# The First Right to Be Let Alone: Pavesich v. New England Life and the Birth of the Privacy Tort

> In 1905 Georgia's high court became the first in the nation to recognize a common-law right of privacy, after an insurer used an artist's photo in a fabricated advertisement.

Topic: Right of Publicity  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/pavesich-v-new-england-life-right-of-privacy/


In 1905 a Georgia artist named Paolo Pavesich opened a newspaper and found his own face staring back at him from an insurance advertisement he had never agreed to. The New England Mutual Life Insurance Company had used his photograph to illustrate the happy, prosperous man who had bought a policy, complete with a fabricated endorsement in his name. Pavesich sued, and in *Pavesich v. New England Life Insurance Co.*, 122 Ga. 190, 50 S.E. 68 (1905), the Supreme Court of Georgia did something no American court of last resort had done before: it recognized a common-law right of privacy. The decision, written by Justice Andrew J. Cobb and handed down on March 3, 1905, is the headwater from which the modern law of privacy—and, eventually, the right of publicity—flows.

## At a glance

- **Case:** *Pavesich v. New England Life Insurance Co.*, 122 Ga. 190, 50 S.E. 68 (Ga. 1905).
- **Court:** Supreme Court of Georgia; opinion by Justice Andrew J. Cobb.
- **Posture:** Appeal from the sustaining of a general demurrer that had dismissed the complaint; reversed.
- **Holding:** Georgia common law recognizes a right of privacy, and the unauthorized use of a person's photograph in an advertisement, for the advertiser's commercial benefit, is an actionable invasion of that right.
- **Significance:** The first American state high court to recognize a freestanding common-law privacy tort, and the intellectual foundation for privacy and right-of-publicity law nationwide.

The advertisement appeared in the *Atlanta Constitution*. It paired Pavesich's likeness, presented as a contented, well-insured man, against the image of a sickly, ill-provided one, and attached to Pavesich's picture words he never spoke endorsing the company's policies. Pavesich had given no consent. He sued the insurer, its local agent, and the photographer for $25,000, alleging that the unauthorized publication held him up to ridicule and invaded a legal right. The trial court dismissed on demurrer, and the question reached Georgia's highest court.

## Finding a right where none was written

The central difficulty was that no Georgia statute and no prior Georgia decision had announced a right of privacy. Justice Cobb met that difficulty head-on by reasoning from first principles. He located the right in natural law and in the concept of personal liberty, explaining that liberty includes "the right to be let alone" and the right of a person to withdraw from, and to control, the publicity given to their own personality. A person, the court said, may decide to live a private life, and the law should protect that choice against those who would seize a likeness for their own gain.

Cobb drew openly on the famous 1890 *Harvard Law Review* article by Samuel Warren and Louis Brandeis, *The Right to Privacy*, which had argued that the common law could and should protect an "inviolate personality." Where the New York Court of Appeals had recently dismissed that argument, the Georgia court embraced it, treating the absence of precedent not as a barrier but as a sign that the common law had not yet been called upon to address a wrong that modern commerce and photography had only recently made possible.

## Privacy as a personal, not merely commercial, wrong

A striking feature of *Pavesich* is that the court framed the injury in dignitary terms, not just economic ones. The wrong was not principally that the insurer profited; it was that Pavesich's identity had been conscripted, his autonomy overridden, and his image made to say things he never said. The court recognized that being exhibited to the public against one's will—made, in effect, to serve as an unwilling spokesman—is a distinct harm to the person, "humiliating to the feelings" and corrosive of the freedom to control one's own public presentation.

At the same time, the opinion carefully bounded the new right. The court acknowledged that the right of privacy must yield to legitimate public interests: matters of public concern, the conduct of public figures, news, and the like are not shielded merely because publicity is unwelcome. And a person who consents, expressly or by entering public life in a relevant way, may waive privacy as to particular matters. This balance—a robust private right tempered by public-interest and consent limits—became the template later courts and the Restatement would refine.

## The two paths of personality law

*Pavesich* contains, in embryo, both branches of what American law would later separate. The dignitary strand—protection against being exposed, intruded upon, or falsely portrayed—matured into the privacy torts catalogued by William Prosser and the Restatement (Second) of Torts: intrusion, public disclosure of private facts, false light, and appropriation. The commercial strand—the idea that one controls the use of one's identity for advertising and trade—grew into the modern right of publicity, the very interest at stake when an advertiser borrows a person's face to sell a product.

Because Pavesich's complaint involved an advertisement that both invaded his seclusion and exploited his likeness commercially, the case sits at the junction of those later doctrines. That is why it is cited as a founding authority for the appropriation tort and for the right of publicity alike, even though the court in 1905 spoke simply of a unified "right of privacy."

## Open questions

- **How far does the public-interest limit reach?** *Pavesich* exempted matters of legitimate public concern but left the boundary undefined, a line courts still negotiate between newsworthiness and exploitation.
- **When does entering public life waive privacy?** The opinion recognized that public figures forfeit some privacy, but how much, and as to what, remained for later cases to work out.
- **Is the interest personal, proprietary, or both?** By blending dignity and commerce, *Pavesich* left unresolved whether the right is an inalienable personal interest or a transferable property right—a question central to the later, separate right of publicity.

## Implications

- **A foundational precedent.** *Pavesich* is the origin point for American privacy and publicity law and is still cited when courts trace the lineage of the appropriation tort.
- **Common law can grow.** The decision shows courts willing to recognize new rights in response to new technologies and commercial practices, rather than waiting for legislation.
- **Consent is the cornerstone.** The wrong was the absence of permission; obtaining a valid release remains the first line of defense for any advertiser using a real person's likeness.
- **Dignity and commerce intertwine.** The case fuses personal-dignity and commercial-control interests that later law would split into privacy and publicity, explaining why a single set of facts can support both kinds of claims.
- **Public interest is a real but bounded defense.** Newsworthiness and public-figure status limit the right, but they do not license using a person's image to sell a product.

## Frequently asked questions

**What did Pavesich v. New England Life establish?**
It was the first decision by an American state high court to recognize a freestanding common-law right of privacy. The Georgia Supreme Court held that publishing a person's photograph in an advertisement without consent, to promote a business, violates that right and is actionable in tort.

**Where did the court find a right of privacy when no statute created one?**
The court grounded the right in natural law and in liberty, reasoning that a person has a right to be let alone and to control the public use of their own likeness. It drew on the 1890 Warren and Brandeis article *The Right to Privacy* and rejected the contrary New York decision in *Roberson*.

**How is this different from the Roberson case in New York?**
Three years earlier, New York's highest court refused to recognize a common-law right of privacy in *Roberson v. Rochester Folding Box Co.* *Pavesich* reached the opposite conclusion, and its reasoning proved far more influential, becoming the foundation for the modern privacy and publicity torts adopted across the country.

## Authorities and sources

- Opinion, *Pavesich v. New England Life Insurance Co.*, 122 Ga. 190, 50 S.E. 68 (Justia): https://law.justia.com/cases/georgia/supreme-court/1905/122-ga-190.html
- Case page and analysis (Casemine): https://www.casemine.com/judgement/us/5914cf07add7b0493481e7ab
- Background and significance (Wikipedia): https://en.wikipedia.org/wiki/Pavesich_v._New_England_Life_Insurance_Company
- Samuel Warren & Louis Brandeis, "The Right to Privacy," 4 Harv. L. Rev. 193 (1890): https://groups.csail.mit.edu/mac/classes/6.805/articles/privacy/Privacy_brand_warr2.html