By 1900, photography began to replace earlier image-making methods as the ad technology of choice. Photos of women were especially desirable, given their association with respectability and the belief that a pretty face could sell anything. But dominant values around modesty, avoiding indulgence and anti-consumerism meant that most people had no desire to be featured in an advertisement. Commercial modeling and stock photos did not yet exist. Faced with few choices, advertisers resorted to backdoor purchases. In an arrangement Barbas dubs “the crisis of the ‘circulating portrait,’” advertisers began buying portraits from photographers without the permission of the photos’ subjects—as was the case with Peck, temperate widow turned whiskey hound by the magic and obfuscation of advertising.
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Though newspapers across the country cautioned Americans to “beware the Kodak,” as the cameras were “deadly weapons” and “deadly little boxes,” many were also primary facilitators of the craze. The perfection of halftone printing coincided with the rise of the Kodak and allowed for the mass circulation of images. Newly empowered, newspapers regularly published paparazzi pictures of famous people taken without their knowledge, paying twice as much for them as they did for consensual photos taken in a studio.
Lawmakers and judges responded to the crisis clumsily. Suing for libel was usually the only remedy available to the overexposed. But libel law did not protect against your likeness being taken or used without your permission unless the violation was also defamatory in some way. Though results were middling, one failed lawsuit gained enough notoriety to channel cross-class feelings of exposure into action. A teenage girl named Abigail Roberson noticed her face on a neighbor’s bag of flour, only to learn that the Franklin Mills Flour Company had used her likeness in an ad that had been plastered 25,000 times all over her hometown.
After suffering intense shock and being temporarily bedridden, she sued. In 1902, the New York Court of Appeals rejected her claims and held that the right to privacy did not exist in common law. It based its decision in part on the assertion that the image was not libelous; Chief Justice Alton B. Parker wrote that the photo was “a very good one” that others might even regard as a “compliment to their beauty.” The humiliation, the lack of control over her own image, the unwanted fame—none of that amounted to any sort of actionable claim.
Public outcry at the decision reached a fever pitch, and newspapers filled their pages with editorial indignation. In its first legislative session following the court’s decision and the ensuing outrage, the New York state legislature made history by adopting a narrow “right to privacy,” which prohibited the use of someone’s likeness in advertising or trade without their written consent. Soon after, the Supreme Court of Georgia became the first to recognize this category of privacy claim. Eventually, just about every state court in the country followed Georgia’s lead. The early uses and abuses of the Kodak helped cobble together a right that centered on profiting from the exploitation of someone’s likeness, rather than the exploitation itself.
From the article:
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