It was the kind of summer day that your mind instantly recalls when you hear the words “summer day”. Warm, sunny, gorgeous. William Meredith’s daughters, as was their habit when a day felt this good, lounging in the backyard, sunning in their swimsuits. All was peaceful — until the girls entered the house, warning their father of an intruder in their backyard.
Meredith grabbed his shotgun and bolted outside. He scanned the surroundings and quickly found his target, now creeping around a neighbor’s yard. Before too long, the snoop turned and headed back William’s way. He waited until the peeping tom had crossed over the property line, and…
All it took was one shot.
But the visitor had not been alone. Four men approached his home from the front. William was ready. As the angry men approached, he issued a warning:
“Cross my sidewalk, there’s gonna be another shooting.”
The men decided to take their frustration to the local authorities. Shortly thereafter, William Meredith was arrested for the murder of… an $1,800 drone that had been flying around his neighborhood.
The owner of the drone, David Boggs, claimed he had simply been flying around taking photographs of a nearby house for a friend. For Mr. Meredith’s part, he viewed the intrusion as tantamount to the home invasion you probably imagined I was describing. It is likely this is not the only such story you have heard over the last several years regarding drones and privacy. But while the technology is new, the argument is anything but.
It has now been well over a century since Joel Benton’s poem “The Kodak Fiend” warned, in ominous verse, “Oh, de Kodak fiend, he’s sly an’ mean / An’ you can’t go out near his machine.”
The democratization of photography has, from its very start, brought with it the risk — as well as the fear — of loss of privacy. The story of how society reacted to this phenomenon is rich and far-reaching, upending social norms and creating wholly new legal precedents. One camera, more than any other even to this day, helped build the world we occupy: The Kodak Brownie.
In the late 19th century, the Eastman Kodak company had been making strides toward — and waves with — more inexpensive, portable camera options. Still out of the reach of many consumers, though, at $25 each (over $700 in today’s dollars), these first attempts found their way into the hands of a very particular class of citizens: reporters. It is no wonder, then, that the first group to sound the loudest alarms over privacy were not the common folk, but rather the well-heeled, upper-class types most likely to generate headlines.
While American society has always been stratified and public personas of the powerful have always been carefully manicured, in the late 19th century the elite enjoyed considerable control over their separation from the rabble. With affordable photography, they found the veil being lifted, a click at a time, and they were not pleased. Gossip merchants and sleuthhounds were now empowered with a vastly more potent tool to shed light upon and wrest away control from their carefully crafted public image.
It is no wonder, then, that the first major treatise on these concerns emerged from one of the nation’s most elite institutions. In 1890, the Harvard Law Review published an article entitled “The Right to Privacy” by Samuel D. Warren and Louis Brandeis. The document became one of the most influential writings in American legal history.
While attributed to both men, the reality is far more telling. Brandeis, a Jewish immigrant and future Supreme Court Justice, handled most of the writing but had been urged toward it by Warren. Warren, the son of a paper mill magnate and a member of the high society so threatened by this accessible technology, was incensed by the intrusion of this proto-paparazzi upon his way of life. The article itself makes the concerns quite plain:
The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle.
These concerns were not relegated to the wealthy for long, however. A decade after the influential article’s publication, the Eastman Kodak company released the first undeniably mass-market camera: The Kodak Brownie. For the price of $1 (equivalent to $32.66 in today’s dollars), anyone could grab a cheap cardboard box with fake leather coating and a meniscus lens and aim it anywhere they pleased.
In our current world, news has exploded with revelations of Instagram’s effect on teenagers, particularly young girls, and how, despite this potential harm, the company was actively designing an alternate version of its app for an even younger audience. It has since been put “on hold” due to public pressure. The power of algorithms and information harvesting is significant, but the Kodak Brownie was doing it all first.
The name “Brownie” itself was more than merely a reference to the camera’s designer, Frank A. Brownell — it was a bit of marketing genius. The cutesy name, accompanied by magical mascots from a popular series of children’s books, existed solely to target Kodak’s affordable camera to children.
“Plant the Brownie acorn and the Kodak oak will grow,” was a popular slogan at the time. It worked like gangbusters. Eastman Kodak shipped more than 1.5 million Brownies in the first year of production. Forget the socialites outside their fancy soirees, the Brownie is when schoolyard had become a photo studio. At every level of American life, privacy had changed.
The explosion of images was inextricably linked to an explosion of intrusions, new and strange to the culture. The public could not get enough of the Brownie, and their sense of propriety began to relax in order to accommodate their new fascination. Your average citizen could now capture moments of extreme humanity, poverty, embarrassment, and harm that had been unthinkable before. The common person was now also beginning to wonder, what were the new rules? The law was going to have to catch up with the times, and the very same year the Brownie was introduced, it would face its first test.
Abigail Robertson was a teenager from Rochester, New York who had sat for a portrait at a local studio. This was, by now, a common enough practice. What was uncommon, however, is what Abigail saw in shop windows some time after her photograph was taken. All over the town of Rochester and well beyond, Abigail’s face graced poster after poster, advertising the flour of a nearby mill. Without her knowledge, with no agreement on her part, Abigail had become the mascot for a product, and in storefronts, warehouses, and even saloons, acquaintances saw and recognized her daily. All in all, 25,000 such posters were produced and distributed.
For Abigail, this was horrific. The embarrassment and confusion she experienced led her to severe nervous shock, leaving her bedridden and attended to by a physician. This was simply not something a person of this time period was prepared to handle.
Abigail sued Franklin Mills, the flour mill for which the advertisements were produced, and the Rochester Folding-Box Company, which were responsible for the production of the posters, for $15,000 in damages (nearly half a million dollars in today’s currency) and an order forbidding her likeness being used in any advertisement.
At the first trial, in the Supreme Court of Monroe County, the defendants’ argument was simple: They had the right to use Abigail’s photograph because there was no law saying they did not have such a right. The judge was unmoved. Interestingly, his reasoning hinged a great deal on Abigail’s station in life as an everyday citizen. In good conscience, he could not rule that a normal person should be placed in such a position, as they had invited no attention on themselves and had sought no celebrity. He concluded that such use of Roberson’s likeness without consent was not only plainly traumatic, but the very act of selecting her image for advertisement indicated it possessed value, and the right to such value belonged to Robertson herself.
Franklin Mills and the Rochester Folding-Box Company appealed, unwilling to cede payment and stop the use of their popular advertising campaign. The case finally traveled all the way to the State of New York Court of Appeals. There, over a decade after its publication, Warren and Brandeis’s “Right to Privacy” was invoked repeatedly by Abigail’s lawyers.
Shockingly, it did little good. By a four to three decision, Robertson’s victory was overturned. The Court of Appeals ruled that Abigail’s face had no inherent value whatsoever, was not physical property, thus nothing had been stolen from her. Additionally, Chief Judge Alton Parker concluded “right of privacy” had no firm basis in present jurisprudence. It was a devastating conclusion, made more bitter by the court’s dismissal of Abigail’s suffering as “purely mental,” and Chief Judge Parker’s demeaning comments to the young woman about how she should be “flattered” someone found her so beautiful.
Unsurprisingly, Abigail’s case had become immensely popular with the public, touching on concerns shared by many Americans at the time. To see her defeated in this way infuriated the public. The country was long past the self-pitying complaints of the bourgeoisie over gossip rags. This was about the common folk. If they could do this to this innocent girl, who was next? The outcry was so immediate and intense that the New York State Legislature was compelled to act.
In 1903, New York became the first state to recognize a right to control the use of one’s name and image. Though limited in scope, it did criminalize the non-consensual use of one’s image for advertisement and trade. Others who had experienced invasions of privacy like Abigail’s were empowered to file a civil suit to cease further use of their likenesses and be compensated. Other states followed. Warren and Brandeis’s “The Right to Privacy” was used in over a dozen cases to bring about the recognition of the common law right of privacy.
Within a few years, a manual on the law of advertising was already recommending written and signed releases from models. By 1909, the issue found its way to the Supreme Court, where a woman successfully won, arguing that a photograph of her used in a whiskey advertisement constituted libel. Mrs. A. Schuman argued reputational harm in being associated with such a product when she was quite proudly a woman of impeccable sobriety. In this new era of the snapshot, the new rules were quickly coming into focus.
Brandeis, for his part, was not done with the topic. His passion for privacy rights followed him all the way to the Supreme Court, wherein in 1928, he wrote a thunderous, historic dissent in Olmstead v. United States, arguing evidence obtained by wiretap violated the Fourth and Fifth Amendments. Though he lost at the time, some four decades later, the court would overturn the ruling and finally agree with his position.
The right to privacy became a core consideration for Americans. Increasingly, this right found itself at the center of a variety of issues. In the 1960s, it was invoked to protect the right of married couples to purchase contraception, which set the stage for one of the most consequential victories for privacy in our nation’s history, Roe v. Wade.
Every year that passes, we encounter new, frightening ways in which our privacy is intruded upon. Terms of Service for virtually any transaction, purchase, or online membership have become an inscrutable rats’ nest meant to overwhelm the average citizen to the point of ceding their rights without even knowing to what degree they have done so. Facebook and Instagram are probably, collectively, the largest photo album in the history of the medium. There have long been concerns, some well-founded, that the images we are sharing online will show up in an advertisement, or as part of some corporation’s “content.”
Even as recently as last year, the social media giant began updating its rights management systems, working with certain, undisclosed partners to grant them the power to claim ownership of their images and dictate when and where those images show up across the platform. How will this impact you in the future? This remains unclear.
What is undeniable, however, is the shift to accessible photography — pioneered by Eastman Kodak and brought to new heights over a century ago with their cheap little Brownie — started a conversation in the country that has since spilled into every aspect of public life.
Image credits: Header image made of photos licensed via Depositphotos.