wildercb/PrivacyTextBooks1.2 · Datasets at Hugging Face

text stringlengths 0 118
the immunity of the person, -the right to one's personality.
It should be stated that, in some instances where protection
has been afforded against wrongful publication, the jurisdiction
has been asserted, not on the ground of property, or at
least not wholly on that ground, but upon the ground of an
alleged breach of an implied contract or of a trust or con-
fidence.
Thus, in Abernethy v. Hutchinson, 3 L. J. Ch. 209 (I825),
where the plaintiff, a distinguished surgeon, sought to restrain the
publication in the " Lancet " of unpublished lectures which he had
delivered at St. Batholomew's Hospital in London, Lord Eldon
I " Such then being, as I believe, the nature and the foundation of the common
as to manuscripts independently of Parliamentary additions and subtractions, its opera-
tion cannot of necessity be confined to literary subjects. rhat would be to limit the
rule by the example. Wherever the produce of labor is liable to invasion in an anal-
ogous manner, there must, I suppose, be a title to analogous protection or redress.'
Knight Bruce, V, C., in Prince Albert v. Strange, 2 DeGex & Sin1. 652, 696.
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
208 HARVARD LAW REVIEW.
doubted whether there could be property in lectures which had
not been reduced to writing, but granted the injunction on the
ground of breach of confidence, holding "that when persons were
admitted as pupils or otherwise, to hear these lectures, although
they were orally delivered, and although the parties might go to
the extent, if they were able to do so, of putting down the whole
by means of short-hand, yet they could do that only for the
purposes of their own information, and could not publish, for
profit, that which they had not obtained the right of seliing."
In Prince Albert v. Strange, i McN. & G. 25 (1849), Lord
Cottenham, on appeal, while recognizing a right of property in
the etchings which of itself would justify the issuance of the
injunction, stated, after discussing the evidence, that he was
bound to assume that the possession of the etchings by the
defendant had "its foundation in a breach of trust, confidence,
or contract," and that upon such ground also the plaintiff's title
to the injunction was fully sustained.
In Tuck v. Priester, ig Q. B. D. 639 (I887), the plaintiffs were
owners of a picture, and employed the defendant to make a
certain number of copies. He did so, and made also a number
of other copies for himself, and offered them for sale in England
at a lower price. Subsequently, the plaintiffs registered their
copyright in the picture, and then brought suit for an injunction
and damages. The Lords Justices differed as to the application
of the copyrigrht acts to the case, but held unanimously that
independently of those acts, the plaintiffs were entitled to an
injunction and damages for breach of contract.
In Pollard v. Photographic Co., 40 Ch. Div. 345 (i888),
a photographer who had taken a lady's photograph under the
ordinary circumstances was restrained from exhibiting it, and
also from selling copies of it, on the ground that it was a breach
of an implied term in the contract, and also that it was a breach
of confidence. Mr. Justice North interjected in the argument of
the plaintiff's counsel the inquiry: "Do you dispute that if the
negative likeness were taken on the sly, the person who took it
might exhibit copies? " and counsel for the plaintiff answered:
" In that case there would be no trust or consideration to
support a contract." Later, the defendant's counsel argued that
'a person has no property in his own features; short of doing
what is libellous or otherwise illegal, there is no restriction on the
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. 209
photographer's using his negative." But the court, while ex-
pressly finding a breach of contract and of trust sufficient to
justify its interposition, still seems to have felt the necessity of
resting the decision also upon a right of property, I in order to
1 "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 advertisement 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 circumstances in which a sub-
sequent 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 im-
proper 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 ex-
press or implied, can be restrained by injunction. In my opinion the case of the pho-
tographer comes within the principles upon which both these classes 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 nega-
tive is taken by the photographer on glass; 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 copiesforhis own use, without authority, is abusingthe 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, I9 Q. B. D.
639, the learned justice continued: "Then Lord Justice Lindley says: 'I will deal first with
the injunction, which stands, ormaystand,on atotally differentfootingfrom either the
penalties or the damages. It appears to me that the relation between the plaintiffs and
the defendant xmas such that, whether the plaintiffs had any copyright or not, the de-

the immunity of the person, -the right to one's personality.

It should be stated that, in some instances where protection

has been afforded against wrongful publication, the jurisdiction

has been asserted, not on the ground of property, or at

least not wholly on that ground, but upon the ground of an

alleged breach of an implied contract or of a trust or con-

fidence.

Thus, in Abernethy v. Hutchinson, 3 L. J. Ch. 209 (I825),

where the plaintiff, a distinguished surgeon, sought to restrain the

publication in the " Lancet " of unpublished lectures which he had

delivered at St. Batholomew's Hospital in London, Lord Eldon

I " Such then being, as I believe, the nature and the foundation of the common

as to manuscripts independently of Parliamentary additions and subtractions, its opera-

tion cannot of necessity be confined to literary subjects. rhat would be to limit the

rule by the example. Wherever the produce of labor is liable to invasion in an anal-

ogous manner, there must, I suppose, be a title to analogous protection or redress.'

Knight Bruce, V, C., in Prince Albert v. Strange, 2 DeGex & Sin1. 652, 696.

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

208 HARVARD LAW REVIEW.

doubted whether there could be property in lectures which had

not been reduced to writing, but granted the injunction on the

ground of breach of confidence, holding "that when persons were

admitted as pupils or otherwise, to hear these lectures, although

they were orally delivered, and although the parties might go to

the extent, if they were able to do so, of putting down the whole

by means of short-hand, yet they could do that only for the

purposes of their own information, and could not publish, for

profit, that which they had not obtained the right of seliing."

In Prince Albert v. Strange, i McN. & G. 25 (1849), Lord

Cottenham, on appeal, while recognizing a right of property in

the etchings which of itself would justify the issuance of the

injunction, stated, after discussing the evidence, that he was

bound to assume that the possession of the etchings by the

defendant had "its foundation in a breach of trust, confidence,

or contract," and that upon such ground also the plaintiff's title

to the injunction was fully sustained.

In Tuck v. Priester, ig Q. B. D. 639 (I887), the plaintiffs were

owners of a picture, and employed the defendant to make a

certain number of copies. He did so, and made also a number

of other copies for himself, and offered them for sale in England

at a lower price. Subsequently, the plaintiffs registered their

copyright in the picture, and then brought suit for an injunction

and damages. The Lords Justices differed as to the application

of the copyrigrht acts to the case, but held unanimously that

independently of those acts, the plaintiffs were entitled to an

injunction and damages for breach of contract.

In Pollard v. Photographic Co., 40 Ch. Div. 345 (i888),

a photographer who had taken a lady's photograph under the

ordinary circumstances was restrained from exhibiting it, and

also from selling copies of it, on the ground that it was a breach

of an implied term in the contract, and also that it was a breach

of confidence. Mr. Justice North interjected in the argument of

the plaintiff's counsel the inquiry: "Do you dispute that if the

negative likeness were taken on the sly, the person who took it

might exhibit copies? " and counsel for the plaintiff answered:

" In that case there would be no trust or consideration to

support a contract." Later, the defendant's counsel argued that

'a person has no property in his own features; short of doing

what is libellous or otherwise illegal, there is no restriction on the

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. 209

photographer's using his negative." But the court, while ex-

pressly finding a breach of contract and of trust sufficient to

justify its interposition, still seems to have felt the necessity of

resting the decision also upon a right of property, I in order to

1 "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 advertisement 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 circumstances in which a sub-

sequent 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 im-

proper 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 ex-

press or implied, can be restrained by injunction. In my opinion the case of the pho-

tographer comes within the principles upon which both these classes 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 nega-

tive is taken by the photographer on glass; 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 copiesforhis own use, without authority, is abusingthe 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, I9 Q. B. D.

639, the learned justice continued: "Then Lord Justice Lindley says: 'I will deal first with

the injunction, which stands, ormaystand,on atotally differentfootingfrom either the

penalties or the damages. It appears to me that the relation between the plaintiffs and

the defendant xmas such that, whether the plaintiffs had any copyright or not, the de-