Privacy,Property or Propriety: The Case of “Pretty Portraits” in Late Nineteenth-century America

Abstract

The advent of the photographic camera in the mid-nineteenth century enabled the “likeness” of an individual to be lifted with relative ease from its possessor and rendered with uncanny precision upon material. This fracturing of the subject into transportable, reproducible objects threatened a novel kind of harm, especially for women. This article brings new research to bear on the origins of the American “right to privacy” (such as the Federal 1888 “Bill to Protect Ladies”), arguing that the foundational 1890 article by Warren and Brandeis was but one of numerous attempts to remedy the unauthorized circulation of women’s photographic portraits. The gendered nature of this “right” means it must also be contextualized within women’s history and the broader struggle for equal citizenship. The “right to privacy” cannot simply be dismissed as a purely conservative doctrine invoking feminine modesty. In its demands for the legal recognition of those pictured as active subjects, rather than “pretty” objects, as individuals rather than nameless faces, as possessors of valuable property, rather than as valuable possessions in themselves, I argue that the “right to privacy” challenged the masculine prerogative of copyright law and pushed back against the reduction of women to silent, compliant images that was occurring on an industrial scale, in the late nineteenth century.