More than a century ago, a teenager named Abigail Roberson had her photo taken at a professional studio in upstate New York. The photo wasn't particularly scandalous — Roberson is pictured from the shoulders up, looking away from the camera — but it achieved the 1890s version of virality and set off a legal debate about privacy that remains unsettled 120 years later.
It was a famous case in its day, but Roberson has since largely been forgotten, even though her experience spurred lawmakers to create the first law in America that prohibited companies from putting our faces into their ads. It's worth revisiting her tale now in the age of biometric faceprints, ubiquitous surveillance cameras, and "smile to pay" technology because a question at its heart remains unanswered: What are the legal limits on what someone can do with an image of your face?
Roberson was born in 1883 and grew up in Rochester, New York, birthplace of the Kodak portable camera, the technology that established cameras as mainstays of American households. When she was about 14, she visited a photography studio near her home in Corn Hill, a serene residential neighbourhood just off the Genesee river, to get some formal pictures taken.
Contemporary newspaper articles describe Roberson as incredibly beautiful, yet painfully shy, so she was horrified when, a few months after she took the photos, she discovered a version of one of them hanging in a supermarket in Vermont. It was printed on a lithographic poster advertising "Franklin Mills Flour." Approximately 60cm wide and 76cm long, the poster featured Roberson in profile staring thoughtfully away from the camera dressed in a ruffled blouse under a large ornately written slogan, "FLOUR OF THE FAMILY."
Roberson recognised herself immediately and was embarrassed nearly to death. She collapsed from "nervous shock" and was bedridden, according to court documents. This might sound like an extreme reaction concocted by a trial attorney intent on proving "pain and suffering" but Roberson was not a healthy young woman; decades later, in an interview in 1967, she told the Rochester Democrat & Chronicle that doctors had told her she had "a bad heart, and one lung, and gosh knows what else." She recalled being introduced to people at the time as "Mrs. Roberson's daughter, the invalid."
Roberson later discovered that there were 25,000 copies of this ad posted around the country, thrusting her into an entirely novel type of notoriety. In an age before Instagram, before TV commercials (or TV itself), and before daily Rochester newspapers even printed pictures, her face was on public display for all to see. Though her "nervous shock" may have been the product of her lawyer's exaggerated theatrics, it's easy to imagine that having her face posted in thousands of public places was overwhelming to a 19th-century teenager.
Earlier this year CNN published a story about a woman who discovered her face was being used in ads all over the world because she had given a photographer the rights to her image in exchange for free professional portraits. Roberson's story would be analogous, except it likely wasn't a profiteering photographer who sold her photo.
Remarkably, there is nothing in the reams of court documents and contemporary news reports that discuss exactly how the Franklin Mills Company, or the Rochester Folding Box Company, the printing company that produced the posters, got ahold of Roberson's photo. She told the Democrat & Chronicle that her boyfriend had asked for a copy of her photo to give to a close friend who wanted to make a portrait from it.
All the people involved in the incident are long dead, but a descendant of Roberson's uncle told me that Abigail's boyfriend worked for one of the two companies involved in making the ad, and could have given his girlfriend's photo to his employer without her knowledge or consent.
Roberson and her mother decided to sue both companies involved in the ad's creation. The lawsuit they filed in Monroe County Supreme Court in 1900, when Roberson was 17, claimed that the ad had been printed and distributed throughout the country and "internationally" (which probably just meant Canada).
The legal complaint claimed that when Roberson was well enough to get out of bed, she was "jeered" at by people around town who recognised her from the poster. Because the companies inflicted this mental anguish upon Roberson purely for the "purpose of profit and gain to themselves," she and her mother demanded $US15,000 ($21,204) in compensation, the equivalent of about $US400,000 ($565,448) today.
The case went to trial in the Monroe County Supreme Court, where, according to the Democrat & Chronicle, Roberson's lawyer argued that the defendants had invaded Roberson's "right of privacy." These three simple words are what make this lawsuit remarkable.
In 1900 there had not yet been a case in New York concerning the right of privacy. There was no law anywhere in the country that mentioned it. It's not in the Constitution. The closest the Bill of Rights gets to it is the Fourth Amendment, which protects citizens of the United States against unlawful search and seizure of their property by the government.
So when George Eastman, the founder of Kodak, invented the portable camera in 1888, American society didn't have the legal language to discuss the potentially invasive implications of the new technology.
Cameras had existed in studios for over half a century, but until they became portable, only professional photographers knew how to operate them. Thanks to Kodak, by the turn of the 20th century, a third of American households had portable cameras. That caused alarm: The term "Kodak fiend" was coined for unscrupulous peeping Toms who would lie in wait in trees or behind walls to snap pictures of unsuspecting passers-by.
In 1890, two Harvard legal scholars, Samuel Warren and Louis Brandeis, tackled the then-new technology in a now-famous (among students of the law) Harvard Law Review article arguing that because "instantaneous photographs ... [had] invaded the sacred precincts of private and domestic life," people needed a constitutionally recognised right to be let alone, or a "right of privacy." Roberson's case a decade later gave the courts the first opportunity to decide whether to take their advice.
Just in case the courts weren't ready to recognise the concept of privacy, Roberson's lawyer also claimed the companies had stolen her property, asserting that one's image is one's property.
The Supreme Court judge ruled in the Robersons' favour and awarded them $US15,000 ($21,204). He thought his ruling would set an important legal precedent, writing in his opinion that "there has existed in the public mind [for years] a feeling that the law was too lax in affording some remedy for the unauthorised circulation of portraits of private persons." (A feeling, of course, that resonates today.)
The disgruntled companies appealed the case twice, and it made its way to the highest court in the state. The companies denied the existence of a right of privacy and argued that they hadn't stolen or misused anything of actual monetary value to Roberson so hadn't stolen property from her.
The New York Court of Appeals agreed (albeit not unanimously) and overturned the Robersons' victory in July 1902 in a 4-3 decision. In the majority opinion, Chief Justice Alton Parker wrote that a legal right of privacy didn't exist, that Roberson's physical property hadn't been stolen, that her reputation wasn't damaged, and that her distress was purely mental, so she didn't have a valid case.
Roberson's face had no inherent value, according to the judge (despite its value in helping Franklin Mills sell flour), and if the court granted her damages for privacy violations that caused solely mental distress, it would open the floodgates of litigation "bordering on the absurd." Parker's opinion reads as incredibly sexist at times: He couldn't believe that Roberson wasn't flattered given the "compliment to [her] beauty implied in the selection of the picture."
The New York Court of Appeals decision was controversial; it ignited the early 1900s version of a Twitter war, with editorial boards all over the country criticising the ruling. The New York Times wrote that it would encourage "kodakers" (stalkers, similar to "Kodak fiends") and other members of the "promiscuous lay public" to continue invading people's privacy, particularly women's, with impunity.
Feeling the public pressure, Justice Denis O'Brien, one of the judges who had concurred with Parker, responded in a Columbia Law Review article, saying that the press and lay public didn't appreciate the finer points of the law. Like Parker in his opinion, O'Brien stressed that it was incumbent on the legislature, not the courts, to create new rights.
Lawmakers eventually did step into the fray. In its first session after the Roberson decision came down, the New York state legislature passed a law granting citizens a right of privacy — of, not to — , which prohibited companies from using a person's name or likeness in ads without getting that person's consent. This was the first time a law related to privacy was passed anywhere in the United States.
(Since then, over 600 state and federal laws related to privacy have been passed.) It inspired California to pass a similar law, which was the basis for a 2013 class action lawsuit against Facebook for using users' names and profile photos to promote products they had "liked" in "Sponsored Stories" without their consent. (Facebook settled the case for $US20 ($28) million.)
In a beautiful bit of irony, the judge who ruled against Roberson, Chief Justice Alton Parker, suddenly developed a desire for privacy two years after he ruled it didn't legally exist. In 1904 he ran for president as the Democratic nominee against Theodore Roosevelt.
During his campaign, he complained that paparazzi wouldn't leave him and his family alone. "I reserve the right to put my hand in my pockets, and to assume comfortable attitudes without having to be everlastingly afraid that I shall be snapped by some fellow with a camera," he wrote in a press release. Abigail Roberson responded to Parker in an open letter published on the front page of The New York Times on July 27, 1904.
"I take this opportunity to remind you that you have no such right as that which you assert," the then 21-year-old Roberson wrote cheekily. "I have very high authority for my statement, being nothing less than a decision of the Court of Appeals in this State, in which you wrote the prevailing opinion."
Daniel Kornstein, a New York lawyer who pointed me to this correspondence between Roberson and Parker, argues that the inconsistency in Parker's feelings reflects the prevailing sexism of the time.
Parker didn't understand that a young girl could be distraught at untoward attention — saying she should be flattered — but in her own shoes, he found he didn't in fact, appreciate "the compliment implied" by the paparazzi taking photographs of him. He ended up losing the election to Roosevelt in a landslide.
There have been many innovations in privacy law in New York and the United States since the Roberson decision, but New York residents' control over their images is still limited to instances when those images are used for commercial gain without their consent. In 1955, a judge in the Court of Appeals explicitly stated that "[New York's right of privacy was] drafted narrowly to encompass only the commercial use of an individual's name or likeness and no more."
New York's right of privacy doesn't even protect victims of "revenge porn," the posting of explicit images or videos of someone else without their consent. A separate bill had to be introduced in the New York Senate to prevent revenge porn. It is still awaiting a vote.
A legal expert I spoke to in Rochester, Andrew Kloc, explained how despite the passage of the right of privacy law, the Roberson decision "is still with us": it is used as legal precedent in New York to this day to limit the scope of the right of privacy; as recently as March 2018, it was cited in the dismissal of Lindsay Lohan's much-publicised lawsuit against Take Two Interactive Software for basing a character in Grand Theft Auto V on her without her consent.
Other states' laws recognise a broader right of privacy. For example, just a year after New York passed its right of privacy law, a judge in Georgia set a legal precedent there to recognise a right of privacy over a person's image even when the image is not used for commercial gain, when its use merely causes the subject mental distress.
Abigail Roberson's legal loss ensured that others were protected in ways she wasn't, but the laws she inspired are limited to traditional images of our faces and in New York still limited to instances where our images are used for commercial gain. These days, digital scans of our faces, or faceprints, are arguably more valuable because they can uniquely identify people. They can unlock mobile phones that contain vast stores of personal information.
One's face can verify financial transactions or confirm one's identity at international airports. Facial recognition technology enables stalkers to de-anonymize women who appear in porn and allows powerful state and non-state actors to identify and threaten protesters. The FBI's facial recognition database has faceprints of over half the nation's adults. Facebook's likely has more.
Yet there is no federal law in the US establishing what can be done with these faceprints. Only Illinois and Texas have state laws specifying that companies need consent before collecting and storing any individual's faceprints (and other unique biometric information).
Washington, the only other state with a biometric privacy law only enforces the consent requirement if a company is using the biometric information for "commercial purposes" and its definition of biometric information currently doesn't include faceprints.
Unless our lawmakers act to give us more control over our biometric privacy, any one of us might find ourselves to be a twenty-first century Abigail Roberson.