[The learned judge then commented upon various English cases; also upon several American cases, especially Schuyler v. Curtis, 147 N. Y. 434; Atkinson v. Doherty, 121 Mich. 372; and Corliss v. E. W. Walker Co., 57 Fed. Rep. 434. The point actually decided in 147 N. Y. 434 and in 121 Mich. 372 was that the widow or relatives of a deceased person cannot restrain the erection of his statue or the publication of his picture. In the Corliss case, the court declined to grant the request of a widow that the publication of a biography of her deceased husband should be enjoined; and finally (64 Fed. Rep. 280) declined to restrain the publication of his picture. The latter decision proceeded upon the ground that Mr. Corliss was a public character.]
This distinction between public and private characters cannot possibly be drawn. On what principle does an author or artist forfeit his right of privacy and a great orator, a great preacher, or a great advocate retain his? Who can draw a line of demarcation between public characters and private characters, let that line be as wavering and irregular as you please? In the very case then before the judge, what had Mr. Corliss done by which he surrendered his right of privacy? In what respect did he by his inventions “ask for and desire public recognition” any more than a banker or merchant who prosecutes his calling? Or is the right of privacy the possession of mediocrity alone, which a person forfeits by giving rein to his ability, spurs to his industry, or grandeur to his character? A lady may pass her life in domestic privacy when, by some act of heroism or self-sacrifice, her name and fame fill the public ear. Is she to forfeit by her good deed the right of privacy she previously possessed? These considerations suggest the answer we would make to the position of the learned judge and at the same time serve to make more clear what we have elsewhere attempted to point out, namely, the absolute impossibility of dealing with this subject save by legislative enactment, by which may be drawn arbitrary distinctions which no court should promulgate as a part of general jurisprudence.
An 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 jurisprudence, and, as we view it, the doctrine cannot now be incorporated without doing violence to settled principles of law by which the profession and the public have long been guided.
I do not say that, even under the existing law, in every case of the character of the one before us, or indeed in this case, a party whose likeness is circulated against his will is without remedy. By section 245 of the Penal Code any malicious publication by picture, effigy, or sign which exposes a person to contempt, ridicule, or obloquy is a libel, and it would constitute such at common law. Malicious in this definition means simply intentional and wilful. There are many articles, especially of medicine, whose character is such that using the picture of a person, particularly that of a woman, in connection with the advertisement of those articles might justly be found by a jury to cast ridicule or obloquy on the person whose picture was thus published. The manner or posture in which the person is portrayed might readily have a like effect. In such cases both a civil action and a criminal prosecution could be maintained. But there is no allegation in the complaint before us that this was the tendency of the publication complained of, and the absence of such an allegation is fatal to the maintenance of the action, treating it as one of libel. This case differs from an action brought for libellous words. In such case the alleged libel is stated in the complaint, and if the words are libellous per se, it is unnecessary to charge that their effect exposes the plaintiff to disgrace, ridicule, or obloquy. The law attributes to them that result. But where the libel is a picture which does not appear in the record, to make it libellous there must be a proper allegation as to its character.
The judgment of the Appellate Division and of the Special Term should be reversed and questions certified answered in the negative without costs, and with leave to the plaintiff to serve an amended complaint within twenty days, also without costs.
Gray, J. (dissenting).
In the present case, we may not say that the plaintiff’s complaint is fanciful, or that her alleged injury is, purely, a sentimental one. Her objection to the defendants’ acts is not one born of caprice; nor is it based upon the defendants’ act being merely “distasteful” to her. We are bound to assume, and I find no difficulty in doing so, that the conspicuous display of her likeness, in various public places, has so humiliated her by the notoriety and by the public comments it has provoked, as to cause her distress and suffering, in body and in mind, and to confine her to her bed with illness.