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Who owns your image?

By ILENE FLEISCHMANN

Published September 3, 2015

“The more self-focused and image-conscious we become, our law seems to follow in step.”
Samantha Barbas, associate professor
UB Law School

“Image is everything,” tennis star Andre Agassi intoned a quarter-century ago in a famous ad for Canon cameras. That bald assertion set the tone for the image-conscious 1990s and prompted backlash from pundits who retorted that, well, substance still counts for something.  

But, as UB Law School faculty member Samantha Barbas argues in her new book, Americans’ obsession with self-presentation and their desire to control the use of their images goes much deeper in our history.

In “Laws of Image: Privacy and Publicity in America,” to be published this fall by Stanford University Press, Barbas looks at the development of laws that govern the use of people’s public images. The legal history, she says, is tied up with the nation’s cultural history as the law has reflected Americans’ growing concern about their images, reputations and self-presentation in public.

“I tried to reframe the way that legal scholars have been looking at this area of the law,” says Barbas, an associate professor of law who has written previously about privacy issues and the cult of celebrity. “I wanted to tie it in with American culture’s preoccupation with personal image. The more self-focused and image-conscious we become, our law seems to follow in step.”

That attitude, she says, developed as the United States moved from an agrarian society to an industrial one in the late 19th century. “As people moved to the cities, where they were surrounded by strangers, they became more concerned with creating and projecting a positive public image — making a good first impression,” she says. “It’s not like a small town, where everybody knows you. Not only celebrities, but ordinary people became conscious of their image and believed they should have some control over their image.”

The rise of image-intensive industries — fashion, cosmetics, advertising and the movies — also led people to become more conscious of their appearances and social personas. In the 20th century, Barbas argues, Americans came to see their identities as intertwined with their public images.

In her research, Barbas, who holds a PhD in American history, looked at reported court decisions from the viewpoint of a cultural historian. She also looked at the archival records of such publications as The New Yorker and The New York Times from the 1920s and ’30s “to see what kinds of libel and privacy claims were being made and how they were dealt with, what arguments were made.”

One example of the way the law reflected Americans’ image-consciousness can be seen in a 1947 case, Cason v. Baskin. The author Marjorie Kinnan Rawlings — famous for “The Yearling” — wrote in her autobiography about a friend of hers. The friend was portrayed in a positive light, but she objected anyway, saying in essence, “that’s not how I want to portray myself to the world.” The friend sued for “invasion of privacy” and the resulting court decision, Barbas says, created an important precedent in privacy law.

“The Laws of Image” concludes with a discussion of the myriad privacy questions around online media. “People will post all kinds of things online, really intimate stuff about themselves,” Barbas notes. “They’ll put it on Facebook and someone else will put it somewhere else, and they then claim invasion of privacy. That, to me, is an emblem of the feeling that ‘I should be able to own all aspects of my persona.’”