Pallas v. Crowley, Milner & Co.

• Decision Date: 04 October 1948
• Docket Number: No. 9.,9.
• Citation: 33 N.W.2d 911,322 Mich. 411
• Court: Michigan Supreme Court
• Parties: PALLAS v. CROWLEY, MILNER & CO.

322 Mich. 411

33 N.W.2d 911

PALLAS

v.CROWLEY, MILNER & CO.

No. 9.

Supreme Court of Michigan.

Oct. 4, 1948.

Appeal from Circuit Court, Wayne County; Vincent M. Brennan, judge.

Actions for damages for alleged unauthorized use of photograph by Bernice Pallas against Crowley, Milner & Company. From an order dismissing the declaration, the plaintiff appeals.

Order set aside and case remanded.

Before the Entire Bench.

Donald W. Grant, of Detroit (Jack Newcombe, of Detroit, of counsel), for plaintiff-appellant.

Dykema, Jones & Wheat, of Detroit, for defendant-appellee.

BOYLES, Justice.

‘Does the unauthorized publication of another's photograph for the purpose of advertising or commercial gain give rise to an action for damages by the person whose photograph is thus published?’

Plaintiff filed a declaration which under the circumstances must be considered as setting up true facts, alleging as follows:

On or about April 23, 1946, plaintiff was in the employ of one Earl Carroll, a theatrical producer. The defendant was then and is now operating a retail department store in the city of Detroit. On or about said date, the said Earl Carroll employed Preston Sweet, an independent photographer, to make and produce a photograph of plaintiff; and, accordingly, said photograph was made and produced. Thereafter, the defendant, without plaintiff's knowledge or consent, procured from said Preston Sweet a copy of said photograph, or the negative thereof, and caused said photograph to be published in a daily newspaper circulating in and about Detroit, in connection with and as part of an advertisement of certain of defendant's wares, namely, cosmetics. Said advertisement was eight by ten inches and featured said photograph of plaintiff surrounded by printed matter describing certain brands of rouge, lipstick and make-up, by three drawings of what purported to be a bottle of make-up, a lipstick container and a rouge container, and by announcing that said articles were on sale at defendant's store.

Plaintiff, in her declaration, claimed that such publication was wholly without her knowledge or consent and without any right or authority on defendant's part, and that it constituted an invasion of plaintiff's right to be free from unauthorized and offensive publicity and portraiture of her person; that as the proximate result of such unauthorized publication plaintiff suffered loss of earnings and grievous mental and physical injury, in that she lost her employment, was exposed to the contempt and redicule of her friends and acquaintances, and was rendered physically ill to the extent that she required prolonged medical treatment to restore her health.

The defendant moved to dismiss the declaration on the ground that it did not state any cause of action. The circuit judge granted the motion, and from the order entered accordingly the plaintiff appeals.

The weight of authority recognized in other jurisdictions is that under many circumstances the law will consider the unauthorized publication of a photograph of a person as an invasion of such person's right of privacy and as a tort. Undoubtedly, circumstances control each decision. The following cases support the plaintiff's claim:

Reed v. Real Detective Publishing Co., Inc., 1945, 63 Ariz. 294, 162 P.2d 133 (publication of plaintiff's photograph in a crime magazine);

Melvin v. Reid, 1931, 112 Cal.App. 285, 297 P. 91 (movie showing incidents in life of reformed prostitute);

Cason v. Baskin, 1944, 155 Fla. 198, 20 So.2d 243, 168 A.L.R. 430;

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 (using plaintiff's picture in advertisement. This is a leading case in which the plaintiff was an artist); State ex rel. Mavity v. Tyndall, 1946, 224 Ind. 364, 66 N.E.2d 755 (police could take plaintiff's fingerprints and picture, but could not exhibit the latter in a rogue's gallery after his acquittal);

Foster-Milburn Co. v. Chinn, 1909, 134 Ky. 424, 120 S.W. 364, 34 L.R.A., N.S., 1137, 135 Am.St.Rep. 417;

Itzkovitch v. Whitaker, 1905, 115 La. 479, 39 So. 499, 1 L.R.A.,N.S., 1147, 112 Am.St.Rep. 272;Id., 117 La. 708, 42 So. 228,116 Am.St.Rep. 215 (police photo in rogue's gallery);

Munden v. Harris, 1911, 153 Mo.App. 652, 134 S.W. 1076, 1078 (picture in adverstisement). The court said: ‘One may have peculiarity of appearance, and if it is to be made a matter of merchandise, why should it not be for his benefit? It is a right which he may wish to exercise for his own profit, and why may he not restrain another who is using it for gain? If there is value in it, sufficient to excite the cupidity of another, why is it not the property of him who gives it the value and from whom the value springs?’

Barber v. Time, Inc., 1942, 348 Mo. 1199, 159 S.W.2d 291 (magazine article and photograph regarding plaintiff's peculiar ailment of continuous eating). This case holds that where a news item in concerned, as in this case and the Reed Case, supra, the item must be especially offensive to warrant recovery, because of the public interest in freedom of the press, which otherwise limits the right of privacy. But where the act complained of is the use of one's photograph in an advertisement, there is no limiting factor of press freedom involved. Consequently the defense of a plaintiff's public character should not apply;

Edison v. Edison Polyform & Manfg. Co., 1907, 73 N.J.Eq. 136, 67 A. 392, 394 (use of plaintiff's photograph for advertisement). The court said: ‘If a man's name be his own property, as no less an authority than the United States Supreme Court says, it is [sic] (Brown Chemical Co. v. Meyer, 139 U.S. [540], 542, 11 S.Ct. 625, 35 L.Ed. 247) it is difficult to understand why the peculiar cast of one's features is not also one's property, and why its pecuniary value, if it has one, does not belong to its owner, rather than to the person seeking to make an unauthorized use of it.’

Flake v. Greensboro News Co., 1938, 212 N.C. 780, 195 S.E. 55 (use of photograph in advertisement. Plaintiff was a radio entertainer);

Friedman v. Cincinnati Local Board of Hotel & Restaurant Employees, Com.Pl., Hamilton County 1941, 6 Ohio Supp. 276 (use of movies of customers, taken by picketers);

Clayman v. Bernstein, Philadelphia County 1940, 38 Pa.Dist. & Co.R. 543 (injunction against use of photograph...