September 24, 2014

The Invention that Resulted in the Rights of Privacy and Publicity

3 min

The Right of Privacy has become deeply embedded in our culture and is part of our everyday conversations as a result of the NSA's reported eavesdropping, drones flying overhead taking pictures, and the data mining of everything we do on the Internet.  Let us not forget the surreptitious pens filming us in public and  Google glasses capturing our every move.  It is no surprise that in this environment we more regularly see celebrities claiming violation of their Right of Publicity (an offshoot of the Right of Privacy).  Today, the Right of Privacy and Right of Publicity are governed by statutes in most jurisdictions and those that do not have specific statutes use the common law.

Have you ever wondered from where this set of rights arose and why?  You cannot find them written out in the Constitution, and you do not find our Founding Fathers discussing them.  It all started in 1890 when two legal scholars, Samuel Warren and Louis Brandeis (who later became renowned Supreme Court Justices) wrote a Law Review article entitled “The Right to Privacy.”  This Law Review article had a profound effect and as a result, four new torts under the banner of Right of Privacy came to be, and a few years later the Right of Publicity began its evolution as an offshoot.

What prompted Warren and Brandeis to write their Law Review article?  Did it appear out of thin air?  What threat motivated these gentlemen to feel a need to articulate this new doctrine and protection?  It was the development of a nefarious, threatening and dangerous device, the hand-held camera.

In the early 19th century and into the 1880s, it was difficult and ponderous to take a picture.  One had to sit still for hours and it was usually in a controlled environment.  It was a situation in which one voluntarily wanted to be photographed.  This all changed in 1888 when George Eastman introduced the Kodak Camera (which cost about what an iPad would cost in today's dollars).  It was a small handheld box.  Interestingly, the first cameras for consumers arrived with 100 shots preinstalled.  After you took all 100 pictures, you would ship the camera back to the Kodak factory for them to process the pictures and you would receive your developed photos and camera back at a later time.  This allowed everyone, not just photographers, to take pictures of one another; hence the term “snapshot” became a part of our vocabulary.  Lost was the ability to behave embarrassingly in public and not have your conduct captured for posterity.  Until the Kodak Camera, except for a few eyewitnesses, your public behavior was private.  This loss of privacy is what shocked Warren and Brandeis – they feared the insidious Kodak Camera and how it would affect our well-being, stating:

Instantaneous photographs and newspaper enterprise have invaded the sacred precincts of private and domestic life...the latest advances in photographic art have rendered it possible to take pictures surreptitiously.

How prophetic these scholars were in their concerns!  Out of their fear, our legal bulwark and protections against undo invasion of privacy grew.   For that, we can either praise, or blame, the simple Kodak box camera.