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NYLS Law Review 
Volume 4 
Issue 2 NEW YORK LAW FORUM, VOLUME IV, 
APRIL 1958, NUMBER 2 
Article 6 
April 1858 
COMMENT 
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COMMENT, 4 N.Y.L. SCH. L. REV. 229 (1858). 
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COMMENT
TORTs-CIvnL RIGHTS-THE RIGHT OF PRIVACY UNDER THE NEW YORK
STATUTE.-The statutory "right of privacy" has been defined as the right
to live one's life in seclusion without being subjected to unwarranted inter-
ference by people in matters with which they are not concerned, or the right
to live one's life in seclusion without being subjected to unwarranted and
undesired publicity.1
As the vehicles for advertising have grown, so have the number of cases
dealing with the right of privacy. The types of cases in which the right of
privacy has been recognized vary so widely that it can be suggested that
this alleged right is nothing more than a catch-all to take care of the outer
fringes of tort and contractual liability, and that it is not the product of
any underlying general principle. On the surface, the cases may seem to
involve entirely different principles and considerations; yet, there is a pre-
vailing element, common to all the cases, of outraging one's feelings by
depriving him of the privacy which most normal persons desire and have a
right to demand.
HISTORICAL BACKGROUND
ALTHOUGH courts have long recognized and given effect to the individual
right of privacy, under the guise of property and contract rights, it was not
until the publication in 1890 of a law review article by Warren and Bran-
deis, 2 that the right was officially introduced and defined as an independent
right. This article, a landmark in the field of treatise law, bemoaned the
fact that the press was "overstepping in every direction the obvious bounds
of propriety and of decency. ' 3 The article stated:
"Gossip is no longer the resource of the idle and of the vicious, but has be-
come a trade, which is pursued with industry as well as effrontery. To satisfy
a prurient taste the details of sexual relations are spread and broadcast in
the columns of the daily papers ...The intensity and complexity of life,
attendant upon advancing civilization, have rendered necessary some retreat
from the world, and man under the refining influences of culture, has become
more sensitive to publicity, so that solitude and privacy have become more
essential to the individual; but modem enterprises and invention have,
through invasions upon his privacy, subjected him to a mental pain and
distress, far greater than could be inflicted by mere bodily injury .... It is
believed that the Common Law provides him with one (remedy), forged
in the slow fires of the centuries, and today fitly tempered to his hand .... "
This article complained of the abuses that man had suffered at the hands
of the newspapers and other similar media, and suggests that a remedy
against such abuses be formulated by the courts. This remedy, independent
of the common rights of property, contract, reputation, and physical integrity,
1 People on Complaint of Stern v. Robert R. McBride & Co., 159 Misc. 5, 288
N. Y. Supp. 501 (City Ct. Manhattan 1936).
2 Warren and Brandeis, The Right of Privacy, 4 HARv. L. REv. 193 (1890).
3 Id. at 196.
NEW YORK LAW FORUM
is a legal right called the right of privacy, the invasion of which gives rise
to a cause of action.
New York was the first state to consider this suggested aid to privacy.
In the case of Schuyler v. Curtis,4 an injunction was granted restraining the
making and exhibition of a statue of a deceased woman on the theory that
the woman was not a public figure. In deciding the case the court alluded
to the right of privacy. Two lower court New York decisions also apparently
recognized the right.5 Then, in 1902, the developing right of privacy suffered
a strong setback. In Roberson v. Rochester Folding Box Company,6 by a
four to three decision, the New York Court of Appeals held that no common
law right of privacy exists in New York State. In this case, the defendants
had printed a great number of photographs of the plaintiff, and without her
consent had prominently displayed such photographs in saloons and ware-
houses in an effort to advertise their product. The plaintiff contended that
she had been humiliated, and that her good name was put in question, and
that she suffered mental and physical injury due to the defendant's act.
The court found for the defendant. The majority of the court refused to
follow the reasoning of Warren and Brandeis or the dictum in the Schuyler
case. The court stated there was no action for right of privacy existing
in New York. Speaking for the majority of the court, Chief Justice Parker
wrote:
"If such a principle be incorporated into the body of the 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 . . . 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 left alone.... 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."
The immediate reaction to this decision was the wrath of an irate pub-
lic in the form of comment and criticism. The result of the unfavorable re-
ception of this decision was echoed by the state legislature less than a year
after the Roberson case decision. In 1903, the state legislature enacted the
first American right of privacy statute.7 This act is still in effect as sections
50 and 51 of the New York Civil Rights Law.8
4 Schuyler v. Curtis, 147 N. Y. 434, 42 N. E. 22 (1891).
5 Mackenzie v. Soden Mineral Springs Co., 27 Abb. N. C. 402, 18 N. Y. Supp. 240
(N. Y. Sup. Ct. 5th Dist. 1891), Marks v. Jaffa, 6 Misc. 290, 26 N. Y. Supp. 908
(Superior Ct. N. Y. Co. 1893).
6 171 N. Y. 538, 64 N. E. 442 (1902).
7 N. Y. Civ. RIGHTS LAW §§ 50, 51.
8 N. Y. Civ. R GTs LAw:
§ 50 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.
§ 51 ... may maintain an equitable action ... against the person, firm or the corpora-
[VOL. 4
COMMENT
The act had a narrowly confined scope. It was not the object of the
legislature to create an absolute right of privacy, but rather the statute gave
limited protection against unauthorized use of a person's name, portrait or
picture within the state "for advertising purposes" or "for purposes of
trade." The existing New York Statute has been the subject of extensive
litigation; in its application, the courts have come to recognize the legitimate
purposes of publications of matters of public interest.
The constitutionality of this statute was upheld in 19089 against the
contention that the act in question deprived persons of liberty and property
without due process of law, and impaired the obligation of contracts. The
court stated that the public at large does not have an inherent right to use
the names and portraits of others for advertising or trade purposes without
their consent.
INTERPRETATION OF THE STATUTE
THE restriction of the New York statute-to use for "advertising pur-
poses'--has been interpreted to mean any solicitation of patronage. And in
the Hu riston case,' 0 the word "trade" has been construed to mean continu-
ous rather than occasional use. The New York courts have followed the
legislative intent and have generally limited the rights of plaintiffs to a
greater degree than in states recognizing the existence of a common law right.
The courts, by their strict interpretation of the phrases "for advertising pur-
poses" and "for purposes of trade," and by holding that "the statute is in
part, at least, penal, and should be construed accordingly"" have limited the
right.
The reason for such a strict interpretation is essentially that the statute
was not intended to create an absolute right, but rather a right limited to
the very statute itself. It seems clear that the legislature did not intend the
right to be all-encompassing; for example, the right of privacy does not
prohibit publication and broadcasting of matters of public interest.12 News
may be made known if newsworthy, and pictures printed even though the
subject came unwillingly into the limelight.' 3 It is plausible that a newborn
right could possibly become a Frankenstein if it were to be used to deter
either publication or broadcasting of material which should be known to
the public. Thus, the courts have generally limited the construction of the
statute by considering the circumstances and the extent, degree, or character
of the use of the act complained of.14
ion so using his name, picture or portrait, to prevent and restrain the use thereof;
and may also sue and recover damages for any injuries sustained by the reason
of such use ... [T]he jury, in its discretion, may award exemplary damages....
9 Rhodes v. Sperry & H. Co., 220 U. S. 502, 31 S. Ct. 490, 55 L. Ed. 561 (1911).
1o Humiston v. Universal Film Mfg. Co., 189 App. Div. 463, 178 N.Y. Supp. 752
(1st Dep't 1919).
11 Gautier v. Pro-Football, Inc., 304 N. Y. 354, 107 N. E. 2d 485 (1952).
12 Sarat Lahiri v. Daily Mirror, Inc., 162 Misc. 776, 295 N. Y. Supp. 388 (Sup. Ct.
N. Y. Co. 1937).
13 Sidis v. F-R Pub. Corp., 113 F. 2d 806, 809-10 (2d Cir. 1940).
14 See note 1, supra.
19581
NEW YORK LAW FORUM
NATURE AND EXTENT OF THE RIGHT
THE right of privacy in New York is regarded as purely personal. The
right was born of the need to protect the individual from commercial ex-
ploitation of his personality, and, therefore, the courts construe the right
to be of a personal nature. On the theory that the right is purely personal,
it has often been held that the right may be enforced only by the person
whose right has been infringed, and that this individual right of privacy
which any person has during his lifetime dies with the person.1"
The right, while being personal, is not an absolute right and is subject
to many limitations. A proper limitation of the right of privacy consists in
balancing conflicting interests; the interests of the individual in privacy, on
the one hand, against the interest of the public, or trade, or business, on the
other. In each case involving the right of privacy, the court must resolve
a conflict between individual and public or business rights. Thus, due to
conflicting interests among radio, televsion, motion pictures, publications,
politics, books, news broadcasts, photography, and wire tapping, which are
but a few of the many varied fields into which the law of privacy has
burgeoned, litigation has been great, and problems confronting the courts
perhaps even greater.
The more important principles may be briefly summarized. This statu-
tory right, the common law right not being recognized in New York, 16 is an
incident of persons and not of property 17 and, being such, it does not sur-
vive the person.18 It does not lie where the plaintiff has previously published
the matter complained of, or has consented to it,10 nor where the person
has become so prominent as to be dedicated to the public eye,20 nor where
newsworthy events are recounted,21 nor where the information would be of
public benefit.2 2 The action does lie only in cases involving writings, pic-
tures or other permanent publications or reproductions used for trade or
advertising purposes.2 3 The defense of truth, so important in defamation,
is not available24 nor is the motive or presence of malice material.
25
WAIVER OR Loss OF THE RIGHT
THE right of privacy, like other rights that rest in an individual, may be
waived by him. A waiver may be implied from the conduct of the parties
15 Schumann v. Loew's, Inc., 199 Misc. 38, 102 N. Y. S. 2d 572 (Sup. Ct. N. Y.
Co. 1951).
16 In re Harts Estate, 193 Misc. 884, 83 N. Y. S. 2d 635 (Surr. Ct. N. Y. Co.
1948); Kline v. Robert R. McBride & Co., 170 Misc. 974, 11 N. Y. S. 2d 674 (Sup. Ct.
N. Y. Co. 1939) ; see note 11, supra.
17 Bowman v. Topps, Chewing Gum, Inc., 103 F. Supp. 944 (E. D. N. Y. 1952).
18 See note 4, supra.
19 Sherwood v. McGowan, 3 Misc. 2d 234, 152 N. Y. S. 2d 658 (Sup. Ct, N. Y.
Co. 1956).
20 See note 11, supra.
21 Wilson v. Brown, 189 Misc. 79,37 N. Y. S. 2d 587 (Sup. Ct. Kings Co. 1947).
22 See note 11, supra.
23 Thompson v. Tillford, 152 App. Div. 928, 137 N. Y. Supp. 523 (2d Dep't 1912).
24 See note 13, supra.
25 Ibid.
[VOL.. 4
COMMENT
and the surrounding circumstances.26 Thus, a person seeking public office
is deemed to have renounced his right to live his life in total seclusion 2 7
A person who forms a corporation under his own name is deemed to waive
the benefits of the New York Privacy Statute, as by his own act he gave
the business his name and the right to use it.
2 8
One of the most difficult problems concerning the right of privacy is
that of the privilege to publish. The complex problem of how far to
limit the activities of the press and enlarge the individual's right to be let
alone is not easily resolved. On one hand there exists the Constitutionally
guaranteed right of freedom of the press, which justifies the publication
of news and all other matters of legitimate public interest. On the other
hand, you have the individual's right of privacy which is protected by
statute. The courts seem to apply a test based on a reasonable standard
of conduct. It appears that the court will protect the individual's right of
privacy when the publication outrages the common decencies and goes
beyond what the public mores will tolerate, and that which the plaintiff must
be expected to endure.
20
CONCLUSION
CASES construing the New York Statute have followed a general pat-
tern of strictly interpreting the comparatively new "right of privacy." The
over-all picture within the confines of New York State has limited the pro-
tective scope of this right to commercial abuses. It is not the purpose of
the courts, as decisions indicate, to change the law in order to afford greater
or less protection to individuals. This duty remains with the legislature.
If the right of privacy is to increase in scope, the duty to do so falls
heavily on the legislative body of the state; but, it would be a dangerous
legislative step to indiscriminately expand the right of privacy at the expense
of some equally important right such as freedom of the press. Upon the
creation or expansion of one right, another right diminishes. It is within this
context that we niust attack the problem of further expansion of this or
any other right.
26 Wendell v. Conduit Mach. Co., 74 Misc. 201, 133 N. Y. Supp. 758 (Sup. Ct.
Kings Co. 1911).
27 Wilson v. Brown, 189 Misc. 79, 73 N. Y. S. 2d 587 (Sup. Ct. Kings Co. 1947).
28 White v. William White, Inc., 160 App. Div. 709, 145 N. Y. Supp. 743 (1st
Dep't 1914).
29 See note 13, supra.
1958]


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