Peckham, 3".
This action is of a nature somewhat unusual and depends for its support upon an application of certain principles which are themselves not very clearly defined or their boundaries very well recognized or plainly laid down. Briefly described the action is founded upon an alleged violation of what is termed the right of privacy. The alleged violation of this right, so far as regards the plaintiff, consists of an attempt on the part of certain reputable women, among them the female defendants herein, without the sanction of the plaintiff or other immediate members of the family, to do honor to the memory of a woman who was the aunt of the plaintiff, and who, at the time of the commencement of this action, had been dead for fourteen years. A statue, of a most costly and meritorious kind, to be made out of appropriate material and by an artist of the first rank, was contem
plated as the means of doing this honor to the memory of the deceased relative of the plaintiff.
It may, perhaps, be somewhat difficult for the ordinary mind to perceive any reason for the plaintiff’s distress arising out of this contemplated action by women of respectability who are desirous of honoring the memory of a woman whom they regarded in life as a friend and benefactor of their sex. Objection has, however, been made to the carrying out of this project, and we must examine this record in order to see whether there is any evidence of a violation of this alleged right of privacy belonging to the plaintiff. In order to determine whether there has been a violation of the right it is necessary to know something about the right itself and its proper limitations. It is not necessary, however, in the view which we take of this case, to attempt to lay down precise and accurate rules which shall apply to all cases touching .upon this alleged right. If the facts in any case fail to furnish any clear or sure foundation for a reasonable man to claim that any injury to his feelings has been or would be caused by the action taken, or to be taken, by a defendant, then we can at least say in such a case that there has not been and cannot be any such real mental distress or injury as a court of equity ou¿ht to recognize as within judicial relief. For the purpose we have in view it is unnecessary to wholly deny the existence of the right of privacy to which the plaintiff appeals as the foundation of his cause of action. It may be admitted that courts have power in some cases to enjoin the doing of an act where the nature or character of the act itself is well calculated to wound the sensibilities of an individual, and where the doing of the act is wholly unjustifiable, and is, in legal contemplation, a wrong, even though the existence of no property, as that term is usually used, is involved in the subject.
The question in this case is whether there has been proved such a violation of the rights of the plaintiff, even under a most liberal construction as to the extent of those rights, which a court of equity ought to take cognizance of.
We enter upon this examination with an admission for the purposes of this case that the plaintiff occupies such a relationship to the deceased that he might maintain an action to enjoin the painting of a picture or the making of a statue of the deceased which would be regarded as inappropriate by reasonable people because the use for which it was destined or the place where it was to be kept was obviously improper, or because the thing itself, portrait or bust or statue, was not of that degree of merit, all' the circumstances considered, which might reasonably and properly be insisted upon by those to whom the life and memory of the deceased were most dear. Many other cases can be imagined where the ulterior purpose of the individuals engaged in the matter would be so manifestly improper, if not illegal, that no statue or picture of a reputable individual, alive or dead, ought to be permitted to be made for such purpose. These are merely imaginary cases, alluded to only for the purpose of accentuating our ideas as to some of the circumstances in which courts might be called upon to act on the part of a living relative of one who was long since deacL| In the present case the grounds of the plaintiff’s objection "are not very many, and have been stated in the complaint and by the plaintiff on the witness stand. They are these:
1. The persons concerned in getting up the proposed statue were not the friends of the plaintiff’s deceased aunt and, as plaintiff alleged, did not know her.
2. They were proceeding with their plan without consulting with the plaintiff or other immediate members of the Schuyler-Hamilton family and without their, consent to the making of any statue.
3. The circulars issued by or in behalf of the defendants contained a statement that Mrs. Schuyler was the founder of or the first woman in the enterprise for securing the home of Washington, and that this statement was inaccurate because a prominent woman in South Carolina was in fact such founder and justly entitled to the honor arising therefrom. This mistake, it was asserted, had caused adverse comment in the news
papers as to the attitude of the family of plaintiff in permitting such a claim to he made when they must have known it was without foundation.
4. It was disagreeable to the plaintiff because the making of such a statue would have heen disagreeable and obnoxious to his aunt were she living. She had, as plaintiff said, a great dislike to have her name brought into public notoriety of any kind, as she was a singularly sensitive woman and of a very retiring nature, anxious to keep her name from the public prints or newspapers.
5. That plaintiff’s aunt had not been personally acquainted with Susan B. Anthony, and he was quite sure she had not sympathized with or approved the position taken by Miss Anthony upon the question of the proper sphere of woman and her treatment by the law, and it was disagreeable and annoying to have the memory of Mrs. Schuyler joined with principles of which she did not approve.
These are substantially all the objections taken by plaintiff regarding the proposed action of the defendants. The plaintiff in his evidence said he did not claim that the defendants, in any of their actions or in any of their published notices, threw any discredit, disgrace or ridicule upon Mrs. Schuyler’s memory, and he did not think they wished to do so in any way. The chief reason for bringing this action, the plaintiff avowed, was to establish a principle that the right of privacy should be respected, and he was willing to bring such an action for the purpose of maintaining that principle.
After taking all these objections into careful consideration, we cannot say that we are in the least degree impressed with their force. The first ground of objection, even if well founded in fact, is not of the slightest importance. Whether the defendants were friends or not of Mrs. Schuyler in her lifetime does not seem to us to have any legitimate effect upon the question. If the motive were to do honor to a good woman, and if the work were to be done in an appropriate way, the relations towards the deceased of those who proposed to render this mark of honor to her memory as one of
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Peckham, 3".
This action is of a nature somewhat unusual and depends for its support upon an application of certain principles which are themselves not very clearly defined or their boundaries very well recognized or plainly laid down. Briefly described the action is founded upon an alleged violation of what is termed the right of privacy. The alleged violation of this right, so far as regards the plaintiff, consists of an attempt on the part of certain reputable women, among them the female defendants herein, without the sanction of the plaintiff or other immediate members of the family, to do honor to the memory of a woman who was the aunt of the plaintiff, and who, at the time of the commencement of this action, had been dead for fourteen years. A statue, of a most costly and meritorious kind, to be made out of appropriate material and by an artist of the first rank, was contem
plated as the means of doing this honor to the memory of the deceased relative of the plaintiff.
It may, perhaps, be somewhat difficult for the ordinary mind to perceive any reason for the plaintiff’s distress arising out of this contemplated action by women of respectability who are desirous of honoring the memory of a woman whom they regarded in life as a friend and benefactor of their sex. Objection has, however, been made to the carrying out of this project, and we must examine this record in order to see whether there is any evidence of a violation of this alleged right of privacy belonging to the plaintiff. In order to determine whether there has been a violation of the right it is necessary to know something about the right itself and its proper limitations. It is not necessary, however, in the view which we take of this case, to attempt to lay down precise and accurate rules which shall apply to all cases touching .upon this alleged right. If the facts in any case fail to furnish any clear or sure foundation for a reasonable man to claim that any injury to his feelings has been or would be caused by the action taken, or to be taken, by a defendant, then we can at least say in such a case that there has not been and cannot be any such real mental distress or injury as a court of equity ou¿ht to recognize as within judicial relief. For the purpose we have in view it is unnecessary to wholly deny the existence of the right of privacy to which the plaintiff appeals as the foundation of his cause of action. It may be admitted that courts have power in some cases to enjoin the doing of an act where the nature or character of the act itself is well calculated to wound the sensibilities of an individual, and where the doing of the act is wholly unjustifiable, and is, in legal contemplation, a wrong, even though the existence of no property, as that term is usually used, is involved in the subject.
The question in this case is whether there has been proved such a violation of the rights of the plaintiff, even under a most liberal construction as to the extent of those rights, which a court of equity ought to take cognizance of.
We enter upon this examination with an admission for the purposes of this case that the plaintiff occupies such a relationship to the deceased that he might maintain an action to enjoin the painting of a picture or the making of a statue of the deceased which would be regarded as inappropriate by reasonable people because the use for which it was destined or the place where it was to be kept was obviously improper, or because the thing itself, portrait or bust or statue, was not of that degree of merit, all' the circumstances considered, which might reasonably and properly be insisted upon by those to whom the life and memory of the deceased were most dear. Many other cases can be imagined where the ulterior purpose of the individuals engaged in the matter would be so manifestly improper, if not illegal, that no statue or picture of a reputable individual, alive or dead, ought to be permitted to be made for such purpose. These are merely imaginary cases, alluded to only for the purpose of accentuating our ideas as to some of the circumstances in which courts might be called upon to act on the part of a living relative of one who was long since deacL| In the present case the grounds of the plaintiff’s objection "are not very many, and have been stated in the complaint and by the plaintiff on the witness stand. They are these:
1. The persons concerned in getting up the proposed statue were not the friends of the plaintiff’s deceased aunt and, as plaintiff alleged, did not know her.
2. They were proceeding with their plan without consulting with the plaintiff or other immediate members of the Schuyler-Hamilton family and without their, consent to the making of any statue.
3. The circulars issued by or in behalf of the defendants contained a statement that Mrs. Schuyler was the founder of or the first woman in the enterprise for securing the home of Washington, and that this statement was inaccurate because a prominent woman in South Carolina was in fact such founder and justly entitled to the honor arising therefrom. This mistake, it was asserted, had caused adverse comment in the news
papers as to the attitude of the family of plaintiff in permitting such a claim to he made when they must have known it was without foundation.
4. It was disagreeable to the plaintiff because the making of such a statue would have heen disagreeable and obnoxious to his aunt were she living. She had, as plaintiff said, a great dislike to have her name brought into public notoriety of any kind, as she was a singularly sensitive woman and of a very retiring nature, anxious to keep her name from the public prints or newspapers.
5. That plaintiff’s aunt had not been personally acquainted with Susan B. Anthony, and he was quite sure she had not sympathized with or approved the position taken by Miss Anthony upon the question of the proper sphere of woman and her treatment by the law, and it was disagreeable and annoying to have the memory of Mrs. Schuyler joined with principles of which she did not approve.
These are substantially all the objections taken by plaintiff regarding the proposed action of the defendants. The plaintiff in his evidence said he did not claim that the defendants, in any of their actions or in any of their published notices, threw any discredit, disgrace or ridicule upon Mrs. Schuyler’s memory, and he did not think they wished to do so in any way. The chief reason for bringing this action, the plaintiff avowed, was to establish a principle that the right of privacy should be respected, and he was willing to bring such an action for the purpose of maintaining that principle.
After taking all these objections into careful consideration, we cannot say that we are in the least degree impressed with their force. The first ground of objection, even if well founded in fact, is not of the slightest importance. Whether the defendants were friends or not of Mrs. Schuyler in her lifetime does not seem to us to have any legitimate effect upon the question. If the motive were to do honor to a good woman, and if the work were to be done in an appropriate way, the relations towards the deceased of those who proposed to render this mark of honor to her memory as one of
the benefactors of her sex, would be a matter of very small moment, entitled to no consideration whatever. No surviving relative, male or female, would have, in our judgment, the least ground of complaint that an action, confessedly meant to do honor to the memory of a noble woman, was proposed by those who in her lifetime had not the honor of her personal acquaintance or friendship, but whose proposed action was nevertheless the outgrowth of admiration of her character as a friend and benefactor of the sex of which she was herself so great an ornament. It appears, however, that in truth some of the defendants were known to Mrs. Schuyler personally as members of the same association and interested in the same objects, and although Mrs. Schuyler was undoubtedly more socially prominent than any of the defendants claim to be, yet there was enough personal intercourse between her and some of the defendants to account for the affection in which her memory is held and for their desire to give some practical evidence of their feelings.
The second ground of objection we think is equally untenable. The fourth ground may properly be considered as a part of it. It is true thai|these defendants have assumed to take the preliminary steps leading to the making of the proposed statue without having consulted with or obtained the consent of the plaintiff or the other immediate relatives of the deceased. This may be regarded as the main objection, the others being but grounds for the refusal of any consent by plaintiff and his relatives, if such consent had been asked. The whole of the jdaintiff’s claim of the right of privacy in this case rests upon the lack of this consent. It is stated that Mrs. Schuyler was not in any sense a public character during her life, and consequently had not surrendered to any extent whatever her own right of privacy. This right, it is claimed, not having been súrrendered by any act of the deceased in her lifetime, descends unimpaired to her immediate relatives as the proper representatives of her feelings and her rights. Whatever the rights of a relative maybe, they are notin such a case as this, rights which once belonged to the deceased, and
which a relative can enforce in her behalf and in a mere representative capacity, as, for instance, an executor or administrator, in regard to the assets of a deceased. It is not a question of what right of privacy Mrs. Schuyler had in her lifetime. The plaintiff does not represent that right. Whatever right of privacy Mrs. Schuyler had died with her. Death deprives us all of rights in the legal sense of that term, and, when. Mrs. Schuyler died, her own individual right of privacy, whatever it may have been, expired at the same time. The right which survived (however extensive or limited) was a right pertaining to the living onlyéjjfít is the right of privacy of the living which it is sought to enforce here. That right may, in some cases, be itself violated by improperly interfering with the character or memory of a deceased relative, but it is the right of the living and not that of the dead which is recognizedp''- A privilege may be given the surviving relatives of a deceased person to protect his memory, but the privilege exists for the benefit of the living, to protect their feelings and to prevent a violation of their own rights in the character and memory of the deceased.
A woman like Mrs. Schuyler may very well in her lifetime have been most strongly averse to any public notice, even if it were of a most flattering nature, regarding her own works or position. She may have been (and the evidence tends most strongly to show that she was) of so jmodest and retiring a nature that any publicity, during her life, would have been to her most extremely disagreeable'and obnoxious. All these feelings died with her. It is wholly incredible that any' individual could dwell with feelings of distress or anguish' upon the thought that, after his death, those whose welfare he had toiled for in life would inaugurate a project to erect a statue in token of their appreciation of his efforts and in honor of his memory. This applies as well to the most refined and retiring woman as to a public man. It is, therefore, impossible to credit the existence of any real mental injury or distress to a surviving relative grounded upon the
idea that the action proposed in honor of his ancestor would have been disagreeable to that ancestor during his life.
We cannot assent to the proposition that one situated as the plaintiff in this case can properly enjoin such action as the defendants propose on the ground that as mere matter of fact his feelings would be thereby injured. We hold that in this class of cases there must in addition be some reasonable and plausible ground for the existence of this mental distress and injury. It must not be the creation of mere caprice nor of pure fancy, nor the result of a supersensitive and morbid mental organization, dwelling with undue emphasis upon the exclusive and sacred character of this right of privacy. Such a class of mind might regard the right as interfered with and violated by the least reference even of a complimentary nature-to some illustrious ancestor without first seeking, for and obtaining the consent of his descendants. Feelings that are thus easily and unnaturally injured and distressed under such circumstances are much too sensitive to be recognized by any purely earthly tribunal. A proposed act which a court will enjoin because it would be a violation of a legal right, must, among other conditions, be of such a nature as a reasonable man can see might and probably would cause mental distress and injury to any one possessed of ordinary feeling and intelligence, situated in like circumstances as the complainant, and this question must always to some extent be one of law.
■ If the circumstances be such that it is to a court inconceivable that the feelings of any sane and reasonable person could be injured by the proposed act, then it is the duty of the court to say so and to refuse an injunction which w.ould jirevent its performance.
If -the defendants had projected such a work in the lifetime of Mrs. Schuyler, it would perhaps have been a violation of her individual right of privacy, because it might be contended that she had never occupied such a position towards the public as would have authorized such action by any one so long as it was in opposition to her wishes. The fact that Mrs. Schuyler
is dead alters the case, and the plaintiff and other relatives must show some right of their own violated, and that proof is not made by evidence that the proposed action of the-defendants would have caused Mrs. Schuyler pain if she were' living. A shy, sensitive, retiring woman might naturally be-extremely reluctant to have her praises sounded, or even appropriate honors accorded her while living, and the same woman might, upon good grounds, believe with entire complacency' and satisfaction that after her death a proposition would be-made and carried out by her admirers to do honor to her memory by the erection of a statue or some other memorial.
For these reasons we are of the opinion that regarding the-facts thus far discussed, it was not necessary for the defendants to procure the consent of the plaintiff or other immediate^ relatives of the deceased. We think that so long as the real and honest purpose is to do honor to the memory of one who is deceased, and such purpose is to be carried out in an appropriate and orderly manner, by reputable individuals and for worthy ends, the consent of the descendants of such deceased person is not necessary, and they have no right to prevent, for their own personal gratification, any action of the nature described^]
The third ground of objection is based upon a claim made in the circulars issued by defendants that Mrs. Schuyler was-the founder of the Mt. Yernon Association, while in truth she-was connected with it only as a vice-regent from this state. There is no assertion that tins error of fact was intentional, and there could obviously be no motive on the part of the defendants to make any undue or ill-founded claim on behalf of their subject. A single line calling their attention to the fact would undoubtedly have caused an immediate rectification of the mistake, and of course the removal of any foundation for the slightest adverse comment from any source as to the conduct of the surviving members of this family in permitting such a claim to have been made on behalf of one of its deceased members.
This mistaken statement of the position of Mrs. Schuyler in
regard to the Mt. Vernon Association contained in the circulars is the only ground for adverse comment in the newspapers, or for the' disagreeable notoriety complained of by the plaintiff.- If corrected all ground of complaint of that nature would disappear. If not corrected upon application, ^ tlie plaintiff would probably not be without a remedy whicli would prevent the circulation of such an untruth.
The fourth ground of objection has already been disposed ■of in treating of the second. The feelings of the deceased, if she were alive and confronted with such a proposition to do honor to herself, have n-o place in this action, which is founded upon the alleged violation of the plaintiff’s own right of privacy.
The fifth ground is an equally vague and shadowy one. "Whether Mrs. Schuyler sympathized with the work or the "views of Miss Anthony we must say seems to us utterly foreign to the subject. There was no proposition looking towards the placing the statues of these two ladies together as representatives of the same ideas, or as in any way, even the remotest, united in the same works, or in inculcating the same principles in regard to the rights of women. The objection seems to rest wholly upon the proposition that these two proposed statues were to be exhibited in the same room of a building in the Chicago fair grounds — one as the representative of a class of women philanthropists and the other as the representative of a class of women reformers. The placing ■of the statues in the same room for exhibition by the same .association does not in our view tend in the slightest degree to confuse the identity of Mrs. Schuyler, or to lead in any way to the supposition that she was in sympathy with or believed in the correctness of the principles which have been advocated by Miss Anthony.
■ The fact, if it be a fact, that Mrs. Schuyler did not sympathize with what is termed the “Woman’s Bights” movement is of no importance here. The proposed placing of the two statues would, if carried out, have had no tendency to show that Mrs. Schuyler did so sympathize. Many of us may, and
probably do, totally disagree with these advanced views of Miss Anthony in regard to the proper sphere of women, and yet it is impossible.to deny to her the possession of many of the ennobling qualities which tend to the making of great lives. She has given the most unselfish devotion of a long life to what she has considered would tend most for the benefit and practical improvement of her sex, and she has thus lived almost literally in the face of the whole world, and during that period there has never been a single shadow of any dark or ugly fact connected with her or her way of life to dim the lustre of her achievements and of her efforts. Although we may utterly fail to sympathize with these efforts or achievements, it is plain enough that no one will have reasonable ground for objection to' the placing of a bust of his or her own ancestor in the same room with the bust of such a woman and under such circumstances as were originally contemplated by these defendants. This ground of objection, however, time has itself rendered valueless.
One other ground has been argued before us upon which to sustain this injunction. It was urged that the proposed statue would be a fraud upon the public because there was no portrait, likeness or statue of Mrs. Schuyler accessible to defendants from which any possible likeness of the deceased could be secured. The idea of an actual likeness was early abandoned, and it was stated that the statue would be an ideal one and not a likeness. The court below has not found any fraud and we are not of the opinion that any was shown.
1T~While not assuming to decide what this right of privacy is in all cases, we are quite clear that such right would not be violated by the proposed action of the defendants. The plaintiff’s cause of action is, we think, wholly fanciful. The defendants’ contemplated action is not such as might be regarded by reasonable and healthy minds as in the slightest degree distressing or tending in the least to any injury to those fe.elings of respect and tenderness for the memory of the dead jwhich most of us possess, and which ought to be considered as a proper subject of recognition and protection by civilized courts.
It is, perhaps, needless, yet we will add that our decision furnishes, as we think, not the slightest occasion for the belief that under it the feelings of relatives or friends may be outraged or the memory of a deceased person degraded with impunity by any person who may thus desire to affect the living. The rights of such persons will remain the same after as they were before our present decision and will be wholly unaffected by it. We simply say that in this case the defendants have proposed to do nothing which ought to affect unpleasantly the mental condition of any sound, reasonable and intelligent man or woman, and, therefore, an injunction ought to have been refused, j;
We have looked at the question of the appealability of the judgment, and are of the opinion that the court has- jurisdictian. N or do we think that the question is now merely an abstract one because of the fact that it was the intention of the defendants in causing the statue to be made to place the same on exhibition in one of the buildings at the Chicago exposition, now past and gone. That was only one of the purposes of the defendants. They intended to retain the statue after the exhibition and bring it back to New York and place it in the studio of the Ladies Art Association, a place which so far' as the evidence shows is appropriate for the purpose. This intention is not illegal and might be prop-e 1 carried out but for this injunction.
>on the whole we are of the opinion that the plaintiff has made a mistake in his choice of this case as an appropriate one in which to ask for the enforcement of the right of privacy. The judgment must be reversed as to the parties appealing and the complaint dismissed as to them, with co