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District Court of Appeal, Second District, Division 2, California.

GILL et al. v. HEARST PUB. CO., Inc., et al.

Civ. 18092.

Decided: May 18, 1951

Shacknove & Goldman, Los Angeles, Ben F. Goldman, Jr., Los Angeles, of counsel, for appellants. Flint & MacKay and Arch R. Tuthill, all of Los Angeles, for respondents.

The Gills, appellants herein, seek to recover against respondents Hearst Publishing Company and its alleged employee, photographer Cartier-Bresson, on the same invasion of right of privacy theory, but base their cause of action on the fact that the publication of the photograph in the Ladies Home Journal was with the ‘knowledge, permission and consent of the said defendants.’ This theory was advanced in an amended complaint, their first complaint, seeking damages for the picture's original appearance in a Hearst publication, Harper's Bazaar, having been dismissed because recovery was barred by the statute of limitations. A general demurrer was also sustained as to this second attempt.

However, appellants do not in this action allege that respondents authorized the use of the photograph specifically in connection with the article ‘Love.’ They do not allege, as was done in the companion case, Gill v. Curtis Pub. Co., Cal.App., 231 P.2d 565, that the invasion of privacy results from the offensive implications arising from the use of the picture and article together. On the contrary, the only allegations bearing on respondents' alleged wrongdoing are that they authorized publication of the picture and that said ‘photograph depicts said plaintiffs in an uncomplimentary manner and pose, which tends to hold said plaintiffs up to redicule and contempt.’

Therefore, as there is no allegation that respondents authorized or had any connection with the published article itself, the only question is whether the republication of the picture alone constitutes an invasion of appellants' right of privacy.

Bearing in mind the requirements for an actionable violation of one's right of privacy as declared in the Curtis decision, we conclude that the mere publication of the photograph only apart from the philosophic discussion does not here give rise to a cause of action. It cannot be said that any detriment is suffered by a person from the mere printing and display of his photograph when it does not show him in an uncomplimentary pose or tend to humiliate him or in any sense present him to his discredit or disadvantage.1 The publication of a photograph should not be offensive to persons of ordinary sensibilities when it does no more than depict an attractive young couple seated at a lunch counter, informally dressed and in a romantic pose, the man with his arm around the girl. Where the intrusion does not go so far as to be beyond the limits of decency, no liability accrues. Rest., Torts, sec. 867, d; see illustration 5; also see Roberson v. Rochester Folding-Box Company, 171 N. Y. 538, 64 N.E. 442, 59 L.R.A. 478.

Judgment affirmed.

I dissent.

The majority opinion discloses a fundamental misconception of the law relating to the right of privacy. The pursuit and obtaining of happiness is one of the inalienable rights granted by section 1 of article I of the Constitution of California. Melvin v. Reid, 112 Cal.App. 285, 291, 297 P. 91. The right of privacy is a personal right as distinguished from a property right. Every person is entitled, if he so desires, to live in seclusion, isolation and solitude, free from intrusion into his private life. If his serenity of mind is disturbed by such intrusion, if he is agitated or disquieted by the publication in a newspaper or magazine of his picture, even though it be a complimentary likeness, he is entitled to redress.

The common law is not rigid, inflexible, immobile. To meet new needs of society it enlarges and advances with the times and with changes in economic thinking, social concepts and political philosophy. With the publication in 1890 of an article entitled ‘The Right to Privacy’ by Brandeis and Warren, 4 Harvard L. Rev. 193, the courts began to recognize the need for the abandonment of previously expressed rejections of the doctrine of the right of privacy and to acknowledge the existence of such right as a principle of law and to avow the violation of such right to be an actionable tort. Such acknowledgment and avowal were based on the existence and extension of common law principles to meet present day social and commercial needs. The right of privacy has never been declared to be an absolute right applicable to all persons in all circumstances. When one merges from the cocoon of obscurity by reason of having become a public character, such as an officeholder, a public entertainer, a sports personage, or by other means, his absolute right is surrendered. He is then subject to being publicized in newspapers and magazines although he is still protected from unnecessary and unwarranted invasion of his private life and affairs.

Even one who has become a public figure in one way or another is entitled to protection from unwarranted and unauthorized publicity. Kerby v. Hal Roach Studios, 53 Cal.App.2d 207, 210, 127 P.2d 577; Sinclair v. Postal Tel. & Cable Co., Sup., 72 N.Y.S.2d 841, 842; Franklin v. Columbia Pictures Corp., 246 App.Div. 35, 284 N.Y.S. 96; affirmed 271 N.Y. 554, 2 N.E.2d 691; Redmond v. Columbia Pictures Corp., 277 N.Y. 707, 14 N.E.2d 636; Mau v. Rio Grande Oil, Inc., D.C., 28 F.Supp. 845, 846.

The right of privacy or, as many courts have expressed it, the right to be let alone, has been recognized in California. Melvin v. Reid, supra; Kerby v. Hal Roach Studios, Inc., 53 Cal.App.2d 207, 210, 127 P.2d 577; Metter v. Los Angeles Examiner, 35 Cal.App.2d 304, 310, 95 P.2d 491. In an annotation, 138 A.L.R. 28 (1942) it is said that ‘the preponderance of authority supports the view that, independently of the common rights of property, contract, reputation, and physical integrity, there is a legal right called the right of privacy, the invasion of which gives rise to a cause of action.’ In a subsequent annotation, 14 A.L.R.2d 753 (1950) the author says that the later cases support the statement in 138 A.L.R. 28 and that ‘in those jurisdictions where the matter has been decided, the weight of authority recognizes a separate and independent right of privacy.’ An examination of the cases cited in the above mentioned annotations, in the annotation in 168 A.L.R. beginning on page 446, and in 41 Am.Jur. p. 940, sec. 21, demonstrates that the overwhelming weight of authority sustains the right of a person who has lived an uneventful life and who has not become a public character or achieved notoriety to be entitled to redress if his right of privacy is violated.

The decision in the instant case is inconsistent with the opinion in Gill v. Curtis Publishing Company, Cal.App., 231 P.2d 565, in which all members of the court are in accord in expressly holding that plaintiffs are not public personages, are not newsworthy individuals, and have not in any manner or to any extent waived their right of privacy by reason of their operation of an ice cream concession in the Farmers' Market. The discussion in that opinion of the discourse on ‘Love’ which appeared in the Ladies' Home Journal in connection with plaintiffs' picture cannot be construed to mean that the publication of the picture without such discourse would not give rise to an action by plaintiffs. The reading matter accompanying the photograph must have magnified the mental pain and anguish suffered by plaintiffs and therefore would entitled them to damages in a larger amount than the mere publication of their picture. The difference between the two publications is one of decree only.

The citation of Roberson v. Rochester Folding-Box Co., 171 N.Y. 538, 64 N.E. 442, 59 L.R.A. 478, is unfortunate and futile. Only four of the seven justices concurred in the decision, three dissenting. The majority of the court there denied the existence of the right of privacy and refused relief to plaintiff, forsooth, because no property right had been invaded although plaintiff's picture had been used for advertising purposes without her consent or authority. Her personal rights were given no consideration. The court also expressed concern that the sustaining of the plaintiff's action would necessarily open up a vast field of litigation, the inference being that so many lawsuits would ensue the courts would be overcrowded. The decision was so severly criticized in an editorial in the New York Times that a member of the court, forsaking judicial convention and doffing judicial robes, came to the defense of the decision by the unusual method of publishing an article in a law review. O'Brien, The Law of Privacy, 2 Columbia L.Rev. 437, Nov. 1902. The author predicted that should the Legislature enact a statute creating such right it would be compelled to repeal it at the next session. The prophecy did not become a reality. Within five months after the publication of the article the Legislature adopted a statute giving a right of action to one whose name or portrait should be used for advertising purposes without his consent. Laws of New York 1903, ch. 132, p. 308, enacted April 6, 1903. The law is still in effect. In the annotations above referred to it will be found that the theory of the Roberson case has been rejected and repudiated by a great majority of the courts in which the same question has arisen, although without the benefit of statutes covering the subject.

There is a private domain that belongs to every individual which the public may not invade.

The announcement of the majority of this court that no detriment is suffered by a person from the mere publication of his photograph when it does not show him in an uncomplimentary pose or tend to humiliate him, is not in accord with the great weight of authority. If a person has a passion for obscurity and seclusion and if the public display of his likeness is repugnant to him, there is no justification for the statement that he does not suffer detriment or mental hurt by reason of such publication. The appearance of their photograph in the pose described in the majority opinion no doubt was offensive to plaintiffs; in fact, they allege in their complaint that it subjected them ‘to humiliation, annoyance, and disgrace and exposed them to public contempt and ridicule.’ Without doubt a man has a right to caress his wife even in a public place, and a photograph, surreptitiously taken, of them in such pose and published in a magazine having a world-wide circulation furnishes a basis for an action for damages. This court is without power to determine the state of their feelings or the agitation of their minds before any evidence is introduced, and it is likewise without power to bar them from a trial wherein a jury may determine whether and to what extent they have been damaged.

The argument that a ruling contrary to that of the majority of this court would lead to hundreds of actions for damages should a newspaper or a magazine publish pictures of crowds on the street viewing a parade or in a football stadium has no validity. Persons who voluntarily appear in such places may expect to be photographed, along with others in the assemblage, as a matter of public interest. Such a situation is a far cry from the clandestine selection of the likeness of a single individual and publicizing it without his consent. However, the appearance of a person in a public place does not entitle another to use such person's picture without consent. In Kunz v. Allen, 102 Kan. 883, 172 P. 532, L.R.A.1918D, 1151, the plaintiff's photograph was taken while she was shopping in a department store. The use of her likeness in an advertisement of the store was held to be actionable.

Although plaintiffs' action against defendants for the publication of their picture in Harper's Bazaar was barred by the statute of limitations when the action was commenced it is not barred as to the republication of the photograph in the Ladies' Home Journal if the allegations in the amended complaint are true. Plaintiffs allege that the picture ‘was republished with the knowledge, permission and consent of the said defendants in the May, 1949, issue of the ‘Ladies' Home Journal,’ published in April, 1949; and credit for said publication in the aforesaid ‘Ladies' Home Journal’ was given to and required by' defendants.

A person is liable for the repetition and circulation of prohibited matter when he has expressly authorized its use and distribution, Wayne Works v. Hicks Body Co., 115 Ind.App. 10, 55 N.E.2d 382, 386, or when he has republished or recirculated the objectionable article after the statute of limitations has run as to the original publication. Winrod v. McFadden Publications, Inc., D.C., 62 F.Supp. 249, 252.

I would reverse the judgment with directions to overrule the demurrer and permit defendants to answer if they so desire.


1.  ‘It is only the more flagrant breaches of decency and propriety that could in practice be reached.’ Warren and Brandeis, 4 Harvard Law Review 216.

MOORE, Presiding Justice.

McCOMB, J., concurs.

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