Mr. John Hall Jones for plaintiff in error.[ Sperry & Hutchinson Co v. Rhodes 220 U.S. 502 (1911) ]
[220 U.S. 502, 504] The court declined to hear Mr. Thomas E. O'Brien for defendant in error.
Mr. Justice Holmes delivered the opinion of the court:
This is an action brought by the defendant in error for [220 U.S. 502, 505] using her photographed portrait for advertising purposes without her written consent first obtained. The facts were found against the defendant ( the plaintiff in error), an injunction was issued, and damages were awarded; 120 App. Div. 467, 104 N. Y. Supp. 1102; the judgment was affirmed by the court of appeals (193 N. Y. 223, -- L.R.A.(N.S.) --, 127 Am St. Rep. 945, 85 N. E. 1097), and thereupon final judgment was entered in the supreme court. The suit was based upon chapter 132 of the New York Statutes of 1903, which makes such use of the name, portrait, or picture of any living person a misdemeanor, and gives this action. The case comes here on the single question of the constitutionality of the act. It is argued that as before the statute a person could not prevent the use of her portrait by one who took and owned it (Roberson v. Rochester Folding Box Co. 171 N. Y. 538, 59 L.R.A. 478, 89 Am. St. Rep. 828, 64 N. E. 442), to deny that use now is to deprive the owner of his property without due process of law.
The court of appeals held that the statute applied only to photographs taken after it went into effect, as was the photograph of the plaintiff that the defendant used. The property was brought into existence under a law that limited the uses to be made of it, and if otherwise there could have been any question, in such a case there is none. Some comment was made in argument on the distinction between photographs taken before and after the date in 1903, as inconsistent with the 14th Amendment. But the 14th Amendment does not forbid statutes and statutory changes to have a beginning, and thus to discriminate between the rights of an earlier and later time.