Clayman v. Bernstein

• Decision Date: 27 January 1940
• Docket Number: 4865
• Citation: 38 Pa. D. & C. 543
• Parties: Clayman et ux. v. Bernstein
• Court: Pennsylvania Commonwealth Court

38 Pa. D. & C. 543

Clayman et ux. v. Bernstein

No. 4865

Common Pleas Court of Philadelphia County, Pennsylvania

January 27, 1940

March term, 1939.

O'Connell & Tobin, for plaintiffs.

Edmonds, Obermayer & Rebmann, for defendant.

OPINION

Preliminary objections to bill in equity.

ALESSANDRONI J.

This is a bill in equity to enjoin defendant from developing or making prints of certain films and the negatives thereof and from using the prints in any manner whatever, and further to direct defendant to turn over the undeveloped films or any negatives and prints made therefrom to plaintiffs. These photographs were made by defendant to show the facial disfiguration of plaintiff Annie Clayman as a result of the illness of which she suffered. Defendant is a physician who treated plaintiff Annie Clayman for coronary thrombosis as a private patient in the Jewish Hospital of Philadelphia from March 20 to July 6, 1938. While she was in a semi-conscious condition in the hospital, defendant, without her permission or that of her husband, plaintiff Barney Clayman, or any member of her family, took the pictures showing the effects of her illness. The bill avers that when plaintiff Annie Clayman was informed of the action of defendant she suffered mental pain and anguish resulting upon her physical well-being and is now distressed and disturbed mentally from the reaction knowing that the photographs are in existence and in possession of defendant, who has refused to deliver them to plaintiff upon her request. Plaintiff Barney Clayman avers that he suffered distress and mental anguish by reason of the reaction both mental and physical upon his wife, and further that it is personally distressing and humiliating to him that the photographs of his wife are in existence and in the possession of defendant.

Preliminary objections were filed on behalf of defendant which have been divided into four parts. In the first place it is argued that the right of privacy cannot be invaded in the absence of publication or other improper use of the photographs. It is contended that actual or intended publication is an essential averment.

The appellate courts of this Commonwealth have not heretofore had occasion to pass upon the existence of the right of privacy, although an interesting discussion of the doctrine may be found in a concurring opinion of Justice Maxey in the case of Waring v. WDAS Broadcasting Station, Inc., 327 Pa. 433, 456. Prior to 1890, decisions both in this country and in England, which related to or involved what we now understand as the right of privacy, were not based upon the existence of that right, but were predicated upon the supposed right of property or a breach of trust or confidence. At that time the doctrine was crystallized and the right of privacy independent of a property or contractual right was recognized in an article, The Right to Privacy, by Prof. Samuel D. Warren and Justice Brandeis appearing in 4 Harv. L. R. 193. Since that time the existence of the right has been the subject of conflicting decisions: Roberson, etc., v. The Rochester Folding Box Co. et al., 171 N.Y. 538, 64 N.E. 442; Pavesich v. New England Life Ins. Co. et al., 122 Ga. 190, 50 S.E. 68; Kunz v. Allen et al., etc., 102 Kan. 883, 172 P. 532; Edison v. Edison Polyform & Mfg. Co., 73 N.J.Eq. 136, 67 A. 392; Douglas v. Stokes, 149 Ky. 506, 149 S.W. 849. This court, in the decision of the case of Harlow et ux. v. Buno Co., Inc., 36 D. & C. 101, recognized the existence of the right of privacy as an independent right derived from the natural law and as a complement of the rights of personal security and personal liberty.

Mr. Justice Maxey, in his concurring opinion in the case of Waring v. WDAS Broadcasting Station, Inc., supra, stated at pages 458-460:

" A man may object to any invasion of his right to privacy or to its unlimited invasion. . . . When a writer of a letter objects, as he may with legal effectiveness, to any publication of that letter by its recipient, or to its publication more widely than he authorized, his purpose is not to protect his property but his privacy. The publication of his letter might not and probably would not cause him one cent's worth of damages, but it might upset his peace of mind and disturb his social relations exactly as would the tapping of his telephone wire or the rifling of his diary or his correspondence. . . . A person who asks a court of equity to prevent his photographs or his artistic renditions from being indiscriminately distributed is likewise seeking the repulsion of intrusions. . . .

" In every such case the individual is entitled to decide whether that which is his shall be given to the public. 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 requires but little argument to show that since a man has a right to withhold from all dissemination, his thoughts, sentiments and emotions no matter what their media of expression, he has a right to restrict or limit this dissemination. . . . If a photographer is employed by a patron to take the latter's portrait, the photographer is not justified in making additional copies . . . for himself or in distributing them or publicly exhibiting them by way of advertising or otherwise, without the authority of the customer, either expressed or implied. See Pollard v. Photographic Co., 40 Ch. D. 345."

The court recognized that an individual has the right to decide whether that which is his shall be given to the public and not only to restrict and limit but also to withhold absolutely his talents, property, or other subjects of the right of privacy from all dissemination. The facial characteristics or peculiar caste of one's features, whether normal or distorted, belong to the individual and may not be reproduced without his permission. Even the photographer who is authorized to take a portrait is not justified in making or retaining additional copies for himself.

A man may object to any invasion, as well as to an unlimited invasion. Widespread distribution of a photograph is not essential nor can it be said that publication in its common usage or in its legal meaning is necessary. It may be conceded that the doctrine of privacy in general is still suffering the pains of its birth and any doctrine in its inception borrows from established precedent. An analogy to the laws of libel, however, is not justified under the circumstances of this case. The author of a libel is the creator and there can be no offense until the contents are communicated to another. One cannot invade the rights of another merely by expressing his thoughts on paper. Two persons are necessary. One's right of privacy, however may be invaded by a single human agency. Plaintiff's picture was taken without her authority or consent. Her right to decide whether her facial characteristics should be recorded for another's benefit or by reason of another's capriciousness has been violated. The scope of the authorization defines the extent of the acts necessary to constitute a violation. If plaintiff had consented to have her photograph taken only for defendant's private files certainly he would have no right to exhibit it to others without her...