The Providence news. (Providence [R.I.]) 1891-1906, 1902-07-07


the unique question just decided by the
court OF appeals. This court OF eleven
learned judges says moi"
Abigail Robertson is a beautiful sirl OF
is years, whose home is In Rochester. She
Is an orphan. and a suit for the recovery
OF 5000 for the unauthorized use of her
likeness as an advertisement by a -four
mills company has been prosecuted for
nearly two years by her guardian.
All the lower courts decided favorably
10 Miss Robertson. but the decision OF the
court OF appeals. written by Presiding
Judge Parker reverses the decision Of the
lower courts.
Here are the most interesting portions
of the Court Of Appeals decision against
Miss Robertson:
THE ACTS COMPLAINED OF
"The complaint alleges that the Frank
lin Mills company. one OF the defendants
was engaged in a general milling bust
ness and in the manufacture and sale OF
-four: that before the commencement of
the action. without the knowledge or con-
sent OF the plaintiff. defendants, knowing
that they had no right or authority so to
Zo had obtained, made, printed sold and
circulated about 25. 900 photographic prints
photographs and likenosses OF plantir;
that upon the paper upon which the like
nesses were printed and above the por-
trait there were printed. I'm large, plain
letters the words, Flour OF the Family
and below the portrait in large capital
letters. Franklin Mills Flour; that upon
the same sheet were other advertisements
of the -four Of the Franklin Mills COM
pany; that those $4,000 likenesses of the
plaintifY thus ornamented have been con-
spicuously posted and displayed In stores,
warehouses. saloons and other public
places: that they have been recognized by
friends OF the plaintiff and other people.
with the result that plaintiff has been
greatly humiliated by SCOTS and jeers OF
persons who have recognized her face and
picture on this advertisement, and her
good name has been attacked. causing
great distress and suffering both In body
and mind: that she made sick and
suffered severe nervous shock. was con-
fined TO her bed and compelled 10 employ
d physician because of these facts; that
defendants have continued 10 print make.
use. sell and circulate the said litho-
g-aphs and that by reason OF the forego-
fng cts plaintiff had suffered damages In
the sum Of SIS, 600. The complaint prays
that defendants be enjoined from making.
printing. publishing. circulating or using
IN any manner any likenesses OF plaintin
IN any form whatever, for further relief
(which II IL not necessary TO consider
here) and for damages.
NO COMPLAINT OF LIBEL
'It will be observed that there Is no
complaint made that plaintiff was libelled
by this publication OF her portrait. The
likeness is said TO be n very good one.
and one that her friends and acquaintan-
ces were able TO recognize: indeed. her
grievance is that good portrait OF her,
and. therefore. one easily recognized, has
been used 10 attract attention toward the
paper upon which defendant mill com
pany's advertisements appear.
There is no precedent for such an ac-
tion 10 be found in the decisions OF this
court: indeed the learned judge who wrote
the very able and interesting opinion In
the appellate division said. while upon
the threshold OF the discussion OF the
question: 1t may be said I'm the first
place that the theory upcn which this ac-
tion is predicated Is new. at least In In
stance n not In principle.
Nevertheless that court reached the
conclusion that plaintiff had good cause
OF action against defendants. In that de-
PENDANTS had invaded what Is called
right 10 privacy'-in other words. the
right 10 be let alone Mention OF such
a right is not to be found In Blackstone.
Kent. nor any other OF the great COM
mentors upon the law. nor so far as the
this case has been able to discover. does
fts existence seem 10 have been asserted
prior TO about the year 1899. when II was
presented with attractveness and with
no inconsiderable ability In the Harvard
Law Review tvol. page 1sD In an art-
Gle entitled Rights OF n CitZen-To His
Reputation
TIE RIGHT OF PRIVACY.
"The so-called right OF privacy is as
the phrase suggests founded upon the
claim that a man has the right To pass
through this world ifhe Wills without hav-
ing his picture published, his business
enterprises discussed. his successful ex-
periments written up for the benefit OF
others, or his ecccntricites commented
upon either IN handbills. circulars. cata-
logues. 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.
whether the comment be favorable or
otherwise.
while most persons would much pre-
fer TO have a good likeness OF them
selves appear In a responsible periodical
Or leading newspaper rather than upon
IN advertising card. or sheet. the doc
trine which the courts are asked 90 ere
ate for this case would apply rs well 20
the one publication as 10 the other. for the
principle OF the court OF equity is asked 20
privacy exists and In enforceable In equity
and that the publication OF That which
purports 20 be a protrait OF another per
son. even II obtained upon the street by
On impertlnent individual with n camera.
will be restrained In equity OF the ground
that an individual has the right 10 pre-
vent his features from becoming known
90 those outside OF the crclc OF friends
and acquaintances.
"Tf such a principle be Incorporated into
the body of the law through the ihstru-
mentality OF court OF squitythe attempt
90 logically apply the principle will neces-
sarfly result not only IN a vast amount of
litigation. but In litigation bordering upon
The absurd. for the rigbt OF privacy. once
established as n legal doctrine. cannot be
confined 10 the restraint of the publication
Of a likeness, but must necessarily en-
brace as well the publication Of a word
picture. n comment upon ones looks. 40
nestic relations. conduct or habits Ana