Flake v.Greensboro News Co.
Supreme Court of North Carolina,1938
212 N.C.780,195 S.E.55
Action by Nancy Flake,by her next friend,Mrs.W.F.Flake,against the Greensboro News Company and others for damages allegedly sustained as the result of a publication of the plaintiff’s photograph or likeness in connection with an advertisement which appeared in a newspaper.From an adverse judgment,the defendants appeal.
Folies de Paree was a vaudeville or state show and advertised its performance through a system of “tie up” advertising.Under this system,some merchant and the local threatre join in the advertisement and it advertises both the product or the merchandise of the merchant and the theatre performance.Pursuant to this plan,the agent of the “Folies de Paree” solicited the defendant L.Melts,who conducted a bakery in Greensboro under the name of “Melts Bakery” and the defendant North Carolina Theatres,Inc.,to join in such an advertisement and as a result a two-column advertisement was published in the Greensboro Daily News,issue of March 11,1936.In the right portion of the advertisement there was a cut from the plaintiff’s photograph showing her standing and wearing a bathing suit.To the left was the following wording,so arranged as to make four distinct statements,as follows:
“Keep the Sylph-Like Figure by eating more of Melts’ Rye and Whole Wheat Bread,says Mlle.Sally Payne,exotic red haired Venus –
“‘Folies de Paree’ sparkling Parisian Revue,State Production,National Threatre two days only,March 11 and 12.
“‘Melts’ Rye and Whole Wheat Bread will give you the necessary energy,pep and vitality without adding extra weight,’ says Miss Payne.Melts Bakery,314 N.Elm St.,1829 Spring Garden St.
“‘Ask for Melts’ Bread – Melts in Your Mouth.’”
In publishing this advertisement,the photograph or mat made therefrom was used without the consent of the plaintiff and was used by mistake – the defendants intending to use a cut of Sally Payne,the leading lady of Folies de Paree.
The mistake having been called to the attention of the defendant Greensboro News Company,it immediately published a full explanation of the mistake and an apology.
BARNHILL,JUSTICE….The defendants were entitled to a judgment of nonsuit on the cause of action for alleged libel.(https://www.daowen.com)
Plaintiff’s second cause of action is based upon the right of privacy,so termed.It is clear that the first issue when considered in connection with the charge of the court was submitted upon the theory of this cause of action…
The question of the existence of this right is a relatively new field in legal jurisprudence.In respect to it the courts are plowing new ground and before the field is fully developed unquestionably perplexing and harassing stumps and runners will be encountered.
In determining to what extent a newspaper may publish the features of an individual under any given circumstances necessarily involves a consideration of the constitutional right of free speech and of a free press.People do not live in seclusion.When a person goes upon the street or highway or into any other public place,he exhibits his features to public inspection.Is a newspaper violating any right of the individual,or doing more than exercising the right of a free press,when it publishes a correct image of such features? Must a distinction be drawn between those in private life and those in public office or public life,and if so,when does a person cease to be a private citizen and become a public character? If a newspaper may publish the features of an individual in connection with an article that is laudatory,does it not also possess the right to publish the same in connection with an article that is critical in its nature so long as it speaks the truth? If the people are entitled to know what their Gov-ernor,or their President,or other public servant,is doing and saying,is it reasonable to hold that they are not entitled as a matter of course to ascertain and know through the newspapers his physical features and appearance? These and many other questions which may hereafter arise,in connection with this type of litigation,are not now before us for decision.
So far as we have been able to ascertain,no court has yet held that it constitutes a tort for a newspaper to publish an image of an individual when such publication is not libelous,except when such publication involves the breach of a trust,the violation of a contract,or when the photograph is used in connection with some commercial enterprise,and we are presently called upon to decide only the right of an individual to prohibit the unauthorized use of an image of her features and figure in connection with and as a part of an advertisement….
The subject is … dealt with at length in Pavesich v.New England Life Insurance Co.,122 Ga.190.All former decisions are likewise fully discussed in this opinion,in which the court holds that the unauthorized publication of plaintiff’s photograph in connection with an advertising enterprise gives rise to a cause of action.In the opinion Cobb,J.,quoting at length and with approval from the dissenting opinion of Gray,J.,in Roberson v.Rochester Folding Box Co.,171 N.Y.538,said in part: “Instantaneous photography is a modern invention,and affords the means of securing a portraiture of an individual’s face and form in invitum [of] their owner.While,so far as it merely does that,although a species of aggression,I conceded it to be an irremediable and irrepressible feature of the social evolution.But if it is to be permitted that the portraiture may be put to commercial or other uses for gain,by the publication of prints therefrom,then an act of invasion of the individual’s privacy results,possibly more formidable and more painful in its consequences than an actual bodily assault might be.Security of person is as necessary as the security of property,and for that complete personal security which will result in the peaceful and wholesome enjoyment of one’s privileges as a member of society there should be afforded protection,not only agains t the scandalous portraiture and display of one’s features and person,but against the display and use thereof for another’s commercial purposes or gain.The proposition is to me an inconceivable one that these defendants may unauthorizedly use the likeness of this young woman upon their advertisement as a method of attracting widespread public attention to their wares,and that she must submit to the mortifying notoriety,without right to invoke the exercise of the preventive power of a court of equity….
“It would be,in my opinion,an extraordinary view,which while conceding the right of a person to be protected against the unauthorized circulation of an unpublished lecture,letter,drawing,or other ideal property,yet would deny the same protection to a person whose portrait was unauthorizedly obtained and made use of for commercial purposes….Whether,as incidental to that equitable relief,she should be able to recover only nominal damages,is not material,for the is-suance of the injunction does not,in such a case,depend upon the amount of the damages,in dollars and cents.”
We are of the opinion that the reasoning in the Pavesich Case is sound and establishes the correctness of the conclusion that the unauthorized use of one’s photograph in connection with an advertisement or other commercial enterprise gives rise to a cause of action which would entitle the plaintiff,without the allegation and proof of special damages,to a judgment for nominal damages,and to injunctive relief,if and when the wrong is persisted in by the offending parties.
One of the accepted and popular methods of advertising in the present day is to procure and publish the endorsement of the article being advertised by some well-known person whose name supposedly will lend force to the advertisement.If it be conceded that the name of a person is a valuable asset in connection with an advertising enterprise,then it must likewise be conceded that this face or features are likewise of value.Neither can be used for such a purpose without the consent of the owner without giving rise to a cause of action.
We conclude therefore,that there was error in the judgment below and that the motion of the defendants for a judgment of nonsuit should have been sustained as to the plaintiff’s cause of action sounding in libel,and that there should be a new trial on the cause of action alleging the unauthorized use of plaintiff’s features and person in connection with said advertisement.Upon the present record,from which it appears that said photograph was used by mistake and without malice and that the defendants immediately desisted from the use thereof upon the discovery of the mistake and made due apology therefor,the plaintiff would be entitled to a judgment for nominal damages only as the defendants have not and did not persist in the wrong complained of,the right to injunctive relief is not here involved.
New trial.