Medical Men and Peeping Toms

This chapter examines cases in which a right to privacy was invoked by women to protest against violations of their bodies or the bodies of their newborn babies. This chapter offers a history of the right to privacy that charts the ways in which the law traditionally “protected” women’s bodies by treating them as male property and confining them to the home. The advent of the camera, its ability to penetrate physical and temporal boundaries, and its creation of movable as well as moving images, brought into question the efficacy of laws such as trespass and nuisance (grounded in physical structures) to protect personal privacy. To highlight the new invasions inflicted by the camera, I compare the cases of DeMay v Roberts and Feeney v Young, which involved the optic violation of a woman’s reproductive body by a stranger’s eyes and a camera respectively. Using a series of medical cases, I argue that many women invoked a right to privacy to protest against the transformation of their bodies (and the bodies of their dead deformed infants) into voyeuristic spectacles of “monstrosity”.

Privacy for Profit and a Right of Publicity

This chapter charts the evolution of a right to privacy to a “right of publicity” in US law and argues that if a right to privacy is recognized as a doctrine primarily used by women to control their images, the development of a right of publicity was a logical extension that accorded with women’s increasing participation in the paid work force. In the 1930s, women found new career opportunities in the emerging visual arts industries as dancers, models and actors and a right to privacy was employed by professional women to protect and profit from what Liz Conor has termed their “techniques of appearing”. It is in this context that a right to privacy’s racial dimensions are best examined, particularly the case of Myers v African American Publishing Co involving a claim by a young “tribal” dancer from Harlem who successfully sued over the publication of professional photographs that had been doctored to emphasise her nudity. A right to privacy was also invoked by men to protect their professions of performance (as golfers, bullfighters, boxers and ball players) and despite numerous early cases brought by professional women, it was in this masculine context that “a right of publicity” was first articulated.

Hollywood Heroes and Shameful Hookers

This chapter examines the cases in which individuals used a right to privacy to claim ownership over their life stories, when appropriated by film studios for fiction films. It tracks the move of industrial image making from the East Coast to the West coast of the United States in the 1910s and compares the different contexts of New York’s privacy laws with California’s, informed as they were by a utopian “pursuit of happiness” guaranteed by the Californian Constitution. This chapter also examines the right of privacy in relation to the censorship demands of the Hays Code and considers the onscreen celebration of men’s heroic “public” lives compared to the shaming of women’s “private” lives. It discusses the motion pictures CDQ or Saved by Wireless (1911), The Red Kimono (1925), Yankee Doodle Dandy (1944) and The Sands of Iwo Jima (1949). Whereas female plaintiffs took issue with being condemned or marginalized by films because of their sexuality (their status as hookers or divorcees), men protested the implications of being publicly celebrated for their professional deeds or achievements.

Setting the Scene

This chapter offers an analysis of the changes in visual technologies that were occurring in the nineteenth century and the ways in which photography and cinema radically altered the experience of seeing and being seen by others. For the picture taker, photography offered many pleasures; for the pictured subject, however, it created an acute tension between feelings of identification and alienation. I argue that the invention of photography and its fashioning as an amateur pastime (led by George Eastman and the Kodak company) from the 1880s, together with the development of cinema at the end of the nineteenth century, occasioned the potential for new harms to pictured subjects (especially women) for which existing laws provided inadequate redress. This chapter discusses the popularity of ‘detective’ cameras and surreptitious photography and the ways in which the camera became a gendered device – with advertisements and news commentary employing camera-as-firearm associations and casting young men as ‘hunting’ for pictures of ‘pretty girls’. It also demonstrates the potential discomfort of becoming a subject upon the silent screen in early film history and how film studios appropriated people’s personal narratives in their drive for sellable stories.

“Has a Beautiful Girl the Right to Her Own Face?”

This chapter investigates the ways in which late nineteenth century concerns about the unauthorised publication of women’s portraits (in advertising, greeting cards and magazines) led to the legal formulation of a right to privacy in the US. It examines the history of this right within debates concerning the 1888 Bill to Protect Ladies, prior to Samuel Warren and Louis Brandeis’ seminal article, and connects claims to a right to privacy to the advent of the New Woman and women’s broader struggle for equal citizenship. It argues that despite its emphasis on ladylike “modesty” and “reserve”, the case of Roberson v Rochester Folding Box (which led to the enactment of the first privacy laws in the United States) can be read as the protest of a courageous young woman against the use of her photograph within advertising that transformed her into an anonymous “pretty” object of mass consumption. This chapter compares her objections to the masculine language of liberty and freedom espoused in Pavesich v New England Life Insurance Co. In most of the early cases, a right to privacy was employed by young women who objected to their images being handled and circulated by others.

Conclusion

In the conclusion, I discuss the implications of privacy’s gendered history – did this doctrine reinforce traditional ideals of femininity or did it assist in women’s struggle for equal citizenship? Did the legal community initially frame the question of whether individuals should have rights to their images as one of ‘privacy’ because women brought the majority of the claims? Would it have been framed differently, such as an issue of property rights, if men brought cases in equal or greater numbers? The concluding chapter also comments upon the ways in which this history relates to and informs contemporary debates about the circulation and publication of naked or sexually explicit images of women on the Internet. I argue that current attempts by women and their advocates to address the phenomenon of revenge pornography or nonconsensual pornography echo the earlier struggles for image rights and the recognition of a right to privacy that began in the first years of the 20th century. I also reflect upon the importance of emphasising the experiences of plaintiffs as well as the outcomes of cases in legal history; and the benefits of interdisciplinary scholarship at the intersections of law, film studies and women’s history.

Privacy, the Celluloid City, and the Cinematic Eye

This chapter focuses on the cinematic camera’s recordings of women in urban public space. It examines claims to a right to privacy in relation to early nonfiction film in the form of cinema advertising, newsreels and documentaries. The cases discussed are significant for their contribution to the development of privacy law, and to the study of early film history. They offer insights into the discomfort experienced by those caught unknowingly in a motion picture during this period. The plaintiffs (all women) tell vividly of their shock and distress at becoming the object of a mass gaze, with their movements and mannerisms looming larger than life on the big screen. These women fought for restrictions on the practices of early filmmaking, but the cases also reveal the limits of the doctrine of privacy when used in this context. Courts tended to frame the issue in terms of the gendered public/private dichotomy (so entrenched within the law), usually privileging the masculine “public interest” in nonfiction filmmaking (for news, documentary or ethnographic purposes) over a woman’s individual right to privacy.

Introduction

In 2015 Lastonia Leviston successfully sued rapper ’50 Cent for breach of privacy after he uploaded a sex tape of her without consent. She relied upon statutory laws forged in 1903 in the wake of a case brought by young Abigail Roberson to prevent the use of her pretty face in advertisements. This chapter introduces a new interdisciplinary history of the evolution of privacy law that places the legal activism of individual women front and center. The invention of a legal ‘right to privacy’ in the United States did not begin nor end with Samuel Warren and Louis Brandeis’ famous Harvard Law Review article in 1890. The advent of photography and cinema in the mid to late 19th century caused new harms to individuals, particularly women. A right to privacy became the discourse for protesting the unauthorised circulation and publication of women’s images, as contemporary debates concerning the 1888 Bill to Protect Ladies demonstrate. This chapter also connects the gendered history of ‘a right to privacy’ to current issues concerning the regulation of the unauthorised circulation of women’s nude or otherwise explicit images online, known as revenge pornography or non-consensual pornography.