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Title: The Right to Privacy

Author: Samuel D. Warren
        Louis Dembitz Brandeis

Release date: September 9, 2011 [eBook #37368]
                Most recently updated: January 8, 2021

Language: English

Credits: Produced by Jana Srna, Matthew Wheaton and the Online
        Distributed Proofreading Team at https://www.pgdp.net (This
        book was produced from scanned images of public domain
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Produced by Jana Srna, Matthew Wheaton and the Online
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book was produced from scanned images of public domain
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    HARVARD LAW REVIEW


    VOL. IV

    1890-91

    CAMBRIDGE, MASS.
    PUBLISHED BY THE HARVARD LAW REVIEW PUBLISHING ASSOCIATION
    1891


    _Copyright, 1891_
    BY THE HARVARD LAW REVIEW PUBLISHING ASSOCIATION


    HARVARD LAW REVIEW.

    VOL. IV. DECEMBER 15, 1890. NO. 5.




THE RIGHT TO PRIVACY.

     "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] goodwill,[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 men 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 in ascertaining the amount of damages when attending what is
recognized as a legal injury;[14] 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,[18] 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 question, 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 heard 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 to 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.
Batholomew'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 short-hand, 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 be 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 any
one 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 by 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 relation, 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.

1. 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 or 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]

2. 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 committees of such
assemblies, or practically by any communication made in any 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]

3. 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]

4. 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
establish also what should be deemed a publication,--the important
principle in this connection being that a private communication of
circulation for a restricted purpose is not a publication within the
meaning of the law.[49]

5. The truth of the matter published does not afford a defence.
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]

6. The absence of "malice" in the publisher does not afford a defence.

Personal ill-will is not an ingredient of the offence, any more than in
an ordinary case of trespass to person or to property. Such malice is
never necessary to be shown in an action for libel or slander at common
law, except in rebuttal of some defence, _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 equally 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 offences.

       *       *       *       *       *

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 defence, 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
to-day 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?

    _Samuel D. Warren,
    Louis D. Brandeis._

    BOSTON, December, 1890.

FOOTNOTES:

[1] Year Book, Lib. Ass., folio 99, pl. 60 (1348 or 1349), appears to be
the first reported case where damages were recovered for a civil
assault.

[2] These nuisances are technically injuries to property; but the
recognition of the right to have property free from interference by such
nuisances involves also a recognition of the value of human sensations.

[3] Year Book, Lib. Ass., folio 177, p. 19 (1356), (2 Finl. Reeves Eng.
Law, 395) seems to be the earliest reported case of an action for
slander.

[4] Winsmore _v._ Greenbank, Willes, 577 (1745).

[5] Loss of service is the gist of the action; but it has been said that
"we are not aware of any reported case brought by a parent where the
value of such services was held to be the measure of damages." Cassoday,
J., in Lavery _v._ Crooke, 52 Wls. 612, 623 (1881). First the fiction of
constructive service was invented; Martin _v._ Payne, 9 John. 387
(1812). Then the feelings of the parent, the dishonor to himself and his
family, were accepted as the most important element of damage. Bedford
_v._ McKowl, 3 Esp. 119 (1800); Andrews _v._ Askey, 8 C. & P. 7 (1837);
Phillips _v._ Hoyle, 4 Gray, 568 (1855); Phelin _v._ Kenderdine, 20 Pa.
St. 354 (1853). The allowance of these damages would seem to be a
recognition that the invasion upon the honor of the family is an injury
to the parent's person, for ordinarily mere injury to parental feelings
is not an element of damage, _e.g._, the suffering of the parent in case
of physical injury to the child. Flemington _v._ Smithers, 2 C. & P. 292
(1827); Black _v._ Carrolton R. R. Co., 10 La. Ann. 33 (1855); Covington
Street Ry. Co. _v._ Packer, 9 Bush, 455 (1872).

[6] "The notion of Mr. Justice Yates that nothing is property which
cannot be earmarked and recovered in detinue or trover, may be true in
an early stage of society, when property is in its simple form, and the
remedies for violation of it also simple, but is not true in a more
civilized state, when the relations of life and the interests arising
therefrom are complicated." Erie, J., in Jefferys _v._ Boosey, 4 H. L.
C. 815, 869 (1854).

[7] Copyright appears to have been first recognized as a species of
private property in England in 1558. Drone on Copyright, 54, 61.

[8] Gibblett _v._ Read, 9 Mod. 459 (1743), is probably the first
recognition of goodwill as property.

[9] Hogg _v._ Kirby, 8 Ves. 215 (1803). As late as 1742 Lord Hardwicke
refused to treat a trade-mark as property for infringement upon which an
injunction could be granted. Blanchard _v._ Hill, 2 Atk. 484.

[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).

[12] Scribner's Magazine, July, 1890. "The Rights of the Citizen: To his
Reputation," by E. L. Godkin, Esq., pp. 65, 67.

[13] Marion Manola _v._ Stevens & Myers, N. Y. Supreme Court, "New York
Times" of June 15, 18, 21, 1890. There the complainant alleged that
while she was playing in the Broadway Theatre, in a rôle which required
her appearance in tights, she was, by means of a flash light,
photographed surreptitiously and without her consent, from one of the
boxes by defendant Stevens, the manager of the "Castle in the Air"
company, and defendant Myers, a photographer, and prayed that the
defendants might be restrained from making use of the photograph taken.
A preliminary injunction issued _ex parte_, and a time was set for
argument of the motion that the injunction should be made permanent, but
no one then appeared in opposition.

[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] Nicols _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, saleable or
unsaleable, 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 Queensberry _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 the 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 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. Every one,
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, leave 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 purposes 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 has 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 interests 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, be seized by
his creditors as property." McLean, J., in Bartlett _v._ Crittenden, 5
McLean, 32, 37 (1849).

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, V. 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, 19 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 entitles 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 she has
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._ Shebbeare, 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 goodwill. 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 "goodwill," but it was not until 1743 that goodwill 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."
I 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 à la Presse. 11 Mai 1868.

"11. Toute publication dans un écrit périodique relative à 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 expressément
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 Pen. 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 _absolute_" 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 this 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 the 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 prohibant 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
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
Code Français et Lois Usuelles, App. Code Penn. 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.

"SECT. 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."







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