Roberson v. Rochester Folding Box Co.

CourtNew York Court of Appeals
Writing for the CourtPARKER
Citation171 N.Y. 538,64 N.E. 442
Decision Date27 June 1902
PartiesROBERSON v. ROCHESTER FOLDING BOX CO. et al.

171 N.Y. 538
64 N.E. 442

ROBERSON
v.
ROCHESTER FOLDING BOX CO. et al.

Court of Appeals of New York.

June 27, 1902.


Appeal from supreme court, appellate division, Fourth department.

Action by Abigail M. Roberson, by Margaret E. Bell, her guardian ad litem, against the Rochester Folding Box Company and others. From a judgment of the appellate division (71 N. Y. Supp. 876) affirming a judgment in favor of plaintiff overruling a demurrer to the complaint, defendants appeal. Reversed.

Gray, Bartlett, and Haight, JJ., dissenting.


[171 N.Y. 539]Elbridge L. Adams, for appellants.

171 N.Y. 540]Milton E. Gibbs, for respondent.
[171 N.Y. 541]PARKER, C. J.

The appellate division has certified that the following questions of law have arisen in this case, and [171 N.Y. 542]ought to be reviewed by this court: (1) Does the complaint herein state a cause of action at law against the defendants, or either of them? (2) Does the complaint herein state a cause of action in equity against the defendants, or either of them? These questions are presented by a demurrer to the complaint, which is put upon the ground that the complaint does not state facts sufficient to constitute a cause of action.

As a demurrer admits not only those facts which are expressly alleged in the complaint, but everything which can be implied by fair and reasonable intendment from its allegations (Marie v. Garrison, 83 N. Y. 14, 23), we are to inquire whether the complaint, regarded from the standpoint of this rule, can be said to show any right to relief either in law or in equity. The complaint alleges that the Franklin Mills Company, one of the defendants, was engaged in a general milling business and in the manufacture and sale of flour; that before the commencement of the action, without the knowledge or consent of plaintiff, defendants, knowing that they had no right or authority so to do, had obtained, made, printed, sold, and circulated about 25,000 lithographic prints, photographs, and likenesses of plaintiff, made in a manner particularly set up in the complaint; that upon the paper upon which the likenesses were printed and above the portrait there were printed, in large, plain letters, the words, ‘Flour of the Family,’ and below the portrait, in large capital letters, ‘Franklin Mills Flour,’ and in the lower right-hand corner, in smaller capital letters, ‘Rochester Folding Box Co., Rochester, N. Y.’; that upon the same sheet were other advertisements of the flour of the Franklin Mills Company; that those 25,000 likenesses of the plaintiff thus ornamented have been conspicuously posted and displayed in stores, warehouses, saloons, and other public places; that they have been recognized by friends of the plaintiff and other people, with the result that plaintiff has been greatly humiliated by the scoffs and jeers of persons who have recognized her face and picture on this advertisement, and her good name has been attacked, causing her [171 N.Y. 543]great distress and suffering, both in body and mind; that she was made sick, and suffered a severe nervous shock, was confined to her bed, and compelled to employ a physician, because of these facts; that defendants had continued to print, make, use, sell, and circulate the said lithographs, and that by reason of the foregoing facts plaintiff had suffered damages in the sum of $15,000. The complaint prays that defendants be enjoined from making, printing, publishing, circulating, or using in any manner any likenesses of plaintiff in any form whatever; for further relief (which it is not necessary to consider here); and for damages.

It will be observed that there is no complaint made that plaintiff was libeled by this publication of her portrait. The likeness is said to be a very good one, and one that her friends and acquaintances were able to recognize. Indeed, her grievance is that a good portrait of her, and therefore one easily recognized, has been used to attract attention

[64 N.E. 443

toward the paper upon which defendant mill company's advertisements appear. Such publicity, which some find agreeable, is to plaintiff very distasteful, and thus, because of defendants' impertinence in using her picture, without her consent, for their own business purposes, she has been caused to suffer mental distress where others would have appreciated the compliment to their beauty implied in the selection of the picture for such purposes; but, as it is distasteful to her, she seeks the aid of the courts to enjoin a further circulation of the lithographic prints containing her portrait made as alleged in the complaint, and, as an incident thereto, to reimburse her for the damages to her feelings, which the complaint fixes at the sum of $15,000. There is no precedent for such an action to be found in the decisions of this court. Indeed, the learned judge who wrote the very able and interesting opinion in the appellate division said, while upon the threshold of the discussion of the question: ‘It may be said, in the first place, that the theory upon which this action is predicated is new, at least in instance, if not in principle, and that few precedents can be found to sustain the claim made by the plaintiff, if, indeed, it can be said [171 N.Y. 544]that there are any authoritative cases establishing her right to recover in this action.’ Nevertheless that court reached the conclusion that plaintiff had a good cause of action against defendants, in that defendants had invaded what is called a ‘right of privacy’; in other words, the right to be let alone. Mention of such a right is not to be found in Blackstone, Kent, or any other of the great commentators upon the law; nor, so far as the learning of counsel or the courts in this case have been able to discover, does its existence seem to have been asserted prior to about the year 1890, when it was presented with attractiveness, and no inconsiderable ability, in the Harvard Law Review (volume 4, p. 193) in an article entitled ‘Rights of a Citizen to His Reputation.’ The so-called ‘right of privacy’ is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals, or newspapers; and, necessarily, that the things which may not be written and published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise. While most persons would much prefer to have a good likeness of themselves appear in a responsible periodical or leading newspaper rather than upon an advertising card or sheet, the doctrine which the courts are asked to create for this case would apply as well to the one publication as to the other, for the principle which a court of equity is asked to assert in support of a recovery in this action is that the right of privacy exists and is enforceable in equity, and that the publication of that which purports to be a portrait of another person, even if obtained upon the street by an impertinent individual with a camera, will be restrained in equity on the ground that an individual has the right to prevent his features from becoming known to those outside of his circle of friends and acquaintances. If such a principle be incorporated into the body of the [171 N.Y. 545]law through the instrumentality of a court of equity, the attempts to logically apply the principle will necessarily result not only in a vast amount of litigation, but in litigation bordering upon the absurd, for the right of privacy, once established as a legal doctrine, cannot be confined to the restraint of the publication of a likeness, but must necessarily embrace as well the publication of a word picture, a comment upon one's looks, conduct, domestic relations or habits. And, were the right of privacy once legally asserted, it would necessarily be held to include the same things if spoken instead of printed, for one, as well as the other, invades the right to be absolutely let alone. An insult would certainly be in violation of such a right, and with many persons would more seriously wound the feelings than would the publication of their picture. And so we might add to the list of things that are spoken and done day by day which seriously offend the sensibilities of good people to which the principle which the plaintiff seeks to have imbedded in the doctrine of the law would seem to apply. I have gone only far enough to barely suggest the vast field of litigation which would necessarily be opened up should this court hold that privacy exists as a legal right enforceable in equity by injunction, and by damages where they seem necessary to give complete relief.

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. In such event no embarrassment would result to the general body of the law, for the rule would be applicable only to cases provided for by the statute. The courts, however, being without authority to legislate, are required to decide cases upon principle, and so are necessarily embarrassed by precedents created by an extreme, and therefore unjustifiable, application of an old principle. The court below properly said that: ‘While it may be true that the fact that no precedent can be found to sustain an action in any given case is cogent evidence that a principle [171 N.Y. 546]does not exist upon which the right may be based, it is not the rule that the want of a precedent is a sufficient reason for turning the plaintiff out of court,’ provided (I think should be added) there can be found a clear and unequivocal principle of the common law, which either directly or mediately governs it, or which, by...

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187 practice notes
  • Flake v. Greensboro News Co, No. 744.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 2, 1938
    ...and progress of this doctrine, the attention of those interested therein is directed to the case of Roberson v. Rochester Folding-Box Co., 171 N.Y. 538, 64 N.E. 442, 443, 59 L. L.R.A. 478, 89 Am.St.Rep. 828, in which Parker, C. J., reviews all of the cases dealing with the subject, both Eng......
  • Doe v. Roe
    • United States
    • United States State Supreme Court (New York)
    • November 21, 1977
    ...intrution." At bar is a claim of "unreasonable publicity" (cf. Time v. Hill, supra ). Ever since Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, the courts of this state have held uniformly (cf. Waters v. Moore, 70 Misc.2d 372, 334 N.Y.S.2d 428) that no cause of action for......
  • Mack v. US, FBI, No. 83 Civ. 5764 (PNL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 18, 1986
    ...the common law tort of invasion of privacy. In 1902, the New York Court of Appeals held in Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 556, 64 N.E. 442, 447 (1902), that there was no common law right of privacy in New York. Shortly thereafter, the New York legislature passed an abb......
  • Crump v. Beckley Newspapers, Inc., No. 15804
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...1903 N.Y.LAWS ch. 132, §§ 1-2 [currently found at N.Y.CIV.RTS.LAW §§ 50-51 (McKinney 1976) ]; Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902). A short time later, Georgia and Louisiana judicially recognized a right to privacy. Pavesich v. New England Life Ins. Co., s......
  • Request a trial to view additional results
182 cases
  • Flake v. Greensboro News Co, No. 744.
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • February 2, 1938
    ...and progress of this doctrine, the attention of those interested therein is directed to the case of Roberson v. Rochester Folding-Box Co., 171 N.Y. 538, 64 N.E. 442, 443, 59 L. L.R.A. 478, 89 Am.St.Rep. 828, in which Parker, C. J., reviews all of the cases dealing with the subject, both Eng......
  • Doe v. Roe
    • United States
    • United States State Supreme Court (New York)
    • November 21, 1977
    ...intrution." At bar is a claim of "unreasonable publicity" (cf. Time v. Hill, supra ). Ever since Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442, the courts of this state have held uniformly (cf. Waters v. Moore, 70 Misc.2d 372, 334 N.Y.S.2d 428) that no cause of action for......
  • Mack v. US, FBI, No. 83 Civ. 5764 (PNL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 18, 1986
    ...the common law tort of invasion of privacy. In 1902, the New York Court of Appeals held in Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 556, 64 N.E. 442, 447 (1902), that there was no common law right of privacy in New York. Shortly thereafter, the New York legislature passed an abb......
  • Crump v. Beckley Newspapers, Inc., No. 15804
    • United States
    • Supreme Court of West Virginia
    • November 10, 1983
    ...1903 N.Y.LAWS ch. 132, §§ 1-2 [currently found at N.Y.CIV.RTS.LAW §§ 50-51 (McKinney 1976) ]; Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902). A short time later, Georgia and Louisiana judicially recognized a right to privacy. Pavesich v. New England Life Ins. Co., s......
  • Request a trial to view additional results
4 books & journal articles
  • Thorny Copyright Issues-Development on the Horizon?
    • United States
    • Landslide Nbr. 13-1, September 2020
    • September 9, 2020
    ...562, 576 (1977); and In re NCAA Student-Athlete Name & Likeness Licensing Litig. ( Keller ), 724 F.3d 1268, 1280–81 (9th Cir. 2013)). 17. 64 N.E. 442 (N.Y. 1902). 18. De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018), cert. denied , 139 S. Ct. 800 (2019). 19. Id. at 870. 20. 724......
  • Combating Internet Trolls: The Right of Publicity and Section 230
    • United States
    • Landslide Nbr. 13-1, September 2020
    • September 9, 2020
    ...supra note 1, at 1. 11. See, e.g. , Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905); Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y. 1902); see also N.Y. Civ. Rights Law §§ 50–51. For a less abbreviated history by one of this article’s coauthors of the right to privacy......
  • What They Do for a Living: The Right of Publicity in Video Games and Movies
    • United States
    • Landslide Nbr. 13-1, September 2020
    • September 9, 2020
    ...562, 576 (1977); and In re NCAA Student-Athlete Name & Likeness Licensing Litig. ( Keller ), 724 F.3d 1268, 1280–81 (9th Cir. 2013)). 17. 64 N.E. 442 (N.Y. 1902). 18. De Havilland v. FX Networks, LLC, 21 Cal. App. 5th 845 (2018), cert. denied , 139 S. Ct. 800 (2019). 19. Id. at 870. 20. 724......
  • What's in a Name, Likeness, and Image? The Case for a Federal Right of Publicity Law
    • United States
    • Landslide Nbr. 13-1, September 2020
    • September 9, 2020
    ...supra note 1, at 1. 11. See, e.g. , Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905); Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y. 1902); see also N.Y. Civ. Rights Law §§ 50–51. For a less abbreviated history by one of this article’s coauthors of the right to privacy......

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