The subject has been brought directly and explicitly before relatively few of the American jurisdictions. In all jurisdictions where the issue has yet to be decided by the courts of last resort, all discussions of the subject, whether in majority opinions or in dissenting opinions, are of equal validity.

There are two general classes of cases, one in which a person's likeness has been published for purposes of commercial gain, the other in which the publisher of the likeness has had no such ulterior object. In several cases the person, the publication of whose likeness was objected to, was dead. In the larger number of cases the commercial element has been present, the plaintiff's picture being published for the exploitation of the publisher's business without the consent of the plaintiff. Thus, there was an action on account of the widespread publication of a young woman's face for advertising a brand of flour, in which the plaintiff finally lost her suit; " an action on account of the publication, in connection with an advertisement of a life insurance company, of an unauthorized indorsement of the company by the plaintiff, together with his picture, in which case the plaintiff was granted relief; 12 an action on account of the publication of the plaintiff's name and picture on the labels of bottles of a patent medicine, wherein the plaintiff's right was upheld; 13 an action

11

11 Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442, LEADING ILLUSTRATIVE CASES.

12 Pavesich v. New England Life Insurance Co., 122 Ga. 190, 50 S. E. 68, LEADING ILLUSTRATIVE CASES.

13 Edison v. Edison Polyform Manufacturing Co., 73 N. J. Eq. 136, 67 Atl. 392.

on account of the publication of the name and picture of the plaintiff, an infant, in a newspaper advertisement of jewelry, wherein the plaintiff's right was upheld;11 an action for the publication of the plaintiff's likeness in a newspaper advertisement of coats for autoists, wherein the right was denied; 15 and an action for the publication of a deceased person's likeness as a label to a brand of cigars, wherein it was held that the deceased's family had no cause of action.1

16

On the other hand, only a few cases have arisen in which the plaintiff has complained of the unauthorized use of his picture, when the publisher was not seeking to exploit his business or goods thereby. In one of these cases, there was the project to erect the statue of a deceased woman as an ideal of human philanthropy; the objections of her relatives were overruled in the court of last resort.17 In a second case relatives of a deceased man objected to the publication of his likeness in an unauthorized biography, but relief was denied on the ground that the deceased had been a public man and had waived his right of privacy.18 In a third case the likeness of a young woman was published in connection with a newspaper article dealing with the alleged criminal misconduct of her father; the existence of a common law right of privacy was denied.19

14 Munden v. Harris, 153 Mo. App. 652, 134 S. W. 1076.

15 Henry v. Cherry, 30 R. I. 13, 73 Atl. 97.

16 Atkinson v. Doherty & Co., 121 Mich. 372, 80 N. W. 285.

17 Schuyler v. Curtis, 147 N. Y. 434, 42 N. E. 22.

18 Corliss v. E. W. Walker Co., 57 Fed. 434; 64 Fed. 280.

19 Hillman v. Star Publishing Co., 64 Wash. 691, 117 Pac. 594.

8. Case of Schuyler v. Curtis.-It will conduce to a better understanding of the subject to take up separately each of the several cases in which the right of privacy has been directly involved. There was a project to erect the statue of Mrs. Mary Hamilton Morris Schuyler at the Columbian Exposition in Chicago to represent "woman as the philanthropist.” In an action by her relatives to restrain the making and exhibiting of the statute, the first decision was in the Supreme Court of New York, at Special Term, 1891, when Justice O'Brien granted the injunction.20 The ground of the decision was that it was shown that Mrs. Schuyler was not a public character, and that her relatives were therefore entitled to restrain what was to them improper and offensive publicity. This judgment was affirmed by the Supreme Court, General Term, 1892, by Van Brunt and Barrett, JJ., in an opinion written by the former.21 Here the rule was laid down that a person, whether a private or public character, has a right to enjoin the making of his statue and its public exhibition, and in case he is dead, this right pertains to his relatives.

This judgment was followed at the Special Term of the Supreme Court in 1893.22 In the opinion of Ingraham, J., the rule was declared that a court of equity, at the instance of a relative of a deceased person, will enjoin the making and placing on public exhibition of a statue of the deceased by unauthor

20 Schuyler v. Curtis, 15 N. Y. Supp. 787. 21 Schuyler v. Curtis, 19 N. Y. Supp. 264. 22 Schuyler v. Curtis, 24 N. Y. Supp. 509.

ized persons, when the relatives allege that such an exhibition will cause them pain and distress. When, however, this case reached the Court of Appeals in 1895, the judgment of the lower court was reversed.23 It was there held that if any right of privacy, in so far as it includes the right to prevent the public from making pictures or statues commemorative of the worth and services of the subject, exists at all, it does not survive after death, and cannot be enforced by relatives of the deceased. In the course of his opinion, Peckham, J., said: "If the defendant had projected such a work in the lifetime of Mrs. Schuyler, it would perhaps have been a violation of her individual right of privacy, because it might be contended that she had never occupied such a position towards the public as would have authorized such an action by any one so long as it was in opposition to her wishes." Gray, J., dissented, saying in the course of his opinion: "I cannot see why the right of privacy is not a form of property, as much as is the right of complete immunity of one's person." While the judgment of the Court of Appeals was adverse to the claim set up, it did not disapprove of the general existence of a right of privacy, but only ruled that if a person had such a right, it ceased on his death.

9. Case of Corliss v. Walker.-In 1893 an application was made to Judge Colt, of the United States Circuit Court for the District of Massachusetts, by the widow and children of George H. Corliss to enjoin the publication and sale of a biographical

23 Schuyler v. Curtis, 147 N. Y. 434, 42 N. E. 22.

sketch of Mr. Corliss, and from printing and selling his picture in connection therewith. Mr. Corliss had been a man of distinction in the technical world, and was especially well known as the builder of the great engine exhibited at the Centennial Exhibition in Philadelphia in 1876. The relief desired was sought solely on the ground that the publication was an injury to the feelings of the plaintiffs, and against their express prohibition. An injunction was refused as to the biography on the ground that Mr. Corliss had been a public man, in the same sense as authors or artists are public men; but an injunction was granted against the publication of the picture, on the ground that such publication would be in violation of the conditions on which the publisher had obtained a copy of the photograph.21

Subsequently, the injunction was dissolved on the ground that the particular copy of the photograph in the hands of the publisher had not been obtained under the conditions supposed, but in a perfectly lawful way, and that its publication would involve no violation of contract and no breach of trust or confidence. And it was held that Mr. Corliss, as a public character, had so far waived his right of privacy as not to be entitled himself while living, nor his family after his death, to prohibit the publication of his picture.25 Judge Colt, in the course of his opinion, said: "Independently of the question of contract, I believe the law to be that a private individual has a right to be protected in the representa

24 Corliss v. E. W. Walker Co., 57 Fed. 434. 25 Corliss v. E. W. Walker Co., 64 Fed. 280.