How Roberson v. Rochester Folding Box Denied Privacy

Q: Why is Roberson important if the plaintiff lost?

Roberson framed the entire American debate over privacy. Its refusal to recognize a common-law right prompted the first state privacy statute and set up the contrast with Georgia's Pavesich decision three years later, which reached the opposite conclusion. Together they shaped how every other state approached the question.

New York's highest court refused to recognize a common-law right of privacy after a young woman's photo was used on flour ads, prompting the legislature to enact one within a year.

Abigail Roberson was a young woman in Rochester, New York, when she discovered her own likeness on flour advertisements posted in shops, saloons, and warehouses across the region. The Franklin Mills Company and the Rochester Folding Box Company had printed her portrait on some twenty-five thousand lithographic posters under the punning headline “Flour of the Family,” all without ever asking her. Humiliated by the recognition and jeers, she sued. In Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (1902), the New York Court of Appeals delivered a result that startled the public: by a four-to-three vote, it held that the common law recognized no right of privacy at all, and so she had no claim. The decision lost the battle for Roberson but, by provoking the first American privacy statute, helped win the war.

At a glance

Case: Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 64 N.E. 442 (N.Y. 1902).
Court: New York Court of Appeals; majority opinion by Chief Judge Alton B. Parker, with a vigorous dissent by Judge John Clinton Gray.
Posture: Appeal from a decision sustaining the plaintiff’s claim; reversed, 4-3, dismissing the complaint.
Holding: No common-law right of privacy exists in New York; the unauthorized use of a person’s photograph for advertising, however distressing, is not by itself an actionable legal wrong.
Significance: The decision that defined the privacy debate by rejecting the right, prompting New York’s 1903 statute (Civil Rights Law §§ 50-51) and setting up the contrast with Georgia’s Pavesich.

The advertisements depicted Roberson’s face and circulated widely enough that acquaintances recognized her, subjecting her, the complaint alleged, to scoffs and jeers that caused severe nervous shock and confined her to bed under a physician’s care. She sought an injunction and damages, arguing that she possessed a right to prevent the commercial exploitation of her own image. The lower courts were sympathetic, but the state’s highest court was not.

A court unwilling to make new law

Chief Judge Parker’s majority opinion rested less on the conclusion that Roberson had suffered no harm than on the court’s reluctance to invent a remedy. The so-called right of privacy, Parker wrote, had not yet “found an abiding place in our jurisprudence,” and could not be sustained without “doing violence to settled principles of law.” He worried that recognizing such a right would open a “vast field of litigation,” because liability might extend to the publication of portraits in newspapers, comments on personal appearance, and countless ordinary uses, with no clear stopping point.

The majority also drew a property-and-injury distinction that later courts would criticize. Roberson, the court reasoned, had not been deprived of any tangible property, her photograph had no inherent market value that had been taken, and her injury was essentially mental and emotional. Without an injury the law then recognized as cognizable, there was nothing on which to base relief. The proper forum for creating a new right, Parker concluded, was the legislature, not the bench.

The dissent that became the law

Judge Gray’s dissent reads, in retrospect, like a prophecy. He argued that the law should protect a person against the unauthorized commercial use of their likeness, contending that an individual has a right to be protected against having their features exhibited for another’s profit. Drawing on the same intellectual current that animated Warren and Brandeis’s 1890 article The Right to Privacy, Gray maintained that equity could and should restrain such an invasion, and that the absence of a precise precedent was no reason to deny a plainly meritorious claim.

Gray’s position commanded three votes—a single vote short. But it captured public sentiment. The notion that a corporation could plaster a private young woman’s face across thousands of posters with complete legal impunity struck many as obviously wrong, and the press and bar reacted sharply, including a notable published defense of the result by one of the majority that only intensified the controversy.

The legislature responds

The most important consequence of Roberson came not from any court but from Albany. Reacting to the public outcry, the New York Legislature in 1903 enacted a statute—now Sections 50 and 51 of the New York Civil Rights Law—that did exactly what the Court of Appeals had refused to do. Section 50 made it a misdemeanor to use the name, portrait, or picture of any living person for advertising or trade purposes without that person’s written consent. Section 51 created a civil cause of action for injunctive relief and damages, including exemplary damages for knowing violations.

That statute, the first of its kind in the United States, remains the foundation of New York’s privacy and publicity law to this day. Because New York channeled the entire field into the statute, it has continued to reject a separate common-law right of privacy, applying instead the precise terms Sections 50 and 51 supply. Roberson thus produced a durable, statute-centered regime quite different from the judge-made rights that developed elsewhere.

Open questions

Where is the line between trade use and protected speech? The 1903 statute reached advertising and “trade” but not news and commentary, a distinction New York courts have spent more than a century refining.
What counts as a recognizable likeness? Roberson involved a literal photograph; later disputes over look-alikes, drawings, and digital images test how far “portrait or picture” extends.
Should emotional harm alone suffice? The majority discounted purely mental distress; modern law treats dignitary injury as real, but how to measure it in image-misuse cases remains contested.

Implications

Courts may defer to legislatures. Roberson is a classic example of a court declining to create a new tort and inviting statutory action instead—an invitation the legislature promptly accepted.
Statutes can outpace the common law. New York’s §§ 50-51 became the template for protecting name and likeness, showing how a single controversial decision can trigger lasting legislation.
Written consent is the safe harbor. Under the resulting statute, a signed release for advertising or trade use is the surest defense, a practice that endures across the media and advertising industries.
New York remains statute-only. Because the right exists by statute, New York analyzes name-and-likeness claims strictly under §§ 50-51 rather than under a free-floating common-law privacy right.
The Roberson–Pavesich split shaped the nation. The contrast between New York’s refusal and Georgia’s recognition framed how other states chose between statutory and common-law approaches to privacy and publicity.

Frequently asked questions

What did Roberson v. Rochester Folding Box Co. hold? By a 4-3 vote, the New York Court of Appeals held that the common law did not recognize a right of privacy, so a young woman whose photograph was used without consent on 25,000 flour advertisements had no legal remedy. The court declined to create the right judicially, leaving it to the legislature.

What happened after the court rejected the claim? Public outrage over the decision pushed the New York Legislature to act quickly. In 1903 it enacted what became Sections 50 and 51 of the New York Civil Rights Law, making it unlawful to use a living person’s name, portrait, or picture for advertising or trade without written consent, and providing for injunctions and damages.

Why is Roberson important if the plaintiff lost? Roberson framed the entire American debate over privacy. Its refusal to recognize a common-law right prompted the first state privacy statute and set up the contrast with Georgia’s Pavesich decision three years later, which reached the opposite conclusion. Together they shaped how every other state approached the question.