Continental Optical Co. v. Reed

• Decision Date: 25 May 1949
• Docket Number: 17828.
• Citation: 86 N.E.2d 306,119 Ind.App. 643
• Parties: CONTINENTAL OPTICAL CO. v. REED.
• Court: Indiana Appellate Court

86 N.E.2d 306

119 Ind.App. 643

CONTINENTAL OPTICAL CO. v. REED.

No. 17828.

Appellate Court of Indiana, in Banc.

May 25, 1949

Branigin & Branigin, Franklin, D. P. Williams, Indianapolis White, Wright, Raub & Forrey, Indianapolis, John M Miller, Indianapolis, George C. Forrey, III, Indianapolis Edward B. Raub, Jr., Indianapolis, Jacob S. White, Indianapolis, for appellant.

W. C. Bachelder, Indianapolis, Eugene M. Fife, Jr., Indianapolis, Bachelder, Bachelder & Fife, Indianapolis, Haymaker & Acher, Franklin, for appellee.

CRUMPACKER Judge.

The appellee, an optical lens grinder by trade, brought this suit against the appellant, a manufacturer of optical lenses, to recover damages he claims to have suffered by reason of the unauthorized use of his photographic likeness for advertising purposes. Trial to a jury resulted in a verdict for the appellee in the sum of $20,000 upon which judgment was duly entered. This appeal charges that the appellant's demurrer to the complaint was erroneously overruled and its motion for a new trial improperly denied.

The complaint alleges in substance that during World War II the appellee was inducted into the United States Army and attached to a mobile optical unit which operated near the front lines in France and whose duty it was to supply and repair eye-glasses and other lenses for military use. That the appellee's work in connection with said unit was that of a lens grinder and while so engaged the War Department took his picture for the purpose of publication in the United States as a news item concerning military activities overseas and as a part of the Army's plan for bolstering home front morale. In furtherance of such policy the picture was released by the Office of War Information and appeared in one or more publications in this country and particularly in a newspaper published in the appellee's home city of St. Paul. That the appellant thereupon 'unlawfully and fraudulently appropriated said picture and used the same for commercial purposes in its own private enterprise without the knowledge and consent of the plaintiff and with intent to profit thereby.' That in its use of said picture for advertising purposes the appellant, by innuendo, falsely represented to the general public that the appellee endorsed its product. That the appellee has a property right in his personal likeness and its use by the appellant as above indicated made its future use to him entirely worthless for advertising purposes in the optical business, to which he returned after the war. That as a result of the appellant's unlawful and fraudulent conduct as aforesaid his 'privacy has been invaded and he has been deprived of the commercial value of advertisement of his skill and ability, all to his damage in the sum of $25,000.'

As to the nature of this complaint, we accept the appellee's own appraisal thereof as stated in his announcement in open court that he proposed to try the case on the theory that it is an action for damages for the violation of the appellee's right of privacy which includes the personal right to the exclusive use of his own photographic likeness for commercial purposes. In view of the appellant's demurrer to the complaint, our first concern is with the sufficiency of the facts pleaded to constitute a cause of action on such theory.

We find an exhaustive note on the doctrine of right of privacy in 138 A.L.R. 22, which covers the subject in all its phases. From it we gather that, while unknown to the common law, the preponderance of present day authority supports the view that, independent of property rights, contracts, reputation and physical integrity, there is a legal right called the right of privacy, the invasion of which gives rise to a cause of action. As far as we have been able to learn there are but two cases in Indiana which are directly concerned with this doctrine and each commits this jurisdiction to a recognition of the right of privacy as an independent basis of a cause of action when invaded. The first of these cases is State ex rel. Mavity v. Tyndall, 1946, 224 Ind. 364, 66 N.E.2d 755, wherein the Supreme Court considered the right as substantial enough to justify equitable relief, under certain circumstances, against threatened invasion. The second is Patton v. Jacobs, Ind.App. 1948, 78 N.E.2d 789, in which this court recognized a violation of the right as the basis for an action at law to recover resulting damages, although denying relief upon the facts involved.

Being constrained to hold that the right of privacy is an established doctrine in this state it becomes important to define it. After a review of many decisions, the author of the note in 138 A.L.R. 22, supra, offers what we consider to be a comprehensive definition of an actionable invasion of the right. We quote as follows: 'The unwarranted appropriation or exploitation of one's personality, the publicizing of one's private affairs with which the public has no legitimate concern, or the wrongful intrusion into one's private activities, in such manner as to outrage or cause mental suffering, shame, or humiliation to a person of ordinary sensibility.'

An article by Warren and Brandeis, later Justice Brandeis of the United States Supreme Court , published in 4 Harvard Law Review 193 in 1890, seems to have initiated and outlined the doctrine in theory but many years prior thereto a need was felt for the protection of persons against the unauthorized publication of their photographs, such publication being likened to the violation 'of a sort of natural copyright possessed by every person of his or her own features.' 8 Am.L.Reg.,N.S., 1, 8. Modern methods of advertising and publicity have accentuated such need to the extent that now, in every state that recognizes the doctrine, the unauthorized use of photographs of a person for commercial purposes, as a general rule, is held to be an invasion of his right of privacy. See State ex rel. Mavity v. Tyndall, supra.

This right, however, like any other right that resides in an individual, may be waived or lost. Pavesich v. New England Life Ins. Co., 1905, 122 Ga. 190, 50 S.E. 68, 69 L.R.A. 101, 106 Am.St.Rep. 104, 2 Ann.Cas. 561; Tanner-Brice Co. v. Sims, 1931, 174 Ga. 13, 161 S.E 819. It is waived by express or implied consent and lost by a course of conduct which estops its assertion. It has been...