If it were necessary, to be entitled to equitable relief, that the plaintiff’s sufferings, by reason of the defendants’ acts, should be serious, and appreciable by a pecuniary standard, clearly, we might well say, under the allegations of the complaint, that they were of such degree of gravity. However, I am not of the opinion that the gravity of the injury need be such as to be capable of being estimated by such a standard. If the right of privacy exists and this complaint makes out a case of its substantial violation, I think that the award of equitable relief, by way of an injunction, preventing the continuance of its invasion by the defendants, will not depend upon the complainant’s ability to prove substantial pecuniary damages and, if the court finds the defendants’ act to be without justification and for selfish gain and purposes, and to be of such a character, as is reasonably calculated to wound the feelings and to subject the plaintiff to the ridicule, or to the contempt of others, that her right to the preventive relief of equity will follow; without considering how far her sufferings may be measurable by a pecuniary standard.
The right of privacy, or the right of the individual to be let alone, is a personal right, which is not without judicial recognition. It is the complement of the right to the immunity of one’s person. The individual has always been entitled to be protected in the exclusive use and enjoyment of that which is his own. The common law regarded his person and property as inviolate, and he has the absolute right to be let alone. (Cooley on Torts, page 29.) The principle is fundamental and essential in organized society that every one, in exercising a personal right and in the use of his property, shall respect the rights and properties of others. He must so conduct himself, in the enjoyment of the rights and privileges which belong to him as a member of society, as that he shall prejudice no one in the possession and enjoyment of those which are exclusively his. When, as here, there is an alleged invasion of some personal right, or privilege, the absence of exact precedent and the fact that early commentators upon the common law have no discussion upon the subject are of no material importance in awarding equitable relief. That the exercise of the preventive power of a court of equity is demanded in a novel case, is not a fatal objection.
In an article in the Harvard Law Review, of December 15, 1890, which contains an impressive argument upon the subject of the “right of privacy,” it was well said by the authors “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.... The right to life had 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.”
Instantaneous photography is a modern invention and affords the means of securing a portraiture of an individual’s face and form in invitum their owner. While, so far forth as it merely does that, although a species of aggression, I concede it to be an irremediable and irrepressible feature of the social evolution. But, if it is to be permitted that the portraiture may be put to commercial or other uses for gain, by the publication of prints therefrom, then an act of invasion of the individual’s privacy results, possibly more formidable and more painful in its consequences than an actual bodily assault might be. Security of person is as necessary as the security of property; and for that complete personal security, which will result in the peaceful and wholesome enjoyment of one’s privileges as a member of society, there should be afforded protection, not only against the scandalous portraiture and display of one’s features and person, but against the display and use thereof for another’s commercial purposes or gain. The proposition is, to me, an inconceivable one that these defendants may, unauthorizedly, use the likeness of this young woman upon their advertisement, as a method of attracting widespread public attention to their wares, and that she must submit to the mortifying notoriety, without right to invoke the exercise of the preventive power of a court of equity.
Such a view, as it seems to me, must have been unduly influenced by a failure to find precedents in analogous cases, or some declaration by the great commentators upon the law of a common-law principle which would, precisely, apply to and govern the action; without taking into consideration that, in the existing state of society, new conditions affecting the relations of persons demand the broader extension of those legal principles, which underlie the immunity of one’s person from attack. I think that such a view is unduly restricted, too, by a search for some property, which has been invaded by the defendants’ act. Property is not, necessarily, the thing itself, which is owned; it is the right of the owner in relation to it. The right to be protected in one’s possession of a thing, or in one’s privileges, belonging to him as an individual, or secured to him as a member of the commonwealth, is property, and as such entitled to the protection of the law. The protective power of equity is not exercised upon the tangible thing, but upon the right to enjoy it; and, so, it is called forth for the protection of the right to that which is one’s exclusive possession, as a property right. It seems to me that the principle, which is applicable, is analogous to that upon which courts of equity have interfered to protect the right of privacy, in cases of private writings, or of other unpublished products of the mind. The writer, or the lecturer, has been protected in his right to a literary property in a letter, or a lecture, against its unauthorized publication; because it is property, to which the right of privacy attaches. (Woolsey v. Judd, 4 Duer, 399; Gee v. Pritchard, 2 Swanst. 402; Abernathy v. Hutchinson, 3 L. J. Ch. 209; Folsom v. March, 2 Story, 100.) I think that this plaintiff has the same property in the right to be protected against the use of her face for defendant’s commercial purposes, as she would have if they were publishing her literary compositions. The right would be conceded, if she had sat for her photograph; but if her face, or her portraiture, has a value, the value is hers exclusively until the use be granted away to the public. Any other principle of decision, in my opinion, is as repugnant to equity as it is shocking to reason. Judge Colt, of the United States Court, in Corliss v. Walker Co., 64 Fed. Rep. 280–285, a case involving the same question of an invasion of the right of privacy, with respect to the publication of a printed likeness of Mr. Corliss, expressed the opinion that “independently of the question of contract, I believe the law to be that a private individual has a right to be protected in the representation of his portrait in any form; that this is a property as well as a personal right; and that it belongs to the same class of rights which forbids the reproduction of a private manuscript or painting, or the publication of private letters, or of oral lectures delivered by a teacher to his class, or the revelation of the contents of a merchant’s books by a clerk.” The case itself is not in point in its facts; because the complainant was the widow of Mr. Corliss, and thus it came within the limitations of Schuyler v. Curtis.
The right to grant the injunction does not depend upon the existence of property, which one has in some contractual form. It depends upon the existence of property in any right which belongs to a person.
It would be, in my opinion, an extraordinary view which, while conceding the right of a person to be protected against the unauthorized circulation of an unpublished lecture, letter, drawing, or other ideal property, yet would deny the same protection to a person whose portrait was unauthorizedly obtained, and made use of, for commercial purposes. The injury to the plaintiff is irreparable; because she cannot be wholly compensated in damages for the various consequences entailed by defendants’ acts. The only complete relief is an injunction restraining their continuance. Whether, as incidental to that equitable relief, she should be able to recover only nominal damages is not material; for the issuance of the injunction does not, in such a case, depend upon the amount of the damages in dollars and cents.
A careful consideration of the question presented upon this appeal leads me to the conclusion that the judgment appealed from should be affirmed.