In Photography’s Early Days, Ads Could Use a Photo of You Without Permission
Imagine running a headshot session and instead of handling the photos with sensitivity and care, the photographer sells the images to a national company for a major advertising campaign.
It sounds preposterous now. But at the beginning of the 20th century, there was no right to privacy or likeness and photographers could sell a photo of someone for any purpose they wanted.
At the dawn of the camera age, around the time George Eastman released the Kodak, there was no commercial modeling or stock photos for capitalists to use on their products. So advertisers used a backdoor method of purchasing photographers’ negatives.
This strange era was recently highlighted in an essay by Sohini Desai for the History News Network and shared to Smithsonian magazine. It explores the story of Elizabeth Peck, a temperant widow who became the face of a whiskey brand.
In 1904, Peck went and had her portrait taken at a studio in Iowa. The photographer later sold the negatives to Duffy’s Pure Malt Whiskey which had avoided liquor taxes for years by falsely claiming that the product could cure tuberculosis and a host of other ailments.
“After years of constant use of your Pure Malt Whiskey, both by myself and as given to patients in my capacity as a nurse, I have no hesitation in recommending it,” read the advertisement that was published in newspapers all over the country.
The statement is completely made up. So is Peck’s alias of “Mrs A. Schuman” and the claim that she was a nurse. In fact, Peck was an abstinence advocate and did not consent to the ad.
Peck sued one of the newspapers that carried the ad, the Chicago Sunday Tribune, for libel which went all the way to the Supreme Court where it was decided in favor of Peck.
The Case That Changed the Law
Suing for libel was the only option a person had if this happened to them. That was until a teenage girl in Rochester saw her face on her neighbor’s bag of flour.
Abigail Roberson learned that the Franklin Mills Flour Company had printed 25,000 posters of the advertisements featuring a profile shot of Roberson.
She was temporarily bedridden from the shock of it all but via her guardian, she brought a lawsuit against Franklin Mills.
After initially scoring a victory at New York’s Supreme Court, the defendants appealed and it went to the state’s highest court: the New York Court of Appeals — where she lost.
Deciding that the photo was not “libelous”, Chief Justice Alton B. Parker wrote that the photo was “a very good one” and the picture was a “compliment to her beauty.”
This decision did not go down well. Newspaper editorials and public outcry made it crystal clear that Roberson had been wronged. Shortly after, the New York state legislature passed a law granting citizens a right to privacy. This act prohibited the use of someone’s likeness in advertising without their consent. Other states followed suit.
Parker, the judge who ruled against Roberson, later ran for president and showed his annoyance at photographers saying he had the right to “assume comfortable attitudes without being everlastingly afraid that (he) shall be snapped by some fellow with a camera.”
Roberson wrote a letter to The New York Times reminding Parker that she had it on “high authority” that he had no right to privacy. Parker lost to Theodore Roosevelt.
