[27] "A copy or impression of the etchings would only be a means of communicating knowledge and information of the original, and does not a list and description of the same? The means are different, but the object and effect are similar; for in both, the object and effect is to make known to the public more or less of the unpublished work and composition of the author, which he is ent.i.tled to keep wholly for his private use and pleasure, and to withhold altogether, or so far as he may please, from the knowledge of others. Cases upon abridgments, translations, extracts, and criticisms of published works have no reference whatever to the present question; they all depend upon the extent of right under the acts respecting copyright, and have no a.n.a.logy to the exclusive rights in the author of unpublished compositions which depend entirely upon the common-law right of property." Lord Cottenham in Prince Albert _v._ Strange, 1 McN. & G. 23, 43 (1849). "Mr. Justice Yates, in Millar _v._ Taylor, said, that an author's case was exactly similar to that of an inventor of a new mechanical machine; that both original inventions stood upon the same footing in point of property, whether the case were mechanical or literary, whether an epic poem or an orrery; that the immorality of pirating another man's invention was as great as that of purloining his ideas. Property in mechanical works or works of art, executed by a man for his own amus.e.m.e.nt, instruction, or use, is allowed to subsist, certainly, and may, before publication by him, be invaded, not merely by copying, but by description or by catalogue, as it appears to me. A catalogue of such works may in itself be valuable. It may also as effectually show the bent and turn of the mind, the feelings and taste of the artist, especially if not professional, as a list of his papers. The portfolio or the studio may declare as much as the writing-table. A man may employ himself in private in a manner very harmless, but which, disclosed to society, may destroy the comfort of his life, or even his success in it. Every one, however, has a right, I apprehend, to say that the produce of his private hours is not more liable to publication without his consent, because the publication must be creditable or advantageous to him, than it would be in opposite circ.u.mstances."

"I think, therefore, not only that the defendant here is unlawfully invading the plaintiff's rights, but also that the invasion is of such a kind and affects such property as to ent.i.tle the plaintiff to the preventive remedy of an injunction; and if not the more, yet, certainly, not the less, because it is an intrusion,--an unbecoming and unseemly intrusion,--an intrusion not alone in breach of conventional rules, but offensive to that inbred sense of propriety natural to every man,--if intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life,--into the home (a word hitherto sacred among us), the home of a family whose life and conduct form an acknowledged t.i.tle, though not their only unquestionable t.i.tle, to the most marked respect in this country." Knight Bruce, V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 696, 697.

[28] Kiernan _v._ Manhattan Quotation Co., 50 How. Pr. 194 (1876).

[29] "The defendants' counsel say, that a man acquiring a knowledge of another's property without his consent is not by any rule or principle which a court of justice can apply (however secretly he may have kept or endeavored to keep it) forbidden without his consent to communicate and publish that knowledge to the world, to inform the world what the property is, or to describe it publicly, whether orally, or in print or writing.

"I claim, however, leave to doubt whether, as to property of a private nature, which the owner, without infringing on the right of any other, may and does retain in a state of privacy, it is certain that a person who, without the owner's consent, express or implied, acquires a knowledge of it, can lawfully avail himself of the knowledge so acquired to publish without his consent a description of the property.

"It is probably true that such a publication may be in a manner or relate to property of a kind rendering a question concerning the lawfulness of the act too slight to deserve attention. I can conceive cases, however, in which an act of the sort may be so circ.u.mstanced or relate to property such, that the matter may weightily affect the owner's interest or feelings, or both. For instance, the nature and intention of an unfinished work of an artist, prematurely made known to the world, may be painful and deeply prejudicial against him; nor would it be difficult to suggest other examples....

"It was suggested that, to publish a catalogue of a collector's gems, coins, antiquities, or other such curiosities, for instance, without his consent, would be to make use of his property without his consent; and it is true, certainly, that a proceeding of that kind may not only as much embitter one collector's life as it would flatter another,--may be not only an ideal calamity,--but may do the owner damage in the most vulgar sense. Such catalogues, even when not descriptive, are often sought after, and sometimes obtain very substantial prices. These, therefore, and the like instances, are not necessarily examples merely of pain inflicted in point of sentiment or imagination; they may be that, and something else beside." Knight Bruce, V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 689, 690.

[30] Hoyt _v._ Mackenzie, 3 Barb. Ch. 320, 324 (1848); Wetmore _v._ Scovell, 3 Edw. Ch. 515 (1842). See Sir Thomas Plumer in 2 Ves. & B. 19 (1813).

[31] Woolsey _v._ Judd, 4 Duer, 379, 404 (1855). "It has been decided, fortunately for the welfare of society, that the writer of letters, though written without any purpose of profit, or any idea of literary property, possesses such a right of property in them, that they cannot be published without his consent, unless the purposes of justice, civil or criminal, require the publication." Sir Samuel Romilly, _arg._, in Gee _v._ Pritchard, 2 Swanst. 402, 418 (1818). But see High on Injunctions, 3d ed, -- 1012, _contra_.

[32] "But a doubt has been suggested, whether mere private letters, not intended as literary compositions, are ent.i.tled to the protection of an injunction in the same manner as compositions of a literary character.

This doubt has probably arisen from the habit of not discriminating between the different rights of property which belong to an unpublished ma.n.u.script, and those which belong to a published book. The latter, as I have intimated in another connection, is a right to take the profits of publication. The former is a right to control the act of publication, and to decide whether there shall be any publication at all. It has been called a right of property; an expression perhaps not quite satisfactory, but on the other hand sufficiently descriptive of a right which, however incorporeal, involves many of the essential elements of property, and is at least positive and definite. This expression can leave us in no doubt as to the meaning of the learned judges who have used it, when they have applied it to cases of unpublished ma.n.u.scripts.

They obviously intended to use it in no other sense, than in contradistinction to the mere interests of feeling, and to describe a substantial right of legal interest." Curtis on Copyright, pp. 93, 94.

The resemblance of the right to prevent publication of an unpublished ma.n.u.script to the well-recognized rights of personal immunity is found in the treatment of it in connection with the rights of creditors. The right to prevent such publication and the right of action for its infringement, like the cause of action for an a.s.sault, battery, defamation, or malicious prosecution, are not a.s.sets available to creditors.

"There is no law which can compel an author to publish. No one can determine this essential matter of publication but the author. His ma.n.u.scripts, however valuable, cannot, without his consent, be seized by his creditors as property." McLean, J., in Bartlett _v._ Crittenden, 5 McLean, 32, 37 (1849).

It has also been held that even where the sender's rights are not a.s.serted, the receiver of a letter has not such property in it as pa.s.ses to his executor or administrator as a salable a.s.set. Eyre _v._ Higbee, 22 How. Pr. (N. Y.) 198 (1861).

"The very meaning of the word 'property' in its legal sense is 'that which is peculiar or proper to any person; that which belongs exclusively to one.' The first meaning of the word from which it is derived--_proprius_--is 'one's own.'" Drone on Copyright, p. 6.

It is clear that a thing must be capable of identification in order to be the subject of exclusive ownership. But when its ident.i.ty can be determined so that individual ownership may be a.s.serted, it matters not whether it be corporeal or incorporeal.

[33] "Such then being, as I believe, the nature and the foundation of the common law as to ma.n.u.scripts independently of Parliamentary additions and subtractions, its operation cannot of necessity be confined to literary subjects. That would be to limit the rule by the example. Wherever the produce of labor is liable to invasion in an a.n.a.logous manner, there must, I suppose, be a t.i.tle to a.n.a.logous protection or redress." Knight Bruce, V. C., in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 696.

[34] "The question, therefore, is whether a photographer who has been employed by a customer to take his or her portrait is justified in striking off copies of such photograph for his own use, and selling and disposing of them, or publicly exhibiting them by way of advertis.e.m.e.nt or otherwise, without the authority of such customer, either express or implied. I say 'express or implied,' because a photographer is frequently allowed, on his own request, to take a photograph of a person under circ.u.mstances in which a subsequent sale by him must have been in the contemplation of both parties, though not actually mentioned. To the question thus put, my answer is in the negative, that the photographer is not justified in so doing. Where a person obtains information in the course of a confidential employment, the law does not permit him to make any improper use of the information so obtained; and an injunction is granted, if necessary, to restrain such use; as, for instance, to restrain a clerk from disclosing his master's accounts, or an attorney from making known his client's affairs, learned in the course of such employment. Again, the law is clear that a breach of contract, whether express or implied, can be restrained by injunction. In my opinion the case of the photographer comes within the principles upon which both these cla.s.ses of cases depend. The object for which he is employed and paid is to supply his customer with the required number of printed photographs of a given subject. For this purpose the negative is taken by the photographer on gla.s.s; and from this negative copies can be printed in much larger numbers than are generally required by the customer. The customer who sits for the negative thus puts the power of reproducing the object in the hands of the photographer; and in my opinion the photographer who uses the negative to produce other copies for his own use, without authority, is abusing the power confidentially placed in his hands merely for the purpose of supplying the customer; and further, I hold that the bargain between the customer and the photographer includes, by implication, an agreement that the prints taken from the negative are to be appropriated to the use of the customer only." Referring to the opinions delivered in Tuck _v._ Priester, 19 Q. B. D. 639, the learned justice continued: "Then Lord Justice Lindley says: 'I will deal first with the injunction, which stands, or may stand, on a totally different footing from either the penalties or the damages. It appears to me that the relation between the plaintiffs and the defendant was such that, whether the plaintiffs had any copyright or not, the defendant has done that which renders him liable to an injunction. He was 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 compet.i.tion 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 ent.i.tles the plaintiffs to an injunction, whether they have a copyright in the picture or not.' That case is the more noticeable, as the contract 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 'a gross 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 (1888).

"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 protection being due for the products of a man's own skill or mental labor; whereas in the present case the person photographed has done nothing to merit such protection, which is meant to prevent legal wrongs, and not mere sentimental grievances. But a person whose photograph is taken by a photographer is not thus deserted by the law; for the Act of 25 and 26 Vict., c. 68, s. 1, provides that when the negative of any photograph is made or executed for or on behalf of another person for a good or valuable consideration, the person making or executing the same shall not retain the copyright thereof, unless it is expressly reserved to him by agreement in writing signed by the person for or on whose behalf the same is so made or executed; but the copyright shall belong to the 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 one of the plaintiffs. It is true, no doubt, that sect. 4 of the same act provides that no proprietor of copyright shall be ent.i.tled to the benefit of the act until registration, and no action shall be sustained in respect of anything done before registration; and it was, I presume, because the photograph of the female plaintiff has not been registered that this act was not referred to by counsel in the course of the argument. But, although the protection against the world in general conferred by the act cannot be enforced until after registration, this does not deprive the plaintiffs of their common-law right of action against the defendant for his breach of contract and breach of faith.

This is quite clear from the cases of Morison _v._ Moat [9 Hare, 241]

and Tuck _v._ Priester [19 Q. B. D. 629] already referred to, in which latter case the same act of Parliament was in 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 submitted that it must eventually be held here, as it has been in the similar cases, that the 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.

[35] Duke of Queensberry _v._ Shebbeare, 2 Eden, 329; Murray _v._ Heath, 1 B. & Ad. 804; Tuck _v._ Priester, 19 Q. B. D. 629.

[36] See Mr. Justice Story in Folsom _v._ Marsh, 2 Story, 100, 111 (1841):--

"If he [the recipient of a letter] attempt to publish such letter or letters on other occasions, not justifiable, a court of equity will prevent the publication by an injunction, as a breach of private confidence or contract, or of the rights of the author; and _a fortiori_, if he attempt to publish them for profit; for then it is not a mere breach of confidence or contract, but it is a violation of the exclusive copyright of the writer.... The general property, and the general rights incident to property, belong to the writer, whether the letters are literary compositions, or familiar letters, or details of facts, or letters of business. The general property in the ma.n.u.scripts remains in the writer and his representatives, as well as the general copyright. _A fortiori_, third persons, standing in no privity with either party, are not ent.i.tled to publish them, to subserve their own private purposes of interest, or curiosity, or pa.s.sion."

[37] "The receiver of a letter is not a bailee, nor does he stand in a character a.n.a.logous to that of a bailee. There is no right to possession, present or future, in the writer. The only right to be enforced against the holder is a right to prevent publication, not to require the ma.n.u.script from the holder in order to a publication of himself." Per Hon. Joel Parker, quoted in Grigsby _v._ Breckenridge, 2 Bush. 480, 489 (1867).

[38] In Morison _v._ Moat, 9 Hare, 241, 255 (1851), a suit for an injunction to restrain the use of a secret medical compound, Sir George James Turner, V. C., said: "That the court has exercised jurisdiction in cases of this nature does not, I think, admit of any question. Different grounds have indeed been a.s.signed for the exercise of that jurisdiction.

In some cases it has been referred to property, in others to contract, and in others, again, it has been treated as founded upon trust or confidence,--meaning, as I conceive, that the court fastens the obligation on the conscience of the party, and enforces it against him in the same manner as it enforces against a party to whom a benefit is given, the obligation of performing a promise on the faith of which the benefit has been conferred; but upon whatever grounds the jurisdiction is founded, the authorities leave no doubt as to the exercise of it."

[39] A similar growth of the law showing the development of contractual rights into rights of property is found in the law of goodwill. There are indications, as early as the Year Books, of traders endeavoring to secure to themselves by contract the advantages now designated by the term "goodwill," but it was not until 1743 that goodwill received legal recognition as property apart from the personal covenants of the traders. See Allan on Goodwill, pp. 2, 3.

[40] The application of an existing principle to a new state of facts is not judicial legislation. To call it such is to a.s.sert that the existing body of law consists practically of the statutes and decided cases, and to deny that the principles (of which these cases are ordinarily said to be evidence) exist at all. It is not the application of an existing principle to new cases, but the introduction of a new principle, which is properly termed judicial legislation.

But even the fact that a certain decision would involve judicial legislation should not be taken as conclusive against the propriety of making it. This power has been constantly exercised by our judges, when applying to a new subject principles of private justice, moral fitness, and public convenience. Indeed, the elasticity of our law, its adaptability to new conditions, the capacity for growth, which has enabled it to meet the wants of an ever changing society and to apply immediate relief for every recognized wrong, have been its greatest boast.

"I cannot understand how any person who has considered the subject can suppose that society could possibly have gone on if judges had not legislated, or that there is any danger whatever in allowing them that power which they have in fact exercised, to make up for the negligence or the incapacity of the avowed legislator. That part of the law of every country which was made by judges has been far better made than that part which consists of statutes enacted by the legislature."

I Austin's Jurisprudence, p. 224.

The cases referred to above show that the common law has for a century and a half protected privacy in certain cases, and to grant the further protection now suggested would be merely another application of an existing rule.

[41] Loi Relative a la Presse. 11 Mai 1868.

"11. Toute publication dans un ecrit periodique relative a un fait de la vie privee const.i.tue une contravention punie d'un amende de cinq cent francs.

"La poursuite ne pourra etre exercee que sur la plainte de la partie interessee." Riviere, Codes Francais et Lois Usuelles. App. Code Pen., p. 20.

[42] See Campbell _v._ Spottiswoode, 3 B. & S. 769, 776; Henwood _v._ Harrison, L. R. 7 C. P. 606; Gott _v._ Pulsifer, 122 Ma.s.s. 235.

[43] "Nos moeurs n'admettent pas la pretention d'enlever aux investigations de la publicite les actes qui relevent de la vie publique, et ce dernier mot ne doit pas etre restreint a la vie officielle ou a celle du fonctionnaire. Tout homme qui appelle sur lui l'attention ou les regards du publique, soit par une mission qu'il a recue ou qu'il se donne, soit par le role qu'il s'attribue dans l'industrie, les arts, le theatre, etc., ne peut plus invoquer contre la critique ou l'expose de sa conduite d'autre protection que les lois qui repriment la diffamation et l'injure." Circ. Mins. Just., 4 Juin, 1868.

Riviere Codes Francais et Lois Usuelles, App. Code Pen. 20 n (b).

[44] "Celui-la seul a droit au silence absolu qui n'a pas express.e.m.e.nt ou indirectment provoque ou authorise l'attention, l'approbation ou le blame." Circ. Mins. Just., 4 Juin, 1868. Riviere Codes Francais et Lois Usuelles, App. Code Pen. 20 n (b). The principle thus expressed evidently is designed to exclude the wholesale investigations into the past of prominent public men with which the American public is too familiar, and also, unhappily, too well pleased; while not ent.i.tled to the "silence _absolute_" which less prominent men may claim as their due, they may still demand that all the details of private life in its most limited sense shall not be laid bare for inspection.

[45] Wason _v._ Walters, L. R. 4 Q. B. 73; Smith _v._ Higgins, 16 Gray, 251; Barrows _v._ Bell, 7 Gray, 331.

[46] This limitation upon the right to prevent the publication of private letters was recognized early:--

"But, consistently with this right [of the writer of letters], the persons to whom they are addressed may have, nay, must, by implication, possess the right to publish any letter or letters addressed to them, upon such occasions, as require, or justify, the publication or public use of them; but this right is strictly limited to such occasions. Thus, a person may justifiably use and publish, in a suit at law or in equity, such letter or letters as are necessary and proper, to establish his right to maintain the suit, or defend the same. So, if he be aspersed or misrepresented by the writer, or accused of improper conduct, in a public manner, he may publish such parts of such letter or letters, but no more, as may be necessary to vindicate his character and reputation, or free him from unjust obloquy and reproach." Story, J., in Folsom _v._ Marsh, 2 Story, 100, 110, 111 (1841).

The existence of any right in the recipient of letters to publish the same has been strenuously denied by Mr. Drone; but the reasoning upon which his denial rests does not seem satisfactory. Drone on Copyright, pp. 136-139.

[47] Townshend on Slander and Libel, 4th ed., -- 18; Odgers on Libel and Slander, 2d ed., p. 3.

[48] "But as long as gossip was oral, it spread, as regards any one individual, over a very small area, and was confined to the immediate circle of his acquaintances. It did not reach, or but rarely reached, those who knew nothing of him. It did not make his name, or his walk, or his conversation familiar to strangers. And what is more to the purpose, it spared him the pain and mortification of knowing that he was gossipped about. A man seldom heard of oral gossip about him which simply made him ridiculous, or trespa.s.sed on his lawful privacy, but made no positive attack upon his reputation. His peace and comfort were, therefore, but slightly affected by it." E. L. G.o.dkin, "The Rights of the Citizen: To his Reputation." Scribner's Magazine, July, 1890, p. 66.

Vice-Chancellor Knight Bruce suggested in Prince Albert _v._ Strange, 2 DeGex & Sm. 652, 694, that a distinction would be made as to the right to privacy of works of art between an oral and a written description or catalogue.

[49] See Drone on Copyright, pp. 121, 289, 290.

[50] Compare the French law. "En prohibant l'envahiss.e.m.e.nt de la vie privee, sans qu'il soit necessaire d'etablir l'intention criminelle, la loi a entendue interdire toute discussion de la part de la defense sur verite des faits. Le remede eut ete pire que le mal, si un debat avait pu s'engager sur ce terrain." Circ. Mins. Just., 4 Juin, 1868. Riviere Code Francais et Lois Usuelles, App. Code Penn. 20 n(a).

[51] Comp. Drone on Copyright, p. 107.