is a direct invasion of a legal right of the individual. It is a tort, and it is not necessary that special damages should have accrued from its violation in order to entitle the aggrieved party to recover.'
New Jersey adopted the rule of the Pavesich case and recognized the right of privacy in 1907, Edison v. Edison Polyform Mfg. Co., 73 N.J.Eq. 136, 67 A. 392. Kentucky followed in 1909, Foster-Milburn Co. v. Chinn, 134 Ky. 424, 432, 120 S.U. 364, 34 L.R.A.,N.S., 1137, 135 Am.St.Rep. 417. The same action was taken by Missouri in 1910, Munden v. Harris, 153 Mo.App. 652, 134 S.W. 1076. In 1918, Kansas joined the procession, Kunz v. Allen, 102 Kan. 883, 172 P. 532, L.R.A. 1918D, 1151. In 1931 this doctrine was adopted by California, Melvin v. Reid, 112 Cal.App. 285, 297 P. 91, Mau v. Rio Grande Oil Co., D.C., N.D. Cal., 28 F.Supp. 845. The same action was taken by North Carolina in 1938, Flake v. Greensboro News Co., 212 N.C. 780, 195 S.E. 55. In 1941, Oregon likewise recognized the right of privacy, Hinish v. Meier & Frank Co. 166 Or. 482, 113 P.2d 438, 138 A.L.R. 1. Many of these cases expressly refer to both the Roberson and the Pavesich cases, supra, repudiating the former and adopting the latter.
In Munden v. Harris, supra, the Kansas City Court of Appeals summarized its views as follows (at page 660 of 153 Mo.App., at page 1079 of 134 S.W.):
'We therefore conclude that one has an exclusive right to his picture, on the score of its being a property right of material profit. We also consider it to be a property right of value, in that it is one of the modes of securing to a person the enjoyment of life and the exercise of liberty, and that novelty of the claim is no objection to relief.'
In Hinish v. Meier & Frank Co., supra, the Oregon Supreme Court enunciated this doctrine as follows (at pages 502, 503, 504 of 166 or., at page 446 of 113 P.2d):
'But we deem it unnecessary to search for a right of property, or a contract, or a relation of confidence. The question is whether a right of privacy, distinct and of itself and not incidental to some other long recognized right, is to be accepted by the courts and a violation of the right held actionable. We are called upon, as Mr. Justice Holmes says somewhere, 'to exercise the sovereign prerogative of choice' between the view that the courts for want of precedent are impotent to grant redress for injury resulting from conduct which universal opinion in a state of civilized society would unhesitatingly condemn as indecent and outrageous, and the view that the common law, with its capacity for growth and expansion and its adaptability to the needs and requirements of changing conditions, contains within itself the resources of principle upon which relief in such a case can be founded.
'Our consideration of the subject leads us to the conclusion that natural justice and the needs of the society in which we live should prevail over objections based upon the novelty of the asserted cause of action. It is time that fictions be abandoned and the real character of the injury be frankly avowed. When Brandeis and Warren wrote in 1890, it was the unseemly intrusions of a portion of the press into the privacy of the home that was emphasized as the main source of evil; since then motion pictures and the radio have been perfected and have taken their places among our great industries, while instantaneous photography today accomplishes miracles scarcely dreamed of fifty years ago. Thus, the potentialities for this character of wrong are now greatly multiplied. A decision against the right of privacy would be nothing less than an invitation to those so inclined who control these instrumentalities of communication, information and education, to put them to base uses, with complete immunity, and without regard to the hurt done to the sensibilities of individuals whose private affairs might be exploited, whether out of malice of for selfish purposes.
'We should not be deterred by fear of being accused of judicial legislation. Much of our law is judge-made, and there are those who think that it is the best law. Cardozo, 'The Growth of the Law', p. 133. The common law's capacity to discover and apply remedies for acknowledged wrongs without waiting on legislation is one of its cardinal virtues.'
The majority of the cases to which reference has been made involve the unauthorized utilization of photographs or pictures of the plaintiff in connection with advertising matter. Several of the decisions, however, apply the same principle to different unsanctioned uses of names or portraits of private individuals. The only States that have considered and expressly repudiated the right of privacy are Rhode Island, Henry v. Cherry & Webb, 30 R.I. 13, 73 A. 97, 24 L.R.A.,N.S., 991, 136 Am.St.Rep. 928, 18 Ann.Cas. 1006; Washington, Hillman v. Star Publishing Co., 64 Wash. 691, 117 P. 594, 35 L.R.A.,N.S., 595; And Wisconsin, Judevine v. Benzies-Montanye Fuel & Warehouse Co., 222 Wis. 512, 525, 269 N.W. 295, 106 A.L.R. 1443.
The Restatement of the Law of Torts recognized the right of privacy as part of our jurisprudence and formulated it in the following words (Sec. 867, p. 398):
'A person who unreasonably and seriously interferes with another's interest in not having his affairs known to others or his likeness exhibited to the public is liable to the other.'
It has been said that the right of privacy was originally unknown at common law. This may well be true. It is a mistake to assume, however, that the common law became petrified and static and is no longer subject to modification except at the hands of the Legislature. An examination of the course of judicial decisions on numerous topics will demonstrate the contrary. The common law is always in a state of flux and is constantly molded and adjusted to meet changing conditions. This is the glory of the common law. The life of the law is found in its capacity to grow. Only a few days ayo, it was observed by the Supreme Court that "law' is not a static concept, but expands and develops as new problems arise,' Price v. Johnston, 68 S. Ct. 1049, 1058. Of necessity, as was aptly remarked by Mr. Justice Holmes, 'the law is behind the times.' Major alterations in social and economic conditions must become crystalized before the law can meet the new needs. Modern life with its accompanying increase in public media of communication, such as newspapers, monthly and weekly magazines, moving pictures, radio, and television, has created novel situations, that in turn gave rise to the problem of protecting the individual who desires seclusion and freedom from intrusion into his private life as well as from undue and undesirable publicity, such as is involved in the circulation of his likeness without his permission. Such an invasion is akin to a publication of private letters and memoranda, which the law forbids as an encroachment of a property interest.
The law has recognized the right of privacy. The publication of a photograph of a private person without his sanction is a violation of this right. An exception necessarily exists in respect to individuals who by reason of their position or achievements have become public characters, Elmhurst v. Pearson, 80 U.S.App.D.C. 372, 153 F.2d 467; Sidis v. F-R Pub. Corp., 2 Cir., 113 F.2d 806, 138 A.L.R. 15.
In the light of the foregoing discussion, the second count of the complaint states a sufficient claim for a violation of the right of privacy.
Motion to dismiss the complaint is denied.