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Roberson v. Rochester Folding Box Co., 9 Bedell 538, 171 N.Y. 538, 64 N.E. 442

Facts

Abigail M. Roberson, represented by her guardian ad litem, brought an action against the Rochester Folding Box Company and others for using her likeness in advertisements without her consent. The defendants printed and circulated approximately 25,000 lithographic prints featuring her portrait, which were displayed publicly, leading to her humiliation and emotional distress. Roberson claimed damages of $15,000 and sought an injunction against further use of her likeness.

The complaint alleges that the Franklin Mills Company, one of the defendants, was engaged in a general milling business and in the manufacture and sale of flour; that before the commencement of the action, without the knowledge or consent of plaintiff, defendants, knowing that they had no right or authority so to do, had obtained, made, printed, sold, and circulated about 25,000 lithographic prints, photographs, and likenesses of plaintiff.

Issue

Does the complaint state a cause of action at law or in equity against the defendants for the unauthorized use of Roberson's likeness?

The complaint prays that defendants be enjoined from making, printing, publishing, circulating, or using in any manner any likenesses of plaintiff in any form whatever.

Rule

A demurrer admits all facts alleged in the complaint and requires the court to determine if those facts establish a right to relief in law or equity.

As a demurrer admits not only those facts which are expressly alleged in the complaint, but everything which can be implied by fair and reasonable intendment from its allegations.

Analysis

The court analyzed whether the complaint could be construed to show a right to relief based on the allegations of emotional distress caused by the unauthorized use of Roberson's likeness. It noted that while the appellate division found a cause of action based on the right of privacy, such a right had not been established in prior case law, and the court expressed concern over the implications of recognizing such a right.

The so-called ‘right of privacy’ is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogues, periodicals, or newspapers.

Conclusion

The court reversed the appellate division's decision, concluding that the complaint did not state a valid cause of action, as the right of privacy was not recognized as enforceable in equity.

Nevertheless that court reached the conclusion that plaintiff had a good cause of action against defendants, in that defendants had invaded what is called a ‘right of privacy’; in other words, the right to be let alone.

Who won?

Rochester Folding Box Company prevailed in the case because the court found that there was no legal basis for Roberson's claim of a right to privacy.

The court below properly said that: ‘While it may be true that the fact that no precedent can be found to sustain an action in any given case is cogent evidence that a principle does not exist upon which the right may be based, it is not the rule that the want of a precedent is a sufficient reason for turning the plaintiff out of court.’

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