We’re sure you’ve heard, because this is important: Kim Kardashian is suing Old Navy for putting a Kardashian lookalike in a television commercial earlier this year. The lawsuit claims that Old Navy intended to capitalize on Kardashian’s hard-earned fame and credibility by casting the doppelganger. (In the picture at right, Kardashian is on the left, and alleged clone Melissa Molinaro is on the right). We’ll let justice run its course on this front, but the case reminds us of our ever-evolving rights to control our own image. There was a time when a company like Old Navy could have legally employed in their advertisements not just celebrity lookalikes, but anyone they wanted. In the following excerpt from American Property: A History of How, Why, and What We Own, Stuart Banner details a landmark case that prompted so much outrage that it led to the firm establishment in American law of the ownership of one’s own image.
Abigail Roberson was a Rochester teenager who had her portrait taken at a local photographic studio. Somehow her picture ended up on 25,000 posters advertising the flour made by Franklin Mills of nearby Lockport. The photographer most likely sold the negative to whoever designed the posters, but however it happened, no one obtained Roberson’s consent. The picture showed Roberson’s head and shoulders in profile. Above her head the advertisement read “Flour of the Family.” Franklin Mills placed the posters in stores, warehouses, and saloons, including some in Rochester, where Roberson’s acquaintances could recognize her. The resulting humiliation caused her to suffer a severe nervous shock, which confined her to bed and required treatment by a physician. Her lawsuit sought $15,000 in damages and an order forbidding Franklin Mills from continuing to use her picture in its advertising.
The defendants (Franklin Mills and the Rochester Folding-Box Company, who apparently produced the posters) sought to have the case dismissed, on the ground that they had the right to use Roberson’s picture. “The substance of this contention,” responded the trial judge, “is that the feelings of the plaintiff may be outraged with impunity by any person,” and that was too much for him to bear. “If such were a fact,” he declared, “it would certainly be a blot upon our boasted system of jurisprudence that the courts were powerless to prevent the doing of a wrongful act which would wound in the most cruel manner the feelings of a sensitive person.” The case would be different, the judge explained, if the defendants had used the picture of someone who was already in the public eye, because such a person could hardly complain about unwanted publicity. But “any modest and refined young woman might naturally be extremely shocked and wounded in seeing a lithographic likeness of herself posted in public places.” Such a display violated the very core of “the sacred right of privacy.” If Abigail Roberson’s image, “owing to its beauty, is of great value as a trade-mark or an advertising medium,” he concluded, “it is a property right which belongs to her.”
The case attracted an unusual amount of positive attention, even while it was in the trial court. The trial judge’s decision “has elicited general approval from the press,” remarked one lawyers’ journal. The decision would likely be sustained on appeal, “and we certainly think it ought to be,” noted another. There was something disturbing about forcing a young woman into the harsh commercial world, something that grated on conventional ideas about the proper role of women and the sanctity of the home. When the decision was affirmed by New York’s intermediate appellate court the following year, another round of approving commentary followed. If ever there was a litigant who could attract public sympathy in favor of a right to control the display of one’s image, it was Abigail Roberson.
That sympathy reached its peak in 1902, when the New York Court of Appeals, by a 4– 3 vote, reversed the decision and held that Roberson had no right to prevent Franklin Mills from using her picture. “The so-called ‘right of privacy’ has not as yet found an abiding place in our jurisprudence,” Chief Judge Alton Parker decided. Like the earlier judges who had rejected the notion, Parker and his colleagues in the majority were worried about the threat to the freedom of expression posed by allowing people to control the use of their images. “If such a principle be incorporated into the body of the law through the instrumentality of a court,” Parker feared, “the attempts to logically apply the principle will necessarily result not only in a vast amount of litigation, but in litigation bordering upon the absurd, for the right of privacy, once established as a legal doctrine, cannot be confined to the restraint of a publication of a likeness, but must necessarily embrace as well the publication of a word picture, a comment upon one’s looks, conduct, domestic relations or habits.” And that was only the start. If there was a right to privacy that applied to printed matter, “it would necessarily be held to include the same things if spoken instead of printed, for one, as well as the other, invades the right to be absolutely let alone.” A legislature might make distinctions between pictures and names, or between print and speech, Parker explained, but because a court had to decide cases on general principles, a decision for Abigail Roberson threatened to swallow up public discourse.
Few court decisions have been so unpopular. One lawyers’ magazine lamented that “the ordinary citizen, man or woman, has absolutely no redress against the machinations of any advertising agent who, with a sense of delicacy equal to that of an elephant, may choose to utilize the picture of any reputable and retiring member of the community.” Another suggested that some cigar maker should use Parker’s picture on a line of “Chief Justice” cigars. “New terrors are added to life,” fretted the New York Times, while one correspondent to the paper was nervous that if “some enterprising and adventurous advertising agent by fraudulent stealth procures a snapshot of my lady at the bath” the photo might appear in advertisements. Some lawyers criticized the Court of Appeals for grossly overestimating the effects of a decision for Roberson on forms of speech other than advertising. Others criticized the court’s timidity in failing to make new law to keep up with the times. After a few months of attacks, Denis O’Brien, one of the judges in the majority on the Court of Appeals, took the extraordinary step of defending the decision in an article in the Columbia Law Review. The Roberson case had transformed the right to privacy from a novel and uncertain legal issue into a popular cause, among lawyers and in the wider world.
Many responded to the Court of Appeals’ decision by calling upon the state legislature for a statute that would empower future Abigail Robersons to keep their pictures out of the marketplace. “The hour is ripe for the legislator to step in,” intoned Harper’s Weekly. “If there be, as Judge Parker says there is, no law now to cover these savage and horrible practices,” agreed the New York Times, “then the decent people will say that it is high time that there were such a law.” Even Elbridge Adams, the lawyer for Franklin Mills, acknowledged that “if we may interpret the comments of the newspaper press upon the decision, as faithfully reflecting public opinion, there is a widespread popular desire for relief.”
The legislature responded the following spring with a statute that made New York the first state to recognize a right to control the use of one’s name and image, at least in certain circumstances. Section 1 of the statute made it a misdemeanor to use, “for advertising purposes, or for the purposes of trade,” the name, portrait, or picture of any living person without that person’s consent. Section 2 authorized any person whose name or picture had been so used to file a civil suit to prevent further use and to recover damages. Commentators recognized that the statute had been prompted by all the criticism leveled at the Roberson case. “There was a natural and widespread feeling that such use of their names and portraits, in the absence of consent, was indefensible in morals, and ought to be prevented by law,” a unanimous opinion of the Court of Appeals recalled a few years later. “Hence the enactment of the statute.”
Abigail Roberson had the last laugh. In 1904 Alton Parker resigned from the Court of Appeals to run for president as the Democratic candidate. During the campaign he and his family were so besieged by photographers that Parker declared: “I reserve the right to put my hands in my pockets and assume comfortable attitudes without being everlastingly afraid that I shall be snapped by some fellow with a camera.” Roberson promptly wrote a letter to Parker—which she released to the press—reminding him “that you have no such right as that which you assert.” If Roberson could not object to the use of her picture on flour advertisements, she asked, on what ground could Parker complain about news photographers? “I am forced to the conclusion,” she needled, “that this incident well illustrates the truth of the old saying that it makes a lot of difference whose ox is gored.” The story was front page news. Parker lost in a landslide to Theodore Roosevelt and never held public office again.
Once the New York statute was in place, other states followed quickly. In 1904 Virginia enacted a similar statute. In 1905 the Georgia Supreme Court ruled in favor of a man whose picture was used without his consent in an advertisement for a life insurance company. “The body of a person cannot be put on exhibition at any time or at any place without his consent,” the court insisted. After reviewing the controversy caused by Roberson, the Georgia judges had little doubt they were right. “So thoroughly satisfied are we that the law recognizes, within proper limits, as a legal right, the right of privacy,” they declared, “we venture to predict that the day will come that the American bar will marvel that a contrary view was ever entertained.” In Indiana a trial judge prohibited a newspaper from printing sketches of a criminal defendant without his permission. The Louisiana Supreme Court barred the police from circulating photographs of people who had not been convicted of a crime. In Wisconsin and Kentucky, courts held that negatives and prints of photographic portraits belonged to the sitter, not to the photographer. A right not to have one’s picture used in advertising without one’s consent was recognized by courts in Pennsylvania, Missouri, and Kansas. By 1909 even the United States Supreme Court agreed that a person could recover damages where an advertiser had used her picture without her consent, at least where the advertisement caused harm to her reputation. (The advertisement was for whiskey, and the plaintiff was a teetotaler.)
This change in the law did not proceed unanimously. A Providence man’s picture had been used without his consent in an advertisement for waterproof “auto coats” to be worn by “autoists” exposed to the weather in the latest method of transportation. The Rhode Island Supreme Court nevertheless threw out his suit in 1909, on the ground that there was no such thing as a right to privacy. The Supreme Court of Washington came to the same conclusion a couple of years later.
By the 1910s, however, commentators acknowledged a clear trend toward recognizing a right to control the use of one’s name and image. In his 1908 manual on the law of advertising, Clowry Chapman recommended obtaining written releases from models, in case privacy claims should pop up later. The earliest treatise on the law applicable to the motion picture industry, published in 1918, included an entire chapter on the burgeoning law of privacy. The trend would only grow stronger in later years, as the cases piled up. By the 1930s the Restatement of Torts, the profession’s leading summary of the law, included a section called “Interference with Privacy” that recognized a civil action against “a person who unreasonably and seriously interferes with another’s interest in not having his affairs known to others or his likeness exhibited to the public.” Thoughtful lawyers, looking back on three decades of legal change, remembered what had set the change in motion. “The portrayal of the personality by a photograph, painting, caricature, or verbal description (likeness) has only become important since the development of the camera and photographic printing,” recalled the law professor Leon Green. “It is the capacity to reproduce the personality of another by photography which has created a demand for legal protection.”
(Excerpt electronically reproduced from American Property: A History of How, Why, and What We Own, by Stuart Banner, Cambridge, Mass.: Harvard University Press. Copyright © 2011 by the President and Fellows of Harvard College. All rights reserved.)