The plaintiffs appeal from an order sustaining a demurrer to all six counts of their amended declaration.
Counts 1 and 3 allege that the defendant's act constituted a trespass upon the body of the plaintiffs' daughter. The second and fourth counts allege that the photograph and accompanying caption constituted an interference with the plaintiffs' right of privacy. Counts 5 and 6 assert that the photographic reproduction "was a gross caricature" of their daughter and "depicted her features in a deformed and hideous manner and distorted ... [her] features." In one of each pair of counts it was alleged that the defendant's act was wilful and malicious, and in the other that it was done with gross negligence and indifference to the rights of the plaintiffs.
It should be said at the outset that no rights of the plaintiffs' daughter are here involved. Since she was dead when the photographs complained of were published, no rights arising out of such publication accrued to her. In other words, the rights which the plaintiffs are seeking to assert
1. The first and third counts based on trespass set forth no actionable wrong. This court has held that one who intentionally mistreats the body of a dead person is liable in tort to the member of the family of such person who is entitled to the disposition of the body. Burney v. Children's Hospital, 169 Mass. 57. See Restatement: Torts, § 868. Compare Gahn v. Leary, 318 Mass. 425. In the Burney case it was held that a hospital which performed an unauthorized autopsy on the body of a child was liable to the father, the natural guardian of the child. Liability in that case was imposed because the mutilation of the body was regarded as an interference with the father's right to the possession of it. Here the act of the defendant no more interfered with the plaintiffs' possession or right to possession of their daughter's body than the gaze of a curious bystander who witnessed the death. Neither reason nor authority supports recovery on this ground.
2. By alleging in the second and fourth counts that the photograph and accompanying caption constituted an interference with their right of privacy the plaintiffs seek to raise the question whether there exists in this Commonwealth a legally protected right of privacy — a question left open in Themo v. New England Newspaper Publishing Co. 306 Mass. 54, 58. See Warren and Brandeis, 4 Harv. L. Rev. 193; Restatement: Torts, § 867; notes in 138 A.L.R. 22, 168 A.L.R. 446, and 14 A.L.R. (2d) 750. For reasons that will presently appear it is still unnecessary to decide that question.
Assuming for the purposes of this case that the plaintiffs have a right of privacy, we fail to see how it was impaired by what the defendant did. Doubtless many persons at such a time would be distressed or annoyed by a publication of the sort here involved. It is a time above all others when they would prefer to be spared the anguish of wide or sensational publicity. But if the right asserted here were sustained, it would be difficult to fix its boundaries. A
The plaintiffs cite two decisions (Douglas v. Stokes, 149 Ky. 506, and Bazemore v. Savannah Hospital, 171 Ga. 257) as supporting their position. In Douglas v. Stokes, the parents of a freak child, who died shortly after birth, engaged the defendant, a photographer, to take photographs of the nude body of the child, it being agreed that he was to make twelve pictures and no more. The defendant made additional photographs without the consent of the parents, one of which he copyrighted. It was held that the parents could recover. That case differs from the present case in that there the defendant published the picture in violation of his agreement with the plaintiffs.
3. Counts 5 and 6 allege that the photographic reproduction of the plaintiffs' daughter "was a gross caricature and depicted her features in a deformed and hideous manner and distorted ... [her] features." The plaintiffs seek to support these counts on the same ground urged to sustain the second and fourth counts, namely, that the publication was an invasion of their right of privacy. The publication of such a photograph might very well be indelicate or lacking in good taste but it would not in our opinion, for the reasons already discussed, constitute an actionable wrong to the plaintiffs.
Order sustaining demurrer affirmed.
Judgment for the defendant.