§§ 50, 51 Right of Privacy L. 1909, ch. 14 restaurant were served shortly before and after the plaintiff applied. Wilson v. Razzetti, (1914) 88 Misc. 37, 150 N. Y. S. 145. Evidence. In an action to recover the statutory penalty for denial of access to the defendant's theater, the defendant should be allowed to introduce evidence to prove that he, personally, had not authorized the exclusion of the plaintiff, a negress, but had made rules to the contrary and customarily permitted negroes to enjoy the accommodations of his place of amusement. Thomas v. Williams, (1905) 48 Misc. 615, mem., 95 N. Y. S. 592. ARTICLE 5 RIGHT OF PRIVACY Section 50. Right of privacy. 51. Action for injunction and for damages. § 50. Right of privacy. A person, firm or corporation that uses for advertising purposes, or for the 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. 1903 This was formerly section 1 of L. 1895, ch. 132. Penal Law, § 515, provides for the "return of photographs of prisoners after unsuccessful prosecution of criminal action." Right of privacy: see 2 Ann. Cas. 574, 18 Ann. Cas. 1617, 31 L. R. A. 283, Constitutional liberty of speech and press as authorizing invasion of right of privacy: see 15 Ann. Cas. 5. Publication of photograph: see 35 L. R. A. (N. S.) 565, 34 L. R. A. (N. S.) 1137. § 51. Action for injunction and for damages. 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 the last section, the jury, in its discretion, may award exemplary damages. But nothing contained in this act shall be so construed as to prevent any person, firm or corporation, practicing the profession of photography, fr exhibiting in or about his or its establishment specimens of the work of such establishment, L. 1909, ch. 14 Right of Privacy 8 51 unless the same is continued by such person, firm or corporation after written notice objecting thereto has been given by the person portrayed. All but the last sentence of this section was formerly section 2 of L. 1903, ch. 132. The last sentence was added by L. 1911, ch. 226. Constitutionality. This section is not unconstitutional either as denying persons equal protection of the law, or as depriving persons of liberty or property without due process of law, or as impairing the obligations of contracts, or as requiring the written consent of parents or guardian before using portraits of infants. Wyatt v. McCreery, (1908) 126 App. Div. 650, 11 N. Y. S. 86, affirming 58 Misc. 429, 110 N. Y. S. 900. The right of action given by this section does not violate either the state or federal constitution. It deprives persons of neither liberty nor property, nor does it impair the obligations of contracts. "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 recognizes and enforces the right of a person to control the use of his name or portrait by others 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." Rhodes v. Sperry, etc., Co., (1908) 193 N. Y. 223, 85 N. E. 1097, 127 A. S. R. 945, 34 L. R. A. (N. S.) 1143, affirming 120 App. Div. 896, 105 N. Y. S. 1140, and affirmed in (1910) 220 U. S. 502, 31 S. Ct. 490, 55 U. S. (L. ed.) 561. Liability at common law for use of portrait.—A plaintiff whose picture is used, without her consent, in an advertisement has no right of action, in the absence of statute, for violation of her right of privacy. "An examination of the authorities leads us to the conclusion that the so-called 'right of privacy' has not as yet found an abiding place in our jurisprudence, and, as we view it, the doctrine cannot now be incorporated without doing violence to settled principles of law by which the profession and the public have long been guided." Robertson v. Rochester Folding-Box Co., (1902) 171 N. Y. 538, 64 N. E. 442, 8 A. S. R. 828, 59 L. R. A. 478, reversing 64 App. Div. 30, 71 N. Y. S. 876. But see chapter 132, Laws 1913, and cases thereon. Use of portrait in single issue of newspaper.- The use, by a newspaper, of the name and portrait of the plaintiff in a single issue, and not continuously for purposes of trade or advertising, is not prohibited by this section. Moser v. Press Pub. Co., (1908) 59 Misc. 78, 109 N. Y. S. 963. Reproduction and sale of photograph. It is not a violation of this section for a person who has had her photograph taken to authorize persons other than the photographer to reproduce and market copies thereof, as in such cases the customer is the exclusive owner of all proprietary rights in such picture. "It is settled law that the ordinary contract between a photographer and his customers is a contract of employment. The conception as well as the production of the photograph is work done for the customers and they, not their employee, are the exclusive owners of all proprietary rights." White Studio v. Dreyfoos, (1913) 156 App. Div. 762, 142 N. Y. S. 37. Use of name or picture for advertising purposes generally.- Where a portrait of the plaintiff is used without her consent in connection with an 8 51 Right of Privacy L. 1909, ch. 14 advertisement in a magazine, it is a violation of this section and the plaintiff may enjoin such use and also sue for damages. Riddle v. MacFadden, (1911) 201 N. Y. 215, 94 N. E. 644, 116 App. Div. 353, 101 N. Y. S. 606. An injunction will be granted to restrain a railway company from using a picture of the plaintiff and her child, where it is shown that such picture is used for the purpose of showing the defendant's passengers how to enter and alight from its cars. Almind v. Sea Beach R. Co., (1913) 157 App. Div. 230, 141 N. Y. S. 842, reversing 78 Misc. 445, 139 N. Y. S. 559. An actress has no right of action under this section for the publication of her portrait in a weekly magazine, where such portrait is not used for advertising purposes, merely because the magazine contains a number of advertisements. Colyer v. Richard K. Fox Pub. Co., (1914) 162 App. Div. 297, 146 N. Y. S. 999. The use of the plaintiff's name, as an incidental part of a photograph taken of his factory, but not for purposes of trade, does not give rise to a right of action under this section. "The use of the plaintiff's name in this case is not for the purpose of obtaining trade or advertisement; apparently it merely appears in the picture because it was placed upon the building which is a part of the picture. Certainly where a man places his sign upon the outside of a building he cannot claim that a person who would otherwise have a right to photograph the building is precluded from using that picture because the sign also appears on the picture. To constitute a violation of the Civil Rights Law I think it must appear that the use of the plaintiff's picture or name is itself for the purpose of trade, not merely an incidental part of a photograph of an actual building, which cannot be presumed to add to the value of the photograph for trade or advertising, and even a use that may in a particular instance cause acute annoyance cannot give rise to an action under the statute unless it fairly falls within the terms of the statute." Merle v. Sociological Research Film Corp., (1915) 166 App. Div. 376, 152 N. Y. S. 829. Use for moving pictures. The use, by a manufacturer of films for moving pictures, of the plaintiff's name and picture, without his consent, in a series of moving pictures prepared for public exhibition and purporting to be a representation of an occurrence in which the plaintiff had taken part, and also the use of the plaintiff's name and picture in connection with advertisements of such moving picture, are violations of this section. Binns v. Vitagraph Co. of America, (1913) 210 N. Y. 51, 103 N. E. 1108, Ann. Cas. 1915B 1024, L. R. A. 1915C 839, affirming (1911) 147 App. Div. 783, 132 N. Y. S. 237, reversing (1911) 71 Misc. 203, 130 N. Y. S., 876, reversing (1910) 67 Misc. 327, 124 N. Y. S. 515. Use of picture in autobiography.- The use of the picture of the plaintiff in connection with an autobiography is not a violation of this section as being the use of plaintiff's picture in an advertisement or for the purposes of trade, where the publication is for the dissemination of knowledge, and not for trade purposes. Jeffries v. New York Evening Journal Pub. Co., (1910) 67 Misc. 570, 124 N. Y. Supp. 780. Use of author's name.— The use of the name of the plaintiff, a noted educator and writer, without his consent by booksellers in advertising an edition of standard works as being of his selection, is a violation of this section. Eliot v. Jones, (1910) 66 Misc. 95, 120 N. Y. S. 989. The right of publishers to publish certain books with the nom de plume of the author includes the right to publish the author's true name upon the title page or elsewhere, and is not a violation of this section. "In the case at bar," said the court, "the defendants concededly had the right to publish the books in suit with the nom de plume of plaintiff, and this right carried with it the right to state the true name of the author in such form in the book, either upon the title page or otherwise, as to show who was the writer or author thereof." Ellis v. Hurst, (1910) 70 Misc. 122, 128 N. Y. S. 144, reversing 66 Misc. 235, 121 N. Y. S. 438. L. 1909, ch. 14 Right of Privacy § 51 The publication, by the defendant, of a sensational article, written in the first person and attributing the authorship thereof to the plaintiff, a noted traveler and writer, is a use of the plaintiff's name "for advertising purposes or for purposes of trade" and a violation of this section. D'Altomonte v. New York Herald Co., (1913) 154 App. Div. 453, 139 N. Y. S. 200. 66 Estoppel. The use of a photograph of the plaintiff in an advertisement of the defendant's business is not a violation of this section where it appears that the plaintiff, while in the defendant's employ, voluntarily posed for such photograph for the purpose of its being used in such advertisement. The statute was intended to prevent the unauthorized use of another's portrait for advertising purposes or purposes of trade, and made the written consent of the person whose portrait was used for such purposes evidence of that authority; but it never was meant that an employee could fraudulently, or by his culpable negligence amounting to constructive fraud, mislead his employer into expenditures to build up his trade and thereafter claim the intervention of a court of equity where such intervention would visit a material injury upon the employer." Wendell v. Conduit Mach. Co., (1911) 74 Misc. 201, 133 N. Y. S. 758. A person is not entitled to bring an action under this section for the use of his name by another for purposes of trade, where, having conducted a business in his own name, he assigned and transferred to a corporation all his right, title and interest in and to the business, including the stock on hand and good will. In such a case, "it is perfectly plain that the plaintiff is not entitled to the benefit of the provisions of the statute, for by his own voluntary act he has given the defendant his name and the right to use it." White v. White, (1914) 160 App. Div. 709, 145 N. Y. S. 743. Joinder of actions.- Where a plaintiff brings suit against a photographer and magazine editor for the use of her portrait, without her consent, in connection with an advertisement, an action at law for damages and a suit in equity to restrain such use may be joined in one complaint, as they arose out of the same transaction. Such an action, where, in addition to the demand for equitable relief, a demand is made for money damages, is one for personal injury under subdivision 2 of section 191 of the Code of Civil Procedure and no appeal lies thereon except as provided in such section. Riddle v. MacFadden, (1911) 201 N. Y. 215, 94 N. E. 644, 116 App. Div. 353, 101 N. Y. S. 606. An action for libel and one under this section may be joined, as arising out of the same transaction. D'Altomonte v. New York Herald Co., (1913) 154 App. Div. 453, 139 N. Y. S. 200. Pleading. In an action under this section "the plaintiff must, by pleading and proof, bring the action within the terms and conditions of the statute. He must, therefore, plead and prove that the defendant is making use of his name or picture for advertising or business purposes without having first procured the written consent of the plaintiff to make such use of the same," but the plaintiff should not be required to reply to a separate defense by way of avoidance, alleging that the plaintiff gave a written consent to the use of his portrait for advertising purposes, for such defense does not avoid the plaintiff's right of action, but, if proved, takes from him his cause of action altogether. Porter v. American Tobacco Co., (1910) 140 App. Div. 871, 125 N. Y. S. 710. A complaint stating that the defendant, while engaged in the business of publishing and selling photographs and portraits in the city of New York, offered the plaintiff's photograph for sale and used it for purposes of trade without her consent, makes sufficient allegation that the acts complained of were committed in this state, and states a sufficient cause of action under this section. Kunz v. Bosselman, (1909) 131 App. Div. 288, 115 N. Y. S. 650. Abatement of action by death of plaintiff.-The right of action given by this section is a personal one, and upon the death of the plaintiff does not §§ 60, 61 Laws Repealed; When to Take Effect L. 1909, ch. 14 survive to his executor or administrator. "The right of privacy or, as it has sometimes been called, the right to be let alone' is in its nature personal. The peculiarly personal character of the cause of action created by the statute negative the idea that the legislature intended that it should be enforceable by the personal representatives of the person in whose favor the cause of action existed. The injury done by the violation of the right does not affect the estate of the person injured, but is strictly an injury to the person of the plaintiff. Nor does the fact that upon the violation of the right the person injured becomes entitled to damages alter the nature of the right to change the character of the cause of action which the statute sanctions." Wyatt v. Hall's Portrait Studio, (1911) 71 Misc. 199, 128 N. Y. S. 247. ARTICLE 6 LAWS REPEALED; WHEN TO TAKE EFFECT Section 60. Laws repealed. 61. When to take effect. § 60. Laws repealed. Of the laws enumerated in the schedule hereto annexed, that portion specified in the last column is hereby repealed. § 61. When to take effect. This chapter shall take effect immediately. SCHEDULE OF LAWS REPEALED. Revised Statutes.... Part 1, chapter 4, Revised Statutes.... Part 1, chapter 20, title 7 |