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.

The principles upon which I rest my judgment are well known, and of familiar application, and, though I am not aware that any case has been decided as to the negative of a photograph, there are many analogous cases in the books. . . .

It may be said that in the present case the property in the glass negative is in the defendant, and that he is only using his own property for a lawful purpose. But it is not a lawful purpose to employ it either in breach of faith, or in breach of contract. Again in Murray v. Heath (1 B. & Ad. 804), the plates were the property of the defendant, for they had not been delivered to or accepted by the plaintiff. So in the case of Duke of Queensberry v. Shebbeare (2 Eden, 339) the defendant was restrained from publishing a work of the Earl of Clarendon, although a person had been expressly allowed by the owner to make and retain as his own a copy of the manuscript, which copy he had sold to the defendant. There too an agreement or condition was implied that the manuscript should not be published. Again, it is well known that a student may not publish a lecture to which he has been admitted, even though by his own skill he had taken a copy of it in shorthand; and the receiver of a letter may not publish it without the writer's consent, though the property in the paper and writing is in him; and many similar instances might be given.

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 skill or mental labour; 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 & 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 injunction will be perpetual, and the defendant must pay the costs of the action.

335. PECK v. TRIBUNE COMPANY

SUPREME COURT OF THE UNITED STATES. 1909

214 U. S. 185, 29 Sup. 554

[Printed ante, as No. 156.]

336. HENRY v. CHERRY AND WEBB

SUPREME COURT OF RHODE ISLAND. 1909

30 R. I. 13, 73 Atl. 97

CASE Certified from Superior Court, Providence and Bristol Counties; Charles C. Mumford, Judge.

Action by James N. Henry against Cherry & Webb. A demurrer having been filed to the declaration, the case was certified to the Supreme Court for advice. Questions answered, and case returned to Superior Court for further proceedings.

Bassett & Raymond (R. W. Richmond, of counsel), for plaintiff.

Edwards & Angell (Francis B. Keeney and Seeber Edwards, of counsel), for defendants.

DUBOIS, C. J. This is an action of trespass vi et armis, brought by the plaintiff in the Superior Court. The material portion of the plaintiff's declaration, in two counts, reads as follows:

"First Count. For that at the time of the committing of the grievances hereinafter complained of the defendants were engaged in a general mercantile business of buying and selling dry goods, ladies' garments, etc., in said city of Providence, and extensively advertised their wares and merchandise in the public newspapers published in said Providnce; that on the 10th day of April, A. D. 1908, the defendants, with force and arms, invaded the plaintiff's right of privacy in this, to wit, that they published in connection with their aforesaid advertisements a likeness or picture of the plaintiff in the issue of the Providence Evening Bulletin of that date, which said paper is one of the public newspapers in said Providence and has a large and extensive circulation throughout said city and State; that said picture or likeness of the plaintiff was easily recognized by his friends and acquaintances; that the plaintiff was pictured as seated in an automobile, apparently driving the same, and also in said picture were several other persons, represented as sitting in the rear seat of said automobile; that the said picture or likeness appeared in a prominent

place in said newspaper and was likely to and did attract much attention. Below the picture, in heavy black type, were the words 'Only $10.50,' and below, on the next line, in heavy display type, were the words, 'The Auto Coats Worn by above Autoists are Water-Proof, Made of Fine Quality Silk Mohair -$10.50—in Four Colors.' And the plaintiff avers that he is not a public character and has in no way waived his right of privacy, and that the defendants then and there, to wit, on said 10th day of April, A. D. 1908, without the knowledge and consent of the plaintiff, and knowing that they had no authority so to do, caused said likeness or picture of the plaintiff to be published in said Evening Bulletin, which said publication tended to and did make the plaintiff the object of much scoff, ridicule, and public comment, contrary to the plaintiff's right of privacy in the premises so far as the acts of the defendants were concerned. And the plaintiff avers that the said publication was a trespass upon his said right of privacy, and as a result of said invasion of his right of privacy by the defendants as aforesaid he has been made the object of much ridicule, scoff, and gibes by those of his friends and acquaintances who have recognized his likeness in said publication, and has suffered great mental anguish, all of which the defendants did against the peace and to the damage of the plaintiff, as he says, one thousand dollars, as laid in his writ dated the 21st day of April, A. D. 1908."

"Second Count. For that, at said Providence, on the 10th day of April, A. D. 1908, the defendants then and there published in the Evening Bulletin, a public newspaper printed in said Providence and having a large circulation throughout said city and State, a picture or likeness of the plaintiff that would be and was recognized by the friends and acquaintances of the plaintiff; that in such picture the plaintiff was represented as apparently driving an automobile, in which were seated several other persons; that beneath said picture, in heavy black type, were the words, 'Only $10.50,' and below, on the next line, in heavy display type, were the words, 'The Auto Coats Worn by Above Autoists are Water-Proof, Made of Fine Quality Silk Mohair $10.50 - in Four Colors'; that said picture was 'featured' in a prominent place in said newspaper, and tended to and did attract much attention; that said picture or likeness of the plaintiff, taken in connection with the words inserted beneath it (which said words are above referred to in this count), tended to and did expose the plaintiff to unwarranted humiliation and to the scoff, jeers, and gibes of his friends and acquaintances who recognized the said likeness or picture of the plaintiff. And the plaintiff avers that said publication of his said likeness or picture and of the words of the advertisement in connection therewith, hereinbefore referred to, was without his knowledge of consent, and was wholly unwarranted on the part of said defendants, and that by reason of said unwarranted publication of his said likeness or picture as aforesaid he has been subjected to great humiliation and held up to public ridicule and has suffered mental anguish therefrom, to the damage of the plaintiff, as he says, $1,000, as laid in his writ dated the 21st day of April, A. D. 1908."

To this declaration the defendants demurred upon the following grounds:

"First, the form of action should be trespass on the case, and not trespass, as declared upon ";

and to the first count for the reasons following:

"First, said count sets forth no cause of action; second, said count alleges no right for the invasion of which the plaintiff is entitled to recover damages against the defendants; third, the law does not regard the right of privacy as a right for the invasion of which a person is entitled to recover damages"; and to the second count for the following causes:

"First, said count is indefinite and uncertain in its statement of the cause of action, and it is impossible therefrom to determine whether the plaintiff relies upon an action for alleged libel, or for an alleged invasion of his right of privacy; second, said count states no cause of action against the defendants; third, if the plaintiff relies upon an action for libel, the alleged publication is not defamatory; fourth, if the plaintiff relies upon an action for libel, the alleged publication is not libellous per se, and said count contains no averment of special damages; fifth, said count alleges no right for the invasion of which by the defendants the plaintiff is entitled to recover damages against the defendants."

Whereupon a Justice of the Superior Court entered the following order of certification:

"This cause being before the Court for hearing upon the defendant's demurrer to the plaintiff's declaration, and thereupon certain questions of law arising which, in the opinion of the Court, are of such doubt and importance and so affect the merits of the controversy that they ought to be determined by the Supreme Court before further proceedings, it is ordered that the following questions be certified to the Supreme Court under the provisions of section 478 of the Court and Practice Act, namely: First. Has a person at common law a right designated as a 'right of privacy,' for the invasion of which an action for damages lies? Second. Is the unwarranted publication of a person's photograph for advertising purposes actionable at common law, where the only injury alleged is that of mental suffering?"

Treating the first question literally, it might easily be answered in the negative, for we are unable to find any opinion, decision, or dictum which determines that such a right was so designated at common law. But we are unwilling to dismiss so important and interesting a question upon such a technical ground. We prefer to treat both of the questions as broadly as possible within the limits of the case in which they have arisen. Perhaps the questions may as well be considered as if they read: Has a person a right of privacy, for the invasion of which a action for damages lies at common law? Is the unwarranted publication of a person's photograph for advertising purposes an invasion of such right? and, Can an action for such an invasion be maintained at common law, where the only injury alleged is that of mental suffering? It is apparent that, if the first question should be answered in the negative, no necessity would exist for answering the others, and that, if the first should be answered affirmatively and the second in the negative, it would then become unnecessary to answer the third.

The consideration of the case may be simplified by eliminating the second count of the declaration, which, as claimed by the plaintiff, charges the defendants with libel.

"A libel is a malicious defamation expressed in printing or writing, or by signs, pictures, etc., tending to injure the reputation of another, and thereby exposing such person to public hatred, contempt, or ridicule. And an action on the case is maintainable against any person who falsely and maliciously publishes any libel against another." 2 Selwyn's Nisi Prius (7th Am. ed.) *1045.

It is perfectly clear, upon inspecting the second count, that nothing therein contained charges the defendants with malice, or with the publication of anything defamatory, scandalous, or otherwise than the exact truth. Such a count cannot be regarded as charging libel against the defendants, and as they have demurred to the same as aforesaid, and as the same is clearly bad on demurrer, it may be disregarded in the further consideration of the case.

It must be conceded at the outset that the common law recognizes sundry personal rights and privileges, and gives a right of action for interference with the same, and that some of these rights so recognized include immunity from intrusion. But, as we understand the question, the right of privacy therein alluded to contemplates a simple right, uncomplicated with and uninfluenced by other rights, as, for example, the right to liberty, property, or reputation. The theory that every one has a right to privacy, and that the same is a personal right, growing out of the inviolability of the person, defined by Judge Cooley in his work on Torts (2d ed.), p. 29, as: "Personal Immunity. The right to one's person may be said to be a right of complete immunity, to be let alone"

and that a person is entitled to relief at law or in equity for an invasion of the same, is generally understood to have been first publicly advanced in an article entitled "The Right to Privacy," published in 4 Harv. L. Rev. 193 (December, 1890), wherein some of the necessities for invoking such relief are set out, as follows:

"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.' 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 housetops.' For years there has been a feeling that the law must afford some remedy for the unauthorized ciculation of portraits of private persons, and the evil of the invasion of privacy by the newspapers, long keenly felt, has been but recently discussed by an able writer. The alleged facts of a somewhat notorious case, brought before an inferior tribunal in New York a few months ago, 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