Baker v. Libbie

• Decision Date: 03 January 1912
• Citation: 97 N.E. 109,210 Mass. 599
• Parties: BAKER v. LIBBIE et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

210 Mass. 599

97 N.E. 109

BAKER v. LIBBIE et al.

Supreme Judicial Court of Massachusetts, Suffolk.

January 3, 1912

COUNSEL

Elder, Whitman & Barnum and Wm. A. Morse, for complainant.

Wm. M Prest and Frank B. Livingstone, for defendant.

OPINION

RUGG C.J.

The plaintiff, as executor of the will of Mary Baker G. Eddy, the founder of 'Christian Science' so called, seeks to restrain an auctioneer of manuscripts from publishing for advertising purposes and from selling certain autograph letters of his testatrix. These letters were written in her own hand by Mrs. Eddy, as is said, 'during one of the most interesting periods of her career, that is, just after the publication of her Science and Health with Key to the Scriptures,' in 1875. It is averred in the answer that the letters have no attribute of literature, but are merely friendly letters written to a cousin about domestic and business affairs. Extracts from the letters show that they refer to household matters, to health and to the work she was doing. The questions raised relate to the existence, extent and character of the proprietary right of the writer of private letters upon indifferent subjects not possessing the qualities of literature and to the degree of protection to be given in equity to such rights as are found to exist. These points have never been presented before for decision in this commonwealth. The nearest approach was in Tompkins v Halleck, 133 Mass. 32, 43 Am. Rep. 480, where the rights of an author of a dramatic composition put upon the stage but not printed were protected against a rival presentation made possible by human memory (overruling upon this point the earlier case of Keene v. Kimball, 16 Gray, 545, 77 Am. Dec. 426), and Dodge Co. v. Construction Information Co., 183 Mass. 62, 66 N.E. 204, 60 L. R. A. 810, 97 Am St. Rep. 412, where property rights in valuable commercial information distributed to subscribers in writing, in print, by telegraph or orally, were recognized and protected against use by a rival concern. Neither of these decisions touch at all closely the points involved in the case at bar.

The rights of the authors of letters of a private or business nature have been the subject of judicial determination in courts in England and this country for a period of at least 170 years. The first English case was Pope v. Curl, 2 Atk. 341, which was in 1741. It was a suit by Alexander Pope to restrain the publication of letters written by him to Swift and others. In continuing an injunction Lord Chancellor Hardwicke, after remarking that no distinction could be drawn between letters and books or other learned works, said: 'Another objection has been made * * * that where a man writes a letter, it is in the nature of a gift to the receiver. But I am of opinion that it is only a special property in the receiver, possibly the property of the paper may belong to him; but this does not give a license to any person whatsoever to publish them to the world, for at most the receiver has only a joint property with the writer. * * * It has been insisted * * * that this is a sort of work which does not come within the meaning of the act of Parliament [as to copyright] because it contains only letters on familiar subjects and inquiries after the health of friends and cannot properly be called a learned work. It is certain that no works have done more service to mankind, than those which have appeared in this shape, upon familiar subjects and which perhaps were never intended to be published; and it is this makes them so valuable.'

Thompson v. Stanhope, 2 Ambler, 737 (1774), was a suit by the executors of Lord Chesterfield to restrain the publication of his now famous letters to his son, which the widow of the latter proposed to print and sell. Some of these possessed literary merit of a high orde. Lord Chancellor Apsley was 'very clear' that an injunction should be granted, upon the authority of the foregoing decision and the somewhat kindred cases of Forrester v. Waller, 4 Burr. 2331, and Webb v. Rose, 4 Burr. 2330, where notes and conveyancer's drafts were held to be the literary property of the writer or his representatives, and Duke of Queensbury v. Shebbeane, 2 Eden, 329, where the publication of a part of Lord Clarendon's History by a possessor of the manuscript was restrained.

Gee v. Pritchard, 2 Swanston, 402-426, was decided by Lord Eldon in 1818. Letters apparently without literary or other special interest by the plaintiff to the son of her husband were the subject of the suit, and publication was restrained on the ground of the property right of the writer. In Lytton v. Devey, 54 L. J. Ch. 293, it was said: 'The property in the letters remains in the person to whom they are sent. The right to retain them remains in the person to whom the letters are sent; but the sender of the letters has still that kind of interest, if not property, in the letters that he has a right to restrain any use being made of the communication which he has made in the letters so sent by him.' See also Prince Albert v. Strange, 2 De G. & Sm. 652, 1 MacN. & G. 25, 43. This same principle was followed expressly in the Irish case of Granard v. Dunkin, 1 Ball & Beatie, 207, and in Labouchere v. Hess, 77 Law Times Reports (Ch.) 559. There are several dicta to the same effect by great English judges. For example, Lord Campbell said in Boosey v. Jeffreys, 6 E. 580, at 583: 'A court of equity will grant an injunction to prevent the publication of a letter by a correspondent against the will of the writer. That is a recognition of property in the writer, although he has parted with the manuscript, since he wrote to enable his correspondent to know his sentiments, and not to give them to the world.' Lord Cairns said, respecting correspondence in Hopkinson v. Burghley, L. R. 2 Ch. 447, at 448: 'The writer is supposed to intend that the receiver may use it for any lawful purpose, and it has been held that publication is not such lawful purpose.' See also Jeffreys v. Boosey, 4 H. L. C. 815, 867, 962. The latest English case on the subject recognizes this as the well-settled rule. Philip v. Pennell (1907) 2 Ch. 577. In 1804 the Scottish court on the suit of his children interdicted the publication of manuscript letters of Robert Burns. Cadell and Davis v. Stewart, 1 Bell's Com. 116, note.

The earliest case in this country, Denis v. Le Clerc, 1 Mart. (La.) 297, 5 Am. Dec. 712, arose in 1811. A single letter of no literary pretension was there in question and its publication was enjoined, and the writer's property interest in the letter was distinctly upheld.

The question was elaborately discussed by Mr. Justice Story in Folsom v. Marsh, 2 Story, 100, Fed. Cas. No. 4,901, who held that 'the author of any letter or letters (and his representatives) whether they are literary compositions, or familiar letters, or letters of business, possess the sole and exclusive copyright therein; and that no persons, neither those to whom they are addressed, nor other persons, have any right or authority, to publish the same upon their own account or for their benefit.' In Bartlett v. Crittenden, 5 McLean, 32, at page 42, Fed. Cas. No. 1,076, Mr. Justice McLean said: 'Even the publication of private letters by the person to whom they were addressed may be enjoined. This is done upon the ground that the writer has a right of property in his letters, and that they can only be used by the receiver for the purpose for which they were written.' In Woolsey v. Judd, 4 Duer (N. Y.) 379, the question was considered exhaustively, and all the earlier cases were reviewed. The conclusion was reached that the writer of even private letters of no literary value has such a proprietary interest as required a court of equity at his instance to prohibit their publication by the receiver. Grigsby v. Breckinridge, 2 Bush (Ky.) 480, 92 Am. Dec. 509, decided that 'the recipient of a private letter sent without any reservation express or implied' held 'the general property qualified only by the incidental right in the author to publish and prevent publication by the recipient or any other person.' In Barrett v. Fish, 72 Vt. 18, at page 20, 47 A. 174, at page 175 (51 L. R. A. 754, 82 Am. St. Rep. 914), it was said 'that a court of equity will protect the right of property in such [private] letters by enjoining their unauthorized publication.' The same doctrine has been held, either expressly or by way of dictum, in Dock v. Dock, 180 Pa. 14-22, 36 A. 411, 57 Am. St. Rep. 617; Rice v. Williams (C. C.) 32 F. 437; Eyre v. Higbee, 22 How. Prac. (N. Y.) 198; Palmer v. DeWitt, 47 N.Y. 532-536, 7 Am. Rep. 480.

Against these opinions are Wetmore v. Scovell, 3 Edwards Ch. 515, and Hoyt v. Mackenzie, 3 Barb. Ch (N. Y.) 320, 49 Am. Dec. 178, decided respectively of Vice Chancellor McCoun and Chancellor Walworth while sitting alone. They were criticised and overruled in Woolsey v. Judd, 4 Duer (N. Y.) 379, by a court of six judges. There are also certain doubtful dicta by a vice chancellor in Percival v. Phipps, 2 Ves. & Beames, 19, 28, which are relied upon as asserting a somewhat similar view. But it is not necessary to discuss them in detail, for this review of cases demonstrates that the weight of decisions by courts of great authority, speaking often through judges of high distinction for learning and ability, supports the conclusion that equity will afford injunctive relief to the author against the publication of his private letters upon commonplace subjects without regard to their literary merit or the popular attention or special curiosity aroused by them.

The same conclusion is reached on principle and apart from authority. It is generally recognized that one has a right to the fruits of his labor. This...