Rhodes v. Sperry & Hutchinson Co.

Decision Date23 October 1908
Citation193 N.Y. 223,85 N.E. 1097
CourtNew York Court of Appeals Court of Appeals
PartiesRHODES v. SPERRY & HUTCHINSON CO.

OPINION TEXT STARTS HERE

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Aida T. Rhodes against the Sperry & Hutchinson Company for damages for the unauthorized use of plaintiff's photograph. From a judgment of the Appellate Division (120 App. Div. 467,104 N. Y. Supp. 1102), affirming a judgment for plaintiff, defendant appeals. Affirmed.

Appeal by the defendant from a judgment of the Appellate Division of the Supreme Court in the Second Department, entered on the 5th day of July, 1907, affirming a judgment of the Supreme Court in Kings county, enjoining the defendant from using pictures or photographs of the plaintiff for purposes of trade or advertising, and awarding damages to the plaintiff for injuries sustained by reason of such use of her portrait.

The action was brought under the second section of chapter 132, p. 308, Laws 1903. That statute reads as follows:

‘An act to prevent the unauthorized use of the name or picture of any person for the purposes of trade (passed April 6, 1903).

Section 1. A person, firm or corporation that uses for advertising purposes, or for purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or, if a minor, of his or her parent or guardian, is guilty of a misdemeanor.

Sec. 2. Any person whose name, portrait or picture is used within this state for advertising purposes or for the purposes of trade without the written consent first obtained as above provided may maintain an equitable action in the Supreme Court of this state against the person, firm or corporation so using his name, portrait or picture, to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use, and if the defendant shall have knowingly used such person's name, portrait, or picture in such manner as is forbidden or declared to be unlawful by this act, the jury, in its discretion, may award exemplary damages.

Sec. 3. This act shall take effect September 1, 1903.’

Upon the trial of the action at Special Term the court made the following findings of fact: (1) That the defendant is a foreign corporation organized under the laws of the state of New Jersey. (2) That the defendant is engaged in the business of issuing and redeeming trading stamps; and, at the time this action was begun, and for some time prior thereto, the defendant occupied the premises Nos. 152-154 West Twenty-Third street, borough of Manhattan, city of New York, and used the same as an office for the exhibition of premiums, obtainable upon the surrender of trading stamps issued by the defendant. (3) That the defendant, at the time when this action was begun, and for some time prior thereto, was using, exhibiting and displaying in said office of the defendant pictures or photographs of the plaintiff in different poses, as premium exhibits, and for the purpose of advertising the benefits conferred on the holders of trading stamps issued by defendant, and to acquire a larger trade and custom by such use, exhibition, and display. (4) That the plaintiff has never consented in writing or otherwise to the use, exhibition, or display of her picture or photograph. (5) That the plaintiff has suffered damages by the defendant's use of her picture or photograph as above set forth.’ Upon these findings of fact an interlocutory judgment was rendered, enjoining the defendant from using the plaintiff's pictures or photographs for purposes of trade or advertising, and directing an assessment of her damages at Trial Term, where she obtained a verdict of $1,000. The final judgment entered upon this verdict has been unanimously affirmed by the Appellate Division.

Learned Hand, for appellant.

Thomas E. O'Brien, for respondent.

WILLARD BARTLETT, J.

(after stating the facts as above). In the case of Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442, 59 L. R. A. 478, 89 Am. St. Rep. 828, this court determinedthat, in the absence of any statute on the subject, the right of privacy as a legal doctrine enforceable in equity did not exist in this state so as to enable a woman to prevent the use of her portrait by others for advertising purposes without her consent. In the prevailing opinion in that case, however, Chief Judge Parker suggested that the right of privacy to that extent might properly be protected by an act of the Legislature, saying: ‘The legislative body could very well interfere and arbitrarily provide that no one should be permitted, for his own selfish purpose, to use the picture or the name of another for advertising purposes without his consent.’ Chapter 132, p. 308, Laws 1903, was passed at the very next session of the Legislature after this judicial utterance was made public, and there can be little doubt that its enactment was prompted by the suggestion which I have quoted. We are now asked to reverse the judgment in this action based on that statute, on the ground that its enactment was not a valid exercise of the power of the Legislature under the Constitution of the state of New York, and on the further ground that it is violative of the Constitution of the United States. It is contended that the act in question violates the state Constitution: (1) Because it deprives persons of liberty without due process of law; and (2) because it deprives persons of property without due process of law. It is contended that it violates the federal Constitution because it impairs the obligation of contracts.

As to the first objection, it is to be observed that the statute does not deny the right of any person to make such use of his own portrait, as he may see fit. The Legislature has not undertaken to restrict his liberty in this respect to any extent whatever. It is only the use of his name or picture by others, and by others for particular purposes, that is affected by the statute. Unless we are bound to assume that there is an inherent right in the public at large to use the names and portraits of others for advertising or trade purposes without their consent, the legislative restriction of their liberty imposed by this act is not an exercise of power which affords the basis of any valid objection in a court of justice. The statute merely recogonizes and enforces the right of a person to control the use of his name of portrait by other so far as advertising or trade purposes are concerned. This right of control in the person whose name or picture is sought to be used for such purposes is not limited by the statute. The requirement of his written consent, in order to effectuate a valid transfer of the privilege of thus using his name or portrait, is not any more liable to constitutional objection than the requirement of the statute of frauds that an executory contract for the sale of personal property exceeding $50 in price must be made in writing in order to be enforceable. The power of the Legislature, in the absence of any constitutional restriction, to declare that a particular act shall constitute a crime, or be actionable as a tort, cannot be questioned, where the right established, or recognized and sought to be protected, is based upon an ethical sanction. Such is the character of the right of privacy preserved by legislation protecting persons against the unauthorized use of their names or portraits in the form of advertisements or trade notices. It is a recognition by the lawmaking power of the very general sentiment which prevailed throughout the community against permitting advertisers to promote the sale of their wares by this method, regardless of the wishes of the persons thereby affected. There was a natural and widespread feeling that such use of their names and portraits, in the absence of consent,...

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27 cases
  • Donahue v. Warner Bros. Pictures
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • February 16, 1952
    ...statement of that historic fact as a contributing factor to the enactment of the statute, see Rhodes v. Sperry & Hutchinson Co., 193 N.Y. 223, 85 N.E. 1097, 34 L.R.A.,N.S., 1143, affirmed 220 U. S. 502, 31 S.Ct. 490, 55 L.Ed. The legislature of Utah in the enactment of sections 103-4-8 and ......
  • Brinkley v. Casablancas
    • United States
    • New York Supreme Court — Appellate Division
    • May 14, 1981
    ...in Roberson, the Legislature enacted sections 50 and 51 of the Civil Rights Law at its next session. (See Rhodes v. Sperry & Hutchinson Co., 193 N.Y. 223, 227, 85 N.E. 1097, aff'd. sub nom. Sperry & Hutchinson Co. v. Rhodes, 220 U.S. 502, 31 S.Ct. 490, 55 L.Ed. 561.) Section 50 provides a p......
  • Electra v. 59 Murray Enters., Inc.
    • United States
    • U.S. Court of Appeals — Second Circuit
    • February 9, 2021
    ...wise forbids the transfer of the right so to use them, provided that right is conferred by a written consent to that effect.193 N.Y. 223, 230-31, 85 N.E. 1097 (1908), aff'd , 220 U.S. 502, 31 S.Ct. 490, 55 L.Ed. 561 (1911).7 Appellants also appeal from the portion of the district court's or......
  • Bowerman v. Sheehan
    • United States
    • Michigan Supreme Court
    • April 3, 1928
    ...no remedy.’ Bertholf v. O'Reilly, 74 N. Y. 509, 30 Am. Rep. 323, quoted approvingly in Rhodes v. Sperry & Hutchinson Co., 193 N. Y. 223, 85 N. E. 1097,34 L. R. A. (N. S.) 1143, 127 Am. St. Rep. 945. ‘A person has no property, no vested interest, in any rule of the common law. That is only o......
  • Request a trial to view additional results

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