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Canessa v. J.I. Kislak Inc.

Decided: October 19, 1967.


Lynch, J.s.c.


Defendant moves:

(a) for dismissal of the complaint and for summary judgment in its favor on the grounds that

(1) plaintiffs' action for invasion of what is said to be their "right of privacy" is barred by the two-year statute of limitations governing actions for injury to the person (N.J.S.A. 2A:14-2);

(2) since the publication of plaintiffs' likeness would not cause mental suffering, shame or humiliation to a person of ordinary sensibilities, the complaint does not state a claim upon which relief can be granted;

(3) as a matter of law, infant plaintiffs were not injured in their person or property by the acts complained of, and

(4) plaintiffs consented to the use of their photograph as alleged in the complaint; and

(b) for an order striking plaintiffs' first, second and third pleas in avoidance of the defense of statute of limitations on the ground that they are insufficient in law.

The complaint herein and defendant's motions evoke attention to the law of "right of privacy" in an area which has not been explored in New Jersey. The right has, however, been recognized in the cases of Palmer v. Schonhorn Enterprises, Inc., 96 N.J. Super. 72 (Ch. Div. 1967) (use of names of plaintiff professional golfers in connection with paperboard game); Frey v. Dixon, 141 N.J. Eq. 481 (Ch. 1948) (subpoena of financial records of plaintiff police officers in investigation of alleged violation of gambling laws); McGovern v. Van Riper, 137 N.J. Eq. 24 (Ch. 1945), affirmed 137 N.J. Eq. 548 (E. & A. 1946) (involving dissemination of plaintiff's fingerprints); Brex v. Smith, 104 N.J. Eq. 386 (Ch. 1929) (involving prosecutor's attempt to examine bank accounts of all members of a police department during an investigation); Edison v. Edison Polyform & Mfg. Co., 73 N.J. Eq. 136 (Ch. 1907) (involving use of plaintiff's photograph on defendant's medicinal product); Vanderbilt (John) v. Mitchell, 72 N.J. Eq. 910 (E. & A. 1907) (suit by plaintiff seeking an injunction to restrain a mother and child from claiming that the child was plaintiff's legitimate son and from using his name); and Vanderbilt (Oliver) v. Mitchell, 72 N.J. Eq. 927 (E. & A. 1907) (suit by brother of John Vanderbilt holding that complainant had property interest under a will in the event of brother John's death. Same relief as in John's case).

The complaint is in four counts. Its essence is stated in the first, wherein Joseph Canessa alleges that on or about September 18, 1961, "and at diverse times thereafter", defendant J.I. Kislak, Inc. published and circulated a photograph and accompanying article depicting all of the plaintiffs

and that said article "was an unauthorized appropriation by defendant of the pictures, names and elements of the personalities and private lives of all of the plaintiffs for commercial use." The same cause of action was alleged in the second count by plaintiff Ann Canessa, wife of Joseph, and in the third count on behalf of the Canessa children. The fourth count seeks punitive damages.

The suit arises out of the following facts, which are undisputed. For four or five years prior to 1961 Joseph Canessa and his family had been trying to find an apartment or house to rent, but because of the fact that they had eight children they were unable to secure the same. Finally, sometime in July 1961 Mr. Canessa ran an advertisement in the "Lost and Found" section of the Jersey Journal which said, in essence, "Lost the right to rent because of too many children." One Rothberg, a salesman employed by defendant, answered the advertisement, convinced Canessa that he could not find an apartment to rent for the family, but that he could assist Joseph in purchasing a home under the G.I. bill. Finally, through Rothberg's efforts, a house was found and the closing took place on August 25, 1961.

One Goldblatt, employed by defendant in its advertising department, contacted the Jersey Journal and asked if the paper would be interested in running a story on the Canessa family. The Journal contacted Joseph Canessa and he consented to an article being written about his family's problem and its solution, and he and the other members of his family posed for a picture which was published in the Jersey Journal on September 18, 1961. Defendant then had reprints of the article made and had imprinted on the same sheet defendant's commercial trademark contained in the words:

"J.I. Kislak, Inc.

The live wire Founded 1906

Kislak Bldg., Journal Square, Jersey City

OL 3-7100"

These reprints were distributed by defendant, without doubt for advertising purposes in advancement of its commercial interests. In late September or early October 1961 one of defendant's agents showed the reprints to Mr. Canessa, who objected to their existence and use by defendant. Defendant files an affidavit by one Joseph Goldblatt, who was in charge of distribution of the reprints, to the effect that they were distributed to Kislak's real estate salesmen employed in the Hudson County area and were to be used by the salesmen as part of their sales kits "to show prospective purchasers what could be accomplished by Kislak salesmen for veterans." The reprints have not been used since 1961. This suit was instituted on July 20, 1966. Therefore, if the two-year statute of limitations governs, the action is barred, at least as to the adult plaintiffs Joseph and Rose Canessa. As to the infant plaintiffs, the statute is tolled. N.J.S. 2A:14-21.


Defendant's argument that the two-year statute of limitations governs is based upon the contention that a suit for invasion of "right of privacy" is one for "injury to the feelings"; that "one's feelings are as much a part of one's person as his or her body," and therefore it is an action for "injury to the person" within the meaning of N.J.S. 2 A:14-2. Defendant's brief asserts that the damages claimed by plaintiffs are for injuries to their "good name, fame and credit, exposure to public ridicule, and the suffering of mental distress." But the complaint also alleges that the use by defendant of the pictures and names of the plaintiffs was an "unauthorized appropriation by defendant of the pictures, names and elements of the personalities and private lives of all the plaintiffs for commercial use."

Plaintiffs contend that this is not an action for "injuries to the person" but, rather, one for a tortious injury to "property" rights barred only after six years under N.J.S. 2 A:14-1.

The basic question, therefore, is: What is the nature of the "right of privacy" as here sued upon? This concept, as now understood, was first projected in what has been called the "monumental" article by Warren and Brandeis in Harv. L. Rev. 193 (1890). Since that time "no other tort has received such an outpouring of comment in advocacy of its bare existence." Prosser, Law of Torts (3 d ed. 1964), ยง 112, p. 830. The flood of decisions, legal treatises and reviews which followed has resulted, however, in what has been called a "haystack in a hurricane," so far as the nature of the concept is concerned. Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481, 58 A.L.R. 2 d 626 (3 Cir. 1956), where the court said:

"With these preliminaries out of the way, we now come to the question, what kind of injury or injuries has Ettore suffered? Since the famous Warren and Brandeis article, 'The Right to Privacy,' Harv. L. Rev. 193 (1890), a great deal has been published concerning the kind of action, if any, an individual in the position of Ettore in the instant case or in that of Leverton in our Leverton decision may maintain against one who has infringed his personal or property rights. The state of the law is still that of a haystack in a hurricane but certain words and phrases stick out. We read of the right of privacy, of invasion of property rights, of breach of contract, of equitable servitude, of unfair competition; and there are even suggestions of unjust enrichment." (at p. 485)

Leading authorities have pointed out the need for a method of classification of the various aspects which come under the umbrella of the "right of privacy" -- e.g., Green, "The Right of Privacy," 27 Ill. L. Rev. 237, 332 (1932). Green would classify the types of harms as (1) physical harms, (2) harms of appropriation and (3) harms of defamation. Prosser points out that the early cases consequent upon the Warren and Brandeis article were preoccupied with the question whether the right of privacy existed at all, and gave little or no consideration to what it would amount to if it did. After a review of several hundred cases he concludes (with the reservation that "what has

emerged is no very simple matter") that some conclusions are possible, but that

"It is not one tort, but a complex of four. The law of privacy comprises four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference with the right of the plaintiff 'to be let alone.'" (Op. Cit., at p. 832)

The four classifications*fn1 which he propounds are (1) intrusion (e.g., intrusion upon plaintiff's physical solitude or seclusion, as by invading his home, illegal search, eavesdropping, prying into personal affairs, etc.), (2) public disclosure of private facts (e.g., making public private information about plaintiff); (3) placing plaintiff in a false light in the public eye (which need not be defamatory, but must be something that would be objectionable to the ordinary reasonable man), and (4) appropriation, which he defines as an "appropriation, for the defendant's benefit, of the plaintiff's name or likeness."

For purposes here, we shall accept Prosser's four classifications.

It is only with respect to the last classification, namely, appropriation for defendant's benefit, more particularly for his commercial benefit with which we are here concerned.*fn2 We thus ask ourselves whether this type of invasion of privacy is an "injury to the person" governed by the two-year statute of limitations. As to this classification (4), i.e., "appropriation." Prosser says:

"Although the element of protection of the plaintiff's personal feelings is obviously not to be ignored in such a case, the effect of the appropriation decisions is to recognize or create an exclusive right in the individual plaintiff to a species of trade name, his own, and

a kind of trade mark in his likeness. It seems quite pointless to dispute over whether such a right is to be classified as 'property'; it is at least clearly proprietary in its nature. Once protected by the law, it is a right of value upon which the plaintiff can capitalize by selling licenses." (Op. Cit., at p. 842)

As said above, the answer is not simple -- this for the reason that so much confusion arose in the cases after the projection of Warren and Brandeis' concept in 1890.

In a most scholarly article entitled, "Right of Property in Name, Likeness, Personality and History," 55 Nev. U.L. Rev. 553 (1960), Gordon analyzes the flood of judicial and other attention to right of privacy and recognizes the confusion of concept applied since 1890. He says:

"An analysis of the decided cases through the years leads to the conclusion that much of the confusion and conflict in the decisions arose because litigants chose to sue in almost every case for invasion of privacy (premised on injury to feelings), rather than for the appropriation for commercial exploitation of rights in name, likeness, etc., in situations where injury to feelings had only secondary application. So long as privacy suits were confined (as in most of the early cases) to the advertising exploitation of private individuals plucked from obscurity against their will, to invasions by wire-tapping, or to similar indignities where injury to feelings was the principal harm, there was little difficulty. However, when the suits began to involve all types of commercial exploitations, particularly of public figures, the decisions became confused." (at p. 554)

Thus, there must be an appreciation of the nature of the right which was protected prior to the Warren and Brandeis article; an analysis of the decisions which followed and the nature of the rights recognized in those decisions; why confusion as of a "haystack in a hurricane" has developed, and, more specifically, there must be recognition of what is precisely involved when we are confronted with an appropriation of plaintiff's likeness for advertising purposes to defendant's commercial benefit. Having established the nature of the right involved, we must then determine whether the action is one for injury to the person under N.J.S. 2A:14-2, or whether it is an action for tortious injury to the rights

of another under N.J.S. 2A:14-1 and not stated in N.J.S. 2A:14-2.

Gordon points out that while the Warren and Brandeis concept of right of privacy was premised upon previously recognized rights of property, contract or trust relationship which had always been recognized by the courts, the authors nevertheless felt there was a need for a recognition of a distinct right of privacy which would be independent of any such property, contract or similar right, especially since, absent such rights, the basic injury was a violation of the plaintiff's right "to be let alone" and the essential injury was to one's feelings with consequent mental anguish. As Warren and Brandeis said:

"* * * our law recognizes no principle upon which compensation can be granted for mere injury to the feelings." Harv. L. Rev. at p. 197.

It was to fill this gap that Warren and Brandeis unleashed their concept of "right of privacy." They argued that, while prior cases had based the right on rights of property, contract, etc., the rights applied and protected were rights of property, etc., only in the "broadest" sense. They recognized that with respect to the reproduction of literary and artistic compositions:

"They certainly possess many of the attributes of ordinary property: they are transferable; they have a value; and publication or reproduction is a use by which that value is realized. But where the value of the production is found not in the right to take the profits arising from publication, but in the peace of mind or the relief afforded by the ability to prevent any publication at all, it is difficult to regard the right as one of property, in the common acceptation of that term." (Op. cit., at p. 200)

They acknowledged that in the rights theretofore protected there did inhere that quality of being owned or possessed (as that is the distinguishing attribute of property), and there may have been some propriety in speaking of them as

"rights of property." Harv. L. Rev., at p. 205. However, it was their conclusion that in reality it was not the principle of property, contract, etc., but that of "inviolate personality" which was involved. What they were looking for was a means of protection for that distinct injury which resulted in invasion of the personality in itself. Seemingly not concerned with the term used, they said:

"That obligation is simply to observe the legal right of the sender [of the letter], whatever it may be, and whether it be called his right of property in the contents of the letter, or his right ...

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