In 1904, a widow named Elizabeth Peck had her portrait taken at a studio in a small Iowa town. The photographer sold the negatives to Duffy’s Pure Malt Whiskey, a company that avoided liquor taxes for years by falsely advertising its product as medicinal. Duffy’s ads claimed the fantastical: that it cured everything from influenza to consumption; that it was endorsed by clergymen; that it could help you live until the age of 106. The portrait of Elizabeth Peck ended up in one of these dubious ads, published in newspapers across the country alongside what appeared to be her unqualified praise: “After years of constant use of your Pure Malt Whiskey, both by myself and as given to patients in my capacity as nurse, I have no hesitation in recommending it.” Duffy’s lies were numerous. Elizabeth Peck was not a nurse, and she had not spent years constantly slinging back malt beverages. In fact, she fully abstained from alcohol. Peck never consented to the ad.
The camera’s first great age — which began in 1888 when George Eastman debuted the Kodak — is full of stories like this one. Beyond the wonders of a quickly developing artform and technology lay widespread lack of control over one’s own image, perverse incentives to make a quick buck, and generalized fear at the prospect of humiliation and the invasion of privacy.
Prior to 1888, cameras often existed in a realm of mystical unknowability. In one famed story from the early days of photography, a man asks for a picture of his recently buried wife, not understanding that someone must be present in order to be photographed. Honoré de Balzac confessed to fearing that each time his daguerreotype was taken, a layer of his skin would be peeled off. Early cameras required a level of technical mastery that evoked mystery — a scientific instrument understood only by professionals. All of that changed when Eastman invented flexible roll film and debuted the first Kodak camera. Instead of developing their own pictures, customers could mail their devices to the Kodak factory and have their rolls of film developed, printed, and replaced. “You press the button,” Kodak ads promised, “we do the rest.” This leap from obscure science to streamlined service forever transformed the nature of looking and being looked at.
Less than 20 years after the first Kodak camera debuted, George Eastman’s company had sold 1.2 million devices and persuaded nearly a third of the U.S. population to take up photography. Kodak’s record-setting yearly ad spending — $750,000 by the end of the 19th century (roughly $28 million in today’s dollars) — and the rapture of a technology that scratched a timeless itch facilitated the onset of a new kind of mass exposure. “The impulse to peer into others’ affairs — an age-old feature of village life — had never actually subsided,” writes historian Sarah E. Igo in The Known Citizen: A History of Privacy in Modern America. Photography became such a phenomenon that “Kodak fiends,” a phrase used to describe those seduced by the devilish pleasures of photography, entered the vernacular.
No one quite knew what to make of or how to control the fiendishness, and privacy was further unspooled by money-making schemes just as ferociously inventive as the new technology.
The same year Kodak cameras hit the marketplace, the Brooklyn Daily Eagle reported that Anthony Comstock — the anti-obscenity crusader after whom the Comstock Act is named — arrested an amateur photographer for selling manually photoshopped pictures that placed “the heads of innocent women on the undraped bodies of other females.” In 1890, a mugshot photographer for the New York Police Department was fired for selling copies of the mugshots to arrestees themselves — an arrangement the New York Times described as a “lucrative business.” Boundless fascination with photographs created a bustling economy. People bought and collected random photographs from dry goods stores, general junk shops, vending machines, and even cigarette packs. Demand was so robust that amateurs were just as able to sell to this market as professionals.
The ubiquity of advertising by the end of the 19th century only intensified the demand. “As the growth in productive capacity outpaced the needs of the population, commercial entrepreneurs became obsessed with creating demand for consumer products,” writes historian Samantha Barbas in Laws of Image: Privacy and Publicity in America. “The key agent in this project was advertising.” 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 dubbed “the crisis of the circulating portrait,” advertisers began buying portraits from photographers without the permission of the photos’ subjects — as was the case with Elizabeth Peck, temperate widow turned whiskey hound by the magic and obfuscation of advertising.
It wasn’t just ordinary people who found themselves newly exposed. Mass photography was an equalizer twice over: nearly anybody could use a camera, and nearly anybody might be violated by one. To their grave displeasure, even the elite were unable to assert control over the frenzy. The New York Times reported that President Teddy Roosevelt was “known to exhibit impatience on discovering designs to kodak him;” the same column mentioned that Reginald Vanderbilt horsewhipped a man he alleged took a picture of him without permission. 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, and paid 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 over-exposed. 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 bed-ridden, 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.
Not long after asserting that no right to privacy exists in common law, and while campaigning to be the Democratic nominee for president, Chief Justice Parker told the Associated Press: “I reserve the right to put my hand in my pockets and assume comfortable attitudes without being everlastingly afraid that I shall be snapped by some fellow with a camera.” Abigail Roberson publicly took him to task over his hypocrisy, writing “I take this opportunity to remind you that you have no such right.” She was correct then, and she still would be today. The question of whether anyone has the right to be free from exposure and its many humiliations lingers, intensified but unresolved. The law — that reactive, slow thing — never quite catches up to technology, whether it’s been given one year or one hundred.