A Teen Girl’s Stolen Photo Sparked America’s First Battle Over Image Rights

When Abigail Roberson set out to get her portrait taken at a local photography studio, she had no idea her picture would become the center of a courtroom battle over the right to privacy and image rights in early 20th-century America.

The 17-year-old Roberson, an orphan from Rochester, New York, merely intended to have her picture taken for her personal use. Months later, while visiting the home of a neighbor, she was stunned to discover her face plastered onto a bag of flour.

She stated that seeing her face in the advertisement caused her “severe nervous shock” and she was “confined to her bed” under a doctor’s care. Determined to stand up for herself, Roberson decided to file a lawsuit against the flour company Franklin Mills and the Rochester Folding Box Co., which printed the packages and posters featuring her portrait.

Roberson was “quite feisty” in her determination to pursue her legal rights, says historian Jessica Lake, a senior lecturer at Melbourne Law School in Australia and the author of The Face that Launched a Thousand Lawsuits: the American Women Who Forged a Right to Privacy. “She was just an ordinary girl in Rochester—she didn't come from a family of means and money and she wasn’t well connected particularly. The fact that she did seek out legal advice and then sued these two large companies in upstate New York at the time shows that she had some gumption.”

In Roberson v. Rochester Folding Box Co. (1902), she sued for $15,000 and sought to prevent the unauthorized use of her photo in advertising. In her filing, she detailed how her image was used without her consent in 25,000 ads that were displayed across the United States and around the world. “Every woman has a right to keep her face concealed from the observation of the public,” her lawsuit stated.

The case instantly struck a chord. Since film photography became widely accessible after George Eastman patented and began to sell Kodak cameras in 1888, the American public was increasingly worried about the prospect of having their photographic images used by strangers.

These sentiments were shared by President Theodore Roosevelt, who openly grumbled about the press and members of the public trying to “Kodak” him when he was out and about. “People would have suddenly felt like they were being watched and potentially recorded in a way that they'd never felt before,” says Lake. There was particular anxiety around what the popularity of photography meant for women, she adds.

“There was a lot of commentary in various newspapers and magazines like the Ladies' Home Journal—the most popular women’s magazine at the time—that warned women should be careful who they gave their [film] negatives to,” Lake notes. Publications cautioned readers that once you handed over your photographic negatives, you had no way of knowing who might possess them or how they might be used.

Despite this public sentiment, both Franklin Mills and the Rochester Folding Box Co. stated the case should be thrown out based on the fact that the right to privacy legally did not exist in New York state. Although Roberson won her case before the Supreme Court of Monroe County, both companies immediately appealed.

In a ruling that would both devastate Roberson and lead to international headlines, the New York Court of Appeals rejected her claim and sided with the defendants’ statement that there was no right to privacy in New York state. Adding insult to injury, the Court of Appeals Chief Judge Alton B. Parker stated that many women would consider the usage of their image in an advertisement as a “compliment to their beauty.” He also noted the image used was a “very good one” that did not libel Roberson.

The ruling immediately gained notoriety and became a cornerstone in the legal establishment of privacy rights.

“It was the first important case to decide who should be able to control photographic images,” says Lake. “There was a lot of attention paid to this case across the United States and even across the world. There was commentary on it occurring in the U.K. and in Australia as well.”

That commentary was often quite biting. Newspapers and government officials sided with Abigail over her anger at the use of her image. One magazine joked a tobacco company should release a line of "Chief Justice” cigars with Parker’s photo on them.

“There was outrage over the decision,” says Lake. “People thought it was outrageous that she couldn't control the use of her image and that she also couldn't profit from her image. It had been stolen from her effectively."

Public anger about Roberson v. Rochester Folding Box Co. led the New York Legislature to jump into action, passing the 1903 Act to “Prevent the Unauthorized Use of the Name or Picture of Any Person for the Purposes of Trade."

This act is recognized as the first state law to address the right to privacy in the United States. It became a misdemeanor to use a living person's name or image for profit without written consent. That 1903 Act is still in effect today as part of Sections 50 and 51 of the New York Civil Rights Law.

In the decades that followed, courts and lawmakers across the country built out other privacy rights, including early landmark rulings recognizing the right to one’s own image as a legal interest. By the mid-20th century, privacy protections and likeness rights became more widely recognized nationwide.

But while moves were made to protect the privacy of others, Abigail Roberson was never compensated for the usage of her image by the Franklin Mills flour company. “She didn't try to capitalize on the case at all,” says Lake, who says Roberson became a music teacher and piano player. “She was really angry that the decision went against her and that Chief Justice Parker had said that she should be complimented” by the use of her image.

A small moment of revenge occurred two years later when Judge Parker ran for president of the United States in 1904. After publicly complaining his privacy was being violated by photographers on the grounds of his home, Roberson wrote an open letter printed in The New York Times that became syndicated in newspapers across the country.

"I take this opportunity to remind you that you have no such right as that which you assert,” she wrote. After recapping the case, she noted to Judge Parker that “in an opinion sixteen pages long you arrived at the conclusion that I had no rights that could be protected by your tribunal.”

The letter would run under the headline: “If I Can Be Photographed, Why Not You?”