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As we contend with ‘answers” from AI’s that, with few exceptions, use source material with no credit nor recompense, we might ponder the experience of our Gilded Age ancestors…

In 1904, a widow named Elizabeth Peck had her portrait taken at a studio in a small Iowa town. The photographer sold the negatives to Duffy’s Pure Malt Whiskey, a company that avoided liquor taxes for years by falsely advertising its product as medicinal. Duffy’s ads claimed the fantastical: that it cured everything from influenza to consumption, that it was endorsed by clergymen, that it could help you live until the age of 106. The portrait of Peck ended up in one of these dubious ads, published in newspapers across the country alongside what appeared to be her unqualified praise: “After years of constant use of your Pure Malt Whiskey, both by myself and as given to patients in my capacity as nurse, I have no hesitation in recommending it.”

Duffy’s lies were numerous. Peck (misleadingly identified as “Mrs. A. Schuman”) was not a nurse, and she had not spent years constantly slinging back malt beverages. In fact, she fully abstained from alcohol. Peck never consented to the ad.

The camera’s first great age—which began in 1888 when George Eastman debuted the Kodak—is full of stories like this one. Beyond the wonders of a quickly developing art form and technology lay widespread lack of control over one’s own image, perverse incentives to make a quick buck, and generalized fear at the prospect of humiliation and the invasion of privacy…

… Early cameras required a level of technical mastery that evoked mystery—a scientific instrument understood only by professionals.

All of that changed when Eastman invented flexible roll film and debuted the first Kodak camera. Instead of developing their own pictures, customers could mail their devices to the Kodak factory and have their rolls of film developed, printed, and replaced. “You press the button,” Kodak ads promised, “we do the rest.” This leap from obscure science to streamlined service forever transformed the nature of looking and being looked at.

By 1905, less than 20 years after the first Kodak camera debuted, Eastman’s company had sold 1.2 million devices and persuaded nearly a third of the United States’ population to take up photography. Kodak’s record-setting yearly ad spending—$750,000 by the end of the 19th century (roughly $28 million in today’s dollars)—and the rapture of a technology that scratched a timeless itch facilitated the onset of a new kind of mass exposure…

…

… Though newspapers across the country cautioned Americans to “beware the Kodak,” as the cameras were “deadly weapons” and “deadly little boxes,” many were also primary facilitators of the craze. The perfection of halftone printing coincided with the rise of the Kodak and allowed for the mass circulation of images. Newly empowered, newspapers regularly published paparazzi pictures of famous people taken without their knowledge, paying twice as much for them as they did for consensual photos taken in a studio.

Lawmakers and judges responded to the crisis clumsily. Suing for libel was usually the only remedy available to the overexposed. But libel law did not protect against your likeness being taken or used without your permission unless the violation was also defamatory in some way. Though results were middling, one failed lawsuit gained enough notoriety to channel cross-class feelings of exposure into action. A teenage girl named Abigail Roberson noticed her face on a neighbor’s bag of flour, only to learn that the Franklin Mills Flour Company had used her likeness in an ad that had been plastered 25,000 times all over her hometown.

After suffering intense shock and being temporarily bedridden, she sued. In 1902, the New York Court of Appeals rejected her claims and held that the right to privacy did not exist in common law. It based its decision in part on the assertion that the image was not libelous; Chief Justice Alton B. Parker wrote that the photo was “a very good one” that others might even regard as a “compliment to their beauty.” The humiliation, the lack of control over her own image, the unwanted fame—none of that amounted to any sort of actionable claim.

Public outcry at the decision reached a fever pitch, and newspapers filled their pages with editorial indignation. In its first legislative session following the court’s decision and the ensuing outrage, the New York state legislature made history by adopting a narrow “right to privacy,” which prohibited the use of someone’s likeness in advertising or trade without their written consent. Soon after, the Supreme Court of Georgia became the first to recognize this category of privacy claim. Eventually, just about every state court in the country followed Georgia’s lead. The early uses and abuses of the Kodak helped cobble together a right that centered on profiting from the exploitation of someone’s likeness, rather than the exploitation itself.

Not long after asserting that no right to privacy exists in common law, and while campaigning to be the Democratic nominee for president, Parker told the Associated Press, “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 publicly took him to task over his hypocrisy, writing, “I take this opportunity to remind you that you have no such right.” She was correct then, and she still would be today. The question of whether anyone has the right to be free from exposure and its many humiliations lingers, intensified but unresolved. The law—that reactive, slow thing—never quite catches up to technology, whether it’s been given one year or 100…

Early photographers sold their snapshots to advertisers, who reused the individuals’ likenesses without their permission: “How the Rise of the Camera Launched a Fight to Protect Gilded Age Americans’ Privacy,” from @myHNN and @SmithsonianMag.

The parallels with AI usage issues are obvious. For an example of a step in the right direction, see Tim O’Reilly‘s “How to Fix “AI’s Original Sin”

* David Brin

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As we ponder the personal, we might recall that it was on this date in 1789 that partisans of the Third Estate, impatient for social and legal reforms (and economic relief) in France, attacked and took control of the Bastille.  A fortress in Paris, the Bastille was a medieval armory and political prison; while it held only 8 inmates at the time, it resonated with the crowd as a symbol of the monarchy’s abuse of power.  Its fall ignited the French Revolution.  This date is now observed annually as France’s National Day.

See the estimable Robert Darnton’s “What Was Revolutionary about the French Revolution?“

Happy Bastille Day!

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