The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1902-07-20

NSNAAOO upOit- 10 Q0ClO6 the right OF a
pretty girl to her own face, and eleven
OF the twelve judges have declared that
she mas such right. The case involving
this issue was brought by Abigail
Robertson, a beautiful girl of eighteen
years, whose home is in Rochester.
She Is an orphan, and a suit for the
recovery of $4,000 for the unauthoriz-
ed use of her likeness as an adver-
usement by flour mills company has
been prosecuted for nearly two years
by her guardian.
All the lower courts decided favora-
bly, to Miss Robertson. but the decision
OF the court of appeals, written by Pre-
siding Judge Parker, reverses the de-
ciSlon of the lower courts. Here are
the most interesting portions of the
court of appeals decision against Miss
Robertson:
What the Court Decides.
THE complainant alleges that the
Franklin Mills company one of the de-
PENDANTS, was engaged in a general
milling business and in the manufac-
ture and sale of flour; that before the
commencement of the action, without
the knowledge or consent of the plain
tiff, defendants, knowing that they had
no right or authority so to do, had OBJ
tanned, made, printed, sold and circu-
lated about $4,000 photographic prints,
photographs and hkeneSSes of plain
tiff that upon the paper which the like
neSSes were printed, in large, plain
letters, the words, Flour of the Fam
lily and below the portrait in large
capital letters, Franklin Mills Flour
that upon the same sheet were other
advertisements of the flour of the
Franklin mills company; that those
$4,000 likenesses of the plaintiff thus
ornamented have been conspicuously
posted and displayed in stores, ware
hOl1SlS oil
es; that they have been recognized
by friends of the plaintiff and other
people, with the result that. plaintiff
has been greatly Inundated by SCOTS
and Jeers of persons who have recog-
nized her face and picture on this
advertisement, and her good name has
been attacked, causing her great dis
tress and suffering both in body and
mind; that she was made sick and suf-
Tered a severe nervous shock, was con-
1lned to her bed and compelled to en-
ploy physician because of these facts;
that defendants have continued to
print, make, use and sell and circulate
the said Autographs and that by rea-
son of the foregoing facts plaintiff had
suffered damages in the sum of $15,-
GOO. The complaint prays that defen-
dants be enjoined from making, print
ing, publishing, circulating or using
in any manner any hkenesses of plain
tif in any form whatever, for further
relief (Which is not necessary to con-
sidere here) and for damages.
1T will be observed that there is no
complaint made that plaintiff was lib
eled by this publication of her portrait
The likeness is said 70 be a very good
one, and that her friends and &C
quaintanceS were able to recognize;
indeed, her grievance is that a good
portrait of her, and, therefore, one
easily recognized, has been used to
attract attention toward the paper up
on which defendant mill company's ad-
vertiSement appear.
There is no precedent for such an
action to be found in the decisions of
this court; indeed, the learned Judge
who wrote the very able and interest
ing opinion in the appellate division
said, while upon the the threshold of
the discussion of the question: 1t may
be said in the first place that the
theory upon which this action IS pre-
dicated is new, at least in instance If
not in principle
Nevertheless, that court reached the
conclusion that plaintiff had good
cause Of action against defendants in
that defendants had invaded what is
called a right of privacy'-in other
words, the right to be let alone. Men
ton of such a right is not to be found
in Blackstone, Kent nor any other of
nor, so far as the learning of counsel
or the courts in this case has been
able to discover, does it's existence
seem to have been asserted prior to
about the year 1890, when it was pre-
sented with attractiVeness and with
no inconsiderable ability in the Har-
ward Law Review (volume 4, page
1888 IN an article entitled Rights of a
Citizen-TO His Reputation
Eaeas Ara Pt.bf;~ Dro1a-G,,
The so-called right of privacy is,
as the phrase suggests, founded upon
the claim that man has the right
to pass through this world, if he wills,
without having his picture published.
his business enterprises discussed, his
successful experiments written up for
the benefit of others or his eccentrici-
ties commented upon either in hand
bills, circulars, catalogues, periodicals
or newspapers, and, necessarily, that
the things which may not be written
and published of him must not be
spoken of him by his neighbors, wheth-
er the comment be favorable or other
wise.
while most persons would much
prefer to have a good likeness of them
selves appear in responsible period
lcaI or leading newspaper rather than
upon an advertising card or sheet, the
doctrine which the courts are asked
to create for this case would apply
as well to the one publication as to
Inc other, for the principle which a
court of equity is asked to assert in
this action is that the right of privacy
exists and is enforceable in equity.
and that the publication OF that which
purports to be portrait of another
person, even If obtained upon the
street by an fmpertinent individual
with a camera, will be restrained in
equity on the ground that an individual
has the right to prevent his features
from becoming known to those out
side of the circle of friends and ac-
quaintances.
IF such a principle be incorporated
into the body of the law through the
fundamentally of a court of equity
the attempt to logically apply the
principle will necessarily result not
only in vast amount of litigation,
but in litigation bordering upon the
absurd, for the right of privacy, once
established as legal doctrine, cannot
be confined to the restraint of the
publication of a likeness, but must
necessarily embrace as we'll the pub
LEGATION of a word picture, a comment
upon ones looks, domestic relations.
conduct or habits. And with the right
of privacy once legally asserted it
would necessarily be held to include
the same thing If spoken instead of
printed, for one as we'll as the other in
vades the right to be absolutely let
alone. An insult would certainly be
in violation of such a right and with
many persons would more seriously
wound the feelings than the publica-
ton of their picture.
Would Encourage Litigation.
can examination of the authorities
leads us to the conclusion that the So
called right Of privacy has not as yet
found an abiding place in our juris-