Pavesich v. New England Life Insurance
122 Ga. 190 (1904)
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Rule of Law:
The unauthorized use of an individual's likeness, such as a photograph, for commercial advertising purposes is a tortious invasion of the common law right to privacy.
Facts:
- Paolo Pavesich was an artist living in Atlanta.
- The New England Mutual Life Insurance Company, its agent Thomas B. Lumpkin, and photographer J.Q. Adams published a newspaper advertisement for the insurance company.
- The advertisement featured a recognizable photograph of Pavesich without his consent.
- The ad placed Pavesich's photo next to a photo of an ill-looking man, contrasting the two to promote life insurance.
- Beneath Pavesich's picture was a false testimonial, written as if from him, stating that he had bought insurance from the company and was pleased with it.
- In reality, Pavesich had no insurance policy with the New England Mutual Life Insurance Company.
- Pavesich's friends and acquaintances recognized his likeness in the advertisement.
Procedural Posture:
- Paolo Pavesich filed a petition with two counts, libel and invasion of privacy, in the City Court of Atlanta against New England Mutual Life Insurance Co. and its agents.
- The defendants filed a general demurrer, arguing that the petition failed to state a valid cause of action.
- The trial court sustained the demurrer and dismissed Pavesich's petition.
- Pavesich, as the appellant, brought an appeal to the Supreme Court of Georgia to review the trial court's dismissal of his case.
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Issue:
Does the unauthorized use of a person's photograph in a newspaper advertisement for the commercial benefit of another constitute a violation of a legally protected right of privacy?
Opinions:
Majority - Cobb, J.
Yes, the unauthorized use of a person's photograph for commercial advertising constitutes a violation of the right of privacy. The court recognized the right of privacy as a right derived from natural law and protected under the constitutional guarantees of personal liberty, which encompasses more than mere freedom from physical restraint. This 'right to be let alone' is an absolute right that exists independently of property or contract law. While the court acknowledged the absence of direct precedent, it reasoned that the novelty of a claim does not preclude a remedy for a legal wrong. The court explicitly rejected the contrary holding in the New York case Roberson v. Rochester Folding Box Co., instead adopting the reasoning of the dissent in that case. The court distinguished this invasion from protected speech, holding that the use of a likeness for purely commercial purposes is not an exercise of the 'liberty of speech or of the press' to publish one's 'sentiments.' The court also held that the petition stated a valid claim for libel, as the false testimonial would lead those who knew Pavesich did not have the policy to view him with contempt as a liar.
Analysis:
Pavesich is a foundational case in American privacy law, being one of the first major appellate decisions to explicitly recognize a common law right to privacy. Its holding directly opposed the New York Court of Appeals' decision in Roberson v. Rochester Folding Box Co., creating a crucial split of authority that spurred the development of privacy torts across the United States. The case firmly established the tort of appropriation of name or likeness for commercial advantage, a principle now widely accepted. This decision affirmed that personal liberty includes the right to control the commercial use of one's own identity, creating a new and enduring cause of action to protect individuals from unauthorized commercial exploitation.
