The Advent of the Camera: Technological Rupture,Gendered Implications and Legal Continuity

The camera was once a self-contained object, something to be sold, bought, cherished or feared. Now it is often simply a function or attribute that exists amongst others, subsumed under the identity of another technological device invented during the same 19th century period – the telephone. In the palm of my hand I hold the mental exertion, creativity and sweat of, amongst others, Alexander Graham Bell, Louis Daguerre, George Eastman, Thomas Edison and the Lumière brothers. I also cradle a collection of rights in the products of this reflective lightweight piece of equipment and a complex history of the battles over who should possess them. Each new technological development builds upon a patchwork or collage of those before it and nestles, often awkwardly, among the legal rules governing and surrounding those pre-existing technologies and their uses. Both technology and law rest upon, acknowledge and borrow from their forebears; however, technological development is distinct from legal precedent. The former thrives on innovative and creative leaps – where non-linear progression is celebrated and encouraged. The latter derives purpose and respect from its conservatism and predictability, adhering to established traditions and methods. At moments of technological rupture, the law’s path forward becomes unclear. Unable to yet fully perceive or understand the social and cultural impacts of the technology, and with legal doctrines unable to address social concerns, it becomes particularly vulnerable to competing claims and vested arguments. Choices are posed, decisions must be made. By taking the invention of the camera in the 19th century as its focus, this article comments upon the ways in which the law grapples to smooth over technological rupture and naturalize the outcomes of its often ambiguous, hesitant and incomplete determinations. And it examines the interests (gendered, economic) it privileges and protects while doing so. The primary owner of legal rights in a photograph was not naturally or obviously the photographer. But after the moment of technological rupture has passed, we tend to forget the legal alternatives and/or regard them as absurd.

Technological rupture is a phrase used by me to refer to a technological development that allows or aids a substantial disruption in existing social relations and cultural practices. ¹ This commentary examines debates about who should own rights within a photographic image at the end of the 19th century. It explores the ways in which the law was called upon to resolve a social crisis caused by technological rupture and how it responded with a complicated combination of extending existing ideas of copyright (for men) and creating new rights of privacy (for women). The extension of copyright to photography and the Supreme Court’s 1884 identification of the “author” of an image (and thus the owner) as the curator of the photographic scene privileged masculine professions and profits and seemed consistent with (white) men’s traditional identity as property owners. Creating new rights to privacy, on the other hand, allowed the court to reinforce conventional ideals of womanhood – modesty, reserve – and craft narrow laws which did not threaten the premise of masculine image ownership. These privacy laws gave women some level of control over their images but were problematic in their discourse and design and have contributed to a legacy of inadequately addressed image-based harms for photographed individuals, such as non-consensual pornography. This article encourages us to identify moments or periods of technological rupture and to remember those legal paths or options not followed.

The public unveiling of the modern photographic camera in the 1830s, in the form of Louis Daguerre’s “daguerreotype” and William Henry Fox Talbot’s “calotype” marked a radical shift in the possibilities and perils of visual representation. As Art Historian Jonathan Crary notes: “[p]hotographs 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.” ² The image became simultaneously more authentic and more autonomous. 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 graphic representation, akin to drawing or painting, but promised an “invisible umbilicus joining image and referent.” ³ In science and social relations, the image seen promised the veracity of the scene. In a climate of growing positivist thought, photography promised the ability to create an “objective” visual record of the world, but in doing so, it removed the appearance of objects and people from their original contexts. It was this tension between presence and absence, the blurring between “representation” and “reality” and the simultaneous dislocation and manipulation of this “reality” that created new social concerns and legal challenges.

The law’s first epistemological confrontation with photography was as a type of courtroom evidence. As early as the 1840s, Fox Talbot mused on the possibilities of photography as an impeachable criminal witness and in the United States and Britain a legal debate soon began about photography’s evidentiary potential: “Can the sun lie?” ⁴ The law was being pressed to understand this new technology – its abilities and limits – and the way in which it transformed or shifted ways of seeing and knowing. Some jurists were confident in their assessment of photography’s objectivity and reliability: “The photographic apparatus never intentionally falsifies nor do its products ever so fade as to distort the image they present, as do figures committed to the treacherous memory of man.” ⁵ Yet others were more hesitant: “The law of the land is a wary old fox, and scrutinizes a new invention a long time before extending the paw to appropriate it.” ⁶ Yet, as legal minds began scrutinizing the qualities of photography as an object of evidence as early as the 1850s, ⁷ and comparing it favorably to the flimsy properties of men’s memories and biases, photography was causing social concerns and exposing holes in law’s patchwork of redress.

For just as photography promised authenticity to institutions of power, it threatened alienation to those photographed. Photographic reflections of individuals could float freely and resist traditional anchors of definition, context and categorization that helped stabilize and secure painted or drawn portraits. ⁸ Just as still images could be captured, developed and presented to loved ones, so could they be snapped, stolen and trafficked. For individuals, the advent of photography altered the architecture and experience of seeing and being seen. The profoundly intimate relationship between viewing and being viewed was disrupted. Via this new medium, the uncanny likeness of an individual could be lifted with relative ease from its possessor and cast upon paper, to be reproduced, handled, disseminated and published. Between the 1840s and 1870s, photographic portraiture flourished in the United States as individuals sought to possess lifelike likenesses of themselves and their families. But images (particularly those of women) held more than sentimental value – and were soon being used voyeuristically as advertisements, greeting cards and sexual commodities. In 1890, the Ladies Home Journal warned its readers that “while the great majority of professional photographers are men of honor 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.” ⁹ A disjointed and gendered legal battle was brewing about the meaning, manipulation and legal control of photographic portraits.

The transformation of photography into a “delightful pastime” for amateurs in the 1880s, led primarily by New York entrepreneur George Eastman, aggravated the hazards of unauthorized image dissemination. Now, anyone with a lightweight and portable $25 Kodak camera or equivalent could snap and circulate someone’s likeness. Surreptitious and uninvited photography boomed and the gendered dynamics became clear. A 1889 New York Times article described amateur photographers as “young knights of the camera” and “pretty girls” as their natural prey and discussed the issue in terms of conflicting “rights”: “It is a question of debate what rights the amateur has in securing pictures, and of course there are some who consider a party of young women as free subjects of photography as a waterfall or clump of trees.” ¹⁰ In the growing ocular-centric culture of this period, photographic images became a new dimension of individual personality. Photography offered a radical new way of representing and addressing people. No longer could individuals simply be concerned with monitoring or engaging with the stories told or opinions held about them by others; with the status or fruits of their labor; or with the manners or display they affected in public space. Perhaps unwillingly or unknowing, they appeared, visually, to others in myriad of contexts. Women experienced the personal consequences of this technological rupture most acutely as cultural and social forces combined to emphasize their place in front of the lens. This was in part due to their changing social, political and economic status in the second half of the 19th century. As Elizabeth Otto and Vanessa Rocco argue in their book, New Woman International, it was through images that the New Woman – a beacon of liberation and agency and a threat to traditional values of womanhood – was contested and identified at the turn of the last century, the camera functioning as an “instrument of self-determination.” ¹¹ At the end of the 19th century, a question confronted the law for resolution: who should be able to capture and use photographic portraits? How the law (scholars, judges and legislators) responded – primarily via copyright and privacy – can illuminate how the law struggles, often inadequately, to smooth over rapid technological change with appeals for legal continuity.

On the whole, the law (legislators and judges) appeared to act cautiously and conservatively, sticking closely to established rules and precedents and departing or innovating only in narrow circumstances that seemed to affirm and reinforce existing social attitudes and norms. In 1862, with the Great London Exposition looming, the United Kingdom passed the Fine Arts Copyright Act and specifically recognized photography alongside the other visual arts of painting, drawing and sculpture. In 1865, with the growing fame and influence of professional photographers such as Mathew Brady, the United States adopted the UK’s copyright protections for photographs. This extension of copyright law privileged the rights of the image taker over the person photographed and ignored the clear differences between the processes of painting and photography. It was a legislative decision that treated photography as merely an evolution in creative representation, rather than a revolution. However, such a perspective, while problematic, was more understandable then than it would be two decades later when cameras were engineered into easy portable devices. In the 1860s photography did seem somewhat similar in its methods and involvement to other artistic traditions from the perspective of photographer. It was an expensive and time consuming pursuit requiring expert professional knowledge and skill, complicated bulky equipment and the ambient conditions of light and stillness only generally achievable indoors within a studio setting. Such a process resembled the arts of painting or drawing, with a stationary subject consenting to the acquisition of their likeness by an attendant and self-identified artist or professional.

However, getting photography on the copyright books was just the first step for photographers who sought image rights. At a time when amateur photography was quickly gaining ascendancy in the 1880s, the United States Supreme Court was pressed to adjudicate on the nature of photography as a creative endeavor and whether a particular studio photograph of Oscar Wilde by well-known professional photographer Napoleon Sarony was a “mere mechanical reproduction of the physical features or outlines of some object” or “an original artistic work … the product of intellectual invention.” ¹² As Christine Farley notes, the 1884 case of Burrow-Giles v. Sarony, still cited for articulating the “originality” standard for copyright law, confronted the court with dichotomous views of photography – as a creative fine art or the objective product of a soulless machine – that it sought to reconcile. ¹³ It did so by envisaging and defining “the author” of a photograph as he who selects and constructs the scene in front of the lens: “posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit.” ¹⁴ It was this work in creating the display or arrangement, not the methods of photographic post-production or the choice when exactly to press the shutter, that qualified this photograph as an “original work of art” by an “author” – a privilege not necessarily extended by the court to the “ordinary production of a photograph.” ¹⁵ The Burrow-Giles decision was heavily influenced by the 1883 UK decision of Nottage v. Jackson (concerning a photograph of the Australian cricket team) which had held that “the author” of an image is he who “superintended the arrangement.” ¹⁶ The decision to rest authorship of photography on this basis allowed the scientific objectivity of photography, as indisputable evidence and authentic record, to persist but handed professional photographers exploitable rights in their images.

But the Burrow-Giles decision also hinted at the possibility of copyright in a photographic image being held by someone other than the person behind the lens. It highlighted the fragility and ambiguity of the allocation of image rights during this period of technological rupture. Christine Farley argues that “rather than being seen as providing a smooth and natural development of copyright doctrine, this case should be seen as a site of complex negotiations.” ¹⁷ If the court believed that “the author” of a photograph, for copyright purposes, was clearly the photographer you would expect the court to have been more certain, emphatic and complete in their determination. Instead, to protect and defend copyright protection in the following years, professional photographers were pushed to underline their expertise in curation, costuming and decoration.

Such a task was taken up with rigor by professional portrait photographer and contemporary of Napoleon Sarony and Mathew Brady, Benjamin Falk, who was one of the first photographers to place copyright notices on his photographs and was a keen litigator. With his brother as his attorney, he brought a series of cases (at least 10) between 1888 and 1897 to prosecute and protect his legal rights in his photographs which, read together, pose questions about how much credit should be accorded to photographers for the poses, costumes, postures and expressions of their subjects. Falk considered himself responsible for determining a subject’s facial expressions, stating: “The temperament of a photographer always gets into his work. There is no escape from it. And the temperament itself is due to changes. Some mornings when I am in bad humor, no matter what I may do, all my sitters will have a sour expression in their faces. On the other hand, when I feel particularly happy or elevated over some good news, my feeling is sure to impact itself to the countenance of my sitters.” ¹⁸ All the cases that Benjamin Falk brought to secure or defend his copyright involved photographs of women. In some, the court questioned whether the sitters, like actresses Lillian Russell and Julia Marlowe, should be recognized for contributing to the composition of poses, expressions and costumes that marked a photograph as a fine art, the work of an author and thus worthy of copyright. Could they – as actors, models, dancers, singers – aware of their own charms and skilled in self-presentation and display be considered “authors” or “co-authors” of the work? In the 1893 case of Falk v. Donaldson, the defendants, charged with infringing Falk’s copyright in a photograph of Julia Marlowe argued that a “photographist” was a mere mechanic and that “it was absurd to suppose that complainant could have suggested to a trained actress like Miss Marlow either costume, facial expression or pose.” ¹⁹ The court metaphorically furrowed its brow. It was a work of art they said, but “[t]he question [was] whether the artist was Miss Marlowe, or complainant.” ²⁰ Marlowe was not contesting copyright so the court could largely avoid the issue: “How far the artistic contributions are to be attributed to the talent of Miss Marlowe, it is impossible to say.” ²¹ At this time of technological rupture, it seemed possible, and not absurd, that the intellectual property rights in a photograph might belong, at least in part, to the person in front of the lens – so often a woman.

The proposition that a subject of a photograph should hold legal and exploitable rights in it had early supporters. In an 1869 piece entitled “The Legal Relations of Photographs” in the American Law Register, one jurist 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 court would be bound to furnish redress.” ²² At the time, photographs were becoming more and more valuable – for their form and their content. Attractive individuals (particularly women) were finding their images increasingly used and circulated without their knowledge or consent.

In 1888, four years after the Burrow-Giles decision, a Republican Congressman from Illinois, John Robert Thomas, incensed by the use of the First Lady Frances Cleveland’s image on advertisements for tobacco and pharmaceuticals, introduced a bill to the House proposing “to prohibit the use of likenesses, portraits or representations of females for advertising purposes, without consent in writing.” ²³ The Bill to Protect Ladies stipulated that any person who publically exhibited or use the likeness of any “wife, daughter, mother or sister of any citizen of the United States” without consent would be guilty of a high misdemeanor and liable for a fine. Such a paternal proposition, whose language reminded legislators that only men enjoyed rights of citizenship, was intended to afford women with some image rights but fell far from the lucrative protections of copyright. Nonetheless, as professional photographers had just tentatively secured copyright authorship via the Burrow-Giles decision they were eager to defend their bounty. As newspapers began discussing the Bill in terms of women’s rights to “privacy,” ²⁴ amateur and professional photography periodicals rallied against it. ²⁵ And an association of 35 photographers and photographic studios in the 32nd district of New York even went so far as to lodge an official petition against it with their local congressional representative, the Honorable John M. Farquhar. ²⁶ The Bill was referred to the Judiciary Committee and never passed.

In the moment of technological rupture caused by photography, image rights granted to photographers were gaining traction in the late 19th century but they were still tenuous and challengeable. In the 1888 United Kingdom case of Pollard v. Photographic Co, ²⁷ Alice Pollard had her “pretty” studio photograph transformed into a Christmas card by the photographer and sold in his shop window. She protested against her beauty becoming his asset, and she won her case on the grounds of contract, breach of confidence and a provision of UK copyright law that granted the rights of a commissioned photograph to the sitter in certain circumstances. The 1890 Supreme Court of Minnesota decision of Moore v. Rugg followed the judgment of Pollard, and held that the professional photographer Rugg breached his contract with Moore, when he delivered studio photographs he had taken of her to a private detective for a purpose only described by Justice Collins as “highly improper.” ²⁸ But these decisions, which granted photographed subjects some commercial rights to their images, were based upon a legal relationship – of commission, of contract, of trust – between the photographer and sitter. And so as amateur and surreptitious photography began booming in the 1890s, the basis for these rights would prove problematic for photographed subjects and advantageous for photographers.

Samuel Warren and Louis Brandeis identified this lacuna in the law and produced an interjection that would profoundly shape the direction of image rights. “Since it is possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection, and the law of tort must be resorted to,” they argued in their infamous 1890 Harvard Law Review article. ²⁹ Why the law of tort was a necessary recourse and why the turn towards tort should be labeled “privacy” are unclear from their otherwise comprehensive and convincing article. They argued that the basis of intellectual property, breach of confidence and implied contractual terms that protected “personal writings” or “any other productions of the intellect or the emotions” was not property, but privacy. ³⁰ Privacy was the “legal injuria” and therefore, they set out the argument for and the contours of a new tort that was primarily invented to grant photographed individuals (like Broadway star Marion Manola whom they cited as an example) some right to control their images. Their article, named by many as the most important law review article ever written, ³¹ effectively moved to close down debate over the “authorship” of images and the allocation of copyright ownership, by turning the issue of image rights for photographed subjects into one about privacy. This reframing was a choice and a decision. They expertly reinforced and normalized (white, male) photographers’ tentative claims to intellectual property and left photographed subjects with resort to tortious claims based upon the traits of traditional womanhood – modesty, reserve and concealment. ³²

The tussle over image rights came to crisis and somewhat of a conclusion in the United States with the decision of Roberson v. Rochester Folding Box. ³³ In 1900, the 17-year-old orphan Abigail Roberson suffered “nervous shock” when she recognized her “pretty” likeness on a bag of flour. She brought an action in the Supreme Court of New York against Rochester Folding Box Company (the advertiser) and Franklin Mills Flour seeking damages of $15,000 and a permanent injunction against the defendants using her image. Her attorney, and future champion of women’s suffrage in Monroe County, Milton E. Gibbs, argued that the defendants had invaded Roberson’s “right to privacy” and trespass upon her “property right in her own features and beauty.” ³⁴ Here, decades of debate about image rights – whether as copyright or privacy – crystallized in one legal brief. To support his privacy claim, Gibbs cited Warren and Brandeis. To underline his property arguments, he resorted to logic and sentiment: “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 and are not property? 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.” ³⁵ Roberson’s photograph had apparently been taken surreptitiously and so she could not resort to contract or breach of trust and confidence. Gibbs identified uncertainty in the law of image rights and tried to sway in it in the direction of photographed subjects. But he failed.

Chief Justice Parker dismissed her case in a controversial four to three decision. He did not even entertain that an individual might have property in their likeness but confined consideration to the arguments about privacy. Treading a judicially cautious path and wary of the court entering novel legal territory, he tempted the New York legislature to do so: “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.” ³⁶ The proposed law sounded very similar to the unsuccessful Bill to Protect Ladies, but this time it passed. In 1903, Section 1 of Chapter 132 of the New York Laws, entitled “Right to Privacy” became the first “privacy” laws in the common law world. ³⁷ The image rights debate was over – with photographers securing property rights and photographed subjects accepting narrow privacy rights. This outcome was not natural or inevitable. It was the result of decisions, choices and priorities. If Gibbs made his arguments for property rights for photographed subjects before 1890, when the ink on the Burrow-Giles decisions was still drying and before Warren and Brandeis’ interjection, he may have been successful. Even in 1902, the law might easily have gone a different direction. Justice Gray gave the dissenting judgment in Roberson, stating emphatically: “I think that this plaintiff has the same property in the right to be protected against the use of her face for defendant’s commercial purposes as she would have if they were publishing her literary compositions.” ³⁸ In other words, she would have property in the photograph simply because it captured her face, her form, her figure.

In one sense, the Roberson decision marked an end to challenges against photographers as the copyright owners. On the other hand, it marked the beginning of privacy jurisprudence, which gave individuals some very limited rights to their photographs. The majority of those who brought cases pressing and propelling the growth and establishment of privacy laws in the United States in the following decades were women seeking control over photographic or cinematic images of themselves. ³⁹ Their aims were diverse and complex. To describe just a few: in 1906, stage actress Felicity Riddle brought a “privacy” action against publisher Bernarr MacFadden and professional photographer Luther White for including a photographic portrait of her in the book MacFadden’s New Hair Culture. ⁴⁰ In 1913, Mabel Colyer, a 16-year-old professional high diver, took the National Police Gazette to court for featuring pictures of her in a dive suit in a salacious article. ⁴¹ In 1918, Kansas housewife Stella Kunz sued the proprietors of a “dry goods store” for surreptitiously filming her and included the footage in cinema advertising for their business. ⁴² The same year, 17-year-old stage star and “Ziegfeld girl” Gladys Loftus, commenced an action against the Greenwich Lithographic Company for using a publicity photograph, taken of her in a special rose costume for the Ziegfeld show Midnight Frolic, in marketing material for an unrelated “photoplay” (or film). ⁴³ Some of these actions connected with ideas about feminine “modesty” and individual “privacy,” but many were about commercial control. ⁴⁴ Individuals (mainly women) resorted to “privacy” claims as a consolation prize after losing the battle for property rights in their images. Eventually, in the 1950s, a right to privacy turned into a right of publicity – but still the laws were narrow and weighed lightly against copyright.

The latest and most pressing debate regarding image rights is nonconsensual pornography, known colloquially as “revenge porn,” where a person circulates a naked or otherwise explicit photograph or footage of an individual (usually online) without their consent. Such conduct has occurred since the beginnings of photography but has intensified with the growing popularity of smart phones and social media. ⁴⁵ All it takes is the tap of a finger and a few seconds to capture an image of someone and publish it to the world, where it can go “viral” and be viewed millions of times. This problem disproportionately affects women and can have serious consequences, including loss of employment, loss of future career prospects, damage to relationships, anxiety, depression and suicide. The law’s redress for revenge pornography is patchy and inadequate. Privacy laws, forged in wake of Warren and Brandeis’ article and the Roberson case, can be useful in addressing nonconsensual pornography in specific instances, as can other torts such as defamation, intentional infliction of emotional distress, and intellectual property laws such as copyright. In fact, in 2014, The Atlantic published an article entitled “Our Best Weapon Against Revenge Porn: Copyright Law?” arguing that victims can use takedown provisions in the Digital Millennium Copyright Act to request websites to remove images of themselves. ⁴⁶ This can be done without recourse to the police or a lawyer. But only if the victim was the photographer and thus the image was a “selfie.” Unfortunately, so many of these offending images are snapped by others, often ex-partners, who own the intellectual property rights to them. In 2013, a group of women and their attorneys initiated a campaign to criminalize revenge porn, called the Cyber Civil Rights Initiative and thus far, their actions have led to laws against revenge porn in 34 states (and Washington, D.C.). ⁴⁷ Such actions are commendable but would they have been necessary if individuals had achieved sufficient property rights to images of themselves in the 19th century? Would men have felt as entitled to distribute these naked or explicit images of women if the law had not backed up their claims to possess and control photographs of women’s faces and bodies?

When I tap the glassy button of my smart phone today and snap someone’s digital photograph, I take for granted that I own the copyright. Even if they, the subject, has put hours into perfecting their outfit or costume, applying their makeup and fixing their hair, practicing and playing with facial expressions and bodily poses that make them more striking, or musing over the types of lighting that flatter their form or features, the mere act of carefully or casually framing the shot and depressing the screen entitles me, the photographer, to a multiplicity of exclusive legal rights to that image. The photographed subject has no right to control their image unless they can identify a situation of wrongdoing (which vary jurisdictionally) – the crime of nonconsensual pornography, the use of their face for advertising without consent, the tort of defamation. When I have questioned, at conferences and on news forums, the entitlement of photographers to (almost always) own copyright in their photographs to the detriment of their photographed subjects, I am so often met with incredulity and derision: “Of course photographers own copyright.” It seems so natural and inevitable. But it once was not. The advent of the camera in the 19th century marked a moment of technological rupture and a period of legal uncertainty. Questions, such as who should be entitled to capture and circulate people’s images, confronted the law for resolution. The law’s privileging of precedent – its preference for linearity – provided little guidance for the way forward. Choices were posed, priorities protected and decisions made on shaky and ambiguous grounds. At the end of the 19th century, the law seemed to regain composure with respect to image rights and the process of rationalizing prior conclusions as the logical path of legal evolution began. Such a history should make us reflect upon those moments of technological rupture in our present day and the ways in which the framing and discussion of the law’s response discounts or suppresses alternatives, a process where the once achievable or feasible becomes absurd or forgotten.