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fendant has done that which renders him liable to an injunction. Hewas employed by
the plaintiffs to make a certain number of copies of the picture, and that employment
carried with it the necessary implication that the defendant was not to make more
copies for himself, or to sell the additional copies in this country in competition with
his employer. Such conduct on his part is a gross breach of contract and a gross breach
of faith, and, in my judgment, clearly entitles the plaintiffs to an injunction. whetherthey
have a copyright in the picture or not. ' That case is the more noticeable, as the con-
tract was in writing; and yet it was held to be an implied condition that the defendant
should not make any copies for himself. The phrase 'agross breach of faith 'used by
Lord Justice Lindley in that case applies with equal force to the present, when a
lady's feelings are shocked by finding that the photographer she has employed to take
her likeness for her own use is publicly exhibiting and selling copies thereof. " North, J.,
in Pollard v. Photographic Co., 40 Ch. D. 345, 349-352 ( I888).
"It may be said also that the cases to which I have referred are all cases in which
there was some right of property infringed, based upon the recognition by the law of pro-
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2IO HAR VARD LAW REVIEW.
bring it within the line of those cases which were relied upon as
precedents. 1
This process of implying a term in a contract, or of im-
plying a trust (particularly where the contract is written, and
where there is no established usage or custom ), is nothing more
nor less than a judicial declaration that public morality, private
justice, and general convenience demand the recognition of such a
rule, and that the publication under similar circumstances would
be considered an intolerable abuse. So long as these circum-
stances happen to present a contract upon which such a term can
be engrafted by the judicial mind, or to supply relations upon
which a trust or confidence can be erected, there may be no
objection to working out the desired protection through the
doctrines of contract or of trust. But the court can hardly stop
there. The narrower doctrine may have satisfied the demands of
society at a time when the abuse to be guarded against could
rarely have arisen without violating a contract or a special
tection being due for the products of a man's own skIll or mental labor; whe
present case the person photographed has done nothing to merit such protec
is meant to prevent legal wrongs, and not mere sentimental grievances. B
whose photograph is taken by a photographer is not thus deserted by the la
Act of 25 and 26 Vict., c. 68, s. I, provides that when the negative of any ph
made or executed for or on behalf of another person for a good or valuable
tion, the person making or executing the same shall not retain the copyrigh
unless it is expressly reserved to him by agreement in writing signed by the pe
on whose behalf the same is so made or executed; but the copyright shall be
person for or on whose behalf the same shall have been made or executed.
" The result is that in the present case the copyright in the photograph is in
plaintiffs. It is true, no doubt, that sect. 4 of the same act provides that no
of copyright shall be entitled to the benefit of the act until registration, an
shall be sustained in respect of anything done before registration; and it was,
because the photograph of the female plaintiff has not been registered th
was not referred to by counsel in the course of the argument. But, although
tion against the world in general conferred by the act cannot be enforced u
registration, this does not deprive the plaintiffs of their common-law right
against the defendant for his breach of contract and breach of faith. Th
clear from the cases of Morison v. Moat [ g Hare, 24I ] and Tuck v. Prieste
D. 629] already referred to, in which latter case the same act of Parliam
question. " Per North, J., ibid. p. 352.
This language suggests that the property right in photographs or portraits may be one
created by statute, which would not exist in the absence of registration; but it is sub-
mitted that it must eventually be held here, as it has been in the similar cases, that th
statute provision becomes applicable only when there is a publication, and that before
the act of registering there is property in the thing upon which the statute is to operate.
I Dlke of Queensberry v. Shebbeare, 2 Eden, 329; Murray v. Heath, I B. & Ad. 804
Tuck v. Priester, i9 Q. B. D. 629.
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209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00
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THE RIGHT TO PRIVACY. 2II
confidence; but now that modern devices afford abundant op-
portunities for the perpetration of such wrongs without any
participation by the injured party, the protection granted by
the law must be placed upon a broader foundation. While, for
instance, the state of the photographic art was such that one's
picture could seldom be taken without his consciously " sitting"
for the purpose, the law of contract or of trust might afford the
prudent man sufficient safeguards against the improper circulation
of his portrait; but since the latest advances in photographic art
have rendered it possible to take pictures surreptitiously, the
doctrines of contract and of trust are inadequate to support the
required protection, and the law of tort must be resorted to. The
right of property in its widest sense, including all possession,
ilncluding all rights and privileges, and hence embracing the right
to an inviolate personality, affords alone that broad basis upon
which the protection which the individual demands can be rested.
Thus, the courts, in searching for some principle upon which
the publication of private letters could be enjoined, naturally
came upon the ideas of a breach of confidence, and of an implied
contract ; but it required little consideration to discern that this
doctrine could not afford all the protection required, since it
would not support the court in granting a remedy against a
stranger ; and so the theory of property in the contents of letters
was adopted.' Indeed, it is difficult to conceive on what theory
of the law the casual recipient of a letter, who proceeds to publish
it, is guilty of a breach of contract, express or implied, or of any
breach of trust, in the ordinary acceptation of that term. Suppose
a letter has been addressed to him without his solicitation. He
opens it, and reads. Surely, he has not made any contract ; he
has not accepted any trust. He cannot, by opening and reading
'See Mr. Justice Story in Folsom v. Marsh, 2 Story, ioo, iii (1841):-

fendant has done that which renders him liable to an injunction. Hewas employed by

the plaintiffs to make a certain number of copies of the picture, and that employment

carried with it the necessary implication that the defendant was not to make more

copies for himself, or to sell the additional copies in this country in competition with

his employer. Such conduct on his part is a gross breach of contract and a gross breach

of faith, and, in my judgment, clearly entitles the plaintiffs to an injunction. whetherthey

have a copyright in the picture or not. ' That case is the more noticeable, as the con-

tract was in writing; and yet it was held to be an implied condition that the defendant

should not make any copies for himself. The phrase 'agross breach of faith 'used by

Lord Justice Lindley in that case applies with equal force to the present, when a

lady's feelings are shocked by finding that the photographer she has employed to take

her likeness for her own use is publicly exhibiting and selling copies thereof. " North, J.,

in Pollard v. Photographic Co., 40 Ch. D. 345, 349-352 ( I888).

"It may be said also that the cases to which I have referred are all cases in which

there was some right of property infringed, based upon the recognition by the law of pro-

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

2IO HAR VARD LAW REVIEW.

bring it within the line of those cases which were relied upon as

precedents. 1

This process of implying a term in a contract, or of im-

plying a trust (particularly where the contract is written, and

where there is no established usage or custom ), is nothing more

nor less than a judicial declaration that public morality, private

justice, and general convenience demand the recognition of such a

rule, and that the publication under similar circumstances would

be considered an intolerable abuse. So long as these circum-

stances happen to present a contract upon which such a term can

be engrafted by the judicial mind, or to supply relations upon

which a trust or confidence can be erected, there may be no

objection to working out the desired protection through the

doctrines of contract or of trust. But the court can hardly stop

there. The narrower doctrine may have satisfied the demands of

society at a time when the abuse to be guarded against could

rarely have arisen without violating a contract or a special

tection being due for the products of a man's own skIll or mental labor; whe

present case the person photographed has done nothing to merit such protec

is meant to prevent legal wrongs, and not mere sentimental grievances. B

whose photograph is taken by a photographer is not thus deserted by the la

Act of 25 and 26 Vict., c. 68, s. I, provides that when the negative of any ph

made or executed for or on behalf of another person for a good or valuable

tion, the person making or executing the same shall not retain the copyrigh

unless it is expressly reserved to him by agreement in writing signed by the pe

on whose behalf the same is so made or executed; but the copyright shall be

person for or on whose behalf the same shall have been made or executed.

" The result is that in the present case the copyright in the photograph is in

plaintiffs. It is true, no doubt, that sect. 4 of the same act provides that no

of copyright shall be entitled to the benefit of the act until registration, an

shall be sustained in respect of anything done before registration; and it was,

because the photograph of the female plaintiff has not been registered th

was not referred to by counsel in the course of the argument. But, although

tion against the world in general conferred by the act cannot be enforced u

registration, this does not deprive the plaintiffs of their common-law right

against the defendant for his breach of contract and breach of faith. Th

clear from the cases of Morison v. Moat [ g Hare, 24I ] and Tuck v. Prieste

D. 629] already referred to, in which latter case the same act of Parliam

question. " Per North, J., ibid. p. 352.

This language suggests that the property right in photographs or portraits may be one

created by statute, which would not exist in the absence of registration; but it is sub-

mitted that it must eventually be held here, as it has been in the similar cases, that th

statute provision becomes applicable only when there is a publication, and that before

the act of registering there is property in the thing upon which the statute is to operate.

I Dlke of Queensberry v. Shebbeare, 2 Eden, 329; Murray v. Heath, I B. & Ad. 804

Tuck v. Priester, i9 Q. B. D. 629.

This content downloaded from

209.222.219.5 on Thu, 29 Feb 2024 02:52:22 +00:00

All use subject to https://about.jstor.org/terms

THE RIGHT TO PRIVACY. 2II

confidence; but now that modern devices afford abundant op-

portunities for the perpetration of such wrongs without any

participation by the injured party, the protection granted by

the law must be placed upon a broader foundation. While, for

instance, the state of the photographic art was such that one's

picture could seldom be taken without his consciously " sitting"

for the purpose, the law of contract or of trust might afford the

prudent man sufficient safeguards against the improper circulation

of his portrait; but since the latest advances in photographic art

have rendered it possible to take pictures surreptitiously, the

doctrines of contract and of trust are inadequate to support the

required protection, and the law of tort must be resorted to. The

right of property in its widest sense, including all possession,

ilncluding all rights and privileges, and hence embracing the right

to an inviolate personality, affords alone that broad basis upon

which the protection which the individual demands can be rested.

Thus, the courts, in searching for some principle upon which

the publication of private letters could be enjoined, naturally

came upon the ideas of a breach of confidence, and of an implied

contract ; but it required little consideration to discern that this

doctrine could not afford all the protection required, since it

would not support the court in granting a remedy against a

stranger ; and so the theory of property in the contents of letters

was adopted.' Indeed, it is difficult to conceive on what theory

of the law the casual recipient of a letter, who proceeds to publish

it, is guilty of a breach of contract, express or implied, or of any

breach of trust, in the ordinary acceptation of that term. Suppose

a letter has been addressed to him without his solicitation. He

opens it, and reads. Surely, he has not made any contract ; he

has not accepted any trust. He cannot, by opening and reading

'See Mr. Justice Story in Folsom v. Marsh, 2 Story, ioo, iii (1841):-