In the foregoing cases there was a commercial use of the picture or name. Suppose the purpose was noncommercial, as where the publication was in connection with an item of news, or perhaps a better illustration, as where plaintiff's admirers erect a statue in his honor. Now if a violation of privacy is per se an infringement of property, there seems no reason why any distinction should be drawn. But to carry the prevailing doctrine to its extreme would, as the New York Court of Appeals has shown, work an absurdity. Regard should be had to the nature of the publication and the celebrity or notoriety of the subject. Each case must be determined largely by its peculiar facts. On the ground that the subject was a "public character" relief has been denied.10 But, though one who has attained a position of prominence cannot well complain if his personality and affairs are discussed to some extent, provided he is not defamed, for he "may not claim the same immunity from publicity" that others may 11 it surely cannot be said that his mere celebrity will justify the display of his name or picture no matter what the purpose may be. Is there no limit to the kind of publicity which he must expect no difference between a biographical sketch and a cigar band? Furthermore, whether the individual be a "public character" or not, there would seem to be a difference between an article directly concerning him and an irrelevant reference made in the course of an article concerning some third party, at least where its general tenor is disparaging, though only to the latter. Yet it has been held that, where one has publicly been accused of crime, there is no cause of action in favor of an innocent relative, whose picture is displayed, apparently for the mere purpose of arousing interest.12

11

392, where the court considered that the peculiar cast of one's features is a property right.

10 Corliss v. E. W. Walker Co. (C. C.) 64 Fed. 280, 31 L. R. A. 283. And see Vassar College v. Loose-Wiles Biscuit Co. (D. C.) 197 Fed. 982; Von Thodorovich v. Franz Josef Beneficial Ass'n (C. C.) 154 Fed. 911.

11 Edison v. Edison Polyform & Mfg. Co., 73 N. J. Eq. 136, 142, 67 Atl. 392.

12 Hillman v. Star Publishing Co., 64 Wash. 691, 117 Pac. 591, 35

Another question arises where the picture has been placed in a so-called "Rogues' Gallery," or collection of photographs of criminals kept by the police. In Louisiana. it has been held that taking the picture of one accused of crime should be postponed until his conviction, unless it is evident that it is necessary to do so for purposes of identification or for the detection of the crime.13 This would appear to be a reasonable rule,1 affording proper protection to the individual, while not impeding officers of the law in their efforts to detect and punish crime.

Whether an author's nom de plume may be used commercially or otherwise must be determined by the same principles which governs the right to use his real name.15

Whatever shape the law may finally assume with regard to the right of privacy, it seems likely that it will always be considered to be a purely personal right, as such not to be enforced, except by the party himself. It would be carrying the doctrine too far, were a relative or friend permitted to recover for the wounding of his own feelings.10

In conclusion, it should be observed that cases involving the right of privacy must be distinguished from those wherein it has been held that a photographer may not make copies of a customer's photograph without the latter's consent. They rest on different principles.17

L. R. A. (N. S.) 595. Cf. Moser v. Press Publishing Co., 59 Misc. Rep. 78, 109 N. Y. Supp. 963.

13 Referring to the right to take and expose the picture of an unwilling person, it was said: "We do not know that it has afforded any ground for litigation when not exaggerated to the point of impeaching character. Here the purpose goes much further. The picture is to remain as evidence of a damning nature." Schulman v. Whitaker, 117 La. 704, 706, 42 South. 227, 7 L. R. A. (N. S.) 274, 8 Ann. Cas. 1174; Itzkovitch v. Whitaker, 117 La. 708, 42 South. 228, 116 Am. St. Rep. 215.

14 See Mabry v. Kettering, 89 Ark. 551, 117 S. W. 746, 16 Ann. Cas. 1123.

15 Clemens v. Belford, Clark & Co. (C. C.) 14 Fed. 729; Ellis v. Hurst, 66 Misc. Rep. 235, 121 N. Y. Supp. 438.

16 Atkinson v. John E. Doherty & Co., 121 Mich. 372, 80 N. W. 285, 46 L. R. A. 219, 80 Am. St. Rep. 507; Schuyler v. Curtis, 147 N. Y. 434, 42 N. E. 22, 31 L. R. A. 286, 49 Am. St. Rep. 671.

17 See Douglas v. Stokes, 149 Ky. 506, 149 S. W. 849, 42 L. R. A. (N. S.) 386, Ann. Cas. 1914B, 374.

68. "By defamation is understood a false publication calculated to bring one into disrepute." Roughly

1

put, if communicated through the sense of hearing, it is termed slander; if through the sense of sight, it is libel.

This tort arises out of the invasion of the right, which every man possesses, to have reputation remain unimpaired. As has been noted above, it may be committed in two ways, thus giving rise to the distinction between slander and libel. The former is sometimes defined in such a manner as to indicate that there must be spoken words; but this is not accurate, for there is no doubt that slander may be committed by singing, by clicking in the Morse code in the hearing of one who understands, or even, it is submitted, by whistling. So libel, being an appeal to the

1 Cooley on Torts (3d Ed.) vol. 1, p. 266, quoted in Hollenbeck v. Hall, 103 Iowa, 214, 216, 72 N. W. 518, 39 L. R. A. 734, 64 Am. St. Rep. 175.

2 "Slander is defamation without legal excuse published orally by words spoken, being the subject of the sense of hearing." Newell on Slander and Libel, p. 33, quoted in Fredrickson v. Johnson, 60 Minn. 337, 340, 62 N. W. 388.

* Suppose an officer of a credit association, having charge of the compilation of a list of traders who were financially worthless, should

eye, need not be by writing, print, or picture. Thus, it would be libel to place a lamp in front of another's dwelling, and keep it lighted in the daytime, if it were customary to designate brothels in such a manner, to hang or burn him in effigy, or to fix a gallows against his door." It may be that gestures and signs-for example, movements of the lips of dumb people—are equivalent to spoken words, and hence might be slander, but not libel.' If so, it must be put down as an exception to the general rule of difference. On the other hand, where defamatory matter is communicated by sound, for the purpose of being reduced to writing, which is actually done, such communication may, it would seem, be considered libel, as where a letter is dictated to a stenographer, or a message transmitted over the telegraph by one operator to another.

The distinction between the two forms of defamation will be found important. Libel is both a tort and a crime; slander, in the absence of a statute to the contrary, only The former is deemed much more mischievous, and is considered a crime chiefly because of its natural tendency to provoke a breach of the peace by the party defamed. But there may be a libel which is criminal, though not civil, as where it is calculated to bring about corruption of the public morals, or discontent with the government, or violations of the criminal law."

It will be no defense, though punitive damages may thereby be eliminated, that the defamation was the result

be asked on an unprivileged occasion whether the name of a certain merchant appeared therein, and should say nothing, but should whistle the tune of "I've got 'em on the list" from Gilbert and Sullivan's "Mikado" to one who was acquainted therewith?

4 Jeffries v. Duncombe, 2 Campb. 3, 11 East, 226, 103 Eng. Repr. 991, though the case apparently went on the ground of nuisance.

5 Johnson v. Com., 22 Wkly. Notes Cas. (Pa.) 68; Eyre v. Garlick, 42 J. P. 68. Cf. Monson v. Tussauds (1894) 1 Q. B. 671, 58 J. P. 524, 63 L. J. Q. B. 454, 70 L. T. Rep. N. S. 335.

6 Case de Libellis Famosis, 5 Coke, 125 a, 77 Eng. Repr. 250.

7 Jaggard on Torts, vol. 1, p. 477; Pollock on Torts, pp. 204, 205.

8 Peterson v. West Union Tel. Co., 72 Minn. 41, 74 N. W. 1022, 40

L. R. A. 661, 71 Am. St. Rep. 461.

• See Bishop's New Criminal Law, vol. 2, §§ 909-912.

of the defamer's mistake. Reputation is none the less affected.10

Defaming a Class

14

12

Two or more persons may, of course, be affected by the same defamatory matter, so that each may have his action. Thus, where the charge is against A. and his son,12 or A. and his friend,13 the son or friend may sue as well as A. So may two sisters, who are stated to be illegitimate,15 and an officer, who is held up to ridicule in a caricature of the members of a court-martial.16 A different question arises when the publication is of and concerning a class. Is each member deemed to suffer individual defamation? The difficulty of formulating a governing principle is apparent. The class might be so large in numbers and the abuse so general in tenor that it is evident that no private injury could have resulted. "Thus, if a man wrote that all lawyers were thieves, no particular lawyer could sue him, unless there is something to point to the particular individual." 17 And the same result might well be reached where there was an attack upon the mem

10 As where "cultured gentleman" in a dispatch was changed in transmission to "colored gentleman." Upton v. Times-Democrat Pub. Co., 104 La. 141, 28 South. 970. For mistaken identity, see Taylor v. Hearst, 107 Cal. 262, 40 Pac. 392; Sweet v. Post Pub. Co., 215 Mass. 450, 102 N. E. 660, 47 L. R. A. (N. S.) 240, Ann. Cas. 1914D, 533; Griebel v. Rochester Printing Co., 60 Hun, 319, 14 N. Y. Supp. 848. Cf. Hanson v. Globe Newspaper Co., 159 Mass. 293, 34 N. E. 462, 20 L. R. A. 856.

11 Cf. Hoey v. New York Times Co., 138 App. Div. 149, 122 N. Y. Supp. 978.

12 Constitution Pub. Co. v. Way, 94 Ga. 120, 21 S. E. 139.

13 Clark v. Creitzburgh, 4 McCord (S. C.) 491.

14 “If plaintiff's name was annexed to the publication, so as to make the alleged libel applicable to him, it is immaterial that other names were also annexed to the libelous words, even though one of them was connected by the copulative 'and' with the name of plaintiff." Robinett v. McDonald, 65 Cal. 611, 4 Pac. 651.

15 Shelby v. Sun Printing & Pub. Ass'n, 38 Hun (N. Y.) 474, affirmed 109 N. Y. 611, 15 N. E. 895.

16 Ellis v. Kimball, 16 Pick. (Mass.) 132.

17 Eastwood v. Holmes, 1 F. & F. 347, 349, per Willes, J.