The Right to Privacy. stances and applications of a general right to privacy." In the case of Miller v. Taylor, 4 Burr, 2,362, Mr. Justice Yates said, " Ideas are free. But while the author confines them to his study they are like birds in a cage which none buf he can have a right to let fly, for till he thinks proper to emancipate them they are under his own dominion. It is certain every man has a right to keep his own sentiments, if he pleases; he has cer tainly a right to judge whether he will make them public or commit them only to the sight of his friends. In that state, the manuscript is in every sense his peculiar property and no man can take it from him, or make any use of it, which he has not authorized, without being guilty of a viola tion of his property. And as every author or proprietor of a manuscript has a right to determine whether he will publish it or not, he has a right to the first publication." Whether the intellectual product is a piece of poetry, a play put upon the stage, Maiklin v. Richardson cited Ambl. 695, a manuscript copy of a history lent to a friend, Duke of Queensbury v. Shebbeare, Copinger on copy right, p. 8, a lecture delivered to an audience, Abernethey v. Hutchinson, 3 L. J. Ch. 209 and Nicols v. Pitman, 26 Ch. D. 374, a letter written to a friend, Gee v. Pritchard, 2 Swans, 402, a doctor's recipe for a disease, Yovall v. Winyard, 1 J. & W. 394, a secret in the compounding of a medicine, Morrison v. Moat, 9 Hare, 241, or a gallery of etchings made by a person, Prince Albert v. Strange, 1 Mac. & G. 25, the owner is entitled to an injunction restraining the unauthorized pub lication of it. Apart altogether from the Copyright Acts, which only apply to works published, the judges answered the question put to them by the House of Lords in Donaldson v. Buckett, 4 Burr, 2408, that at common law the author of any book or literary composition had the sole right of first printing and publishing the same for sale and might bring an action against any person who printed, published, and sold the
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same without his consent. The ground of the protection afforded has been variously stated by judges in different cases, that the injunction is directed against a breach of trust or confidence by the publisher, he hav ing obtained knowledge of the intellectual product while in a position of confidence, that it seeks to prevent a breach of an im plied contract on the part of the publisher not to publish, or that there is a right of property which needs to be protected. It is impossible to accept these explanations as altogether satisfactory in all the cases we have enumerated. What right of property is there in a collection of gems or a gallery of etchings that entitles the owner to prevent the pub lication of a descriptive catalogue? And yet in Prince Albert v. Strange, the court issued an injunction against the publication of a catalogue of a collection of etchings made by her Majesty the Queen and the late Prince Consort. Is it a right of prop erty in one's personal appearance that en titles the person to prevent the publication of a photograph? Pollard v. Photographic Co., 40 Ch. D. 345. If the photographer could be restrained from selling copies where the person had consented to sit for a photo graph, would the latter be less entitled to protection where the photograph is taken without his consent? It is not on the ground that the publication of the photograph is a libel that the injunction can be rested, for the photograph may be worthy of all com mendation as that of a handsome personal appearance. The theory of breach of con fidence, although the circumstances of Abernethy v. Hutchinson, 3 L. J. Ch. 209, Tuck v. Priester, 19 Q. B. D. 639, and Pollard v. Photographic Co., 40 Ch. D, 345, enabled the court to invoke it successfully is inadequate for restraining the publication of a letter by a stranger or by the addressee who was in no position of trust at the time of the receipt of the letter or the publication of a tradesecret where the knowledge was surrepti
