legal injuria, the elements
for demanding redress exist, since already the value of mental suffering,
caused by an act wrongful in itself, is recognized as a basis for
compensation. The
right of one who has remained a private individual, to prevent his public
portraiture, presents the simplest case for such extension; the right to
protect one's self from pen portraiture, from a discussion by the press of
one's private affairs, would be a more important and far-reaching one. If
casual and unimportant statements in a letter, if handiwork, however
inartistic and valueless, if possessions of all sorts are protected not only
against reproduction, but against description and enumeration, how much more
should the acts and sayings of a man in his social and domestic relations be
guarded from ruthless publicity. If you may not reproduce a woman's face
photographically without her consent, how much less should be tolerated the
reproduction of her face, her form, and her actions, by graphic descriptions
colored to suit a gross and depraved imagination. The
right to privacy, limited as such right must necessarily be, has already
found expression in the law of France.41 It
remains to consider what are the limitations of this right to privacy, and
what remedies may be granted for the enforcement of the right. To determine
in advance of experience the exact line at which the dignity and convenience
of the individual must yield to the demands of the public welfare or of
private justice would be a difficult task; but the more general rules are
furnished by the legal analogies already developed in the law of slander and
libel, and in the law of literary and artistic property. First.
The right to privacy does not prohibit any publication of matter which
is of public or general interest. In
determining the scope of this rule, aid would be afforded by the analogy, in
the law of libel and slander, of cases which deal with the qualified
privilege of comment and criticism on matters of public and general interest.42 There are of course difficulties in applying such a
rule; but they are inherent in the subject-matter, and are certainly no
greater than those which exist in many other branches of the law-- for
instance, in that large class of cases in which the reasonableness or
unreasonableness of an act is made the test of liability. The design of the
law must be to protect those persons with whose affairs the community has no
legitimate concern, from being dragged into an undesirable and undesired
publicity and to protect all persons, whatsoever their position or station,
from having matters which they may properly prefer to keep private, made
public against their will. It is the unwarranted invasion of individual
privacy which is reprehended, and to be, so far as possible, prevented. The
distinction, however, noted in the above statement is obvious and
fundamental. There are persons who may reasonably claim as a right,
protection from the notoriety entailed by being made the victims of
journalistic enterprise. There are others who, in varying degrees, have
renounced the right to live their lives screened from public observation.
Matters which men of the first class may justly contend concern themselves
alone, may in those of the second be the subject of legitimate interest to
their fellow citizens. Peculiarities of manner and person, which in the
ordinary individual should be free from comment, may acquire a public
importance, if found in a candidate for political office. Some further
discrimination is necessary, therefore, than to class facts or deeds as
public or private according to a standard to be applied to the fact or deed per
se. To publish of a modest and retiring individual that he suffers from
an impediment in his speech or that he cannot spell correctly, is an
unwarranted, if not an unexampled, infringement of his rights, while to state
and comment on the same characteristics found in a would-be congressman could
not be regarded as beyond the pale of propriety. The
general object in view is to protect the privacy of private life, and to
whatever degree and in whatever connection a man's life has ceased to be
private, before the publication under consideration has been made, to that
extent the protection is to be withdrawn.43
Since, then, the propriety of publishing the very same facts may depend wholly
upon the person concerning whom they are published, no fixed formula can be
used to prohibit obnoxious publications. Any rule of liability adopted must
have in it an elasticity which shall take account of the varying
circumstances of each case--a necessity which unfortunately renders such a
doctrine not only more difficult of application, but also to a certain extent
uncertain in its operation and easily rendered abortive. Besides, it is only
the more flagrant breaches of decency and propriety that could in practice be
reached, and it is not perhaps desirable even to attempt to repress
everything which the nicest taste and keenest sense of the respect due to
private life would condemn. In
general, then, the matters of which the publication should be
repressed may be described as those which concern the private life, habits,
acts, and relations of an individual, and have no legitimate connection with
his fitness for a public office which he seeks or for which he is suggested, or
for any public quasi-public position which he seeks or for which he is
suggested, and have no legitimate relation to or bearing upon any act done by
him in a public or quasi-public capacity. The foregoing is not designed as a
wholly accurate or exhaustive definition, since that which must ultimately in
a vast number of cases become a question of individual judgment and opinion
is incapable of such definition; but it is an attempt to indicate broadly the
class of matters referred to. Some things all men alike are entitled to keep
from popular curiosity, whether in public life or not, while others are only
private because the persons concerned have not assumed a position which makes
their doings legitimate matters of public investigation.44 Second.
The right to privacy does not prohibit the communication of any matter,
though in its nature private, when the publication is made under
circumstances which would render it a privileged communication according to
the law of slander and libel. Under this rule, the right to privacy
is not invaded by any publication made in a court of justice, in legislative
bodies, or the committees of those bodies; in municipal assemblies, or the
committee of such assemblies, or practically by any communication made in
airy other public body, municipal or parochial, or in any body quasi-public,
like the large voluntary associations formed for almost every purpose of
benevolence, business, or other general interest; and (at least in many
jurisdictions) reports of any such proceedings would in some measure be
accorded a like privilege.45 Nor would the rule
prohibit any publication made by one in the discharge of some public or
private duty, whether legal or moral, or in conduct of one's own affairs, in
matters where his own interest is concerned.46 Third.
The law would probably not grant any redress for the invasion of privacy by
oral publication in the absence of special damage. The
same reasons exist for distinguishing between oral and written publications
of private matters, as is afforded in the law of defamation by the restricted
liability for slander as compared with the liability for libel.47 The injury resulting from such oral communications
would ordinarily be so trifling that the law might well, in the interest of
free speech, disregard it altogether.48 Fourth.
The right to privacy ceases upon the publication of the facts by the individual,
or with his consent. This
is but another application of the rule which has become familiar in the law
of literary and artistic property. The cases there decided established also
what should be deemed a publication--the important principle in this
connection being that a private communication or circulation for a restricted
purpose is not a publication within the meaning of the law.49 Fifth.
The truth of the matter published does not afford a defense. Obviously
this branch of the law should have no concern with the truth or falsehood of
the matters published. It is not for injury to the individual's character
that redress or prevention is sought, but for injury to the right of privacy.
For the former, the law of slander and libel provides perhaps a sufficient
safeguard. The latter implies the right not merely to prevent inaccurate
portrayal of private life, but to prevent its being depicted at all.50 Sixth.
The absence of "malice" in the publisher does not afford a
defense. Personal
ill-will is not an ingredient of the offense, any more than in an ordinary
case of trespass to person or to property. Such malice is never necessary to
be shown in an actions for libel or slander at common law, except in rebuttal
of some defense, e.g., that the occasion rendered the communication
privileged, or, under the statutes in this state and elsewhere, that the
statement complained of was true. The invasion of the privacy that is to be
protected is casually complete and equally injurious, whether the motives by
which the speaker or writer was actuated are, taken by themselves, culpable
or not; just as the damage to character, and to some extent the tendency to
provoke a breach of the peace, is equally the result of defamation without
regard to the motives leading to its publication. Viewed as a wrong to the
individual, this rule is the same pervading the whole law of torts, by which
one is held responsible for his intentional acts, even though they are
committed with no sinister intent; and viewed as a wrong to society, it is
the same principle adopted in a large category of statutory offenses. The
remedies for an invasion of the right of privacy are also suggested by those
administered in the law of defamation, and in the law of literary and
artistic property, namely: 1.
An action of tort for damages in all cases.51
Even in the absence of special damages, substantial compensation could be
allowed for injury to feelings as in the action of slander and libel. 2.
An injunction, in perhaps a very limited class of cases.52 It
would doubtless be desirable that the privacy of the individual should
receive the added protection of the criminal law, but for this, legislation
would be required.53 Perhaps it would be deemed
proper to bring the criminal liability for such publication within narrower
limits; but that the community has an interest in preventing such invasions
of privacy, sufficiently strong to justify the introduction of such a remedy,
cannot be doubted. Still, the protection of society must come mainly through
a recognition of the rights of the individual. Each man is responsible for
his own acts and omissions only. If he condones what he reprobates, with a
weapon at hand equal to his defense, he is responsible for the results. If he
resists, public opinion will rally to his support. Has he then such a weapon?
It is believed that the common law provides him with one, forged in the slow
fire of the centuries, and today fitly tempered to his hand. The common law
has always recognized a man's house as his castle, impregnable, often even to
its own officers
engaged in the execution of its commands. Shall the courts thus close the
front entrance to constituted authority, and open wide the back door to idle
or prurient curiosity? FOOTNOTES: 4. Winsmore v. Greenbank,
Willes, 577 (1745). 8. Gibblett v. Read,
9 Mod. 459 (1743), is probably the first recognition of goodwill as property. 10. Cooley on Torts, 2d ed., p. 29. 11. 8 Amer. Law Reg. N.S. 1 (1869);
12 Wash. Law Rep. 353 (1884); 24 Sol. J. & Rep. 4 (1879). 14. Though the legal value of
"feelings" is now generally recognized, distinctions have been
drawn between the several classes of cases in which compensation may or may
not be recovered. Thus, the fright occasioned by an assault constitutes a
cause of action, but fright occasioned by negligence does not. So fright
coupled with bodily injury affords a foundation for enhanced damages; but,
ordinarily, fright unattended by bodily injury cannot be relied upon as an
element of damages, even where a valid cause of action exists, as in trespass
quare clausum fregit. Wyman v. Leavitt, 71 Me. 227; Canning v.
Williamstown, 1 Cush. 451. The allowance of damages for injury to the
parents' feelings, in case of seduction, abduction of a child (Stowe v.
Heywood, 7 All. 118), or removal of the corpse of child from a
burial-ground (Meagher v. Driscoll, 99 Mass. 281), are said to
be exceptions to a general rule. On the other hand, injury to feelings is a
recognized element of damages in actions of slander and libel, and of
malicious prosecution. These distinctions between the cases, where injury to
feelings does and where it does not constitute a cause of action or legal
element of damages, are not logical, but doubtless serve well as practical
rules. It will, it is believed, be found, upon examination of the
authorities, that wherever substantial mental suffering would be the natural
and probable result of the act, there compensation for injury to feelings has
been allowed, and that where no mental suffering would ordinarily result, or
if resulting, would naturally be but trifling, and, being unaccompanied by
visible signs of injury, would afford a wide scope for imaginative ills,
there damages have been disallowed. The decisions on this subject illustrate
well the subjection in our law of logic to common-sense. 15. "Injuria, in the
narrower sense, is every intentional and illegal violation of honour, i.e.,
the whole personality of another." "Now an outrage is committed not
only when a man shall be struck with the fist, say, or with a club, or even
flogged, but also if abusive language has been used to one." Salkowski, Roman
Law, p. 668 and p. 669, n. 2. 16. "It is certain every man
has a right to keep his own sentiments, if he pleases. He has certainly a right
to judge whether he will make them public, or commit them only to the sight
of his friends." Yates, J., in Millar v. Taylor, 4 Burr.
2303, 2379 (1769). 17. Nichols v. Pitman,
26 Ch. D. 374 (1884). 18. Lee v. Simpson,
3 C.B. 871, 881; Daly v. Palmer, 6 Blatchf. 256. 19. Turner v. Robinson,
10 Ir. Ch. 121; S. C. ib. 510. 20. Drone on Copyright, 102. 21. "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. "The
produce of mental labor, thoughts and sentiments, recorded and preserved by
writing, became, as knowledge went onward and spread, and the culture of
man's understanding advanced, a kind of property impossible to disregard, and
the interference of modern legislation upon the subject, by the stat. 8 Anne,
professing by its title to be 'For the encouragement of learning,' and using
the words 'taken the liberty,' in the preamble, whether it operated in
augmentation or diminution of the private rights of authors, having left them
to some extent untouched, it was found that the common law, in providing for
the protection of property, provided for their security, at least before
general publication by the writer's consent." Knight Bruce, V.C., in Prince
Albert v. Strange, 2 DeGex & Sm. 652, 695 (1849). 22. "The question, however,
does not turn upon the form or amount of mischief or advantage, loss or gain.
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." Knight Bruce, V.C., in Prince Albert v. Strange,
2 DeGex & Sm. 652, 694. 23. Duke of Queensbury v.
Shebbeare, 2 Eden 329 (1758); Bartlett v. Crittenden, 5
McLean 32, 41 (1849). 24. Drone on Copyright, pp. 102,
104; Parton v. Prang, 3 Clifford 537, 548 (1872); Jefferys
v. Boosey, 4 H.L.C.815, 867, 962 (1854). 25. "The question will be
whether the bill has stated facts of which the court can take notice, as a
case of civil property, which it is bound to protect. The injunction cannot
be maintained on any principle of this sort, that if a letter has been
written in the way of friendship, either the continuance or the
discontinuance of the friendship affords a reason for the interference of the
court." Lord Eldon in Gee v. Pritchard, 2 Swanst. 402, 413
(1818). "Upon
the principle, therefore, of protecting property, it is that the common law,
in cases not aided or prejudiced by statute, shelters the privacy and
seclusion of thought and sentiments committed to writing, and desired by the
author to remain not generally known." Knight Bruce, V.C., in Prince
Albert v. Strange, 2 DeGex & Sm. 652, 695. "It
being conceded that reasons of expediency and public policy can never be made
the sole basis of civil jurisdiction, the question, whether upon any ground
the plaintiff can be entitled to the relief which he claims, remains to be
answered; and it appears to us that there is only one ground upon which his
title to claim, and our jurisdiction to grant, the relief, can be placed. We
must be satisfied, that the publication of private letters, without the
consent of the writer, is an invasion of an exclusive right of property which
remains in the writer, even when the letters have been sent to, and are still
in the possession of, his correspondent." Duer, J., in Woolsey v.
Judd, 4 Duer 379, 384 (1855). 26. "A work lawfully
published, in the popular sense of the term, stands in this respect, I
conceive, differently from a work which has never been in that situation. The
former may be liable to be translated, abridged, analyzed, exhibited in
morsels, complimented, and otherwise treated, in a manner that the latter is
not. "Suppose,
however -- instead of a translation, an abridgment, or a review -- the case
of a catalogue -- suppose a man to have composed a variety of literary works
('innocent,' to use Lord Eldon's expression), which he has never printed or
published, or lost the right to prohibit from being published -- suppose a
knowledge of them unduly obtained by some unscrupulous person, who prints
with a view to circulation a descriptive catalogue, or even a mere list of
the manuscripts, without authority or consent, does that law allow this? I
hope and believe not. The same principles that prevent more candid piracy must,
I conceive, govern such a case also. "By
publishing of a man that he has written to particular persons, or on
particular subjects, he may be exposed, not merely to sarcasm, he may be
ruined. There may be in his possession returned letters that he had written
to former correspondents, with whom to have had relations, however
harmlessly, may not in after life be a recommendation; or his writings may be
otherwise of a kind squaring in no sort with his outward habits and worldly
position. There are callings even now in which to be convicted of literature,
is dangerous, though the danger is sometimes escaped. "Again,
the manuscripts may be those of a man on account of whose name alone a mere
list would be a matter of general curiosity. How many persons could be
mentioned, a catalogue of whose unpublished writings would, during their
lives or afterwards, command a ready sale! Knight Bruce, V.C., in Prince
Albert v. Strange, 2 DeGex & Sm. 652, 693. 27. "A copy or impression of
the etchings would only be a means of communicating knowledge and information
of the original, and does not a list and description of the same? The means
are different, but the object and effect are similar; for in both, the object
and effect is to make known to the public more or less of the unpublished
work and composition of the author, which he is entitled to keep wholly for
his private use and pleasure, and to withhold altogether, or so far as he may
please, from the knowledge of others. Cases upon abridgments, translations,
extracts, and criticisms of published works have no reference whatever to the
present question; they all depend upon the extent of right under the acts
respecting copyright, and have no analogy to the exclusive rights in the
author of unpublished compositions which depend entirely upon the common law
right of property." Lord Cottenham in Prince Albert v. Strange,
1 McN. & G. 23, 43 (1849). "Mr.
Justice Yates, in Millar v. Taylor, said that an author's case
was exactly similar to that of an inventor of a new mechanical machine; that
both original inventions stood upon the same footing in point of property,
whether the case were mechanical or literary, whether an epic poem or an
orrery; that the immorality of pirating another man's invention was as great
as that of purloining his ideas. Property in mechanical works or works of
art, executed by a man for his own amusement, instruction, or use, is allowed
to subsist, certainly, and may, before publication by him, be invaded not
merely by copying, but by description or by catalogue, as it appears to me. A
catalogue of such works may in itself be valuable. It may also as effectually
show the bent and turn of the mind, the feelings and taste of the artist,
especially if not professional, as a list of his papers. The portfolio or the
studio may declare as much as the writing table. A man may employ himself in
private in a manner very harmless, but which, disclosed to society, may
destroy the comfort of his life, or even his success in it. Everyone,
however, has a right, I apprehend, to say that the produce of his private
hours is not more liable to publication without his consent, because the
publication must be creditable or advantageous to him, than it would be in
opposite circumstances. "I
think, therefore, not only that the defendant here is unlawfully invading the
plaintiff's rights, but also that the invasion is of such a kind and affects
such property as to entitle the plaintiff to the preventive remedy of an
injunction; and if not the more, yet, certainly, not the less, because it is
an intrusion -- an unbecoming and unseemly intrusion -- an intrusion not
alone in breach of conventional rules, but offensive to that inbred sense of
propriety natural to every man -- if intrusion, indeed, fitly describes a
sordid spying into the privacy of domestic life -- into the home (a word
hitherto sacred among us), the home of a family whose life and conduct form
an acknowledged title, though not their only unquestionable title, to the
most marked respect in this country." Knight Bruce, V.C., in Prince
Albert v. Strange, 2 DeGex & Sm. 652, 696, 697. 28. Kiernan v. Manhattan
Quotation Co., 50 How. Pr. 194 (1876). 29. "The defendants' counsel
say that a man acquiring a knowledge of another's property without his
consent is not by any rule or principle which a court of justice can apply
(however secretly he may have kept or endeavored to keep it) forbidden
without his consent to communicate and publish that knowledge to the world,
to inform the world what the property is, or to describe it publicly, whether
orally or in print or writing. "I
claim, however, leaving to doubt whether, as to property of a private nature,
which the owner, without infringing on the right of any other, may and does
retain in a state of privacy, it is certain that a person who, without the
owner's consent, express or implied, acquires a knowledge of it, can lawfully
avail himself of the knowledge so acquired to publish without his consent a
description of the property. "It
is probably true that such a publication may be in a manner or relate to
property of a kind rendering a question concerning the lawfulness of the act
too slight to deserve attention. I can conceive cases, however, in which an
act of the sort may be so circumstanced or relate to property such, that the
matter may weightily affect the owner's interest or feelings, or both. For
instance, the nature and intention of an unfinished work of an artist,
prematurely made known to the world, may be painful and deeply prejudicial
against him; nor would it be difficult to suggest other examples. . . . "It
was suggested that, to publish a catalogue of a collector's gems, coins,
antiquities, or other such curiosities, for instance, without his consent,
would be to make use of his property without his consent; and it is true,
certainly, that a proceeding of that kind may not only as much embitter one
collector's life as it would flatter another -- may be not only an ideal
calamity -- but may do the owner damage in the most vulgar sense. Such
catalogues, even when not descriptive, are often sought after, and sometimes
obtain very substantial prices. These, therefore, and the like instances, are
not necessarily examples merely of pain inflicted in point of sentiment or
imagination; they may be that, and something else beside." Knight Bruce,
V.C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 689,
690. 30. Hoyt v. Mackenzie,
3 Barb. Ch. 320, 324 (1848); Wetmore v. Scovell, 3 Edw. Ch. 515
(1842). See Sir Thomas Plumer in 2 Ves. & B. 19 (1813). 31. Woolsey v. Judd,
4 Duer. 379, 404 (1855). "It has been decided, fortunately for the
welfare of society, that the writer of letters, though written without any
purpose of profit, or any idea of literary property, possesses such a right
of property in them, that they cannot be published without his consent,
unless the purpose of justice, civil or criminal, require the
publication." Sir Samuel Romilly, arg., in Gee v.
Pritchard, 2 Swanst. 402, 418 (1818). But see High on Injunctions, 3d
ed., §1012, contra. 32. "But a doubt has been
suggested, whether mere private letters, not intended as literary
compositions, are entitled to the protection of an injunction in the same
manner as compositions of a literary character. This doubt had probably
arisen from the habit of not discriminating between the different rights of
property which belong to an unpublished manuscript, and those which belong to
a published book. The latter, as I have intimated in another connection, is a
right to take the profits of publication. The former is a right to control
the act of publication, and to decide whether there shall be any publication
at all. It has been called a right of property; an expression perhaps not
quite satisfactory, but on the other hand sufficiently descriptive of a right
which, however incorporeal, involves many of the essential elements of
property, and is at least positive and definite. This expression can leave us
in no doubt as to the meaning of the learned judges who have used it, when
they have applied it to cases of unpublished manuscripts. They obviously
intended to use it in no other sense, than in contradistinction to the mere
interest of feeling, and to describe a substantial right of legal
interest." Curtis on Copyright, pp. 93, 94. "The
resemblance of the right to prevent publication of an unpublished manuscript
to the well recognized rights of personal immunity is found in the treatment
of it in connection with the rights of creditors. The right to prevent such
publication and the right of action for its infringement, like the cause of
action for an assault, battery, defamation, or malicious prosecution, are not
assets available to creditors. "There
is no law which can compel an author to publish. No one can determine this
essential matter of publication but the author. His manuscripts, however
valuable, cannot, without his consent, he seized by his creditors as
property. McLean, J., in Bartlett v. Crittenden, 5 McLean 32, 37 (1839). It
has also been held that even where the sender's rights are not asserted, the
receiver of a letter has not such property in it as passes to his executor or
administrator as a salable asset. Eyre v. Higbee, 22 How. Pr.
(N.Y.) 198 (1861). "The
very meaning of the word 'property' in its legal sense is 'that which is
peculiar or proper to any person; that which belongs exclusively to one.' The
first meaning of the word from which it is derived -- proprius -- is
'one's own.' Drone on Copyright, p. 6. It
is clear that a thing must be capable of identification in order to be the
subject of exclusive ownership. But when its identity can be determined so
that individual ownership may be asserted, it matters not whether it be
corporeal or incorporeal. 33. "Such then being, as I
believe, the nature and the foundation of the common law as to manuscripts
independently of Parliamentary additions and subtractions, its operation
cannot of necessity be confined to literary subjects. That would be to limit
the rule by the example. Wherever the produce of labor is liable to invasion
in an analogous manner, there must, I suppose, be a title to analogous
protection or redress." Knight Bruce, B.C., in Prince Albert v.
Strange, 2 DeGex & Sm. 652, 696. 34. "The question,
therefore, is whether a photographer who has been employed by a customer to
take his or her portrait is justified in striking off copies of such
photograph for his own use, and selling and disposing of them, or publicly
exhibiting them by way of advertisement or otherwise, without the authority
of such customer, either express or implied. I say 'express or implied,'
because a photographer is frequently allowed, on his own request, to take a
photograph of a person under circumstances in which a subsequent sale by him
must have been in the contemplation of both parties, though not actually
mentioned. To the question thus put, my answer is in the negative, that the
photographer is not justified in so doing. Where a person obtains information
in the course of a confidential employment, the law does not permit him to
make any improper use of the information so obtained; and an injunction is
granted, if necessary, to restrain such use; as, for instance, to restrain a
clerk from disclosing his master's accounts, or an attorney from making known
his client's affairs, learned in the course of such employment. Again, the
law is clear that a breach of contract, whether express or implied, can be
restrained by injunction. In my opinion the case of the photographer comes
within the principles upon which both these classes of cases depend. The
object for which he is employed and paid is to supply his customer with the
required number of printed photographs of a given subject. For this purpose
the negative is taken by the photographer on glass; and from this negative
copies can be printed in much larger numbers than are generally required by
the customer. The customer who sits for the negative thus puts the power of
reproducing the object in the hands of the photographer; and in my opinion
the photographer who uses the negative to produce other copies for his own use,
without authority, is abusing the power confidentially placed in his hands
merely for the purpose of supplying the customer; and, further, I hold that
the bargain between the customer and the photographer includes, by
implication, an agreement that the prints taken from the negative are to be
appropriated to the use of the customer only." Referring to the opinions
delivered in Tuck v. Priester, 10 Q.B.D. 639, the learned
Justice continued: "Then Lord Justice Lindley says: 'I will deal first
with the injunction, which stands, or may stand, on a totally different
footing from either the penalties or the damages. It appears to me that the
relation between the plaintiffs and the defendant was such that, whether the
plaintiffs had any copyright or not, the defendant has done that which
renders him liable to an injunction. He was employed by the plaintiffs to
make a certain number of copies of the picture, and that employment carried
with it the necessary implication that the defendant was not to make more
copies for himself, or to sell the additional copies in this country in
competition with his employer. Such conduct on his part is a gross breach of
contract and a gross breach of faith, and, in my judgment, clearly entitled
the plaintiffs to an injunction whether they have a copyright in the picture
or not.' That case is the more noticeable, as the contract was in writing;
and yet, it was held to be an implied condition that the defendant should not
make any copies for himself. The phrase 'a gross breach of faith' used by
Lord Justice Lindley in that case applies with equal force to the present,
when a lady's feelings are shocked by finding that the photographer who was
employed to take her likeness for her own use is publicly exhibiting and
selling copies thereof." North, J., in Pollard v. Photographic Co.,
40 Ch.D. 345, 349-352 (1888). "It
may be said also that the cases to which I have referred are all cases in
which there was some right of property infringed, based upon the recognition
by the law of protection being due for the products of a man's own skill or
mental labor; whereas in the present case the person photographed has done
nothing to merit such protection, which is meant to prevent legal wrongs, and
not mere sentimental grievances. But a person whose photograph is taken by a
photographer is not thus deserted by the law; for the Act of 25 and 26 Vict.,
c. 68, s. 1, provides that when the negative of any photograph is made or
executed for or on behalf of another person for a good or valuable consideration,
the person making or executing the same shall not retain the copyright
thereof, unless it is expressly reserved to him by agreement in writing
signed by the person for or on whose behalf the same is so made or executed;
but the copyright shall belong to the person for or on whose behalf the same
shall have been made or executed. "The
result is that in the present case the copyright in the photograph is in one
of the plaintiffs. It is true, no doubt, that sect. 4 of the same act
provides that no proprietor of copyright shall be entitled to the benefit of
the act until registration, and no action shall be sustained in respect of
anything done before registration; and it was, I presume, because the
photograph of the female plaintiff has not been registered that this act was
not referred to by counsel in the course of the argument. But, although the
protection against the world in general conferred by the act cannot be
enforced until after registration, this does not deprive the plaintiffs of
their common law right of action against the defendant for his breach of
contract and breach of faith. This is quite clear from the cases of Morison
v. Moat [9 Hare 241] and Tuck v. Priester [19 Q.B.D. 629]
already referred to, in which latter case the same act of Parliament was in
question." Per North, J., ibid., p. 352. This
language suggests that the property right in photographs or portraits may be
one created by statute, which would not exist in the absence of registration;
but it is submitted that it must eventually be held here, as it has been in
the similar cases, that the statute provision becomes applicable only when
there is a publication, and that before the act of registering there is
property in the thing upon which the statute is to operate. 35. Duke of Queensberry v.
Shabbeare, 2 Eden 329; Murray v. Heath, 1 B. & Ad.
804; Tuck v. Priester, 19 Q.B.D. 629. 36. See Mr. Justice Story in Folsom
v. Marsh, 2 Story 100, 111 (1841): "If
he [the recipient of a letter] attempt to publish such letter or letters on
other occasions, not justifiable, a court of equity will prevent the
publication by an injunction, as a breach of private confidence or contract,
or of the rights of the author; and a fortiori, if he attempt to
publish them for profit; for then it is not a mere breach of confidence or
contract, but it is a violation of the exclusive copyright of the writer. . .
. The general property, and the general rights incident to property, belong
to the writer, whether the letters are literary compositions, or familiar
letters, or details of facts, or letters of business. The general property in
the manuscripts remains in the writer and his representatives, as well as the
general copyright. A fortiori, third persons, standing in no privity with
either party, are not entitled to publish them, to subserve their own private
purposes of interest, or curiosity, or passion." 37. "The receiver of a
letter is not a bailee, nor does he stand in a character analogous to that of
a bailee. There is no right to possession, present or future, in the writer.
The only right to be enforced against the holder is a right to prevent
publication, not to require the manuscript from the holder in order to a
publication of himself." Per Hon. Joel Parker, quoted in Grigsby
v. Breckenridge, 2 Bush 480, 489 (1867). 38. In Morison v. Moat,
9 Hare 241, 255 (1851), a suit for an injunction to restrain the use of a
secret medical compound, Sir George James Turner, V.C., said: "That the
court has exercised jurisdiction in cases of this nature does not, I think,
admit of any question. Different grounds have indeed been assigned for the
exercise of that jurisdiction. In some cases it has been referred to
property, in others to contract, and in others, again, it has been treated as
founded upon trust or confidence -- meaning, as I conceive, that the court
fastens the obligation on the conscience of the party, and enforces it
against him in the same manner as it enforces against a party to whom a
benefit is given, the obligation of performing a promise on the faith of
which the benefit has been conferred; but upon whatever grounds the
jurisdiction is founded, the authorities leave no doubt as to the exercise of
it." 39. A similar growth of the law
showing the development of contractual rights into rights of property is
found in the law of good-will. There are indications, as early as the Year
Books, of traders endeavoring to secure to themselves by contract the
advantages now designated by the term "good-will," but it was not
until 1743 that good-will received legal recognition as property apart from
the personal covenants of the traders. See Allan on Goodwill, pp. 2, 3. 40. The
application of an existing principle to a new state of facts is not judicial legislation.
To call it such is to assert that the existing body of law consists
practically of the statutes and decided cases, and to deny that the
principles (of which these cases are ordinarily said to be evidence) exist at
all. It is not the application of an existing principle to new cases, but the
introduction of a new principle, which is properly termed judicial
legislation. But
even the fact that a certain decision would involve judicial legislation
should not be taken as conclusive against the propriety of making it. This
power has been constantly exercised by our judges, when applying to a new
subject principles of private justice, moral fitness, and public convenience.
Indeed, the elasticity of our law, its adaptability to new conditions, the capacity
for growth, which has enabled it to meet the wants of an ever-changing
society and to apply immediate relief for every recognized wrong, have been
its greatest boast. "I
cannot understand how any person who has considered the subject can suppose
that society could possibly have gone on if judges had not legislated, or
that there is any danger whatever in allowing them that power which they have
in fact exercised, to make up for the negligence or the incapacity of the
avowed legislator. That part of the law of every country which was made by
judges has been far better made than that part which consists of statutes
enacted by the legislature." 1 Austin's Jurisprudence, p. 224. The
cases referred to above show that the common law has for a century and a half
protected privacy in certain cases, and to grant the further protection now
suggested would be merely another application of an existing rule. 41. Loi Relative á la Presse. 11
Mai 1868. "II.
Toute publication dans un écrit périodique relative á un fait de la vie
privée constitue une contravention punie d'un amende de cinq cent francs. "La
poursuite ne pourra être exercée que sur la plainte de la partie
intéressée." Rivière,
Codes Français et Lois Usuelles, App. Code Pen., p. 20. 42. See
Campbell v. Spottiswoode, 3 B. & S. 769, 776; Henwood
v. Harrison, L.R. 7 C.P. 606; Gott v. Pulsifer, 122 Mass.
235. 43. "Nos moeurs n'admettent
pas la prétention d'enlever aux investigations de la publicité les actes qui relèvent
de la vie publique, et ce dernier mot ne doit pas être restreint à la vie
officielle ou à celle du fonctionnaire. Tout homme qui appelle sur lui
l'attention ou les regards du publique, soit par une mission qu'il a reçue ou
qu'il se donne, soit par le rôle qu'il s'attribue dans l'industrie, les arts,
le theâtre, etc., ne peut plus invoquer contre la critique ou l'exposé de sa
conduite d'autre protection que les lois qui repriment la diffamation et
l'injure." Circ. Mins. Just., 4 Juin, 1868. Rivière, Codes Français et
Lois Usuelles, App. Code Pen., 20 n(b). 44. "Celui-la seul a droit
au silence absolu qui n'a pas espressément ou indirectment provoqué ou
authorisé l'attention, l'approbation ou le blâme." Circ. Mins. Just., 4
Juin, 1868. Rivière, Codes Français et Lois Usuelles, App. Code Pén., 20
n(b). The
principle thus expressed evidently is designed to exclude the wholesale
investigations into the past of prominent public men with which the American
public is too familiar, and also, unhappily, too well pleased; while not
entitled to the "silence absolu" which less prominent men
may claim as their due, they may still demand that all the details of private
life in its most limited sense shall not be laid bare for inspection. 45. Wason v. Walters,
L.R. 4 Q.B. 73; Smith v. Higgins, 16 Gray 251; Barrows v.
Bell, 7 Gray 331. 46. This limitation upon the
right to prevent the publication of private letters was recognized early: "But
consistently with the right [of the writer of letters], the persons to whom
they are addressed may have, nay, must, by implication, possess, the right to
publish any letter or letters addressed to them, upon such occasions, as
require, or justify, the publication or public use of them; but this right is
strictly limited to such occasions. Thus, a person may justifiably use and
publish, in a suit at law or in equity, such letter or letters as are
necessary and proper, to establish his right to maintain the suit, or defend
the same. So, if he be aspersed or misrepresented by the writer, or accused
of improper conduct, in a public manner, he may publish such parts of such
letter or letters, but no more, as may be necessary to vindicate his
character and reputation, or free him from unjust obloquy and reproach."
Story, J., in Folsom v. Marsh, 2 Story 100, 110, 111 (1841). The
existence of any right in the recipient of letters to publish the same has
been strenuously denied by Mr. Drone; but the reasoning upon which his denial
rests does not seem satisfactory. Drone on Copyright, pp. 136-139. 47. Townshend on Slander and
Libel, 4th ed., §18; Odgers on Libel and Slander, 2d ed., p. 3. 48. "But as long as gossip
was oral, it spread, as regards any one individual, over a very small area,
and was confined to be immediate circle of his acquaintances. It did not
reach, or but rarely reached, those who knew nothing of him. It did not make
his name, or his walk, or his conversation familiar to strangers. And what is
more to the purpose, it spared him the pain and mortification of knowing that
he was gossipped about. A man seldom heard of oral gossip about him which
simply made him ridiculous, or trespassed on his lawful privacy, but made no
positive attack upon his reputation. His peace and comfort were, therefore,
but slightly affected by it." E. L. Godkin, "The Rights of the
Citizen: to His Reputation." Scribner's Magazine, July,
1890, p. 66. Vice-Chancellor
Knight Bruce suggested in Prince Albert v. Strange, 2 DeGex
& Sm. 652, 694, that a distinction would be made as to the right to
privacy of works of art between an oral and a written description or
catalogue. 49. See Drone on Copyright, pp.
121, 289, 290. 50. Compare the French law. En
probitant l'envahissement de la vie privée, sans qu'il soit nécessaire d'établir
l'intention criminelle, la loi a entendue interdire toute discussion de la
part de la défense sur la vérité des faits. Le remède eut été pire que le
mal, si un débat avait pu s'engager sur ce terrain." Circ. Mins. Just.,
4 Juin, 1868. Rivière, Codes Français et Lois Usuelles, App. Code Pen., 20
n(a). 51. Comp. Drone on Copyright, p.
107. 52. Comp. High on Injunctions, 3d
ed., §1015; Townshend on Libel and Slander, 4th ed., §§417a-417d. 53. The following draft of a bill
has been prepared by William H. Dunbar, Esq., of the Boston bar, as a
suggestion for possible legislation: "Section
1. Whoever publishes in any newspaper, journal, magazine, or other
periodical publication any statement concerning the private life or affairs
of another, after being requested in writing by such other person not to
publish such statement or any statement concerning him, shall be punished by
imprisonment in the State prison not exceeding five years, or by imprisonment
in the jail not exceeding two years, or by fine not exceeding one thousand
dollars; provided, that no statement concerning the conduct of any person in,
or the qualifications of any person for, a public office or position which
such person holds, has held, or is seeking to obtain, or for which such person
is at the time of such publication a candidate, or for which he or she is
then suggested as a candidate, and no statement of or concerning the acts of
any person in his or her business, profession, or calling, and no statement
concerning any person in relation to a position, profession, business, or
calling, bringing such person prominently before the public, or in relation
to the qualifications for such a position, business, profession, or calling
of any person prominent or seeking prominence before the public, and no
statement relating to any act done by any person in a public place, nor any
other statement of matter which is of public and general interest, shall be
deemed a statement concerning the private life or affairs of such person
within the meaning of this act. "Section
2. It shall not be a defence to any criminal prosecution brought under Section
1 of this act that the statement complained of is true, or that such
statement was published without a malicious intention; but no person shall be
liable to punishment for any statement published under such circumstances
that if it were defamatory the publication thereof would be privileged." |