tion of his portrait in any form, that this is a property, as well as a personal, right, and that it belongs to the same class of rights which forbids the reproduction of a private manuscript or painting, or the publication of private letters, or of oral lectures delivered by a teacher to his class, or the revelation of the contents of a merchant's books by his clerk."

10. Case of Atkinson v. Doherty.-It was held in the Supreme Court of Michigan in 1899, that the use of the name and likeness of a deceased person as a label for a brand of cigars could not be restrained by injunction, so long as such use did not constitute a libel.20 This decision ostensibly goes on the broad ground that the right of privacy does not exist so as to prevent a person from publishing the picture of another without his consent. Inasmuch, however, as the person whose likeness was used in this instance was dead, we cannot say that this case decides more than the New York Court of Appeals held in Schuyler v. Curtis,27 namely, that if there be a right of privacy, it dies with the person.

11. Case of Roberson v. Rochester Folding Box Company. It appeared that lithographic likenesses of a young woman, accompanied with the legend, "Flour of the Family," were printed and extensively used by a flour milling company to advertise its goods. The declaration alleged that in consequence of the circulation of these lithographs the plaintiff's good name had been attacked, and that she had been greatly humiliated and made sick and obliged to

26 Atkinson v. Doherty & Co., 121 Mich. 372, 80 N. W. 285. 27 Schuyler v. Curtis, 147 N. Y. 434, 42 N. E. 22.

employ a physician. An injunction was prayed for against the further use of the likenesses and for damages. This case came before the Supreme Court of New York, Special Term, in 1900, Davy, J., and before the Appellate Division of the Supreme Court in 1891, Rumsey, McLennan, Spring, and Williams, JJ.28 It was held that the plaintiff's right of privacy had been invaded and she might recover; and that if a right of property was necessary to entitle the plaintiff to maintain the action, the case might stand upon the right of property which every one has in his own body. This case coming before the Court of Appeals in 1902, the judgment was reversed.29 This was the first time the question of the existence of a right of privacy came squarely before a court of last resort. Four justices of the court,

28 Roberson v. Rochester Folding Box Co., 65 N. Y. Supp. 1109; 71 N. Y. Supp. 876.

29 Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442, LEADING ILLUSTRATIVE CASES. On April 6, 1903, the year following the decision by the Court of Appeals in the Roberson case, the New York Legislature enacted the following statute:

"An act to prevent the unauthorized use of the name or picture of any person for the purposes of trade.

"Section 1. A person, firm, or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait, or picture of any living person without having first obtained the written consent of such person, or if a minor, of his or her parent or guardian, is guilty of a misdemeanor.

"Section 2. Any person whose name, portrait, or picture is used within this State for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the Supreme Court of this State against the person, firm, or corporation so using his name, portrait, or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries maintained by reason of such use, and if the defendant shall have knowingly used such person's name, portrait, or picture in such manner as is forbidden or declared to be unlawful by this act, the jury, in its discretion, may award exemplary damages."

Parker, C. J., O'Brien, Cullen, and Werner, JJ., Parker, C. J., writing the opinion, ruled that the complaint set forth no cause of action either at law or in equity, or, in other words, that the right of privacy did not exist. Three of the justices, Gray, Bartlett, and Haight, JJ., Gray, J., writing the opinion, dissented. The minority maintained that there is a legal right of privacy, that the plaintiff had showed a flagrant violation of her right, and that the injunction should have been granted. This case is the leading one on the subject of the right of privacy.

12. Same subject-Position of the majority.— The ruling of the majority is on the facts of the case, where there is an unwarranted publication of the picture of another for advertising purposes; but inasmuch as it is easier to establish a violation of a right of privacy when one's portrait is used by another for commercial purposes, the decision necessarily goes the length of absolutely denying the existence of such a right under any circumstances. Chief Justice Parker's reasoning goes on that assumption. He says: "An examination of the

authorities leads us to the conclusion that the so-called right of privacy has not as yet found an abiding place in our jurisprudence, and, as we view it, the doctrine cannot now be incorporated without doing violence to settled principles of law by which the profession and the public have long been guided." The reasoning of the majority is, in substance, that there is no decided case either in this country or in England in which such a right is distinctly recognized; that every case that might be

relied on to establish the right was placed expressly upon other grounds, not involving the application of this right in any sense; that the right is not referred to by the commentators and writers on the common law or the principles of equity; that the existence of the right is not to be legitimately inferred from anything that is said by any of such writers; that a recognition of the existence of the right would bring about a vast amount of litigation; and that in many instances where the right would be asserted, it would be difficult, if not impossible, to determine the line of demarcation between the plaintiff's right of privacy and the well-established rights of others and of the public.

13. Same subject-Position of the minority.— Judge John Clinton Gray, in the course of his dissenting opinion, after the words quoted above in § 4, continues: "When, as here, there is an alleged invasion of some personal right or privilege, the absence of exact precedent, and the fact that early commentators upon the law have no discussion upon the subject, are of no material importance in awarding equitable relief. That the exercise of the preventive power of the court of equity is demanded in a novel case is not a fatal objection. But if it is to be permitted that the portraiture is to be put to commercial or other uses for gain by the publication of prints therefrom, then an act of invasion of the individual's privacy results, possibly more formidable and more painful in its consequences than an actual bodily assault might be. Security of person is as necessary as the security of property, and for

that complete personal security which will result in the peaceful and wholesome enjoyment of one's privileges as a member of society there should be afforded protection, not only against the scandalous portraiture and display of one's features and person, but against the display and use thereof for another's commercial purposes or gain. The proposition is to me an inconceivable one that those defendants may unauthorizedly use the likeness of this young woman upon their advertisement as a method of attracting widespread public attention to their wares, and that she must submit to the mortifying notoriety, without right to invoke the exercise of the preventive power of a court of equity. Such a view, as it seems to me, must have been unduly influenced by a failure to find precedents in analogous cases, or some declaration. by the great commentators upon the law of a common law principle which would precisely apply to and govern the action, without taking into consideration that in the existing state of society, new conditions affecting the relations of persons demand the broader extension of those legal principles which underlie the immunity of one's person from attack." This is the leading judicial argument in America.

14. Case of Pavesich v. New England Life Insurance Company. In this case, in 1905, it was held, by the Supreme Court of Georgia, all the justices concurring, that the publication of the picture of a person without his consent, as a part of an advertisement, for the purpose of exploiting the publisher's business, is a violation of the right of privacy of the person whose picture is reproduced, and entitles