Today, we take photography for granted. With just a smartphone, we can snap countless photos at virtually no cost. But it wasn’t always that way.

The first permanent photograph is believed to have been taken by French inventor Joseph Nicéphore Niépce in either 1826 or 1827. Niépce used a pewter plate coated with bitumen of Judea, a naturally occurring tar, to create the image. The brightest parts of the image hardened the bitumen, while the softer, unhardened areas were washed away, unveiling the final image. This process, requiring about eight hours of exposure, captured the view of the courtyard outside Niépce’s window. That photograph, titled “View from the Window at Le Gras,” marks the dawn of photography.

In 1829, Niépce joined up with artist and scientist Louis Daguerre to further develop the process. The two explored the use of other chemicals and materials and chemical treatments, but, sadly, Niépce passed away in 1833.

Daguerre continued on and in 1839 introduced the Daguerreotype, the first commercially viable form of photography.

Photography quickly evolved after that: Henry Fox Talbot’s calotype process created negatives on coated paper, which allowed for multiple prints from a single exposure. Frederick Scott Archer’s Wet Collodion process produced images on glass plates, which greatly reduced exposure time. This was followed by Richard Leach Maddox’s Dry Plate method, which allowed for the photographic plates to be prepared in advance. Not only did this make photography more convenient, but it also allowed photographers to capture images more spontaneously.

All of these developments were great, but none were simple. One still needed some level of technical mastery to capture and develop an image.

That would all change in 1888 when George Eastman invented flexible roll film and introduced the Kodak camera to the masses. All one needed to do was snap the pictures, mail their camera back to Kodak, and they would take care of the developing and printing. Next thing you know, the post office delivered back your photos and a camera loaded with a brand new roll of film. Their slogan, “You Press the Button, We Do the Rest” said it all. But it was expensive: the camera, pre-loaded with a film roll of 100 exposures, cost $25 (approximately $860 today). It could then be mailed to Eastman’s headquarters in Rochester with $10 (~$345 today) for processing. Crazy expensive initially, but costs quickly dropped and by 1905, nearly one-third of the United States population had taken up photography. Suddenly, people were taking photos seemingly anywhere at any time. And, even worse, they could do nearly anything that they wanted to do with those photos.

Back in 1900, 17-year-old Abigail Mae Roberson found herself in such a predicament, one that the legal system had never dealt with before. At the time, she was living at 101 Caledonia Avenue, which is now Clarissa Street, in Rochester, New York. In a 1967 interview, Abbie described her shock as she peered through the glass window of a grocery store located in the city’s Four Corners neighborhood. What she saw was herself, and it wasn’t her reflection. Unbeknownst to her, the Franklin Mills Flour Company had used her face on one of their advertising posters. She would later learn that approximately 25,000 copies had been printed and distributed throughout the United States and Canada.

Abbie would never learn how Franklin Mills had obtained a picture of her, but one thing was very certain: she had never given them permission to use her image. They hadn’t asked, nor had they paid her a single cent to do so. And even if they had asked, she definitely would have turned them down.

In that same interview, she said, “I was dating a Jewish boy then, and he was waiting for me to grow up so that I could marry him.”

“He was good friends with another young man who did wonderful artwork, especially portraits.

 “Well, I had had some pictures made of myself at a studio nearby, and my boyfriend told me that his friend was going to do a portrait from it, and later showed it to me. Little did I realize what they were going to do with it.

“I knew when I saw it in the store window.”

One thing that was certain was that there was no question as to why Abbie’s face was selected for that advertising poster: she was gorgeous, a fact that was repeated over and over in both contemporary newspaper accounts and court documents. The April 2, 1901, edition of the Rochester Democrat & Chronicle newspaper stated, “Miss Roberson is a magnificent brunette, whose attractiveness has not been exaggerated in the newspaper accounts of the action.”

Printed on rough white paper, the poster in question measured approximately 22” (56 cm) x 30” (76 cm) tall, with Abigail pictured from the shoulders up, looking away from the camera. The text above her head reads “Flour for the Family,” and “Franklin Mills Flour” spans the bottom. In the lower right hand corner, in a much smaller typeface is information on the printer, “Rochester Folding Box Company, Rochester, New York.”

It was all tastefully done, but Abbie was extremely shy at that young age and that she “couldn’t even talk with people, and when anyone made fun of me, I’d just stand rooted to the ground, burning with a blush.”

It was widely reported at the time that the sudden attention caused her to collapse from “nervous shock,” which forced her to seek medical care and to be confined to bed. While that was true, it wasn’t quite the whole story. In reality, Abbie was an unhealthy young woman.

“Of course I was in bed and had to have a doctor because I was already was an invalid and had to be in bed.

“Those doctors had told me years before that I wouldn’t live until 21. They said I had a bad heart, and one lung, and gosh knows what else.” As we will learn later in the story, she would outlive them all.

Abigail Roberson turned to the court system to stop further printing and distribution of the posters. Attorney Milton E. Gibbs was hired to file the paperwork and represent her in court. As a minor, Abbie was still considered an infant, so the lawsuit proceeded with her mother Margaret E. Bell named as her guardian. (Abigail’s father James had died in 1892, so Margaret took George Bell as her second husband. Sadly, he died shortly after they wed.)

Abigail made no claim of ownership over the posters. Instead, Attorney Gibbs argued that their printing violated her right to privacy. She had paid for her photograph to be taken, retained full ownership of it, and had never transferred those rights to the defendants—the Rochester Folding Box Co. and Franklin Mills, headquartered in Lockport, NY. Their actions, he asserted, had caused her significant harm, including “great injury to her nervous system.” As compensation, they sought $15,000 in damages, equivalent to nearly $560,000 today.

Before proceeding further, it is important to note the hierarchy of the New State court system. Unlike in most states, the Supreme Court in New York is not the highest court but serves as a trial court. Decisions from the New York Supreme Court can be appealed to one of four Appellate Divisions, which function as intermediate appellate courts. The highest court in the state, its equivalent to the U.S. Supreme Court, is the New York Court of Appeals.

It would be on Monday, June 25, 1900, that New York Supreme Court Judge John M. Davy first heard the arguments from both sides in the case. Elbridge L. Adams, representing the defendants, moved to have the case dismissed arguing that since no laws existed to prevent them from using her picture, they had every right to do so.

Attorney Gibbs insisted that since Abbie wasn’t a politician or someone in the public eye, she had a right to privacy. “In this case, however, here is a modest young girl of this city. Certainly she has the right to protest against this promiscuous use of her picture.”

Justice Davy commented, “If the picture tended to bring ridicule on the lady, then it would be termed libelous, but would a picture of this kind, lovely as it is, be libelous? The question is, have they a right to circulate this picture? The question of damages, it seems to me, has very little to do with it.”

Both sides would have to wait for a ruling, but the headline in the July 31, 1900, edition of the Democrat & Chronicle summarized his findings: “Girl’s Portrait Her Exclusive Property, Judge Davy’s Decision in a Pioneer Case of Interest.”

They published his opinion in its entirety. Here are just a few highlights of what he wrote:

“She is undoubtedly a young woman of rare beauty, and this she enjoys as a private citizen. It is very natural, if the plaintiff is of a modest and retiring nature, that any such publicity would be extremely disagreeable and offensive to her. It is not impossible, therefore, that she has suffered and continues to suffer great mental injury and distress.”

He went on to say, “It seems to me that the sale and circulation of lithographic copies of plaintiff’s likeness without her consent is an invasion of her private rights. Every woman has a right to retire from the observation of the public. Her face is her own private property, and no photographer would have a right to take advantage of the privilege of taking her photograph for her own private use, to make copies from the negative and sell them to the public. It would be a breach of trust and confidence placed in the photographer, and, I might add, a breach of an implied contract that he would not sell or exhibit them to the public without her consent.”

Seven paragraphs later, he writes, “If her lithographic likeness, owing to its beauty, is of great value as a trademark or an advertising medium, it is a property right which belongs to her and cannot be taken from her without her consent. She has a right to say that without her consent these lithographic copies of her likeness shall not be circulated or used by the defendants.”

He concludes, “After a careful consideration of the novel and interesting questions raised on the demurrer, I have reached the conclusion that the plaintiff is entitled to the relief demanded in her complaint and to refuse her that relief would be to admit that a wrong has been committed which causes her severe mental pain and distress and pecuniary injury, and yet the law can afford her no relief. Such a rule is contrary to my views of equity jurisprudence.

“The demurrer, therefore, is overruled, with leave to the defendants to answer on payment of the costs.”

It was immediately clear that the defendants planned to appeal the decision, but Abigail had already won on one minor point: production of the posters with her face on them ceased. That didn’t eliminate all that had been previously distributed, but no additional copies would be printed.

The Appellate Division, Fourth Department, in Rochester heard the case twice. This was necessary because one of the judges who initially presided had resigned. It should also be noted that Chief Presiding Justice William H. Adams recused himself both times from the proceedings because his son Elbridge was representing the defendants.

Their decision, handed down on July 23, 1901, upheld the lower court’s ruling. Here is one paragraph of Justice William Rumsey’s opinion:

“That one’s features or limbs may be in themselves profitable to the possessor, especially if they are of noticeable beauty cannot be denied, and so far they constitute a right of property which the court will protect. The peculiar formation which made the Siamese twins unique was undoubtedly exceedingly valuable to them, and the courts would without question have protected them against any efforts made without their consent to photograph, or by picture to produce a counterpart of that formation for the purpose of exhibition, and thereby reduce the profits they might receive from the exhibition of themselves. So if the face of a woman by reason of its beauty is especially valuable as a model from which the picture of a Madonna could be painted, there can be no doubt that any attempt by photograph to reproduce a face so that it might be sold to a painter, thereby depriving the owner of the opportunity to obtain for herself the profit arising from, would be a violation of her right of property, and would be restrained.”

Abigail had won again, but the defendants hadn’t given up. They still had one last chance: the New York State Court of Appeals in Albany.

They handed down their decision on Friday, June 27, 1902. In a 4 to 3 ruling, Abigail lost. The prevailing opinion was written by Chief Justice Alton Parker. It was quite lengthy, so I’ve selected a few key paragraphs:

“It will be observed that there is no complaint made that Abigail was libeled by this publication of her portrait. The likeness is said to have been a very good one, and one that her friends and acquaintances were able to recognize; indeed, her grievance is that a good portrait of her, and, therefore one easily recognized, had been used to attract attention toward the Flour Company advertisement. Such publicity, which some find agreeable, was to Abigail very distasteful, and because of the advertiser’s impertinence in using her picture without her consent for its own business purposes, she claimed she had suffered mental distress. Others might have appreciated the compliment to their beauty implied in the selection of the picture for such purposes; but it was distasteful to her.”

He continues, “The so-called right of privacy is, as the phrase suggests, founded upon the claim that a man has the right to pass through this world, if he wills, without having his picture published, his business enterprises discussed, his successful experiments written up for the benefit of others, or his eccentricities commented upon either in handbills, circulars, catalogs, periodicals and newspapers, and necessarily, that the things which may not be written and published of him must not be spoken of him by his neighbors, whether the comment be favorable or otherwise.”

Further on his decision, he writes, “If such a principal be incorporated into the body of the law through the instrumentality of a law of equity, the attempt 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 the publication of a likeness, but must necessarily embrace as well the publication of a word picture, a comment upon one’s looks, domestic relations, conduct or habits.”

Well, you get the idea. Basically, there was no right to privacy established in the law, he seems to suggest that she should have been flattered that they chose to use her image, and if they had ruled in her favor, it would have opened the floodgates for lawsuits by anyone else who ever felt any sort of mental distress.

One thing that Judge Parker did point out in his decision was that it was within the power of the State Legislature to enact laws that would protect one’s privacy. And that’s exactly what they did. In 1903, they enacted a “right to privacy” law, although it was fairly limited in scope. Basically, it prohibited companies from using a person’s name or likeness without their consent, a law that has since been adopted by many other states.

Parker’s decision was deeply unpopular and his words would come back to haunt him.

In 1904, while running as the Democratic candidate for President of the United States, Parker became annoyed by the constant intrusion by the large number of photographers attempting to snap pictures of him and his family. So, at his home in Esopus, NY on July 15^th, he announced, “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.”

The story was picked up by the wire services and printed in newspapers across the nation. One observant reader was a young woman in Rochester named – you guessed it – Abigail Roberson and she penned a letter to Parker. It is so brilliantly written that I am going to present it in its entirety:

“Rochester, N.Y., July 20, 1904,

“Hon. Alton B. Parker, Esopus, N.Y.:

“My Dear Sir: I read in the Associated Press dispatches yesterday afternoon that Mrs. Parker was obliged to leave home to avoid the annoyance of ubiquitous photographers, notwithstanding the warning given by you, and reported in the same dispatches last Saturday morning, in which it was announced that that would be the last day of promiscuous photographing of yourself and family, and wherein you are quoted as saying, ‘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.’

“I take this opportunity to remind you that you have no such right as that which you assert. I have very high authority for my statement, being nothing less than a decision of the Court of Appeals of this state wherein you wrote the prevailing opinion. The action was one in which I was the plaintiff and Rochester Folding Box Company and another corporation were the defendants and is reported in the 171 N.Y., at page 538.

 “You may recollect that the facts in that case were undisputed, and that it was admitted that the defendants without my knowledge or consent, and knowing that they had no right or authority so to do, had secured my photograph, and, having caused it to be enlarged and lithographed in life-size, had circulated about 25,000 copies thereof as an advertisement of the commodities in which one of the defendants dealt; that the likeness were posted conspicuously in stores, warehouses, saloons, and other public places, and had been recognized by my friends and others; that my good name had been attacked, as a consequence, and that as a result of the shock and mortification upon my ascertaining that I had been made public property in this manner, I was actually confined to my bed with nervous troubles and placed under the care of a physician; that such use of my likeness was being continued and that I desired an injunction against the defendants restraining the further use thereof.

“The question arose upon demurrer, and the Special Term held that the complaint entitled me to relief. The Appellate Division of the Fourth Department unanimously affirmed the decision, and upon the appeal to the Court of Appeals this latter court was divided, three of the Judges deciding with you that the facts admitted no ground for relief and three dissenting. You referred to my cause of action as a ‘so-called’ right of privacy, and admitted that such publicity, ‘which some find agreeable,’ is to plaintiff very distasteful, and that I suffered mental distress, ‘when others would have appreciated the compliment to their beauty,’ and in an opinion sixteen pages long you arrived to the conclusion that I had no rights that could be protected by your tribunal.

“To be perfectly fair to you, I ought to say that you expressly excepted from the effect of your decision any publication under similar circumstances which was in its nature libelous. It necessarily follows, therefore, when you now say that you reserve the ‘right’ not to be photographed with your hands in your pockets or in other comfortable attitudes, either that you are asserting a right for yourself and your family which you are unwilling to accord to litigants before your court, or else that there is something in the attitude suggested of such a nature that a reproduction of it with photographic exactness would be necessarily libelous. It is not apparent how your likeness in the attitude suggested could be libelous, at least not as long as you kept your hands in your own pockets.

 “I am forced to the conclusion that this incident well illustrates the truth of the old saying that it makes a whole lot of difference whose ox is gored. I sympathize with Mrs. Parker in her annoyance, but I know of no reason why you or your family have any rights of the nature suggested which do not equally belong to me. Indeed, as between us, I submit that I was much more entitled to protection than you. I was a poor girl making my living by my daily efforts, and never had courted publicity in any manner. I had never appeared before the public in any capacity nor solicited any favor at its hands. You, on the other hand, are a candidate for the highest office in the gift of the people of the United States, and that fact makes you the legitimate centre of public interest. You are asking the suffrage of the American public, and the American public would seem to have some legitimate right of investigation. Your candidacy is something more than merely voluntary, and it may fairly be said that you have invited the curiosity which we have both found to be somewhat annoying. To this extent, at least, it would seem to me that the right which you denied me, but which you now assert for yourself, was stronger in my case than in yours.

“If you will reread your opinion you will discover that you lay down very clearly therein that you have no cause of complaint against these gentlemen armed with cameras. They are acting strictly within the rights reserved to them by your decision, for in that document you distinguish my case from one wherein the party misusing my photograph had obtained it with the right to use it for certain purposes but was using it in some other manner. In that case you admitted that such use could be restrained. In effect you contended that the rights of one who obtains a likeness surreptitiously are superior to those of one who buys the right to use it for one purpose but uses it for another. Naturally, the camera fiends feel license to annoy yourself and family in the manner in which you yourself suggested, at least within the borders of this state.

“I sincerely hope that if you suffer annoyance of this kind in some locality where you decision is not controlling you may be granted the relief which you denied me.

“Very truly yours, Abigail Roberson.”

The vast majority of the newspapers across the nation applauded her response, although some did suspect that her lawyer had penned the bulk of the letter.

From the July 29, 1904, publication of the Democrat & Chronicle: “The public has seen, read and enjoyed Miss Abigail Roberson’s letter to Judge Parker. Now the public waits to be similarly entertained by Judge Parker’s answer to Miss Abigail Roberson’s letter.”

The Elmira Advertiser wrote, “Miss Roberson has scored heavily and cleverly. There is no possible escape from her logic. Parker, the citizen, has no right to object to the law and the ruling of Parker, the judge. It indeed makes a difference whose ox is gored. His opinion and vote in this case and Miss Roberson’s rejoinder are bound to cut something of a figure in this campaign.”

And from the Boston Herald: “Miss Abigail Roberson, a young woman of Rochester, must be credited with scoring a fair hit on Judge Parker, one which, if he has a sense of humor, he will enjoy, although we do not see how he can make any reasonable defense. And it may not be altogether without influence, for many persons consider his judicial decision in the case to which Miss Roberson was a party as strained, unreasonable and contrary to common sense.”

Judge Parker never offered up a response, a decision that may have played a part in him losing the election. Teddy Roosevelt won in a landslide, capturing 56.4% of the popular vote compared to Parker’s 37.6%.

By the time the Democrat & Chronicle had caught up with Abbie in 1967, the Franklin Mills Co. was defunct, while the Rochester Folding Box Company had been acquired by the Weyerhaeuser Company, one of the largest lumber companies in the world.

As for Abbie, she told how one of her brothers had paid her way through music school, and would spend the next forty years playing piano in silent movie theaters, churches, and similar establishments. In fact, she lived for many years at 1823 7^th Avenue in Troy, NY, which is just a short distance from my house. The building is long gone, but I have passed that exact spot many times.

In the late 1960s, she moved to Salem, Oregon to live with her niece. Abigail Mae Roberson died in a hospital there on Tuesday, May 17, 1977. She was 94 years old.

I’ll leave you with one final thought: Abbie may have lost her case, but it became a win for everyone else. Today, no one would ever think of placing an image on a poster, in a book or magazine, or in a video without asking for their permission. And we can thank Abigail Roberson for that.

Useless? Useful? I’ll leave that for you to decide.