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from are complicated." Erle, J., in Jefferys v. Boosey, 4 H. L. C. 8I 5 869 (I854).
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THE RIGHT TO PRIVACY. I95
as works of literature and art, goodwill, 2 trade secrets, and trade-
marks. 3
This development of the law was inevitable. The intense in-
tellectual 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 phys-
ical things. Thoug-hts, emotions, and sensations demanded legal
recognition, and the beautiful capacity for growth which character-
izes 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. " 4 Instantaneous photographs and news-
paper 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 ; and the evil of the
invasion of privacy by the newspapers, long keenly felt, has been
but recently discussed by an able writer.6 The alleged facts of a
somewhat notorious case brought before an inferior tribunal in
New York a few months ago, i directly involved the consideration
Copyright appears to have been first recognized as a species of private property i
England in I558. Drone on Copyright, 54, 6i.
2 Gibblett v. Read, 9 Mod. 459 ( I 743 ), is probably the first recognition of goodw
as property.
3 Hlogg v. Kirby, 8 Ves. 2I5 (I803). As late as I742 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.
4 Cooley on Torts, 2d ed., p. 29.
5 8 Amer. Law Reg. N. S. I ( I869); I2 Wash. Law Rep. 353 ( I884); 24 Sol. J. &
Rep. 4(1879).
6Scribner's Magazine, July, I890. "The Rights of the Citizen: To his Reputa-
tion," by E. L. Godkin, Esq., pp. 65, 67.
7 Marion Manola v. Stevens & Myers, N. Y. Supreme Court "New York Times " of
15, I8, 2 I, I 890. There the complainant alleged that while she was playing in the B
way Theatre, in a r6le which required her appearance in tights, she was, by means of a f
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 exparte, and a time was
set for argument of the motion that the injunction should be made permanent, but no
one then appeared in opposition.
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I96 HAR VARD LA WV RE VIE W.
of the right of circulating portraits; and the questio
law will recognize and protect the right to privacy i
other respects must soon come before our courts for
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, re-
sults in a lowering of social standards and of morality. Even
gossip apparently harmless, when widely and persistently circu-
lated, 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 enthu-
siasm can flourish, no generous impulse can survive under its
blighting influence.
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THE RIGHT TO PRIVACY. ' 97
It is our purpose to consider whether the
principle which can properly be invoked to