In the 1890s, Rochester teenager Abigail Roberson was surprised to learn that a portrait she had taken at a local photographic studio was being used on 25,000 lithographic posters created by the Rochester Folding-Box Company to advertise Franklin Mills flour, without her prior knowledge or consent.
The poster, reading “Flour of the Family,” was distributed to stores, warehouses, saloons, and other places around Rochester, NY where her face was recognized by those she knew. Feeling humiliated by scoffing and jeering from her acquaintances she suffered a breakdown, and was confined her to bed under the treatment of a physician.
After learning of an 1890 article on the right to privacy by Samuel Warren and Louis Brandeis, Roberson (then just 17) sued the companies involved. Roberson went to court to stop them from using her face, asserting an inherent right to privacy and also called on the courts to shield her (and others) from this sort of commercial exploitation.
The New York State Supreme Court and Appellate Division agreed, but in the 1902 landmark decision Roberson v. Rochester Folding-Box Company the Court of Appeals (New York State’s highest court) rejected her plea arguing that there was no inherent right to privacy in the constitution and only the state legislature could bestow such a right. In response, the New York State Legislature passed the first state privacy law in 1903, which is still on the books.
Privacy issues raised in Roberson still reverberate today.
The New York State Archives Partnership Trust will host “Who Owns A Photo of Your Face? The Right to Privacy & The Courts,” a virtual program set for Tuesday, October 18, 2022. Speakers for the program will include Bruce W. Dearstyne, author of The Crucible of Public Policy: New York Courts in the Progressive Era and a regular contributor to New York Almanack, and Henry M. Greenberg of the Historical Society of the New York Courts
This virtual program will take place via Zoom from 12:30 to 1:30 pm, and is free and open to the public. For more information, click here. A direct link and password to the digital meeting space will be emailed to all registrants before the event. Contact email@example.com with questions or in need of assistance.
Illustration: The Franklin Mills Flour poster with Abigail Robeson’s face that launched American privacy rights.