Privacy,Property or Propriety: The Case of “Pretty Portraits” in Late Nineteenth-century America

I. Introduction

In his article “Privacy” published in 1960, ² William Prosser, then Dean of the University of California Law School, Berkeley, provided a comprehensive analysis of the seventy years of privacy jurisprudence following the publication of Warren and Brandeis’ “A Right to Privacy” in 1890. ³ Prosser began his study by relating the (now debunked) ⁴ story behind Warren and Brandeis’ seminal article – how at the wedding of Samuel Warren’s daughter in the “blue blood” society of Boston, the press took and published photographs of the occasion, thus provoking the Warrens’ extreme annoyance. Prosser returned to this story at the conclusion of his review, stating:

All this is a most marvellous tree to grow from the wedding of the daughter of Mr Samuel D Warren. One is tempted to surmise that she must have been a very beautiful girl. Resembling, perhaps, that fabulous creature, the daughter of a Mr. Very, a confectioner in Regent Street, who was so wondrous fair that her presence in the shop caused three or four hundred people to assemble every day in the street before the window to look at her, so that her father was forced to send her out of town, and counsel was led to inquire whether she might not be indicted as a public nuisance. This was the face that launched a thousand lawsuits. ⁵

It is fitting that his article ends with an anecdote about the disruptive and generative power of the beauty of young women, for the history of privacy law in the United States in the late nineteenth and early twentieth centuries is one filled with female voices asserting the right to control the publication and circulation of their faces and bodies. At a time when women formed the minority of general litigants, they comprised the majority of privacy plaintiffs. Hers was indeed the face that launched a thousand lawsuits.

In the nineteenth century, the rapid development of visual technologies fostered new types of harm to individuals for which existing law provided inadequate redress. As scholars in the history of visual culture have extensively argued, the invention of photography in the 1830s and cinema in the 1880s and 1890s radically altered the socio-visual economy, allowing people the awe of seeing, as well as being seen, in ways previously unimaginable. ⁶ Portraits no longer required the hand of an artist, they could be captured, reproduced, disseminated and published on an unprecedented scale. Debates over the “right to privacy” that emerged during the late nineteenth century in the United States were, in many ways, debates over the implications of the social and cultural changes brought about by the invention of film – still and moving.

This article examines the way in which “a right to privacy” became the American legal solution to the novel problems posed by photographic portraits. From the beginning, the gendered nature of this claimed right was central. That rights to one’s own image should be identified as a matter of “privacy” stems, in part, from the preponderance of female plaintiffs. But should, then, the “right to privacy” be dismissed as merely a conservative doctrine invoking feminine modesty as feminist legal academics Caroline Danielson, Anita Allen and Erin Mack have argued? ⁷

On the one hand, legislative attempts such as the Federal “Bill to Protect Ladies” (1888) and the language of early privacy cases such as Roberson v. Rochester Folding Box Co. evince an idea of femininity in line with the constraining common law doctrine of “coverture” – that as a lady, one required protection from the rough vicissitudes of public life. On the other hand, however, the “right to privacy” can be understood within the context of women’s long struggle for equal citizenship in the United States. The cases reveal the particular vulnerability of women to exploitation within a legal and political system founded upon the protection of masculine property rights and interests. The “right to privacy,” therefore, occupies an uneasy position – conservative at first glance, potentially radical in its implications.

“The right to privacy” demanded legal recognition for those photographed as active subjects rather than as “pretty” objects, as individuals rather than nameless faces, as possessors of valuable property, rather than as valuable possessions in themselves. By doing so, it pushed back against the reduction of women to silent, compliant images occurring on an industrial scale in the late nineteenth century. In addition, by placing the pictured, rather than the picture taker, front and center of debate, this doctrine challenged the largely masculine protections of copyright law and raised important questions concerning how the gender of law shaped the subsistence and allocation of property.

II. Proliferating pictures

The advent of the photographic camera in the mid-nineteenth century in a climate of positivist thought promised the ability to create an “objective” visual record of the world, but by doing so, it removed objects and people from their natural contexts. It was this tension between presence and absence, the blurring of “representation” and “reality” in the context of a simultaneous dislocation/manipulation of that “reality” that created novel social concerns and legal puzzles. As Jonathan Crary notes in his book Techniques of the Observer, “Photographs may have some apparent similarities with older types of images, such as perspectival painting or drawings made with the aid of a camera obscura; but the vast systematic rupture of which photography is a part renders such similarities insignificant.” ⁸ Photography transformed the nature of portraiture, the image becoming simultaneously more authentic and more autonomous.

In Visions of Modernity, Scott McQuire traces the history of modernism through the lens of the camera, arguing that from its conception, photography as a form of writing with light (with all its theological and philosophical associations) occupied a unique relationship to “truth.” It was not merely another form of representation, but provided an “invisible umbilicus joining image and referent.” ⁹ In a letter to a friend, the nineteenth-century poet Elizabeth Barrett indicated a growing preference for photography over portraiture to convey likeness:

It is not at all monstrous in me to say … that I would rather have such a [photographic] memorial of one I loved dearly than the noblest artist’s work ever produced … it is not merely the likeness which is precious in such cases but the association and sense of nearness in the thing … the fact of the very shadow of the person lying there fixed forever. ¹⁰

Photography promised the close depiction of a loved one that portraiture, in its seemingly greater reliance upon artistic mediation, could not. A photograph was physically and spiritually connected to the subject’s body – light had touched them and cast their shadow upon paper.

At the same time, however, Barrett’s words suggest a sense of loss as the subject was preserved as a “shadow,” as a thing lying “fixed forever.” Such terminology anticipates Susan Sontag’s writings on the “aggression implicit in every use of the camera,” ¹¹ and Walter Benjamin’s notion of photography as “to pry an object from its shell, to destroy its aura.” ¹²

The association of photography with acts of violence and theft against the pictured subject was apparent from its beginnings. As photography was fashioned as a practice for amateurs in the 1880s and 1890s, cameras were endowed with names such as “Bulls-Eye,” “Bullet” and “Hawks-eye,” the phrase “take a shot” became common usage and some cameras were even manufactured into the shapes of revolvers. ¹³ The camera was conceptualized primarily as a tool or instrument for the picture taker, not the pictured subject. This idea was reflected in law, which awarded rights in the image to the photographer through the expanding doctrine of copyright.

Photography may have promised greater intimacy between friends and family, through its faithful rendering of loved ones, but it also removed and disconnected the pictured subject from him or herself and the process of image creation more than any previous means of representation. Prior to the camera, the tradition of portraiture relied upon the capacity of artists to capture likeness through the media of drawing, painting or sculpture. The cosy circumstances of these practices defined their legal regulation. The execution of honorific portraits often required prolonged physical proximity between an artist and subject necessitating a relationship where terms and conditions of the portrait (such as who would possess it and/or hold the right of reproduction) could be negotiated and subject to a legally binding contract and/or obligation of confidence. Further, if the artist was required to access the sitter by entering private property, lack of consent to do so could instantiate an action in trespass or nuisance. As Jonathan Hafetz notes, insofar as there was a “right of privacy” for most of the nineteenth century it was closely tied to the physical boundaries of real property – “to the four walls of a man’s home.” ¹⁴ But the arrival and popularity of the photographic camera threatened the efficacy of existing laws to protect the individual from interference. One’s form and features could be lifted, reproduced, manipulated and disseminated without knowledge, consent or recourse. How to address these new harms and regulate a world awash with unruly images became a major preoccupation for the late nineteenth-century legal community.

III. The problem of pretty portraits

The case of Roberson v. Rochester Folding Box (1902), involving the unauthorized use of an image of an attractive young woman’s face to sell flour, roused intense public interest in the vulnerability of photographed subjects and led to narrow statutory protections being passed in New York State. In legal scholarship of the time and subsequently, Abigail Roberson became the pin-up girl for “privacy” rights as much as for flour. However, hers was not the first call for rights in relation to photographic portraits. During the last decades of the nineteenth century, discussion had begun in court rooms, law reviews and newspapers concerning the novel harms being experienced by represented individuals and appropriate legal protections for them.

Writing in 1869 on “The Legal Relations of Photographs” in the American Law Register, one scholar mused:

So, if a likeness, once lawfully taken, were, without permission, to be multiplied for gain, the artist reckoning on the beauty or distinction of the original for extensive sale, it might be considered whether there was a natural copyright, possessed by every person of his or her own features, for which the courts would be bound to furnish redress. ¹⁵

The author went on to refer to a recent case in Europe in which an artist multiplied the likeness of an attractive lady of high rank at the Austrian court and sold copies of her photograph in another city. Relaying the details from an unnamed newspaper, he noted that the “injured lady” successfully brought a suit against the artist, but that the grounds for, or nature and extent of the recovery were not reported. He supposed “special damage” (financial loss) may have formed the basis of the claim as “her right to control the market of her own beauty could not have been denied her by any court.” ¹⁶ In hindsight, the early assumption that an individual, particularly a woman, should have exploitable rights to her own image seems surprising.

A decade later, the question of whether an individual should have rights to their own photographic likeness would touch the highest office in the United States. In 1885, Democratic President Grover Cleveland entered the White House as a bachelor, but soon after married Frances Folsom, the very pretty 21-year-old daughter of a good friend. Cleveland was the second president to marry in office and the only one yet to hold his wedding in the White House. Understandably, there was intense public interest in the new First Lady and her picture circulated widely. So attractive was her countenance that her likeness soon began to appear, without her consent, on numerous product advertisements, from Pearline petroleum products (such as soap) to pianos to pharmaceutical nostrums to beer, cigarettes and “snuff” tobacco. ¹⁷

In early 1888, John Robert Thomas, a Republican Congressman from Illinois and lawyer by profession, was reportedly recovering from illness and visiting a drug store in Washington, DC, when he happened upon a nostrum advertisement picturing the First Lady. ¹⁸ He was apparently so incensed by the advertisement and the inability of the First Lady to prevent the use of her picture in such a way ¹⁹ that on March 6, 1888, he introduced a bill into the House of Representatives entitled “A Bill to Protect Ladies.” ²⁰ The preamble to the Bill stated its purpose as follows:

To prohibit the use of likenesses, portraits, or representations of females for advertising purposes, without consent in writing … Whereas the wives, daughters, mothers and sisters of American citizens … are entitled to protection from the vulgar and unauthorised use, for advertising purposes, of their likeness, portrait or representation, produced or reproduced by photographic, lithographic, chromographic or other means.

It stipulated that any person who publicly exhibited, used or employed the likeness, portrait or representation of any female, living or dead, who was the “wife, daughter, mother or sister of any citizen of the United States,” without consent in writing, would be guilty of a high misdemeanor and liable for a fine of between $500 and $5,000. The wording of the bill would echo years later in the “appropriation of name or likeness” laws passed first in New York State in 1903 and listed by Prosser in 1960 as one of the four common law privacy torts. ²¹ In the 1888 initiation, however, the concept of “privacy” was notably absent.

The language of the Bill expressly connects the issue of the unauthorized use of women’s portraits to citizenship, or rather, to its lack. For suffragists and those fighting for equal rights in the late nineteenth century, the fact that women were defined via their familial relationship with a male “citizen” but were not considered citizens themselves, would have been especially galling. It highlighted the enduring power of the English common law doctrine of coverture, inherited by the United States as former British colonies. Sir William Blackstone described it in the following terms: “By marriage, the husband and wife are one person in law; that is, the very being or legal existence of the woman is suspended during the marriage, or at least is incorporated and consolidated into that of the husband.” ²² As a number of legal historians have argued, ²³ through coverture, married women effectively lost their citizenship – the duties they owed their husbands trumped over those they owed the state. They also lost legal personhood, such as the ability to own or trade property or sue in their own names. As Barbara Welke points out such systematic subordination was dressed in the benevolent language of protection and privilege, as in the “Bill to Protect Ladies.”

The use of the word “ladies” in the name of the Bill is significant. In her important book No Constitutional Right to be Ladies, Linda Kerber argues that rather than shielding women from the burdens inherent in citizenship, the doctrine of coverture worked to conceal practices that made women more vulnerable to forms of private and public power. “As long as married women were understood to owe virtually all their obligation to their husbands,” Kerber states, “they could make no claims of rights against the political community.” ²⁴ The Bill to Protect Ladies might have derived from Congressman Thomas’ concern about the inability of “ladies” to control the use of their portraits but it stopped far short from providing American women with any substantive rights.

Nonetheless, by recognizing the rights of pictured subjects in a photographic portrait, the Bill did challenge the prevailing doctrine of copyright, which, since 1865, had vested all rights in relation to a photograph in the photographer alone. ²⁵ For this reason, the Bill swiftly attracted the attention of professional photographers, who were concerned that their practice of displaying the negatives of portraits to illustrate their artistic abilities was under threat. In a letter to the editor of the Philadelphia Photographer, entitled “A Danger Ahead,” one photographer warned:

I know that in years past you were always ready to defend photographers in their rights… It seems to be thought here that the Bill will pass the House. As it reads, a photographer is prohibited from exhibiting photographs of ladies in his own gallery; we would be in a sad plight with such a law… ²⁶

Here, the interests of those in front of the camera’s lens were perceived to collide with those behind it. Granting rights to the “pretty faces” pictured would impede the ability of photographers to profit, as they would be restricted from reproducing, selling and distributing the images. An association of 35 photographers and photographic studios in the 32nd district of New York State went so far as to lodge an official petition against the Bill with their local congressional representative, the Hon. John M. Farquhar, arguing:

The text [of the bill] will prevent Photographers from exhibiting, even in the most proper way, any picture of any lady customer (a privilege which customer has always acceded us, unless the lady makes objection). We do respectfully urge you to use your influence to secure some modification of said Bill, to exempt Photographers from its operations. ²⁷

The proposed exemption was not necessary. The Bill was referred to the Judiciary Committee, subsequently lost traction and never went to a vote.

General press coverage of the Bill was minimal as it seems to have been overshadowed by other political issues. However, one article entitled “Our Representative Women” appeared in the Albany Journal on March 16, 1888 vehemently opposing the proposed law:

The bill whose main purpose is to prohibit the use of the President’s wife’s portrait for advertising purposes is not wise. It is inevitable that a pretty woman in public station should be advertised to some extent, and there is no harm in it. ²⁸

The writer argued that the first lady of the land was the property of the people “so far as the art of printing [was] concerned,” and that nothing could destroy that right of possession. The use of her or any other woman’s portrait in advertisements, the author contended, should be regarded as a “compliment,” rather than an annoyance.

This argument was strongly opposed in turn, however, by the Sacramento Daily-Record Union, which published an editorial criticizing the Albany Journal for its “faulty views.” ²⁹ It is all very well, they argued, for the public to assert a property claim upon the faces of women occupying public positions (“great singers and actresses, and the women notable as philanthropists or for beauty, daring or great works”), but such a claim must be secondary to the primary right of an individual to determine how and when her portrait would be used. Two years prior to Warren and Brandeis’ foundational article, this local Californian newspaper introduced “privacy” into the portrait debate for the first time:

If one has not the right to privacy in this matter, as well as in other domestic concerns, then the limitation upon the use of portraits cannot be defined at all. Evidently the right to reproduce in portraiture one’s features is a personal one and belongs to the owner of the face, or in case of minors, to the guardian … The protest of the bill is not an evidence of snobbery, or of exclusiveness; it is simply a protest against making the privacy of life indecently public, and to just that extent it is proposed to fortify and protect the personal right to have one’s features copied in print. ³⁰ [emphasis added]

This article and the preceding history concerning Congressman Thomas’ bill help to contextualize Warren and Brandeis’ foundational 1890 article. Their conception of a “right to privacy” promoted to, in part, remedy the problems posed by photography and the unauthorized circulation of private portraits, was ingenious in its eloquence of argument and insight, but was not without precedent. However, their article fails to mention or reference the experience of President Cleveland’s wife, the 1888 “Bill to Protect Ladies” or the surrounding media debate which first connected the issue of rights to one’s own portrait with the right to privacy. Nor has there been any account of these historical circumstances in the subsequent legal scholarship. ³¹

In the same year as debate concerning the unauthorized use of “pretty portraits” intensified in the United States, it first reached the courts of the United Kingdom. ³² In 1888, Alice Pollard attended the studio and shop of the Photographic Company in Rochester, England and there had her photograph taken in various positions. Some months later, it came to her attention that Mr Box, the photographer and proprietor, was exhibiting in his shop window, for sale, one of the photographic portraits of her “got up” as a Christmas card. Justice North described the article in the following terms:

the photographic vignette has been decorated by the addition thereto, above and below the figure, of scrolls of what I suppose are intended for leaves, with the superscription, also in leafy letters, of the words “A Merry Christmas and a Happy New Year.” ³³

Mrs Pollard brought a suit against Mr Box, demanding he desist from using her image to sell goods in his store. She succeeded. The court found for her on the grounds of breach of contract, breach of confidence and copyright. Everything hinged on the relationship between her and Mr Box as customer and vendor, raising questions as to what would have occurred without such a clear commercial transaction. What if Mrs Pollard had been passing on the street outside the shop and had her photograph snapped by Mr Box and then displayed? Without a relationship or prior agreement, Mrs Pollard wouldn’t have been able to stop Mr Box using her likeness for Justice North definitively stated in his judgment that “a person has no property in his own features” ³⁴ (emphasis added).

The masculine language of the law, invoked here for its apparent universality, jars with the gendered circumstances of the grievance. As the “Bill to Protect Ladies” makes clear, this was an issue primarily affecting women. In fact, an 1890 edition of the Ladies Home Journal warned its readers that “while the great majority of professional photographers are men of honour and responsibility … Women should always know the standing of the man to whom they entrust their negatives … The negative once in his possession (if he is so disposed), he has the means of causing them great mortification by using it for base purposes.” ³⁵ The author stated that the journal had repeatedly received the thanks of women for calling their attention to this “matter of great importance.”

There were few cases in the 19th century, if any, of attractive men being used to sell goods and services. Where male plaintiffs do appear in Prosser’s category of “appropriated name and likeness,” it is their name or face employed as a symbol of their professional standing and status. ³⁶ Such circumstances often allowed the men involved to successfully plead defamation, as their public reputation had been brought into disrepute. This can be contrasted with cases concerning the use of likeness alone, because if the photograph of an unnamed woman was a “good” one, she was not considered defamed and therefore largely left without remedy (prior to the enactment of privacy laws). However, combining both types of case into one category, that of “appropriated name or likeness,” leads to a misunderstanding of the distinct kinds of harm suffered. Only when a name (with or without a likeness) is connected with a product or service can you say an “identity” is being “borrowed.” By becoming the nameless “pretty” face on an advertisement, an individual’s identity was not appropriated, but diminished. She became generic – an anonymous object to be desired.

The Pollard case also clearly articulates the burgeoning distinction in reasoning between the USA and the UK on these matters. “Privacy” is not raised in Pollard, but the facts strongly resemble those privacy cases that would dominate dockets in the United States, especially New York, during the following decades. The fact “privacy” is not mentioned might highlight the difficulty of framing such a wrong as an invasion of “privacy.” In order to pose for Mr Box, Mrs Pollard must have walked down the same public street in which her face was subsequently exhibited. These cases suggest that avoiding “public” exposure and thus maintaining “privacy” was less the concern than the ways in which one’s identity and sense-of-self were altered by the photographic apparatus.

IV. A right to privacy, propriety or property?

In 1890, Warren and Brandeis brought the issue of the unauthorized circulation of private portraits to the attention of the legal community and used it to argue for a common law “right to privacy.” In support of their new cause of action, they cited the recent case of Manola v. Stevens, reported by the New York Times in June 1890:

The alleged facts of a somewhat notorious case brought before an inferior tribunal in New York a few months ago, directly involved the consideration of the right of circulating portraits; and the question whether our law will recognise and protect the right to privacy in this and in other respects must soon come before our courts for consideration. ³⁷

As their footnote explains, this case concerned the actress Marion Manola, who, while performing on a Broadway stage in an outfit of tights, was photographed surreptitiously from one of the boxes by the defendant Benjamin Stevens (the manager of the theatre) and the photographer Myers. At the time, 24-year-old Manola was a famous stage star in New York and was playing the role of “Bul-Bul” in the comic opera “Castle in the Sky” staged by the De Wolf Hopper Opera Company.

It is curious that Warren and Brandeis chose this public incident to evince the need for a right to privacy. Perhaps this was due to the account in the New York Times, which in the first of a series of articles reported that Manola “refused to be photographed in tights owing to her modesty.” ³⁸ Other newspaper reports, however, query “modesty” as her primary motive and suggest, alternatively, that she disliked the idea of becoming a tradeable sexual object. On June 19, 1890, The Baltimore Sun reported that Miss Manola “[did] not want her photograph in costume to be common property, circulated from hand to hand, and treasured by every fellow who can raise the price demanded by the photographer for a copy of the picture.” ³⁹ Similarly, in an interview reported by the Chicago Daily Tribune, Manola commented:

Well, I am not prudish and I should not like to be made to appear so. I have no objection to wearing tights on the stage – that is part of the business of my profession. But I object to being photographed in such a costume. My chief objection is that I have a daughter, only 10 years old, and I don’t want her to see pictures of her mother in shop windows in such costumes as I am now wearing. ⁴⁰

The dispute highlighted the novel problems posed to performers by the medium of photography. Suddenly, their appearance, abilities and appeal were readily divorced from the command of their actual presence, fractured into potentially infinite articles for anonymous greedy consumption. As Tom Gunning has noted: “The body itself appeared abolished, rendered immaterial, through the phantasmagoria of both still and motion photography … The body, rather, became a transportable image fully adaptable to the systems of circulation and mobility that modernity demanded.” ⁴¹ An article published by the Atlanta Constitution on June 21, 1890 provided an illuminating contemporary analysis of the problems posed by photography to those on stage:

Miss Manola’s tights, with their contents, belong to her. She has a right to exhibit them, but there is a difference between the spectators in the theatre for a few moments with a glimpse of something gorgeous, and the cold matter-of-fact reality of a photograph to be hawked about and critically examined. ⁴²

Discourse informing the discussion of Manola and the sight of her tights was primarily oriented to property rights, that is, who “owned” her pleasing figure: the gentlemen of the public, the photographer or herself? It is significant that the foundational cases concerning “privacy” and images both in the United States and abroad concerned the use and distribution of photographs of attractive young women. The press consistently described Manola as “pretty,” “shapely and attractive,” “beautiful,” and “appealing.” ⁴³ Her photograph was valued due to its ability to draw the attentions of admiring and desiring crowds. Warren and Brandeis used Manola’s case to prove the need for their new cause of action. Ten years later another “pretty” young woman from New York would, in turn, use their arguments to forge new rights and responsibilities for individuals in relation to photographic portraits.

In 1900, 17-year-old orphan Abigail Roberson suffered “nervous shock” when she recognized her own face on a packet of flour purchased by her next-door neighbor. ⁴⁴ Under the authority of her guardian, her aunt, Margaret E. Bell, Miss Roberson sought legal advice and brought an action in the Supreme Court of New York, Monroe County against Rochester Folding Box Company and Franklin Mills Flour seeking damages of $15,000, a permanent injunction against the defendants using her image and the destruction of all existing advertising material featuring her face. The Complaint alleged:

that without her knowledge or consent, the defendants had within the last three years, knowing they had no right or authority to do so, obtained, made, printed, sold and circulated about 25,000 lithographic prints, photographs and likenesses of the plaintiff for the purpose of profit and gain to themselves; … that the lithographic photograph or likeness of the plaintiff … is made upon white, rough paper, which is about 22 inches wide and about 30 inches long. The likeness of the plaintiff is a large profile view, being on the central portion of said paper… above the likeness are the words, in large, plain letters, “Flour of the Family.” ⁴⁵

It was further elaborated that these posters of the plaintiff were conspicuously displayed in “stores, warehouses, saloons, and other public places throughout the United States and other countries, and particularly in the vicinity where the plaintiff resided.” ⁴⁶

At first instance, Justice Davy heard a demurer by the defendants to dismiss the complaint on the basis that it did not state facts sufficient to constitute a cause of action. The defendants’ argument was understandable, for the complaint articulated no claim known to common law, equity or statute. However, within submissions, Milton E. Gibbs, the Plaintiff’s lawyer and future champion of women’s suffrage in Monroe County, ⁴⁷ constructed an innovative argument based upon the twin claims of property and privacy. Gibbs argued that she had a “right of privacy” which a Court of Equity should protect and she had a “property right in her own features and beauty, which is absolute until voluntarily surrendered by her.” On the point of an equitable “right to privacy,” he submitted:

Notice the acts of the defendants. They obtain, without [the] plaintiff’s consent, her picture, and enlarge it; make thousands of them and circulate them for the purpose of making money and for that only. Do the defendants intend to honour the plaintiff by these acts? Is it showing respect to a beautiful young woman to hang her picture as an advertisement in restaurants and saloons? Is it to teach mankind lessons in philanthropy and morality? To ask these questions is to answer them. ⁴⁸ [emphasis added]

In their article “How Privacy Got Its Gender,” legal academics Erin Mack and Anita Allen point to the ways in which the legal discourse of privacy in the late nineteenth century stressed outmoded normative assumptions about female modesty and seclusion. ⁴⁹ They highlight how traditional (colonial) norms required that “women, much more than men, exhibit speech, dress, and behaviour calculated to deflect attention from their bodies, views or desires.” Women, they argue, suffered in fact from a surfeit of “the wrong kind of privacy,” related to modesty, seclusion and reserve and too little when it came to privacy within the home and autonomous private choice. They refer to feminist Charlotte Gilman’s Women and Economics and her interrogation of traditional proverbs such as: “A woman should leave her home but three times – when she is christened, when she is married and when she is buried.” Mack and Allen rightly conclude that there had been little gender-conscious discussion of the right to privacy as “legal scholars seldom focus squarely on the possibility that gender may have a role in explaining the shape of precedent.” ⁵⁰

It is the case that the language of modesty, propriety and honour pervades the “privacy” arguments put forward by Gibbs and the various judgments in Roberson. Justice Davy in particular continually described Roberson as “modest and refined,” a “modest and retiring” young woman, for whom such publicity was “extremely disagreeable and offensive” causing “great mental distress and injury.” ⁵¹ Mack and Allen fail to recognize, however, that although “privacy” debates employed a traditional, conservative discourse, they were responding to wrongs were far from traditional, because rapid social and cultural change meant that women were experiencing new harms. Women formed the majority of “privacy” plaintiffs not only because the “privacy” doctrine espoused conventional norms of femininity, but also because this doctrine primarily related to the circulation of pictures, and women formed the majority of commercially exploited subjects. It is also vital to remember that while plaintiffs may use or be used by the language of the courts, we can never assume that such discourse wholly characterizes their complaints. It is a discourse available and thus appropriated to achieve an end.

The potentially more radical “property” claim advanced by Gibbs took the following form:

The defendants are estopped from denying that the lithographic likenesses of [the] plaintiff are not of value and are not property… Is it reasonable to suppose that the defendant corporations have sold 25,000 of these lithographs if they are not of value? The value is not in the paper; it is in the picture… If the plaintiff has such a beautiful countenance that her photographic likeness is saleable in the markets, who is entitled to the proceeds of such sales? Is [it] any person who first steals the likeness, or obtains it in any manner without permission of the original owner…? If that is so, then a new and strange theory of property must be read into the law. ⁵²

Gibbs’ radical proposition that the court should recognize a woman’s property right in her own face accorded with his future suffragist politics. In his New York Times obituary, ⁵³ Gibbs was described as a “progressive” force in the Democratic Party and after bringing the foundational privacy case in US legal history, he went on to lead the Democratic campaign for suffrage in Monroe County in 1915. He also became District Attorney, Deputy Attorney-General and a Judge on the New York Court of Claims.

Unlike the “Bill to Protect Ladies,” Gibbs’ proposed property right contested, rather than supported, the doctrine of coverture, and unlike a “right to privacy,” it did so on terms of equality, rather than entrenching the gendered segregation of “public” and “private” spheres. At the time of Gibbs’ argument, the authority of the doctrine of coverture was being challenged and the position of women in the United States was in a state of transition. A succession of state-based Married Women Property Acts since 1848 had allowed women to hold property and sue in their own names. ⁵⁴ By 1900, the divorce rate had risen to one in twelve couples with two-thirds of divorces sought by women. The proportion of women choosing never to marry at all had risen from 6 percent throughout the nineteenth century to 10 percent in the 1890s, while 40 percent of all single white women and 60 percent of single non white women were by then employed outside the home. ⁵⁵ As Karen Manner Smith argues, these shifts reflected a “new eager and purposeful generation of women” who marched onto the stage to demand greater rights and responsibilities. ⁵⁶ At just seventeen years old, in 1900, Roberson was part of this generation.

Gibbs’ proposition proved food for thought for Justice Davy, who dedicated a significant proportion of his judgment to the tricky issue of property rights in one’s own “likeness.” Starting from conservative assumptions he stated: “Every woman has a right to keep her face concealed from the observation of the public.” ⁵⁷ But then he asserted: “Her face is her own private property, and no photographer would have a right to take advantage of the privilege of taking her photograph for her own use, to make copies from the negative and sell them to the public.” ⁵⁸ He referred to Pollard and took issue with the English ruling that no one had property rights in their own features: “If her lithographic likeness, owing to its beauty, is of great value as a trade-mark or an advertising medium, it is a property right which belongs to her.” ⁵⁹ He cited the judgment of Justice Colt in the Massachusetts’ decision of Corliss v. Walker Co. as authority: “Independently of the question of contract, I believe the law to be that a private individual has a right to be protected in the representation of his portrait in any form; that this is a property as well as a personal right.” ⁶⁰ At this point, “privacy” is a discourse primarily relating to the visual economy, and used to award rights in one’s appearance. The organizing principle of these cases was not offended modesty, as Mack and Allen argue, but the commodification of beauty.

When Chief Justice Parker of the New York Supreme Court of Appeals finally dashed Roberson’s hopes in a controversial 4:3 decision, he confined consideration of the arguments put forward to the “right of privacy.” He did not entertain the possibility that an individual might have property in their likeness. He trod a judicially cautious path, concerned about the “vast field of litigation” ⁶¹ that could result as a consequence of ruling that an individual had enforceable privacy rights in their image. His reference to photographs captured by “an impertinent individual with a camera” ⁶² suggests his hesitation in placing unreasonably oppressive restraints on rapidly developing practices of image making. Wary about the court entering novel legal territory, he tempted the New York legislature to do so, stating: “the legislative body could very well interfere and arbitrarily provide that no one should be permitted for his own selfish purpose to use the picture or the name of another for advertising purposes without his consent.” ⁶³ Following this unpopular judgment, the New York legislature did exactly that in 1903, almost copying word for word the cause of action suggested by the Chief Justice.

Chief Justice Parker was cautious not to appear insensitive to Roberson’s claims, but he did comment that some people might find such publicity “agreeable” ⁶⁴ and “others would have appreciated the compliment to their beauty implied by the selection of the picture for such purposes.” ⁶⁵ His remarks are interesting as he is clearly thinking of women when he refers to “others” – it would be unlikely he would ever envisage, let alone welcome, his own image being used to sell flour in the United States and abroad. In fact, only a year after the Roberson decision, the Chief Justice’s comments and decision would return to haunt him. In 1904, he became a Democratic candidate for President and attracted much unwanted publicity. He warned the press publicly that he and his family would no longer tolerate being the subjects of “ubiquitous photography” and “everlastingly afraid [of being] snapped by some fellow with a camera.” ⁶⁶ His statements in turn provoked the anger of Miss Roberson, who wrote an open letter to the former Chief Justice, published exclusively by the New York Times:

I take this opportunity to remind you that you have no such right as that which you assert. I have very high authority for my statement, being nothing less than a decision of the Court of Appeals of this State wherein you wrote the prevailing opinion … You referred to my cause of action as a “so-called” right of privacy, and admitted that such publicity, “which some find agreeable” is to the plaintiff very distasteful, and that I suffered mental distress, “when others would have appreciated the compliment to their beauty,” and in an opinion sixteen pages long you arrived at the conclusion that I had no rights that could be protected by your tribunal … I am forced to the conclusion that this incident well illustrates the truth of the old saying that it makes a lot of difference whose ox is gored. ⁶⁷

Her eloquent and defiant riposte rebuts the characterization of “privacy” plaintiffs as “modest and retiring” ladies. Here was a 22-year-old woman challenging the former Chief Justice of New York, and possible future President, by advancing a basic premise of 20th-century feminist legal theory – that gender defines the structure of law. Roberson’s intimation was that Chief Justice Parker’s inability to identify with her, and thus to sufficiently understand or empathize with her plight led to his unwillingness to provide her with a remedy. Her argument underscores the theoretical proposition that the law privileges the interests of those who create and enforce it. As Regina Graycar notes in her article “The Gender of Judgments”:

Because of the long standing exclusion of women from law, the substantive legal doctrines we use on a day-to-day basis were developed by men, with their problems and concerns in mind, and reflect men’s perspectives on the world. ⁶⁸

Graycar insists that in order to accommodate the voices and experiences of “outsiders” (such as Abigail Roberson) in the law, we must disrupt the law’s adherence to a “common sense” that reflects a partial (white, male) view of the world. Roberson lost her case due to the inability of the common law to recognize her grievance as legitimate.

At the end of the 1900s, the suffragists had the common law, that ancient and unyielding tradition responsible for their disenfranchisement, clearly in their sights. As Kathleen Sullivan writes: “In the women suffragists’ capture of the narrative of progress, the common law fell into disrepute. It had long been associated with and accommodated by liberalism, but now the two doctrines were wrestled apart and juxtaposed.” ⁶⁹ Liberalism, the individual rights-based approach to law, became associated with ameliorative, civilized reform, the common law with a dark and oppressive barbarism. Perhaps, in part, it was this shift towards a rights-based method of jurisprudence in the United States that enabled the recognition of the “right to privacy” (and later publicity) in that country almost a hundred years before the United Kingdom or other common law jurisdictions, such as Australia and New Zealand.

Despite Roberson’s enduring legacy within legal canon of privacy law, commentary immediately surrounding the Roberson decision demonstrates the extent to which a woman’s property right in her attractive visage, and not her privacy, was the issue of interest. “Has a beautiful girl the right to her own face?” the Boston Globe enquired. ⁷⁰ “Her beauty is the peculiar personal property of a woman,” one reader wrote to the editor of the New York Times. ⁷¹ As with Marion Manola, references to the Plaintiff’s attractive appearance abounded, the New York Tribune describing Roberson as “the pretty plaintiff” ⁷² and the Evening Times as “a handsome young woman.” ⁷³ The Sun called her “a good looking girl” ⁷⁴ and the Saint Paul Globe “a beautiful girl.” ⁷⁵ Beauty was the heart of the issue and the question was whether it should be accorded legal protection. In an editorial on the New York Supreme Court of Appeals’ decision, the Salt Lake Herald mused on June 23, 1902:

The young woman who said her face was her fortune had never heard of the decision recently handed down by the court of appeals of the State of New York. The pretty maid’s face may be somebody else’s fortune, but it is not hers according to the learned judges … Average citizens will consider this mighty poor law. It lets down the bar, in New York, at least, to all kinds of liberties, in the advertising line with women’s pictures. Under this decision it will be possible to steal a photograph, put her head over any kind of picture, for instance a corset advertisement, and there is no recourse for the injured woman. ⁷⁶

At the turn of the 19th century, when Roberson was decided, product advertisements still mainly used illustrations rather than photographs. Sharing the newspaper pages with reports of the case, were advertisements for soap, shampoo, clothing, apparel and medicinal tonics all displaying illustrations of (seemingly) fictional persons. Even early advertisements for photographic cameras most often used hand-drawn pictures. Yet, in the world of print, a shift from drawings to photographs was slowly occurring that would accelerate in the early twentieth century. The enactment of the Civil Rights laws in New York State following Roberson assisted numerous female plaintiffs in controlling the use and abuse of their images. ⁷⁷ Most importantly, the cases that followed began to illuminate the true character of the claims: no longer solely concentrated on “privacy,” the proprietary origins of the right to control one’s likeness would emerge more fully as an interest in profits and professional autonomy trumped an investment in modesty and seclusion.

V. Conclusion

The advent of the photographic camera led to momentous social changes that reverberated through the legal system in a myriad of ways. Perhaps the most significant and unique of these was the emergence of the doctrine of privacy, for whereas the previous areas of law pertaining to representations (such as defamation) remained largely unaffected, privacy law developed in the United States as a unique response to the impact of this technology. The desire to regulate the publication of women’s private portraits evolved from the paternalistic action of one congressman into a “privacy” doctrine posing a direct challenge to the masculine prerogative of copyright law, which placed an artist’s rights above those of his model. The issue of “pretty” portraits also illustrated a shift in citizenship discourse from the desire to protect “ladies” to a determination to accord women rights of property and individuality. In the early 20th century, the “right to privacy” offered women a way of asserting ownership over images of their bodies and faces in the courts, and to interrupt the exploitation, publication and denigration perpetrated by others. Their claims were not always successful, but the discourse of “privacy” allowed them, at the very least, to register their protest on the legal record.

Writing in 1941, legal academic Louis Nizer proposed: “the right to privacy, in essence, is anti-social … It presupposes a desire to withdraw from the public gaze, and to be free from the insatiable interest of the great mass of men in one who has risen above – or fallen below – the mean.” ⁷⁸ It is easy to regard early privacy cases in the United States as demonstrating a desire on behalf of plaintiffs to preserve their anonymity, to remain known only to those within their immediate circles and avoid notice within society at large. In fact, however, by bringing actions for breach of privacy, these women plaintiffs lost their anonymity. But what they did recover was their voices, names and narratives. These cases can thus be seen as a form of resistance to the reduction of women to silent, compliant, nameless, images that began to occur on an industrial scale at the turn of the last century. By bringing a “privacy” case, the “flour of the family” pin-up was reinstated in 1900 as Abigail Roberson, of Rochester, New York, who was bold enough to take issue with the Chief Justice: “It would seem to me that the right which you denied me, you now assert for yourself.”