I claim, however, leave to doubt whether, as to property of a private nature, which the owner, without infringing on the right of any other, may and does retain in a state of privacy, it is certain that a person who, without the owner's consent, express or implied, acquires a knowledge of it, can lawfully avail himself of the knowledge so acquired to publish without his consent a description of the property. It is probably true that such a publication may be in a manner or relate to property of a kind rendering a question concerning the lawfulness of the act too slight to deserve attention. I can conceive cases, however, in which an act of the sort may be so circumstanced or relate to property such, that the matter may weightily affect the owner's interest or feelings, or both. For instance, the nature and intention of an unfinished work of an artist, prematurely made known to the world, may be painful and deeply prejudicial to him; nor would it be difficult to suggest other examples. I may here, perhaps, remark in passing that there are several offences against propriety and morals, which, though causing most serious discomfort, pain, and affliction to individuals, the law refuses to treat as actionable, unless these offences have occasioned some recognizable damage of a particular kind, which it designates "special damage," but when they have done so permits to be brought into litigation and to be redressed civilly, to an extent proportioned to substantial justice, and therefore frequently much beyond the "special damage" which alone enabled the proceeding. The plaintiff's counsel, however, contended that the questioned part of the injunction here prohibits only that which is or would be the use by the defendant of the plaintiff's property, or that of the plaintiff and his Consort, for purposes of pecuniary gain to the defendant, or some other purpose of his own, without consent; and this view of the matter, if correct, may be not without importance. It was suggested that, to publish a catalogue of a collector's gems, coins, antiquities, or other such curiosities, for instance, without his consent, would be to make use of his property without his consent; and it is true, certainly, that a proceeding of that kind may not only as much embitter one collector's life as it would flatter another — may be not only an ideal calamity but may do the owner damage in the most vulgar sense. Such catalogues, even when not descriptive, are often sought after, and sometimes obtain very substantial prices. These, therefore, and the like instances are not necessarily examples merely of pain inflicted in point of sentiment or imagination: they may be that, and something else beside. But, as I just now observed, and as we all know, pain inflicted in point of sentiment or imagination is not always disregarded in courts of justice. I alluded slightly to cases, of which some kinds of calumny and seduction are instances; and, as an example somewhat different, if a trespass upon property, the damage caused by which is so small as to be scarcely appreciable, and compensable amply by the smallest coin, be accompanied by circumstances of oppression or malignity, insolence, affront, or reproach, which by themselves could not be made the subject of an action, they may be considered in the suit for the trespass, and swell the damages to a heavy amount. The question, however, does not turn upon the form or amount of mischief or advantage, loss or gain. The author of manuscripts, whether he is famous or obscure, low or high, has a right to say of them, if innocent, that, whether interesting or dull, light or heavy, saleable or unsaleable, they shall not, without his consent, be published; and I think, as I have said, that to use a dishonest knowledge of them for the purpose of composing and publishing, and so to compose and publish a catalogue of them, amounts to a publication of them within the principle of the rule. Assuming the law to be so, what is its foundation in this respect? It is not, I conceive, referable to any consideration peculiarly literary. Those with whom our common law originated had not probably among their many merits that of being patrons of letters; but they knew the duty and necessity of protecting property, and with that general object laid down rules providently expansive rules capable of adapting themselves to the various forms and modes of property which peace and cultivation might discover and introduce. The produce of mental labour, thoughts, and sentiments recorded and preserved by writing, became, as knowledge went onward and spread, and the culture of man's understanding advanced, a kind of property impossible to disregard, and the interference of modern legislation upon the subject, by the Stat. 8 Anne, professing by its title to be "for the encouragement of learning," and using the words "taken the liberty," in the preamble, whether it operated in augmentation or diminution of the private rights of authors, having left them to some extent untouched, it was found that the common law, in providing for the protection of property, provided for their security, at least before general publication by the writer's consent. The species or kind of the thing in which property was claimed had, of course, to be particularly considered, in considering the question whether a right in it was invaded, and how invasion should, in the particular case, be prevented or redressed; and this class of property, by nature not corporeal at all, or not exclusively corporeal, required to be defended against incorporeal attacks, and not at all or not exclusively against bodily assaults. Upon the principle, therefore, of protecting property, it is that the common law, in cases not aided nor prejudiced by statute, shelters the privacy and seclusion of thoughts and sentiments committed to writing, and desired by the author to remain not generally known. This has been in effect often judicially declared, nor by any Judge more distinctly than by Lord Eldon, upon several occasions. Such then being, as I believe, the nature and foundation of the common law as to manuscripts, independently of Parliamentary additions and subtractions, its operation cannot of necessity be confined to literary subjects. That would be to limit the rule by the example. Wherever the produce of labour is liable to invasion in an analogous manner, there must, I suppose, be a title to analogous protection or redress. . The principles and rules which it applies to literary compositions in manuscript must, I conceive, be, to a considerable extent at least, applicable to these also. Mr. Justice Yates, in Millar v. Taylor (4 Burr. 2303), said that an author's case was 'exactly similar to that of an inventor of a new mechanical machine; that both original inventions stood upon the same footing in point of property, whether the case were mechanical or literary, whether an epic poem or an orrery; that the immorality of pirating another man's invention was as great as that of purloining his ideas. Property in mechanical works or works of art, executed by a man for his own amusement, instruction, or use, is allowed to subsist certainly, and may, before publication by him, be invaded, not merely by copying, but by description or by catalogue, as it appears to me. A catalogue of such works may in itself be valuable. It may also as effectually shew the bent and turn of the mind, the feelings and taste of the artist, especially if not professional, as a list of his papers. The portfolio or the studio may declare as much as the writing-table. A man may employ himself in private in a manner very harmless, but which, disclosed to society, may destroy the comfort of his life, or even his success in it. Every one, however, has a right, I apprehend, to say that the produce of his private hours is not more liable to publication without his consent, because the publication must be creditable or advantageous to him, than it would be in opposite circumstances. Addressing the attention specifically to the particular instance before the Court, we cannot but see that the etchings executed by the plaintiff and his Consort for their private use, the produce of their labour, and belonging to themselves, they were entitled to retain in a state of privacy, to withhold from publication. That right, I think it equally clear, was not lost by the limited communications which they appear to have made, nor confined to prohibiting the taking of impressions, without or beyond their consent, from the plates their undoubted property. It extended also, I conceive, to the prevention of persons unduly obtaining a knowledge of the subjects of the plates from publishing (at least by printing or writing), though not by copy or resemblance, a description of them, whether more or less limited or summary, whether in the form of a catalogue or otherwise. But I am satisfied, I repeat, that the means of composing and forming the catalogue in question must, upon the materials now before the Court, be taken to have been obtained unduly, that is, without the consent of the plaintiff, without that of his Consort, and without any right, moral, equitable, or legal. Can I then deny it to be an interference with another's property? I think not. - I think, therefore, not only that the defendant here is unlawfully invading the plaintiff's right, but also that the invasion is of such a kind and affects such property as to entitle the plaintiff to the preventive remedy of an injunction, and if not the more, yet certainly not the less, because it is an intrusion - an unbecoming and unseemly intrusion an intrusion not alone in breach of conventional rules, but offensive to that inbred sense of propriety natural to every man — if intrusion, indeed, fitly describes a sordid spying into the privacy of domestic life into the home (a word hitherto sacred among us), the home of a family whose life and conduct form an acknowledged title, though not their only unquestionable title, to the most marked respect in this country. To relax the restraint that has been imposed on the defendant is, consequently, what I am not now at least prepared to do. . . . June 1, 2. Both causes now came on for hearing, evidence having been gone into on the part of the plaintiff and the Attorney-General, and being to the same effect as the affidavits already stated. The defendant, J. T. Judge, had obtained an order to defend in forma pauperis. The Solicitor-General, Mr. Serjeant Talfourd, and Mr. W. M. James, for the plaintiff, said that, as regarded the defendant, Strange, it was proposed merely to take a decree for a perpetual injunction, and not to ask for costs against him, as he appeared to have been possibly misled by the defendant, J. T. Judge, and to have acted inconsiderately merely. Mr. Russell and Mr. Warren consented to this decree, on behalf of the defendant Strange, and expressed his acknowledgments for the lenient course taken towards him. 334. POLLARD v. PHOTOGRAPHIC COMPANY CHANCERY DIVISION, SUPREME COURT OF JUDICATURE OF ENGLAND. 1880 L. R. 40 Ch. D. 345 THE plaintiffs, a husband and wife, sued the defendant, a photographer carrying on business at Rochester under the style of the Photographic Company. A claim was indorsed on the writ for an injunction to restrain the defendant "from selling or offering for sale or exposing by way of advertisement or otherwise a certain photograph of the plaintiff Alice Morris Pollard got up as a Christmas card, and from selling or exposing for sale or otherwise dealing with such photograph.” A motion was now made on the part of the plaintiffs for an interim injunction in terms of the claim till the hearing. By arrangement the motion was treated as the trial. Mrs. Pollard was photographed at the defendant's shop at Rochester in August, 1888, and paid for likenesses of herself taken from negatives then made and for photographs of other members of her family. It was found by the plaintiffs that a photographic likeness of Mrs. Pollard taken from one of the negatives, got up in the form of a Christmas card, was being exhibited in the defendant's shop window at Rochester. A Mr. Andrews, a clerk of their solicitors, with a view to this action, purchased at the shop from Mr. Bax, the defendant's manager, a copy of Mrs. Pollard's photograph made up as a Christmas card. Affidavits were made by Mr. Andrews and Mr. Bax,,for the purpose of the motion, which conflicted as to the details of what passed on the occasion of the purchase. The result of the evidence is stated in the judgment. The plaintiff's had not registered any copyright in the negative. Cozens-Hardy, Q. C., and Silvester, for the plaintiffs. The defendant was paid to take the negative for the particular purpose of supplying Mrs. Pollard; there is an implied contract not to use the negative for any other purpose, and he will be restrained from using the negative for any object that is obnoxious to the person who employed him. [NORTH, J. Do you dispute that if the negative likeness were taken on the sly, the person who took it might exhibit or sell copies ?] In that case there would be no contract or consideration to support a contract. Emden, for the defendant. The only contract that the photographer entered into was that he would supply copies to Mrs. Pollard, which contract he fulfilled. A person had no property in his own features: short of doing what is libellous or otherwise illegal there is no restriction on the photographer using his negative. There is no question here as to statutory copyright; no one is registered. . . . NORTH, J. The question, therefore, is whether a photographer who has been employed by a customer to take his or her portrait is justified in striking off copies of such photograph for his own use, and selling and disposing of them, or publicly exhibiting them by way of advertisement or otherwise, without the authority of such customer, either express or implied. I say "express or implied," because a photographer is frequently allowed, on his own request, to take a photograph of a person under circumstances in which a subsequent sale by him must have been in the contemplation of both parties, though not actually mentioned. To the question thus put, my answer is in the negative, that a photographer is not justified in so doing. Where a person obtains information in the course of a confidential employment, the law does not permit him to make any improper use of the information so obtained; and an injunction is granted, if necessary, to restrain such use; as, for instance, to restrain a clerk from disclosing his master's accounts, or an attorney for making known his client's affairs, learned in the course of such employment. Again, the law is clear that a breach of contract, whether express or implied, can be restrained by injunction. In my opinion the case of the photographer comes within the principles upon |