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Title: The Right to Privacy

Author: Samuel D. Warren
Louis Dembitz Brandeis

Release date: September 9, 2011 [eBook #37368]
Most recently updated: January 8, 2021

Language: English

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PRIVACY ***

HARVARD LAW REVIEW

Vol. IV
1890-91
CAMBRIDGE, MASS.

Published by the Harvard Law Review Publishing Association
1891

Copyright, 1891
By the Harvard Law Review Publishing Association

HARVARD
LAW REVIEW.

Vol. IV. DECEMBER 15, 1890. No. 5.

THE RIGHT TO PRIVACY.
"It could be done only on principles of private justice, moral fitness,
and public convenience, which, when applied to a new subject, make
common law without a precedent; much more when received and
approved by usage."
Willes, J., in Millar v. Taylor, 4 Burr. 2303, 2312.

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.
Political, social, and economic changes entail the recognition of new rights,
and the common law, in its eternal youth, grows to meet the demands of
society. Thus, in very early times, the law gave a remedy only for physical
interference with life and property, for trespasses vi et armis. Then the
"right to life" served only to protect the subject from battery in its various
forms; liberty meant freedom from actual restraint; and the right to property
secured to the individual his lands and his cattle. Later, there came a
recognition of man's spiritual nature, of his feelings and his intellect.
Gradually the scope of these legal rights broadened; and now the right to
life has 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.
Thus, with the recognition of the legal value of sensations, the protection
against actual bodily injury was extended to prohibit mere attempts to do
such injury; that is, the putting another in fear of such injury. From the
action of battery grew that of assault.[1] Much later there came a qualified
protection of the individual against offensive noises and odors, against dust
and smoke, and excessive vibration. The law of nuisance was developed.[2]
So regard for human emotions soon extended the scope of personal
immunity beyond the body of the individual. His reputation, the standing
among his fellow-men, was considered, and the law of slander and libel

arose.[3] Man's family relations became a part of the legal conception of his
life, and the alienation of a wife's affections was held remediable.[4]
Occasionally the law halted,—as in its refusal to recognize the intrusion by
seduction upon the honor of the family. But even here the demands of
society were met. A mean fiction, the action per quod servitium amisit, was
resorted to, and by allowing damages for injury to the parents' feelings, an
adequate remedy was ordinarily afforded.[5] Similar to the expansion of the
right to life was the growth of the legal conception of property. From
corporeal property arose the incorporeal rights issuing out of it; and then
there opened the wide realm of intangible property, in the products and
processes of the mind,[6] as works of literature and art,[7] goodwill,[8] trade
secrets, and trade-marks.[9]
This development of the law was inevitable. The intense intellectual 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 physical things. Thoughts, emotions, and
sensations demanded legal recognition, and the beautiful capacity for
growth which characterizes 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."[10]
Instantaneous photographs and newspaper 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;[11] and the evil of the invasion of
privacy by the newspapers, long keenly felt, has been but recently discussed
by an able writer.[12] The alleged facts of a somewhat notorious case
brought before an inferior tribunal in New York a few months ago,[13]
directly involved the consideration of the right of circulating portraits; and
the question whether our law will recognize and protect the right to privacy
in this and in other respects must soon come before our courts for
consideration.

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, results in a
lowering of social standards and of morality. Even gossip apparently
harmless, when widely and persistently circulated, 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 enthusiasm can flourish, no generous impulse can survive under
its blighting influence.
It is our purpose to consider whether the existing law affords a principle
which can properly be invoked to protect the privacy of the individual; and,
if it does, what the nature and extent of such protection is.

Owing to the nature of the instruments by which privacy is invaded, the
injury inflicted bears a superficial resemblance to the wrongs dealt with by
the law of slander and of libel, while a legal remedy for such injury seems
to involve the treatment of mere wounded feelings, as a substantive cause of
action. The principle on which the law of defamation rests, covers,
however, a radically different class of effects from those for which attention
is now asked. It deals only with damage to reputation, with the injury done
to the individual in his external relations to the community, by lowering him
in the estimation of his fellows. The matter published of him, however
widely circulated, and however unsuited to publicity, must, in order to be
actionable, have a direct tendency to injure him in his intercourse with
others, and even if in writing or in print, must subject him to the hatred,
ridicule, or contempt of his fellow-men,—the effect of the publication upon
his estimate of himself and upon his own feelings not forming an essential
element in the cause of action. In short, the wrongs and correlative rights
recognized by the law of slander and libel are in their nature material rather
than spiritual. That branch of the law simply extends the protection
surrounding physical property to certain of the conditions necessary or
helpful to worldly prosperity. On the other hand, our law recognizes no
principle upon which compensation can be granted for mere injury to the
feelings. However painful the mental effects upon another of an act, though
purely wanton or even malicious, yet if the act itself is otherwise lawful, the
suffering inflicted is damnum absque injuria. Injury of feelings may indeed
be taken account of in ascertaining the amount of damages when attending
what is recognized as a legal injury;[14] but our system, unlike the Roman
law, does not afford a remedy even for mental suffering which results from
mere contumely and insult, from an intentional and unwarranted violation
of the "honor" of another.[15]
It is not however necessary, in order to sustain the view that the common
law recognizes and upholds a principle applicable to cases of invasion of
privacy, to invoke the analogy, which is but superficial, to injuries
sustained, either by an attack upon reputation or by what the civilians called
a violation of honor; for the legal doctrines relating to infractions of what is
ordinarily termed the common-law right to intellectual and artistic property
are, it is believed, but instances and applications of a general right to

privacy, which properly understood afford a remedy for the evils under
consideration.
The common law secures to each individual the right of determining,
ordinarily, to what extent his thoughts, sentiments, and emotions shall be
communicated to others.[16] Under our system of government, he can never
be compelled to express them (except when upon the witness-stand); and
even if he has chosen to give them expression, he generally retains the
power to fix the limits of the publicity which shall be given them. The
existence of this right does not depend upon the particular method of
expression adopted. It is immaterial whether it be by word[17] or by signs,
[18]
in painting,[19] by sculpture, or in music.[20] Neither does the existence
of the right depend upon the nature or value of the thought or emotion, nor
upon the excellence of the means of expression.[21] The same protection is
accorded to a casual letter or an entry in a diary and to the most valuable
poem or essay, to a botch or daub and to a masterpiece. In every such case
the individual is entitled to decide whether that which is his shall be given
to the public.[22] No other has the right to publish his productions in any
form, without his consent. This right is wholly independent of the material
on which, or the means by which, the thought, sentiment, or emotion is
expressed. It may exist independently of any corporeal being, as in words
spoken, a song sung, a drama acted. Or if expressed on any material, as a
poem in writing, the author may have parted with the paper, without
forfeiting any proprietary right in the composition itself. The right is lost
only when the author himself communicates his production to the public,—
in other words, publishes it.[23] It is entirely independent of the copyright
laws, and their extension into the domain of art. The aim of those statutes is
to secure to the author, composer, or artist the entire profits arising from
publication; but the common-law protection enables him to control
absolutely the act of publication, and in the exercise of his own discretion,
to decide whether there shall be any publication at all.[24] The statutory right
is of no value, unless there is a publication; the common-law right is lost as
soon as there is a publication.
What is the nature, the basis, of this right to prevent the publication of
manuscripts or works of art? It is stated to be the enforcement of a right of
property;[25] and no difficulty arises in accepting this view, so long as we

have only to deal with the reproduction of literary and artistic compositions.
They certainly possess many of the attributes of ordinary property: they are
transferable; they have a value; and publication or reproduction is a use by
which that value is realized. But where the value of the production is found
not in the right to take the profits arising from publication, but in the peace
of mind or the relief afforded by the ability to prevent any publication at all,
it is difficult to regard the right as one of property, in the common
acceptation of that term. A man records in a letter to his son, or in his diary,
that he did not dine with his wife on a certain day. No one into whose hands
those papers fall could publish them to the world, even if possession of the
documents had been obtained rightfully; and the prohibition would not be
confined to the publication of a copy of the letter itself, or of the diary
entry; the restraint extends also to a publication of the contents. What is the
thing which is protected? Surely, not the intellectual act of recording the
fact that the husband did not dine with his wife, but that fact itself. It is not
the intellectual product, but the domestic occurrence. A man writes a dozen
letters to different people. No person would be permitted to publish a list of
the letters written. If the letters or the contents of the diary were protected
as literary compositions, the scope of the protection afforded should be the
same secured to a published writing under the copyright law. But the
copyright law would not prevent an enumeration of the letters, or the
publication of some of the facts contained therein. The copyright of a series
of paintings or etchings would prevent a reproduction of the paintings as
pictures; but it would not prevent a publication of a list or even a
description of them.[26] Yet in the famous case of Prince Albert v. Strange,
the court held that the common-law rule prohibited not merely the
reproduction of the etchings which the plaintiff and Queen Victoria had
made for their own pleasure, but also "the publishing (at least by printing or
writing), though not by copy or resemblance, a description of them, whether
more or less limited or summary, whether in the form of a catalogue or
otherwise."[27] Likewise, an unpublished collection of news possessing no
element of a literary nature is protected from piracy.[28]
That this protection cannot rest upon the right to literary or artistic property
in any exact sense, appears the more clearly when the subject-matter for
which protection is invoked is not even in the form of intellectual property,
but has the attributes of ordinary tangible property. Suppose a man has a

collection of gems or curiosities which he keeps private: it would hardly be
contended that any person could publish a catalogue of them, and yet the
articles enumerated are certainly not intellectual property in the legal sense,
any more than a collection of stoves or of chairs.[29]
The belief that the idea of property in its narrow sense was the basis of the
protection of unpublished manuscripts led an able court to refuse, in several
cases, injunctions against the publication of private letters, on the ground
that "letters not possessing the attributes of literary compositions are not
property entitled to protection;" and that it was "evident the plaintiff could
not have considered the letters as of any value whatever as literary
productions, for a letter cannot be considered of value to the author which
he never would consent to have published."[30] But these decisions have not
been followed,[31] and it may now be considered settled that the protection
afforded by the common law to the author of any writing is entirely
independent of its pecuniary value, its intrinsic merits, or of any intention to
publish the same, and, of course, also, wholly independent of the material,
if any, upon which, or the mode in which, the thought or sentiment was
expressed.
Although the courts have asserted that they rested their decisions on the
narrow grounds of protection to property, yet there are recognitions of a
more liberal doctrine. Thus in the case of Prince Albert v. Strange, already
referred to, the opinions both of the Vice-Chancellor and of the Lord
Chancellor, on appeal, show a more or less clearly defined perception of a
principle broader than those which were mainly discussed, and on which
they both placed their chief reliance. Vice-Chancellor Knight Bruce referred
to publishing of a man that he had "written to particular persons or on
particular subjects" as an instance of possibly injurious disclosures as to
private matters, that the courts would in a proper case prevent; yet it is
difficult to perceive how, in such a case, any right of property, in the narrow
sense, would be drawn in question, or why, if such a publication would be
restrained when it threatened to expose the victim not merely to sarcasm,
but to ruin, it should not equally be enjoined, if it threatened to embitter his
life. To deprive a man of the potential profits to be realized by publishing a
catalogue of his gems cannot per se be a wrong to him. The possibility of
future profits is not a right of property which the law ordinarily recognizes;

it must, therefore, be an infraction of other rights which constitutes the
wrongful act, and that infraction is equally wrongful, whether its results are
to forestall the profits that the individual himself might secure by giving the
matter a publicity obnoxious to him, or to gain an advantage at the expense
of his mental pain and suffering. If the fiction of property in a narrow sense
must be preserved, it is still true that the end accomplished by the gossip-
monger is attained by the use of that which is another's, the facts relating to
his private life, which he has seen fit to keep private. Lord Cottenham stated
that a man "is entitled to be protected in the exclusive use and enjoyment of
that which is exclusively his," and cited with approval the opinion of Lord
Eldon, as reported in a manuscript note of the case of Wyatt v. Wilson, in
1820, respecting an engraving of George the Third during his illness, to the
effect that "if one of the late king's physicians had kept a diary of what he
heard and saw, the court would not, in the king's lifetime, have permitted
him to print and publish it;" and Lord Cottenham declared, in respect to the
acts of the defendants in the case before him, that "privacy is the right
invaded." But if privacy is once recognized as a right entitled to legal
protection, the interposition of the courts cannot depend on the particular
nature of the injuries resulting.
These considerations lead to the conclusion that the protection afforded to
thoughts, sentiments, and emotions, expressed through the medium of
writing or of the arts, so far as it consists in preventing publication, is
merely an instance of the enforcement of the more general right of the
individual to be let alone. It is like the right not to be assaulted or beaten,
the right not to be imprisoned, the right not to be maliciously prosecuted,
the right not to be defamed. In each of these rights, as indeed in all other
rights recognized by the law, there inheres the quality of being owned or
possessed—and (as that is the distinguishing attribute of property) there
may be some propriety in speaking of those rights as property. But,
obviously, they bear little resemblance to what is ordinarily comprehended
under that term. The principle which protects personal writings and all other
personal productions, not against theft and physical appropriation, but
against publication in any form, is in reality not the principle of private
property, but that of an inviolate personality.[32]
If we are correct in this conclusion, the existing law affords a principle
which may be invoked to protect the privacy of the individual from

invasion either by the too enterprising press, the photographer, or the
possessor of any other modern device for recording or reproducing scenes
or sounds. For the protection afforded is not confined by the authorities to
those cases where any particular medium or form of expression has been
adopted, nor to products of the intellect. The same protection is afforded to
emotions and sensations expressed in a musical composition or other work
of art as to a literary composition; and words spoken, a pantomime acted, a
sonata performed, is no less entitled to protection than if each had been
reduced to writing. The circumstance that a thought or emotion has been
recorded in a permanent form renders its identification easier, and hence
may be important from the point of view of evidence, but it has no
significance as a matter of substantive right. If, then, the decisions indicate
a general right to privacy for thoughts, emotions, and sensations, these
should receive the same protection, whether expressed in writing, or in
conduct, in conversation, in attitudes, or in facial expression.
It may be urged that a distinction should be taken between the deliberate
expression of thoughts and emotions in literary or artistic compositions and
the casual and often involuntary expression given to them in the ordinary
conduct of life. In other words, it may be contended that the protection
afforded is granted to the conscious products of labor, perhaps as an
encouragement to effort.[33] This contention, however plausible, has, in fact,
little to recommend it. If the amount of labor involved be adopted as the
test, we might well find that the effort to conduct one's self properly in
business and in domestic relations had been far greater than that involved in
painting a picture or writing a book; one would find that it was far easier to
express lofty sentiments in a diary than in the conduct of a noble life. If the
test of deliberateness of the act be adopted, much casual correspondence
which is now accorded full protection would be excluded from the
beneficent operation of existing rules. After the decisions denying the
distinction attempted to be made between those literary productions which
it was intended to publish and those which it was not, all considerations of
the amount of labor involved, the degree of deliberation, the value of the
product, and the intention of publishing must be abandoned, and no basis is
discerned upon which the right to restrain publication and reproduction of
such so-called literary and artistic works can be rested, except the right to

privacy, as a part of the more general right to the immunity of the person,—
the right to one's personality.

It should be stated that, in some instances where protection has been
afforded against wrongful publication, the jurisdiction has been asserted,
not on the ground of property, or at least not wholly on that ground, but
upon the ground of an alleged breach of an implied contract or of a trust or
confidence.
Thus, in Abernethy v. Hutchinson, 3 L. J. Ch. 209 (1825), where the
plaintiff, a distinguished surgeon, sought to restrain the publication in the
"Lancet" of unpublished lectures which he had delivered at St.
Batholomew's Hospital in London, Lord Eldon doubted whether there could
be property in lectures which had not been reduced to writing, but granted
the injunction on the ground of breach of confidence, holding "that when
persons were admitted as pupils or otherwise, to hear these lectures,
although they were orally delivered, and although the parties might go to
the extent, if they were able to do so, of putting down the whole by means
of short-hand, yet they could do that only for the purposes of their own
information, and could not publish, for profit, that which they had not
obtained the right of selling."
In Prince Albert v. Strange, 1 McN. & G. 25 (1849), Lord Cottenham, on
appeal, while recognizing a right of property in the etchings which of itself
would justify the issuance of the injunction, stated, after discussing the
evidence, that he was bound to assume that the possession of the etchings
by the defendant had "its foundation in a breach of trust, confidence, or
contract," and that upon such ground also the plaintiff's title to the
injunction was fully sustained.
In Tuck v. Priester, 19 Q.B.D. 639 (1887), the plaintiffs were owners of a
picture, and employed the defendant to make a certain number of copies.
He did so, and made also a number of other copies for himself, and offered
them for sale in England at a lower price. Subsequently, the plaintiffs
registered their copyright in the picture, and then brought suit for an

injunction and damages. The Lords Justices differed as to the application of
the copyright acts to the case, but held unanimously that independently of
those acts, the plaintiffs were entitled to an injunction and damages for
breach of contract.
In Pollard v. Photographic Co., 40 Ch. Div. 345 (1888), a photographer who
had taken a lady's photograph under the ordinary circumstances was
restrained from exhibiting it, and also from selling copies of it, on the
ground that it was a breach of an implied term in the contract, and also that
it was a breach of confidence. Mr. Justice North interjected in the argument
of the plaintiff's counsel the inquiry: "Do you dispute that if the negative
likeness were taken on the sly, the person who took it might exhibit
copies?" and counsel for the plaintiff answered: "In that case there would be
no trust or consideration to support a contract." Later, the defendant's
counsel argued that "a person has no property in his own features; short of
doing what is libellous or otherwise illegal, there is no restriction on the
photographer's using his negative." But the court, while expressly finding a
breach of contract and of trust sufficient to justify its interposition, still
seems to have felt the necessity of resting the decision also upon a right of
property,[34] in order to bring it within the line of those cases which were
relied upon as precedents.[35]
This process of implying a term in a contract, or of implying a trust
(particularly where the contract is written, and where there is no established
usage or custom), is nothing more nor less than a judicial declaration that
public morality, private justice, and general convenience demand the
recognition of such a rule, and that the publication under similar
circumstances would be considered an intolerable abuse. So long as these
circumstances happen to present a contract upon which such a term can be
engrafted by the judicial mind, or to supply relations upon which a trust or
confidence can be erected, there may be no objection to working out the
desired protection through the doctrines of contract or of trust. But the court
can hardly stop there. The narrower doctrine may have satisfied the
demands of society at a time when the abuse to be guarded against could
rarely have arisen without violating a contract or a special confidence; but
now that modern devices afford abundant opportunities for the perpetration
of such wrongs without any participation by the injured party, the protection
granted by the law must be placed upon a broader foundation. While, for

instance, the state of the photographic art was such that one's picture could
seldom be taken without his consciously "sitting" for the purpose, the law
of contract or of trust might afford the prudent man sufficient safeguards
against the improper circulation of his portrait; but since the latest advances
in photographic art have rendered it possible to take pictures surreptitiously,
the doctrines of contract and of trust are inadequate to support the required
protection, and the law of tort must be resorted to. The right of property in
its widest sense, including all possession, including all rights and privileges,
and hence embracing the right to an inviolate personality, affords alone that
broad basis upon which the protection which the individual demands can be
rested.
Thus, the courts, in searching for some principle upon which the publication
of private letters could be enjoined, naturally came upon the ideas of a
breach of confidence, and of an implied contract; but it required little
consideration to discern that this doctrine could not afford all the protection
required, since it would not support the court in granting a remedy against a
stranger; and so the theory of property in the contents of letters was
adopted.[36] Indeed, it is difficult to conceive on what theory of the law the
casual recipient of a letter, who proceeds to publish it, is guilty of a breach
of contract, express or implied, or of any breach of trust, in the ordinary
acceptation of that term. Suppose a letter has been addressed to him without
his solicitation. He opens it, and reads. Surely, he has not made any
contract; he has not accepted any trust. He cannot, by opening and reading
the letter, have come under any obligation save what the law declares; and,
however expressed, that obligation is simply to observe the legal right of
the sender, whatever it may be, and whether it be called his right of property
in the contents of the letter, or his right to privacy.[37]
A similar groping for the principle upon which a wrongful publication can
be enjoined is found in the law of trade secrets. There, injunctions have
generally been granted on the theory of a breach of contract, or of an abuse
of confidence.[38] It would, of course, rarely happen that any one would be
in the possession of a secret unless confidence had been reposed in him. But
can it be supposed that the court would hesitate to grant relief against one
who had obtained his knowledge by an ordinary trespass,—for instance, by
wrongfully looking into a book in which the secret was recorded, or by

eavesdropping? Indeed, in Yovatt v. Winyard, 1 J. & W. 394 (1820), where
an injunction was granted against making any use of or communicating
certain recipes for veterinary medicine, it appeared that the defendant, while
in the plaintiff's employ, had surreptitiously got access to his book of
recipes, and copied them. Lord Eldon "granted the injunction, upon the
ground of there having been a breach of trust and confidence;" but it would
seem to be difficult to draw any sound legal distinction between such a case
and one where a mere stranger wrongfully obtained access to the book.[39]
We must therefore conclude that the rights, so protected, whatever their
exact nature, are not rights arising from contract or from special trust, but
are rights as against the world; and, as above stated, the principle which has
been applied to protect these rights is in reality not the principle of private
property, unless that word be used in an extended and unusual sense. The
principle which protects personal writings and any other productions of the
intellect or of the emotions, is the right to privacy, and the law has no new
principle to formulate when it extends this protection to the personal
appearance, sayings, acts, and to personal relation, domestic or otherwise.
[40]

If the invasion of privacy constitutes a legal injuria, the elements for
demanding redress exist, since already the value of mental suffering, caused
by an act wrongful in itself, is recognized as a basis for compensation.
The right of one who has remained a private individual, to prevent his
public portraiture, presents the simplest case for such extension; the right to
protect one's self from pen portraiture, from a discussion by the press of
one's private affairs, would be a more important and far-reaching one. If
casual and unimportant statements in a letter, if handiwork, however
inartistic and valueless, if possessions of all sorts are protected not only
against reproduction, but against description and enumeration, how much
more should the acts and sayings of a man in his social and domestic
relations be guarded from ruthless publicity. If you may not reproduce a
woman's face photographically without her consent, how much less should
be tolerated the reproduction of her face, her form, and her actions, by
graphic descriptions colored to suit a gross and depraved imagination.

The right to privacy, limited as such right must necessarily be, has already
found expression in the law of France.[41]

It remains to consider what are the limitations of this right to privacy, and
what remedies may be granted for the enforcement of the right. To
determine in advance of experience the exact line at which the dignity and
convenience of the individual must yield to the demands of the public
welfare or of private justice would be a difficult task; but the more general
rules are furnished by the legal analogies already developed in the law of
slander and libel, and in the law of literary and artistic property.
1. The right to privacy does not prohibit any publication of matter which is
of public or general interest.
In determining the scope of this rule, aid would be afforded by the analogy,
in the law of libel and slander, of cases which deal with the qualified
privilege of comment and criticism on matters of public and general
interest.[42] There are of course difficulties in applying such a rule, but they
are inherent in the subject-matter, and are certainly no greater than those
which exist in many other branches of the law,—for instance, in that large
class of cases in which the reasonableness or unreasonableness of an act is
made the test of liability. The design of the law must be to protect those
persons with whose affairs the community has no legitimate concern, from
being dragged into an undesirable and undesired publicity and to protect all
persons, whatsoever their position or station, from having matters which
they may properly prefer to keep private, made public against their will. It
is the unwarranted invasion of individual privacy which is reprehended, and
to be, so far as possible, prevented. The distinction, however, noted in the
above statement is obvious and fundamental. There are persons who may
reasonably claim as a right, protection from the notoriety entailed by being
made the victims of journalistic enterprise. There are others who, in varying
degrees, have renounced the right to live their lives screened from public
observation. Matters which men of the first class may justly contend,
concern themselves alone, may in those of the second be the subject of
legitimate interest to their fellow-citizens. Peculiarities of manner and

person, which in the ordinary individual should be free from comment, may
acquire a public importance, if found in a candidate for political office.
Some further discrimination is necessary, therefore, than to class facts or
deeds as public or private according to a standard to be applied to the fact or
deed per se. To publish of a modest and retiring individual that he suffers
from an impediment in his speech or that he cannot spell correctly, is an
unwarranted, if not an unexampled, infringement of his rights, while to state
and comment on the same characteristics found in a would-be congressman
could not be regarded as beyond the pale of propriety.
The general object in view is to protect the privacy of private life, and to
whatever degree and in whatever connection a man's life has ceased to be
private, before the publication under consideration has been made, to that
extent the protection is to be withdrawn.[43] Since, then, the propriety of
publishing the very same facts may depend wholly upon the person
concerning whom they are published, no fixed formula can be used to
prohibit obnoxious publications. Any rule of liability adopted must have in
it an elasticity which shall take account of the varying circumstances of
each case,—a necessity which unfortunately renders such a doctrine not
only more difficult of application, but also to a certain extent uncertain in its
operation and easily rendered abortive. Besides, it is only the more flagrant
breaches of decency and propriety that could in practice be reached, and it
is not perhaps desirable even to attempt to repress everything which the
nicest taste and keenest sense of the respect due to private life would
condemn.
In general, then, the matters of which the publication should be repressed
may be described as those which concern the private life, habits, acts, and
relations of an individual, and have no legitimate connection with his
fitness for a public office which he seeks or for which he is suggested, or
for any public or quasi public position which he seeks or for which he is
suggested, and have no legitimate relation to or bearing upon any act done
by him in a public or quasi public capacity. The foregoing is not designed as
a wholly accurate or exhaustive definition, since that which must ultimately
in a vast number of cases become a question of individual judgment and
opinion is incapable of such definition; but it is an attempt to indicate
broadly the class of matters referred to. Some things all men alike are
entitled to keep from popular curiosity, whether in public life or not, while

others are only private because the persons concerned have not assumed a
position which makes their doings legitimate matters of public
investigation.[44]
2. The right to privacy does not prohibit the communication of any matter,
though in its nature private, when the publication is made under
circumstances which would render it a privileged communication according
to the law of slander and libel.
Under this rule, the right to privacy is not invaded by any publication made
in a court of justice, in legislative bodies, or the committees of those bodies;
in municipal assemblies, or the committees of such assemblies, or
practically by any communication made in any other public body, municipal
or parochial, or in any body quasi public, like the large voluntary
associations formed for almost every purpose of benevolence, business, or
other general interest; and (at least in many jurisdictions) reports of any
such proceedings would in some measure be accorded a like privilege.[45]
Nor would the rule prohibit any publication made by one in the discharge of
some public or private duty, whether legal or moral, or in conduct of one's
own affairs, in matters where his own interest is concerned.[46]
3. The law would probably not grant any redress for the invasion of privacy
by oral publication in the absence of special damage.
The same reasons exist for distinguishing between oral and written
publications of private matters, as is afforded in the law of defamation by
the restricted liability for slander as compared with the liability for libel.[47]
The injury resulting from such oral communications would ordinarily be so
trifling that the law might well, in the interest of free speech, disregard it
altogether.[48]
4. The right to privacy ceases upon the publication of the facts by the
individual, or with his consent.
This is but another application of the rule which has become familiar in the
law of literary and artistic property. The cases there decided establish also
what should be deemed a publication,—the important principle in this

connection being that a private communication of circulation for a restricted
purpose is not a publication within the meaning of the law.[49]
5. The truth of the matter published does not afford a defence. Obviously
this branch of the law should have no concern with the truth or falsehood of
the matters published. It is not for injury to the individual's character that
redress or prevention is sought, but for injury to the right of privacy. For the
former, the law of slander and libel provides perhaps a sufficient safeguard.
The latter implies the right not merely to prevent inaccurate portrayal of
private life, but to prevent its being depicted at all.[50]
6. The absence of "malice" in the publisher does not afford a defence.
Personal ill-will is not an ingredient of the offence, any more than in an
ordinary case of trespass to person or to property. Such malice is never
necessary to be shown in an action for libel or slander at common law,
except in rebuttal of some defence, e.g., that the occasion rendered the
communication privileged, or, under the statutes in this State and elsewhere,
that the statement complained of was true. The invasion of the privacy that
is to be protected is equally complete and equally injurious, whether the
motives by which the speaker or writer was actuated are, taken by
themselves, culpable or not; just as the damage to character, and to some
extent the tendency to provoke a breach of the peace, is equally the result of
defamation without regard to the motives leading to its publication. Viewed
as a wrong to the individual, this rule is the same pervading the whole law
of torts, by which one is held responsible for his intentional acts, even
though they are committed with no sinister intent; and viewed as a wrong to
society, it is the same principle adopted in a large category of statutory
offences.

The remedies for an invasion of the right of privacy are also suggested by
those administered in the law of defamation, and in the law of literary and
artistic property, namely:—

1. An action of tort for damages in all cases.[51] Even in the absence of
special damages, substantial compensation could be allowed for injury to
feelings as in the action of slander and libel.

2. An injunction, in perhaps a very limited class of cases.[52]
It would doubtless be desirable that the privacy of the individual should
receive the added protection of the criminal law, but for this, legislation
would be required.[53] Perhaps it would be deemed proper to bring the
criminal liability for such publication within narrower limits; but that the
community has an interest in preventing such invasions of privacy,
sufficiently strong to justify the introduction of such a remedy, cannot be
doubted. Still, the protection of society must come mainly through a
recognition of the rights of the individual. Each man is responsible for his
own acts and omissions only. If he condones what he reprobates, with a
weapon at hand equal to his defence, he is responsible for the results. If he
resists, public opinion will rally to his support. Has he then such a weapon?
It is believed that the common law provides him with one, forged in the
slow fire of the centuries, and to-day fitly tempered to his hand. The
common law has always recognized a man's house as his castle,
impregnable, often, even to its own officers engaged in the execution of its
commands. Shall the courts thus close the front entrance to constituted
authority, and open wide the back door to idle or prurient curiosity?
Samuel D. Warren,
Louis D. Brandeis.
Boston, December, 1890.

FOOTNOTES:
[1] Year Book, Lib. Ass., folio 99, pl. 60 (1348 or 1349), appears to be the first
reported case where damages were recovered for a civil assault.

[2] These nuisances are technically injuries to property; but the recognition of
the right to have property free from interference by such nuisances involves also
a recognition of the value of human sensations.
[3] Year Book, Lib. Ass., folio 177, p. 19 (1356), (2 Finl. Reeves Eng. Law, 395)
seems to be the earliest reported case of an action for slander.
[4] Winsmore v. Greenbank, Willes, 577 (1745).
[5] Loss of service is the gist of the action; but it has been said that "we are not
aware of any reported case brought by a parent where the value of such services
was held to be the measure of damages." Cassoday, J., in Lavery v. Crooke, 52
Wls. 612, 623 (1881). First the fiction of constructive service was invented;
Martin v. Payne, 9 John. 387 (1812). Then the feelings of the parent, the
dishonor to himself and his family, were accepted as the most important element
of damage. Bedford v. McKowl, 3 Esp. 119 (1800); Andrews v. Askey, 8 C. & P.
7 (1837); Phillips v. Hoyle, 4 Gray, 568 (1855); Phelin v. Kenderdine, 20 Pa. St.
354 (1853). The allowance of these damages would seem to be a recognition that
the invasion upon the honor of the family is an injury to the parent's person, for
ordinarily mere injury to parental feelings is not an element of damage, e.g., the
suffering of the parent in case of physical injury to the child. Flemington v.
Smithers, 2 C. & P. 292 (1827); Black v. Carrolton R. R. Co., 10 La. Ann. 33
(1855); Covington Street Ry. Co. v. Packer, 9 Bush, 455 (1872).
[6] "The notion of Mr. Justice Yates that nothing is property which cannot be
earmarked and recovered in detinue or trover, may be true in an early stage of
society, when property is in its simple form, and the remedies for violation of it
also simple, but is not true in a more civilized state, when the relations of life
and the interests arising therefrom are complicated." Erie, J., in Jefferys v.
Boosey, 4 H. L. C. 815, 869 (1854).
[7] Copyright appears to have been first recognized as a species of private
property in England in 1558. Drone on Copyright, 54, 61.
[8] Gibblett v. Read, 9 Mod. 459 (1743), is probably the first recognition of
goodwill as property.
[9] Hogg v. Kirby, 8 Ves. 215 (1803). As late as 1742 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.
[10] Cooley on Torts, 2d ed., p. 29.
[11] 8 Amer. Law Reg. N. S. 1 (1869); 12 Wash. Law Rep. 353 (1884); 24 Sol. J.
& Rep. 4 (1879).
[12] Scribner's Magazine, July, 1890. "The Rights of the Citizen: To his
Reputation," by E. L. Godkin, Esq., pp. 65, 67.
[13] Marion Manola v. Stevens & Myers, N. Y. Supreme Court, "New York
Times" of June 15, 18, 21, 1890. There the complainant alleged that while she
was playing in the Broadway Theatre, in a rôle which required her appearance in
tights, she was, by means of a flash 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 ex parte, and a time was set
for argument of the motion that the injunction should be made permanent, but no
one then appeared in opposition.
[14] Though the legal value of "feelings" is now generally recognized,
distinctions have been drawn between the several classes of cases in which
compensation may or may not be recovered. Thus, the fright occasioned by an
assault constitutes a cause of action, but fright occasioned by negligence does
not. So fright coupled with bodily injury affords a foundation for enhanced
damages; but, ordinarily, fright unattended by bodily injury cannot be relied
upon as an element of damages, even where a valid cause of action exists, as in
trespass quare clausum fregit. Wyman v. Leavitt, 71 Me. 227; Canning v.
Williamstown, 1 Cush. 451. The allowance of damages for injury to the parents'
feelings, in case of seduction, abduction of a child (Stowe v. Heywood, 7 All.
118), or removal of the corpse of child from a burial-ground (Meagher v.
Driscoll, 99 Mass. 281), are said to be exceptions to a general rule. On the other
hand, injury to feelings is a recognized element of damages in actions of slander
and libel, and of malicious prosecution. These distinctions between the cases,
where injury to feelings does and where it does not constitute a cause of action
or legal element of damages, are not logical, but doubtless serve well as practical
rules. It will, it is believed, be found, upon examination of the authorities, that
wherever substantial mental suffering would be the natural and probable result
of the act, there compensation for injury to feelings has been allowed, and that
where no mental suffering would ordinarily result, or if resulting, would
naturally be but trifling, and, being unaccompanied by visible signs of injury,
would afford a wide scope for imaginative ills, there damages have been
disallowed. The decisions on this subject illustrate well the subjection in our law
of logic to common-sense.
[15] "Injuria, in the narrower sense, is every intentional and illegal violation of
honour, i.e., the whole personality of another." "Now an outrage is committed
not only when a man shall be struck with the fist, say, or with a club, or even
flogged, but also if abusive language has been used to one." Salkowski, Roman
Law, p. 668 and p. 669, n. 2.
[16] "It is certain every man has a right to keep his own sentiments, if he pleases.
He has certainly a right to judge whether he will make them public, or commit
them only to the sight of his friends." Yates, J., in Millar v. Taylor, 4 Burr. 2303,
2379 (1769).
[17] Nicols v. Pitman, 26 Ch. D. 374 (1884).
[18] Lee v. Simpson, 3 C. B. 871, 881; Daly v. Palmer, 6 Blatchf. 256.
[19] Turner v. Robinson, 10 Ir. Ch. 121; s. c. ib. 510.
[20] Drone on Copyright, 102.
[21] "Assuming the law to be so, what is its foundation in this respect? It is not, I
conceive, referable to any consideration peculiarly literary. Those with whom
our common law originated had not probably among their many merits that of

being patrons of letters; but they knew the duty and necessity of protecting
property, and with that general object laid down rules providently expansive,—
rules capable of adapting themselves to the various forms and modes of property
which peace and cultivation might discover and introduce.
"The produce of mental labor, thoughts and sentiments, recorded and preserved
by writing, became, as knowledge went onward and spread, and the culture of
man's understanding advanced, a kind of property impossible to disregard, and
the interference of modern legislation upon the subject, by the stat. 8 Anne,
professing by its title to be 'For the encouragement of learning,' and using the
words 'taken the liberty,' in the preamble, whether it operated in augmentation or
diminution of the private rights of authors, having left them to some extent
untouched, it was found that the common law, in providing for the protection of
property, provided for their security, at least before general publication by the
writer's consent." Knight Bruce, V. C., in Prince Albert v. Strange, 2 DeGex &
Sm. 652, 695 (1849).
[22] "The question, however, does not turn upon the form or amount of mischief
or advantage, loss or gain. The author of manuscripts, whether he is famous or
obscure, low or high, has a right to say of them, if innocent, that whether
interesting or dull, light or heavy, saleable or unsaleable, they shall not, without
his consent, be published." Knight Bruce, V. C., in Prince Albert v. Strange, 2
DeGex & Sm. 652, 694.
[23] Duke of Queensberry v. Shebbeare, 2 Eden, 329 (1758); Bartlett v.
Crittenden, 5 McLean, 32, 41 (1849).
[24] Drone on Copyright, pp. 102, 104; Parton v. Prang, 3 Clifford, 537, 548
(1872); Jefferys v. Boosey, 4 H. L. C. 815, 867, 962 (1854).
[25] "The question will be whether the bill has stated facts of which the court
can take notice, as a case of civil property, which it is bound to protect. The
injunction cannot be maintained on any principle of this sort, that if a letter has
been written in the way of friendship, either the continuance or the
discontinuance of the friendship affords a reason for the interference of the
court." Lord Eldon in Gee v. Pritchard, 2 Swanst. 402, 413 (1818).
"Upon the principle, therefore, of protecting property, it is that the common law,
in cases not aided or prejudiced by statute, shelters the privacy and seclusion of
thought and sentiments committed to writing, and desired by the author to
remain not generally known." Knight Bruce, V. C., in Prince Albert v. Strange, 2
DeGex & Sm. 652, 695.
"It being conceded that reasons of expediency and public policy can never be
made the sole basis of civil jurisdiction, the question, whether upon any ground
the plaintiff can be entitled to the relief which he claims, remains to be
answered; and it appears to us that there is only one ground upon which his title
to claim, and our jurisdiction to grant, the relief, can be placed. We must be
satisfied, that the publication of private letters, without the consent of the writer,
is an invasion of an exclusive right of property which remains in the writer, even
when the letters have been sent to, and are still in the possession of his
correspondent." Duer, J., in Woolsey v. Judd, 4 Duer, 379, 384 (1855).

[26] "A work lawfully published, in the popular sense of the term, stands in this
respect, I conceive, differently from a work which has never been in that
situation. The former may be liable to be translated, abridged, analyzed,
exhibited in morsels, complimented, and otherwise treated, in a manner that the
latter is not.
"Suppose, however,—instead of a translation, an abridgment, or a review,—the
case of a catalogue,—suppose a man to have composed a variety of literary
works ('innocent,' to use Lord Eldon's expression), which he has never printed or
published, or lost the right to prohibit from being published,—suppose a
knowledge of them unduly obtained by some unscrupulous person, who prints
with a view to circulation a descriptive catalogue, or even a mere list of the
manuscripts, without authority or consent, does the law allow this? I hope and
believe not. The same principles that prevent more candid piracy must, I
conceive, govern such a case also.
"By publishing of a man that he has written to particular persons, or on
particular subjects, he may be exposed, not merely to sarcasm, he may be ruined.
There may be in his possession returned letters that he had written to former
correspondents, with whom to have had relations, however harmlessly, may not
in after life be a recommendation; or his writings may be otherwise of a kind
squaring in no sort with his outward habits and worldly position. There are
callings even now in which to be convicted of literature, is dangerous, though
the danger is sometimes escaped.
"Again, the manuscripts may be those of a man on account of whose name alone
a mere list would be matter of general curiosity. How many persons could be
mentioned, a catalogue of whose unpublished writings would, during their lives
or afterwards, command a ready sale?" Knight Bruce, V. C., in Prince Albert v.
Strange, 2 DeGex & Sm. 652, 693.
[27] "A copy or impression of the etchings would only be a means of
communicating knowledge and information of the original, and does not a list
and description of the same? The means are different, but the object and effect
are similar; for in both, the object and effect is to make known to the public
more or less of the unpublished work and composition of the author, which he is
entitled to keep wholly for his private use and pleasure, and to withhold
altogether, or so far as he may please, from the knowledge of others. Cases upon
abridgments, translations, extracts, and criticisms of published works have no
reference whatever to the present question; they all depend upon the extent of
right under the acts respecting copyright, and have no analogy to the exclusive
rights in the author of unpublished compositions which depend entirely upon the
common-law right of property." Lord Cottenham in Prince Albert v. Strange, 1
McN. & G. 23, 43 (1849). "Mr. Justice Yates, in Millar v. Taylor, said, that an
author's case was exactly similar to that of an inventor of a new mechanical
machine; that both original inventions stood upon the same footing in point of
property, whether the case were mechanical or literary, whether an epic poem or
an orrery; that the immorality of pirating another man's invention was as great as
that of purloining his ideas. Property in mechanical works or works of art,
executed by a man for his own amusement, instruction, or use, is allowed to
subsist, certainly, and may, before publication by him, be invaded, not merely by
copying, but by description or by catalogue, as it appears to me. A catalogue of

such works may in itself be valuable. It may also as effectually show the bent
and turn of the mind, the feelings and taste of the artist, especially if not
professional, as a list of his papers. The portfolio or the studio may declare as
much as the writing-table. A man may employ himself in private in a manner
very harmless, but which, disclosed to society, may destroy the comfort of his
life, or even his success in it. Every one, however, has a right, I apprehend, to
say that the produce of his private hours is not more liable to publication without
his consent, because the publication must be creditable or advantageous to him,
than it would be in opposite circumstances."
"I think, therefore, not only that the defendant here is unlawfully invading the
plaintiff's rights, but also that the invasion is of such a kind and affects such
property as to entitle the plaintiff to the preventive remedy of an injunction; and
if not the more, yet, certainly, not the less, because it is an intrusion,—an
unbecoming and unseemly intrusion,—an intrusion not alone in breach of
conventional rules, but offensive to that inbred sense of propriety natural to
every man,—if intrusion, indeed, fitly describes a sordid spying into the privacy
of domestic life,—into the home (a word hitherto sacred among us), the home of
a family whose life and conduct form an acknowledged title, though not their
only unquestionable title, to the most marked respect in this country." Knight
Bruce, V. C., in Prince Albert v. Strange, 2 DeGex & Sm. 652, 696, 697.
[28] Kiernan v. Manhattan Quotation Co., 50 How. Pr. 194 (1876).
[29] "The defendants' counsel say, that a man acquiring a knowledge of another's
property without his consent is not by any rule or principle which a court of
justice can apply (however secretly he may have kept or endeavored to keep it)
forbidden without his consent to communicate and publish that knowledge to the
world, to inform the world what the property is, or to describe it publicly,
whether orally, or in print or writing.
"I claim, however, leave to doubt whether, as to property of a private nature,
which the owner, without infringing on the right of any other, may and does
retain in a state of privacy, it is certain that a person who, without the owner's
consent, express or implied, acquires a knowledge of it, can lawfully avail
himself of the knowledge so acquired to publish without his consent a
description of the property.
"It is probably true that such a publication may be in a manner or relate to
property of a kind rendering a question concerning the lawfulness of the act too
slight to deserve attention. I can conceive cases, however, in which an act of the
sort may be so circumstanced or relate to property such, that the matter may
weightily affect the owner's interest or feelings, or both. For instance, the nature
and intention of an unfinished work of an artist, prematurely made known to the
world, may be painful and deeply prejudicial against him; nor would it be
difficult to suggest other examples....
"It was suggested that, to publish a catalogue of a collector's gems, coins,
antiquities, or other such curiosities, for instance, without his consent, would be
to make use of his property without his consent; and it is true, certainly, that a
proceeding of that kind may not only as much embitter one collector's life as it
would flatter another,—may be not only an ideal calamity,—but may do the

owner damage in the most vulgar sense. Such catalogues, even when not
descriptive, are often sought after, and sometimes obtain very substantial prices.
These, therefore, and the like instances, are not necessarily examples merely of
pain inflicted in point of sentiment or imagination; they may be that, and
something else beside." Knight Bruce, V. C., in Prince Albert v. Strange, 2
DeGex & Sm. 652, 689, 690.
[30] Hoyt v. Mackenzie, 3 Barb. Ch. 320, 324 (1848); Wetmore v. Scovell, 3
Edw. Ch. 515 (1842). See Sir Thomas Plumer in 2 Ves. & B. 19 (1813).
[31] Woolsey v. Judd, 4 Duer, 379, 404 (1855). "It has been decided, fortunately
for the welfare of society, that the writer of letters, though written without any
purpose of profit, or any idea of literary property, possesses such a right of
property in them, that they cannot be published without his consent, unless the
purposes of justice, civil or criminal, require the publication." Sir Samuel
Romilly, arg., in Gee v. Pritchard, 2 Swanst. 402, 418 (1818). But see High on
Injunctions, 3d ed, § 1012, contra.
[32] "But a doubt has been suggested, whether mere private letters, not intended
as literary compositions, are entitled to the protection of an injunction in the
same manner as compositions of a literary character. This doubt has probably
arisen from the habit of not discriminating between the different rights of
property which belong to an unpublished manuscript, and those which belong to
a published book. The latter, as I have intimated in another connection, is a right
to take the profits of publication. The former is a right to control the act of
publication, and to decide whether there shall be any publication at all. It has
been called a right of property; an expression perhaps not quite satisfactory, but
on the other hand sufficiently descriptive of a right which, however incorporeal,
involves many of the essential elements of property, and is at least positive and
definite. This expression can leave us in no doubt as to the meaning of the
learned judges who have used it, when they have applied it to cases of
unpublished manuscripts. They obviously intended to use it in no other sense,
than in contradistinction to the mere interests of feeling, and to describe a
substantial right of legal interest." Curtis on Copyright, pp. 93, 94.
The resemblance of the right to prevent publication of an unpublished
manuscript to the well-recognized rights of personal immunity is found in the
treatment of it in connection with the rights of creditors. The right to prevent
such publication and the right of action for its infringement, like the cause of
action for an assault, battery, defamation, or malicious prosecution, are not assets
available to creditors.
"There is no law which can compel an author to publish. No one can determine
this essential matter of publication but the author. His manuscripts, however
valuable, cannot, without his consent, be seized by his creditors as property."
McLean, J., in Bartlett v. Crittenden, 5 McLean, 32, 37 (1849).
It has also been held that even where the sender's rights are not asserted, the
receiver of a letter has not such property in it as passes to his executor or
administrator as a salable asset. Eyre v. Higbee, 22 How. Pr. (N. Y.) 198 (1861).
"The very meaning of the word 'property' in its legal sense is 'that which is
peculiar or proper to any person; that which belongs exclusively to one.' The

first meaning of the word from which it is derived—proprius—is 'one's own.'"
Drone on Copyright, p. 6.
It is clear that a thing must be capable of identification in order to be the subject
of exclusive ownership. But when its identity can be determined so that
individual ownership may be asserted, it matters not whether it be corporeal or
incorporeal.
[33] "Such then being, as I believe, the nature and the foundation of the common
law as to manuscripts independently of Parliamentary additions and subtractions,
its operation cannot of necessity be confined to literary subjects. That would be
to limit the rule by the example. Wherever the produce of labor is liable to
invasion in an analogous manner, there must, I suppose, be a title to analogous
protection or redress." Knight Bruce, V. C., in Prince Albert v. Strange, 2 DeGex
& Sm. 652, 696.
[34] "The question, therefore, is whether a photographer who has been employed
by a customer to take his or her portrait is justified in striking off copies of such
photograph for his own use, and selling and disposing of them, or publicly
exhibiting them by way of advertisement or otherwise, without the authority of
such customer, either express or implied. I say 'express or implied,' because a
photographer is frequently allowed, on his own request, to take a photograph of
a person under circumstances in which a subsequent sale by him must have been
in the contemplation of both parties, though not actually mentioned. To the
question thus put, my answer is in the negative, that the photographer is not
justified in so doing. Where a person obtains information in the course of a
confidential employment, the law does not permit him to make any improper use
of the information so obtained; and an injunction is granted, if necessary, to
restrain such use; as, for instance, to restrain a clerk from disclosing his master's
accounts, or an attorney from making known his client's affairs, learned in the
course of such employment. Again, the law is clear that a breach of contract,
whether express or implied, can be restrained by injunction. In my opinion the
case of the photographer comes within the principles upon which both these
classes of cases depend. The object for which he is employed and paid is to
supply his customer with the required number of printed photographs of a given
subject. For this purpose the negative is taken by the photographer on glass; and
from this negative copies can be printed in much larger numbers than are
generally required by the customer. The customer who sits for the negative thus
puts the power of reproducing the object in the hands of the photographer; and in
my opinion the photographer who uses the negative to produce other copies for
his own use, without authority, is abusing the power confidentially placed in his
hands merely for the purpose of supplying the customer; and further, I hold that
the bargain between the customer and the photographer includes, by implication,
an agreement that the prints taken from the negative are to be appropriated to the
use of the customer only." Referring to the opinions delivered in Tuck v. Priester,
19 Q. B. D. 639, the learned justice continued: "Then Lord Justice Lindley says:
'I will deal first with the injunction, which stands, or may stand, on a totally
different footing from either the penalties or the damages. It appears to me that
the relation between the plaintiffs and the defendant was such that, whether the
plaintiffs had any copyright or not, the defendant has done that which renders
him liable to an injunction. He was employed by the plaintiffs to make a certain

number of copies of the picture, and that employment carried with it the
necessary implication that the defendant was not to make more copies for
himself, or to sell the additional copies in this country in competition with his
employer. Such conduct on his part is a gross breach of contract and a gross
breach of faith, and, in my judgment, clearly entitles the plaintiffs to an
injunction, whether they have a copyright in the picture or not.' That case is the
more noticeable, as the contract was in writing; and yet it was held to be an
implied condition that the defendant should not make any copies for himself.
The phrase 'a gross breach of faith' used by Lord Justice Lindley in that case
applies with equal force to the present, when a lady's feelings are shocked by
finding that the photographer she has employed to take her likeness for her own
use is publicly exhibiting and selling copies thereof." North, J., in Pollard v.
Photographic Co., 40 Ch. D. 345, 349-352 (1888).
"It may be said also that the cases to which I have referred are all cases in which
there was some right of property infringed, based upon the recognition by the
law of protection being due for the products of a man's own skill or mental
labor; whereas in the present case the person photographed has done nothing to
merit such protection, which is meant to prevent legal wrongs, and not mere
sentimental grievances. But a person whose photograph is taken by a
photographer is not thus deserted by the law; for the Act of 25 and 26 Vict., c.
68, s. 1, provides that when the negative of any photograph is made or executed
for or on behalf of another person for a good or valuable consideration, the
person making or executing the same shall not retain the copyright thereof,
unless it is expressly reserved to him by agreement in writing signed by the
person for or on whose behalf the same is so made or executed; but the copyright
shall belong to the person for or on whose behalf the same shall have been made
or executed.
"The result is that in the present case the copyright in the photograph is in one of
the plaintiffs. It is true, no doubt, that sect. 4 of the same act provides that no
proprietor of copyright shall be entitled to the benefit of the act until registration,
and no action shall be sustained in respect of anything done before registration;
and it was, I presume, because the photograph of the female plaintiff has not
been registered that this act was not referred to by counsel in the course of the
argument. But, although the protection against the world in general conferred by
the act cannot be enforced until after registration, this does not deprive the
plaintiffs of their common-law right of action against the defendant for his
breach of contract and breach of faith. This is quite clear from the cases of
Morison v. Moat [9 Hare, 241] and Tuck v. Priester [19 Q. B. D. 629] already
referred to, in which latter case the same act of Parliament was in question." Per
North, J., ibid. p. 352.
This language suggests that the property right in photographs or portraits may be
one created by statute, which would not exist in the absence of registration; but it
is submitted that it must eventually be held here, as it has been in the similar
cases, that the statute provision becomes applicable only when there is a
publication, and that before the act of registering there is property in the thing
upon which the statute is to operate.
[35] Duke of Queensberry v. Shebbeare, 2 Eden, 329; Murray v. Heath, 1 B. &
Ad. 804; Tuck v. Priester, 19 Q. B. D. 629.

[36] See Mr. Justice Story in Folsom v. Marsh, 2 Story, 100, 111 (1841):—
"If he [the recipient of a letter] attempt to publish such letter or letters on other
occasions, not justifiable, a court of equity will prevent the publication by an
injunction, as a breach of private confidence or contract, or of the rights of the
author; and a fortiori, if he attempt to publish them for profit; for then it is not a
mere breach of confidence or contract, but it is a violation of the exclusive
copyright of the writer.... The general property, and the general rights incident to
property, belong to the writer, whether the letters are literary compositions, or
familiar letters, or details of facts, or letters of business. The general property in
the manuscripts remains in the writer and his representatives, as well as the
general copyright. A fortiori, third persons, standing in no privity with either
party, are not entitled to publish them, to subserve their own private purposes of
interest, or curiosity, or passion."
[37] "The receiver of a letter is not a bailee, nor does he stand in a character
analogous to that of a bailee. There is no right to possession, present or future, in
the writer. The only right to be enforced against the holder is a right to prevent
publication, not to require the manuscript from the holder in order to a
publication of himself." Per Hon. Joel Parker, quoted in Grigsby v. Breckenridge,
2 Bush. 480, 489 (1867).
[38] In Morison v. Moat, 9 Hare, 241, 255 (1851), a suit for an injunction to
restrain the use of a secret medical compound, Sir George James Turner, V. C.,
said: "That the court has exercised jurisdiction in cases of this nature does not, I
think, admit of any question. Different grounds have indeed been assigned for
the exercise of that jurisdiction. In some cases it has been referred to property, in
others to contract, and in others, again, it has been treated as founded upon trust
or confidence,—meaning, as I conceive, that the court fastens the obligation on
the conscience of the party, and enforces it against him in the same manner as it
enforces against a party to whom a benefit is given, the obligation of performing
a promise on the faith of which the benefit has been conferred; but upon
whatever grounds the jurisdiction is founded, the authorities leave no doubt as to
the exercise of it."
[39] A similar growth of the law showing the development of contractual rights
into rights of property is found in the law of goodwill. There are indications, as
early as the Year Books, of traders endeavoring to secure to themselves by
contract the advantages now designated by the term "goodwill," but it was not
until 1743 that goodwill received legal recognition as property apart from the
personal covenants of the traders. See Allan on Goodwill, pp. 2, 3.
[40] The application of an existing principle to a new state of facts is not judicial
legislation. To call it such is to assert that the existing body of law consists
practically of the statutes and decided cases, and to deny that the principles (of
which these cases are ordinarily said to be evidence) exist at all. It is not the
application of an existing principle to new cases, but the introduction of a new
principle, which is properly termed judicial legislation.
But even the fact that a certain decision would involve judicial legislation should
not be taken as conclusive against the propriety of making it. This power has
been constantly exercised by our judges, when applying to a new subject

principles of private justice, moral fitness, and public convenience. Indeed, the
elasticity of our law, its adaptability to new conditions, the capacity for growth,
which has enabled it to meet the wants of an ever changing society and to apply
immediate relief for every recognized wrong, have been its greatest boast.
"I cannot understand how any person who has considered the subject can
suppose that society could possibly have gone on if judges had not legislated, or
that there is any danger whatever in allowing them that power which they have
in fact exercised, to make up for the negligence or the incapacity of the avowed
legislator. That part of the law of every country which was made by judges has
been far better made than that part which consists of statutes enacted by the
legislature." I Austin's Jurisprudence, p. 224.
The cases referred to above show that the common law has for a century and a
half protected privacy in certain cases, and to grant the further protection now
suggested would be merely another application of an existing rule.
[41] Loi Relative à la Presse. 11 Mai 1868.
"11. Toute publication dans un écrit périodique relative à un fait de la vie privée
constitue une contravention punie d'un amende de cinq cent francs.
"La poursuite ne pourra être exercée que sur la plainte de la partie intéressée."
Rivière, Codes Français et Lois Usuelles. App. Code Pen., p. 20.
[42] See Campbell v. Spottiswoode, 3 B. & S. 769, 776; Henwood v. Harrison, L.
R. 7 C. P. 606; Gott v. Pulsifer, 122 Mass. 235.
[43] "Nos moeurs n'admettent pas la prétention d'enlever aux investigations de la
publicité les actes qui relèvent de la vie publique, et ce dernier mot ne doit pas
être restreint à la vie officielle ou à celle du fonctionnaire. Tout homme qui
appelle sur lui l'attention ou les regards du publique, soit par une mission qu'il a
reçue ou qu'il se donne, soit par le rôle qu'il s'attribue dans l'industrie, les arts, le
theâtre, etc., ne peut plus invoquer contre la critique ou l'exposé de sa conduite
d'autre protection que les lois qui repriment la diffamation et l'injure." Circ.
Mins. Just., 4 Juin, 1868. Rivière Codes Français et Lois Usuelles, App. Code
Pen. 20 n (b).
[44] "Celui-la seul a droit au silence absolu qui n'a pas expressément ou
indirectment provoqué ou authorisé l'attention, l'approbation ou le blâme." Circ.
Mins. Just., 4 Juin, 1868. Rivière Codes Français et Lois Usuelles, App. Code
Pen. 20 n (b). The principle thus expressed evidently is designed to exclude the
wholesale investigations into the past of prominent public men with which the
American public is too familiar, and also, unhappily, too well pleased; while not
entitled to the "silence absolute" which less prominent men may claim as their
due, they may still demand that all the details of private life in its most limited
sense shall not be laid bare for inspection.
[45] Wason v. Walters, L. R. 4 Q. B. 73; Smith v. Higgins, 16 Gray, 251; Barrows
v. Bell, 7 Gray, 331.
[46] This limitation upon the right to prevent the publication of private letters
was recognized early:—

"But, consistently with this right [of the writer of letters], the persons to whom
they are addressed may have, nay, must, by implication, possess the right to
publish any letter or letters addressed to them, upon such occasions, as require,
or justify, the publication or public use of them; but this right is strictly limited
to such occasions. Thus, a person may justifiably use and publish, in a suit at law
or in equity, such letter or letters as are necessary and proper, to establish his
right to maintain the suit, or defend the same. So, if he be aspersed or
misrepresented by the writer, or accused of improper conduct, in a public
manner, he may publish such parts of such letter or letters, but no more, as may
be necessary to vindicate his character and reputation, or free him from unjust
obloquy and reproach." Story, J., in Folsom v. Marsh, 2 Story, 100, 110, 111
(1841).
The existence of any right in the recipient of letters to publish the same has been
strenuously denied by Mr. Drone; but the reasoning upon which his denial rests
does not seem satisfactory. Drone on Copyright, pp. 136-139.
[47] Townshend on Slander and Libel, 4th ed., § 18; Odgers on Libel and
Slander, 2d ed., p. 3.
[48] "But as long as gossip was oral, it spread, as regards any one individual,
over a very small area, and was confined to the immediate circle of his
acquaintances. It did not reach, or but rarely reached, those who knew nothing of
him. It did not make his name, or his walk, or his conversation familiar to
strangers. And what is more to the purpose, it spared him the pain and
mortification of knowing that he was gossipped about. A man seldom heard of
oral gossip about him which simply made him ridiculous, or trespassed on his
lawful privacy, but made no positive attack upon his reputation. His peace and
comfort were, therefore, but slightly affected by it." E. L. Godkin, "The Rights
of the Citizen: To his Reputation." Scribner's Magazine, July, 1890, p. 66.
Vice-Chancellor Knight Bruce suggested in Prince Albert v. Strange, 2 DeGex &
Sm. 652, 694, that a distinction would be made as to the right to privacy of
works of art between an oral and a written description or catalogue.
[49] See Drone on Copyright, pp. 121, 289, 290.
[50] Compare the French law. "En prohibant l'envahissement de la vie privée,
sans qu'il soit nécessaire d'établir l'intention criminelle, la loi a entendue
interdire toute discussion de la part de la défense sur vérité des faits. Le remède
eut été pire que le mal, si un débat avait pu s'engager sur ce terrain." Circ. Mins.
Just., 4 Juin, 1868. Rivière Code Français et Lois Usuelles, App. Code Penn. 20
n(a).
[51] Comp. Drone on Copyright, p. 107.
[52] Comp. High on Injunctions, 3d ed., § 1015; Townshend on Libel and
Slander, 4th ed., §§ 417a-417d.
[53] The following draft of a bill has been prepared by William H. Dunbar, Esq.,
of the Boston bar, as a suggestion for possible legislation:—
"Section 1. Whoever publishes in any newspaper, journal, magazine, or other
periodical publication any statement concerning the private life or affairs of

another, after being requested in writing by such other person not to publish such
statement or any statement concerning him, shall be punished by imprisonment
in the State prison not exceeding five years, or by imprisonment in the jail not
exceeding two years, or by fine not exceeding one thousand dollars; provided,
that no statement concerning the conduct of any person in, or the qualifications
of any person for, a public office or position which such person holds, has held,
or is seeking to obtain, or for which such person is at the time of such
publication a candidate, or for which he or she is then suggested as a candidate,
and no statement of or concerning the acts of any person in his or her business,
profession, or calling, and no statement concerning any person in relation to a
position, profession, business, or calling, bringing such person prominently
before the public, or in relation to the qualifications for such a position, business,
profession, or calling of any person prominent or seeking prominence before the
public, and no statement relating to any act done by any person in a public place,
nor any other statement of matter which is of public and general interest, shall be
deemed a statement concerning the private life or affairs of such person within
the meaning of this act.
"Sect. 2. It shall not be a defence to any criminal prosecution brought under
section 1 of this act that the statement complained of is true, or that such
statement was published without a malicious intention; but no person shall be
liable to punishment for any statement published under such circumstances that
if it were defamatory the publication thereof would be privileged."

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