tice Willard Bartlett, in delivering the opinion of the court in that case, said:

The statute merely recognizes and enforces the right of a person to control the use of his name or portrait by others, so far as advertising or trade purposes are concerned. This right of control in the person whose name or picture is sought to be used for such purposes is not limited by the statute. The requirement of his written consent in order to effectuate a valid transfer of the priv ilege of thus using his name or portrait is not any more liable to constitutional objection than the requirement of the statute of frauds that an executory contract for the sale of personal property exceeding $50 in price must be made in writing in order to be enforceable.

The Circle Publishing Company has interposed no defense and consents to the issuance of the injunction. Plaintiff has made out such a case as warrants the intervention of a court of equity.

The motion for an injunction pendente lite is therefore granted. Settle order on notice.

[120 New York Supplement, pp. 989-990; 66 Miscellaneous Reports, pp. 95–97.]

ON APPEAL.

[Memorandum Decision.]

Jones, Oct. 28,

Eliot, respondent, v. Jones, appellant. (Two cases.) Eliot v. (Supreme Court, Appellate Division, First Department. 1910. Oct. 28, 1910.) Action by Charles. W. Eliot against E. Milton Jones. H. D. Williams, for appellant. E. M. Shepard, for respondent. No opinion. Order (66 Misc. Rep. 95, 120 N. Y. Supp. 989) affirmed, with $10 costs and disbursements. Order filed.

[125 New York Supplement, p. 1119; 140 Appellate Division Reports, p. 911.]

ELLIS v. HURST ET AL.

(Supreme Court, Special Term, New York County. February 28, 1910.)

1. INJUNCTION-CIVIL RIGHTS--USE OF PERSON'S NAME OR PICTURE. Laws 1909, ch. 14, now incorporated in Civil Rights Law (Consol. Laws, ch. 6), sections 50, 51, authorizing one to prevent or restrain the use of his name or picture for advertising or trade purposes, is constitutional.

76228°-17-7

Ellis v. Hurst, Feb. 28, 1910.

Page 439.

2. INJUNCTION-PROTECTION OF CIVIL RIGHTS-USE OF PERSON'S NAME OR PICTURE.

Such statute creates a personal right, not recognized independent of statute.

3. INJUNCTION-PROTECTION OF CIVIL RIGHTS-ILLEGAL USE OF

AUTHOR'S NAME.

Such statute protects an author against republication under his true name, without his consent, of books which he published under a nom de plume without copyrighting; such use of his name being for a trade purpose.

Action by Edward L. Ellis against Thomas D. Hurst and another. On motion for a temporary injunction. Granted.

Nathan Burkan, for plaintiff.

Andrew Gilhooly, for defendants.

SEABURY, J. This is an application for a temporary injunction to restrain the defendants from publishing, selling, circulating, or disposing of the books known as "The White Mustang" and "In the Apache Country," containing the name of the plaintiff thereon, and from using the plaintiff's name in connection with said books in any manner for advertising purposes or for the purposes of trade. The plaintiff has been a writer of juvenile and historical works for more than 40 years, and his reputation as a writer has been established under his own name. "The White Mustang" and "In the Apache Country" were first published in a periodical called the Argosy, in 1889. They were published under the nom de plume "Lieutenant R. H. Jayne," and were not copyrighted. The name of the plaintiff was in no way used in connection with these publications until the defendants assumed to use the plaintiff's name in this connection. It is admitted that the plaintiff never granted to the defendants the right to use his name. The defendants are book publishers, and have published these books, and have printed upon the back of the covers and upon the front part of the covers the name of the plaintiff. They have also printed the plaintiff's name in the same manner upon the wrappers in which the books are sold. The plaintiff claims no literary property in the stories, and does not seek to restrain their publication, sale, or distribution under the name of "Lieutenant R. H. Jayne." The purpose of this action is to restrain the defendants. from using the plaintiff's name in connection with these publications.

The plaintiff concedes that the relief which he now seeks could not have been granted prior to the enactment of chapter 14 of the Laws of 1909, which is now incorporated in sections 50 and 51 of the Civil Rights Law (Consol. Laws, ch. 6). This statute authorizes one to prevent or restrain the use of his name or picture by another "for advertising purposes or for the purposes of trade" without the written consent of such person. The statute has been held to be constitutional (Rhodes v. Sperry & Hutchinson, 193 N. Y. 223, 85 N. E. 1097, 127 Am. St. Rep. 945), and creates a personal right, which was not recognized independent of statute (Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 64 N. E. 442, 59 L. R. A. 478, 89 Am. St. Rep. 828). The act of the defendants in printing the plaintiff's name upon the publications referred to was a use of the plaintiff's name for the purpose of trade. It was evidently placed upon the publication by the defendants because, in their opinion, its presence upon these books would facilitate their sale. I do not think that it can be seriously questioned that the plaintiff's name is being used by the defendants for a trade purpose.

The defendants attempt to justify their action in using the plaintiff's name by the claim that the books "The White Mustang" and "In the Apache Country" were dedicated to the public in the absence of a copyright, and that any person has the right to republish them under the true name of the author. The plaintiff does not question the defendants' right to publish the books in the manner in which he dedicated them to the public; but I think that he has the right to the protection of the statute in order to prevent his own name being used in connection with them for trade purposes without his consent. The statute gives him the right to protection against such a use of his name without his consent, and he has done nothing to relinquish or forfeit this right.

It is urged by the defendants that the "Mark Twain " case (Clemens v. Belford, C. C., 14 Fed. 728) is conclusive against the plaintiff's claim. In that case the author asserted a right independent of the statute, while in the present case the plaintiff bases his right to the relief which he seeks entirely upon the recently enacted statute. The defendants are engaged in using the plaintiff's name in violation of the statute and in such a manner as to impair the right which the statute confers upon the

Page 440.

plaintiff. In my judgment he is entitled to an injunction which shall restrain such illegal use of his name.

Motion granted. Settle order on notice.

[121 New York Supplement 438-440; 66 Miscellaneous Reports 235-237.]

ELLIS v. HURST ET AL.

(Supreme Court, Special Term, New York County. December, 1910.)

Ellis v. Hurst, LITERARY PROPERTY-UNCOPYRIGHTED WORKS-NAME OF AUTHORDec., 1910.

Page 145.

RIGHT TO USE.

The right to publish uncopyrighted books with the nom de plume of the author carries with it the right to state the true name of the author, either upon the title page or otherwise; such use not falling within civil rights law (Consol. Laws, ch. 6), sec. 50, prohibiting the unauthorized use for advertising purposes or for the purposes of trade of the name of a living person.

Action by Edward S. Ellis against Thomas D. Hurst and others. Judgment for defendants.

See also 66 Misc. Rep. 235, 121 N. Y. Supp. 438.
N. Burkan, for plaintiff.

A. Gilhooly, for defendants.

GREENBAUM, J. The action is brought under sections 50 and 51 of the civil rights law (Consol. Laws, ch. 6) to enjoin the publication and sale by defendants of certain books with the imprint of plaintiff's name on the covers in which they are bound and the wrappers in which they are inclosed. The plaintiff is an author of standing and reputation, who has written juvenile and historical works during the past 40 years. Among his earlier juvenile. works are two, entitled "In the Apache Country" and "The White Mustang," which he published in 1888 and 1889, respectively, under the assumed name of "Lieutenant R. H. Jayne," and which have never been published by plaintiff or his authority in connection with his own proper name. It appears that neither of these publications was ever copyrighted, and no claim in respect of said stories is made under the copyright laws of the United States. Defendants, book publishers, have published and offered for sale printed copies of each of said literary productions of plaintiff, under his nom de plume of "Lieutenant R. H. Jayne," with the name of

"Edward S. Ellis" and "Ellis" printed on the covers and wrappers of the books.

Plaintiff concedes that by reason of their dedication to the public the defendants had the right to reprint, publish, and sell these books. It is contended, however, that the dedication is limited to the books as published under the nom de plume; that, in the absence of any permission or consent on the part of plaintiff to use or print his real name in connection with the publications in question, defendants had no right to publish them with the imprint of his true name on the covers and wrappers; and that this use of his name is in violation of the statute to which reference has been made. The statute reads as follows:

SEC. 50. RIGHT OF PRIVACY.-A person, firm, or corporation that uses for advertising purposes or for the purposes of trade the name, portrait, or picture of any living person, without having obtained the written consent of such a person, or if a minor, of his or her parent or guardian, is guilty of a misdemeanor.

Section 51 confers a right of action for injunction and for damages in favor of the person aggrieved under the provisions of section 50.

Where a statute is doubtful or ambiguous, resort may be had to the title of the act. (Matter of Village of Middletown, 82 N. Y. 196, 199.) In construing the broad language of the statute declaring the use of "the name, portrait, or picture of any living person" without his written consent, "for advertising purposes or for the purposes of trade," to be a misdemeanor, the court will consider "the mischief which the statute was aimed at, and in order to give it effect words absolute in themselves and language the most broad and comprehensive may be qualified and restricted by other parts of the same statute, or by the facts and circumstances to which they relate." (Blaschko v. Wurster, 156 N. Y. 437, 443, 51 N. E. 303, 305.) In the light of this rule of construction it may be seriously doubted whether the statute was intended to cover every case of the unauthorized use of another's name, picture, or portrait in connection with trade purposes, or whether it was intended to be limited to a class of cases where, before the enactment of the statute, no provision of law existed for redressing certain. wrongs. The title of the act is "Right of Privacy," and it is now a matter of general knowledge that the act was passed in consequence of the suggestions contained in Page 146.