Atkinson v. John E. Doherty & Co.

CourtSupreme Court of Michigan
Writing for the CourtHOOKER
Citation80 N.W. 285,121 Mich. 372
PartiesATKINSON v. JOHN E. DOHERTY & CO.
Decision Date27 September 1899

121 Mich. 372
80 N.W. 285

ATKINSON
v.
JOHN E. DOHERTY & CO.

Supreme Court of Michigan.

Sept. 27, 1899.


Appeal from circuit court, Wayne county, in chancery; Joseph W. Donovan, Judge.

Suit by Lyda Atkinson against John E. Doherty & Co. There was a decree for defendant, and plaintiff appeals. Affirmed.

[80 N.W. 285]

Elliott G. Stevenson and Leo M. Butzel (O'Brien J. Atkinson, of counsel), for appellant.

James H. Pound (Ward N. Choate and James Phelan, of counsel), for appellee.


HOOKER, J.

The late Col. John Atkinson was a well-known lawyer and politician. After his death, the defendant, a manufacturer of cigars, brought out an article that he named the John Atkinson cigar, and sought to put it upon the market under a label bearing that name and a likeness of Col. John Atkinson. The widow of Col. Atkinson filed a bill to restrain this, and upon the hearing the circuit court made a decree dismissing the bill with costs, and the complainant has appealed.

As a rule, names are received at the hands of parents,-surnames by inheritance, and Christian names at their will. But this is not an invariable rule, for many names are adopted or assumed by those who bear them. But in neither case is the right to the use of a name exclusive. A disreputable person or criminal may select the name of the most exemplary for his child, or for his horse or dog or monkey. We have never heard this questioned. No reason occurs to us for limiting the right to apply a name, though borne by another person, to animate objects. Why not a John Atkinson wagon, as well as a John Atkinson Jones or horse or dog. Society understands this, and may be depended upon to make proper allowances in such cases; and although each individual member may, in his own case, suffer a feeling of humiliation when his own name or that of some beloved or respected friend is thus used, he will usually, in the case of another, regard it as a trifle. We feel sure that society would not think the less of Col. John Atkinson if cigars bearing his name were sold in the shops. Nor are his friends brought into disrepute thereby. So long as such use does not amount to a libel, we are of the opinion that Col. John Atkinson would himself be remediless, were he alive, and the same is true of his friends who survive.

It is urged in this case that the connection of the name with cigars wounds the feelings of the widow, and extreme and improbable illustrations of the possibilities of a rule which should permit the indiscriminate use of names of deceased persons are given. We appreciate the indelicacy of the man who should join the funeral procession of Col. John Atkinson in a carriage bearing the legend, ‘The Col. John Atkinson cigar,’ and we can readily understand that it would annoy the friends of the deceased. The sentiment which prompts the feeling of annoyance at such an act is aroused by any aspersion of the dead. It is natural and commendable, as are all recognitions of the proprieties of life; but it does not follow that such an act is an actionable wrong, or that equity will intervene by injunction to prevent it, though we are quite sure that the disapproval of society would ordinarily have the latter effect.

Stress is laid upon the fact that the picture of Col. John Atkinson is to be displayed upon this label. It is claimed that a man has no right to print and circulate pictures of another, except by his consent, or where, by reason of his celebrity, the public has an interest in him. This is a proposition of modern origin, and is said to have the support of

[80 N.W. 286]

some cases. We will examine the authorities that have been cited, and such as we have been able to find.

In the January, 1869, Law Register (volume 8 [N. S.] p. 1), is an article devoted to a discussion of ‘The Legal Relations of Photographs,’ in which the writer expresses the opinion that if a photograph clandestinely taken, and representing its original in a ridiculous light, or publishing his personal defects, were uttered maliciously, to his damage, it would doubtless be a libel in all of the states, and particularly in those in which the old maxim, ‘The greater the truth the greater the libel,’ is still in force. That it would be a libel, if a true picture, in states where the truth may be shown in defense, is not so clear as it may seem, but there is no want of harmony in the decisions upon the proposition that a picture may be libelous. The author mentions the case of an Austrian lady of rank who recovered damages from her photographer for selling copies of her photograph as that of some notorious woman, in another city. He says, ‘What was the ground or the nature and extent of recovery, we are not told,’ and adds ‘that, if no special damages were found, it could not be doubted that her right to control the market of her own beauty could not have been denied her by any court, and that she must have recovered on the ground that her right had been infringed, if on no other.’ We are at a loss to know just what is meant by this. If only that, having produced or caused to be produced a negative and photograph of herself, it was, like private writings, entitled to protection, it has the semblance of support by a number of cases. But if it is meant that no person has, without permission, the right to have or sell pictures of another, it is a different proposition, and we know of no case decided by a court of last resort that so holds.

In 1890 prominence was given to this subject by an article in 4 Harv. Law Rev. 193, entitled, ‘The Right to Privacy,’ in which the writers urge the ‘right to be a let alone,’ and the necessity for the protection of citizens against invasions of their domestic affairs through the newspaper, the camera, and numerous mechanical devices ‘which [they say] threaten to make good the prediction that ‘what is whispered in the closet shall be proclaimed from the housetop.’' The right to privacy in a broader sense than before known to the common law is asserted. The article cites a number of cases, some of them relating to pictures, and criticises the courts for basing their decisions upon property or contract rights. These cases relate to letters, diaries, and other private writings, paintings, sculptures, music, etc. In this connection the case of Prince Albert v. Strange, 1 Macn. & G. 25, is cited, wherein the defendant was restrained from publishing some etchings made by their majesties, the king and queen. The burden of the article is to establish a right of privacy which shall be recognized and protected by the courts, and it is urged that ‘in such right, as in the right not to be assaulted or beaten (i. e. the right to be let alone),’ 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, though it is admitted that they bear little resemblance to what is ordinarily comprehended under that term. Notwithstanding the unanimity of the courts in resting the decisions adverted to upon property rights, the authors assert that ‘it is in reality not the principle of private property, but that of an inviolate personality.’ An examination of the article will show that authoritative decisions which support the theory advocated are wanting. Among them are several cases involving pictures. Prince Albert v. Strange, supra; Tuck v. Priester, 19 Q. B. Div. 639; Pollard v. Photographic Co., 40 Ch. Div. 345. But these are based upon property or contract rights, as these terms are commonly understood. At the time of the writing of this article the case of Manola v. Stevens was pending in a court at New York. An actress sought to restrain the publication of a picture of herself, taken surreptitiously while she was performing her role upon the stage. It was not contested, however, and we are not advised that it was reported. See New York Times of June 15, 18, 21, 1890. The Manola Case and the article in the Harvard Law Journal were soon followed by another case. In June, 1892, the case of Schuyler v. Curtis, 64 Hun, 594, 19 N. Y. Supp. 264, involving a preliminary injunction only, was decided in the First department of the supreme court of New York. An unincorporated society, connected with which was Miss Susan B. Anthony, arranged to place a life-size statue of Mrs. G. L. Schuyler, to be designated ‘The Typical Philanthropist,’ upon exhibition at the World's Fair soon thereafter to be held in Chicago. This was enjoined by her relatives, and upon a motion an...

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22 practice notes
  • Doe v. Methodist Hosp., 30S01-9504-CV-420
    • United States
    • Indiana Supreme Court of Indiana
    • December 31, 1997
    ...to recognize the new privacy tort. The high courts of Michigan and New York expressly rejected it. See Atkinson v. John E. Doherty & Co., 121 Mich. 372, 80 N.W. 285 (1899); Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (N.Y.1902). Judge O'Brien of the New York Court of Ap......
  • Weeren v. Evening News Ass'n, 8
    • United States
    • Supreme Court of Michigan
    • October 2, 1967
    ...Company (1948), 322 Mich. 411, 33 N.W.2d 911. It was examined by the Michigan Supreme Court in Atkinson v. John E. Doherty & Co. (1899), 121 Mich. 372, 80 N.W. 285, 46 L.R.A. 219. In that case it was held that a widow could not assert a suit for an injunction to prevent the use of the name ......
  • Related State Torts
    • United States
    • James Publishing Practical Law Books Litigating Employment Discrimination Cases. Volume 1-2 Volume 1 - Law
    • May 1, 2023
    ...to settled principles of law by which the profession and the public have long been guided.”); Atkinson v. John E. Doherty & Co. , 121 Mich. 372, 80 N.W. 285 (1899) (rejecting “right to privacy” claim proposed by Warren and Brandeis and allowing manufacturer of cigars to market cigar with la......
  • Anderson v. Fisher Broadcasting Companies, Inc.
    • United States
    • Supreme Court of Oregon
    • January 7, 1986
    ...facts pleaded and presented in the legal proceedings undercut the effectiveness of that remedy. 11 See also Atkinson v. Doherty & Co., 121 Mich. 372, 80 N.W. 285 (1899); Moore v. Rugg, 44 Minn. 28, 46 N.W. 141 (1890); Marks v. Jaffa, 6 Misc. 290, 26 N.Y.S. 908 (1893); Manola v. Stevens, N.Y......
  • Request a trial to view additional results
21 cases
  • Doe v. Methodist Hosp., 30S01-9504-CV-420
    • United States
    • Indiana Supreme Court of Indiana
    • December 31, 1997
    ...to recognize the new privacy tort. The high courts of Michigan and New York expressly rejected it. See Atkinson v. John E. Doherty & Co., 121 Mich. 372, 80 N.W. 285 (1899); Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (N.Y.1902). Judge O'Brien of the New York Court of Ap......
  • Weeren v. Evening News Ass'n, 8
    • United States
    • Supreme Court of Michigan
    • October 2, 1967
    ...Company (1948), 322 Mich. 411, 33 N.W.2d 911. It was examined by the Michigan Supreme Court in Atkinson v. John E. Doherty & Co. (1899), 121 Mich. 372, 80 N.W. 285, 46 L.R.A. 219. In that case it was held that a widow could not assert a suit for an injunction to prevent the use of the name ......
  • Anderson v. Fisher Broadcasting Companies, Inc.
    • United States
    • Supreme Court of Oregon
    • January 7, 1986
    ...facts pleaded and presented in the legal proceedings undercut the effectiveness of that remedy. 11 See also Atkinson v. Doherty & Co., 121 Mich. 372, 80 N.W. 285 (1899); Moore v. Rugg, 44 Minn. 28, 46 N.W. 141 (1890); Marks v. Jaffa, 6 Misc. 290, 26 N.Y.S. 908 (1893); Manola v. Stevens, N.Y......
  • Goldman v. United States Shulman v. Same, s. 962
    • United States
    • United States Supreme Court
    • April 27, 1942
    ...928, 18 Ann.Cas. 1006; Hillman v. Star Publishing Co., 64 Wash. 691, 117 P. 594, 35 L.R.A.,N.S., 595; Atkinson v. John E. Doherty & Co., 121 Mich. 372, 80 N.W. 285, 46 L.R.A. 219, 80 Am.St.Rep. 507; Jones v. Herald Post Co., 230 Ky. 227, 18 S.W.2d 972; O'Brien v. Pabst Sales Co., 5 Cir., 12......
  • Request a trial to view additional results
1 books & journal articles
  • Related State Torts
    • United States
    • James Publishing Practical Law Books Litigating Employment Discrimination Cases. Volume 1-2 Volume 1 - Law
    • May 1, 2023
    ...to settled principles of law by which the profession and the public have long been guided.”); Atkinson v. John E. Doherty & Co. , 121 Mich. 372, 80 N.W. 285 (1899) (rejecting “right to privacy” claim proposed by Warren and Brandeis and allowing manufacturer of cigars to market cigar with la......

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