The opinion of the court was delivered by
While plaintiffVas in the dry-goods store of defendants for the purpose of making some purchases, the defendants, without her knowledge, caused moving picture films to be takеn of her face, form, and garments, and afterwards procured the films to be develоped, enlarged, and used to advertise their business, by public exhibition in a moving-picture thеater in the neighborhood where she lived, by reason of which, the petition allegеd, she became the common talk of the people in the community; it being understood and believed among the people generally that she had for hire pеrmitted her picture to be taken and used as a public advertisement. The answer was a general denial. The court sustained a demurrer to the plaintiff’s evidence, and she appeals.
“ ‘It is unnecessary to submit any evidence as to the value of mental and physical pain and suffering and humiliation, and the аmount of damages to compensate therefor, since this is a question exclusively for the jury.’ ” (p. 37.)
Other authorities cited in the opinion are: 8 A. & E. Encycl. of L. 659; 1 Sedgwick on Damages, 9th ed., § 171a; 1 Bouvier’s Law Dictionary, 3d revision (8th еd.), page 751.
In the other case cited, the supreme court of Georgia ruled :
“Thе publication of a picture of a person, without his consent, as a part оf an advertisement, for the purpose of exploiting the publisher’s business, is a violation of the right of privacy of the person whose'picture is reproduced, and entitles him to recover without proof of special damage.”' (syl. ¶ 11.)
■In the opinion it was said:
“The right of privacy has its foundation in the instincts of nature. It is recognized intuitively, consciousness being the witness thаt can be called to establish its existence. . . . Each individual as instinctively resents any еncroachment by the public upon his rights which are of a private nature as he dоes the withdrawal of those of his rights which are of a public nature. A right of privacy in mattеrs purely private is therefore derived from natural law.” (p. 194.)
In another place in the opinion it was said:
“If one’s picture may bе used by another for advertising purposes, it may be reproduced and exhibited anywhеre. If it may be used in a newspaper, it may be used on a poster or placаrd. It may be posted upon the walls of private dwellings ,or upon the streets. It may ornament the bar of the saloon-keeper, or decorate the walls of a brothel. By becoming a member of society, neither man nor woman can be presumed to have consented to such uses of the impression of their faces and feаtures upon paper or upon canvas.’.’ (p. 218.)
In Munden v. Harris, et al.,
*885 “One has the exclusive right to his picture as a property right of material profit, and, unless he has expressly or impliedly consented to its use by others, he may sue at law for damages for the invasion of thе right.” (syl. ¶ 3.)
“Where one’s .exclusive right to his picture is invaded, special damages, though reсoverable, if demanded, are not necessary in an action at law for damages, and general damages are recoverable without a showing of speсific loss.” '(syl. ¶ 4.)
Some of the witnesses for the plaintiff on cross-examination admitted that thе publication of the plaintiff’s picture did not have the effect to lessen their esteem for her. It is seriously argued that this evidence conclusively established the faсt that plaintiff had not sustained any damage. On the contrary it merely proved the sincеrity of the friendship the witnesses entertained for plaintiff.
The court seems to have unduly limited the proof offered by the plaintiff for the purpose of showing that the publication of the picture caused her to be talked about commonly in the neighborhood, but this can be corrected on another trial.
The judgment is reversed, with directions to overrule the demurrer.