Among the United States government’s first confrontations with the question of privacy when it came to a person’s likeness—although the word privacy wasn’t used—came in March 1888, when Republican congressman John Robert Thomas introduced “A Bill to Protect Ladies” into the House of Representatives, which held that women who were related or married to American citizens were “entitled to protection from the vulgar and unauthorized use, for advertising purposes, of their likeness.” Inspired by the fact that images of First Lady Frances Cleveland were being used to advertise everything from cosmetics to ashtrays, the bill, in seeking to restrict the usage of women’s photographs, asserted that a woman’s likeness was essentially the property of the men she was related or married to, underlining exactly to whom the property rights of citizenship were accorded. Ultimately, the bill didn’t pass.
Privacy per-se wouldn’t be debated in the courts until the following century, when Abigail Roberson sued Franklin Mills and the Rochester Folding-Box Company for using her photograph to advertise flour. In Roberson v. Rochester Folding Box, Roberson’s lawyer argued that she possessed both a “right to privacy” and a “property right in her own features and beauty, which is absolute until voluntarily surrendered.” Although the case was overturned in appeals, it led New York State to create one of the first right to privacy statutes, concerning one’s likeness being used without consent for advertising or trade. Other states followed, and more and more breach of privacy cases relating to photographic images were brought to trial—though the legal strategies varied. Almost forty years after Roberson’s case, in March 1938, Pauline Myers won her case against Afro-American Publishing Co., who had published a photograph of her in a newspaper that was meant to be used for an artist’s model but was altered to accentuate her semi-nudity. Myers was one of the first Black people to bring forward a case regarding a breach of privacy and won based on New York’s privacy laws, but in Myers v. Afro-American Publishing Co., the action was regarded as libel since the photographs had been altered. Privacy rights weren’t mentioned at all. But while applying New York’s privacy statue, the photographs were instead described as her “exclusive property.”