The Unintended: Photography, Property, and the Aesthetics of Racial Capitalism 9781479812431

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THE

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THE UNINTENDED

INTENDED

A M E R I C A A N D T H E LO N G 19T H C E N T U RY General Editors: David Kazanjian, Elizabeth McHenry, and Priscilla Wald Black Frankenstein: The Making of an American Metaphor Elizabeth Young Neither Fugitive nor Free: Atlantic Slavery, Freedom Suits, and the Legal Culture of Travel Edlie L. Wong Shadowing the White Man’s Burden: US Imperialism and the Problem of the Color Line Gretchen Murphy Bodies of Reform: The Rhetoric of Character in Gilded Age America James B. Salazar Empire’s Proxy: American Literature and US Imperialism in the Philippines Meg Wesling Sites Unseen: Architecture, Race, and American Literature William A. Gleason Racial Innocence: Performing American Childhood from Slavery to Civil Rights Robin Bernstein American Arabesque: Arabs and Islam in the Nineteenth Century Imaginary Jacob Rama Berman Racial Indigestion: Eating Bodies in the Nineteenth Century Kyla Wazana Tompkins Idle Threats: Men and the Limits of Productivity in Nineteenth-­Century America Andrew Lyndon Knighton Tomorrow’s Parties: Sex and the Untimely in Nineteenth-­Century America Peter M. Coviello Bonds of Citizenship: Law and the Labors of Emancipation Hoang Gia Phan The Traumatic Colonel: The Founding Fathers, Slavery, and the Phantasmatic Aaron Burr Michael J. Drexler and Ed White Unsettled States: Nineteenth-­Century American Literary Studies Edited by Dana Luciano and Ivy G. Wilson Sitting in Darkness: Mark Twain’s Asia and Comparative Racialization Hsuan L. Hsu

Picture Freedom: Remaking Black Visuality in the Early Nineteenth Century Jasmine Nichole Cobb Stella: A Novel of the Haitian Revolution Émeric Bergeaud Translated by Lesley Curtis and Christen Mucher Racial Reconstruction: Black Inclusion, Chinese Exclusion, and the Fictions of Citizenship Edlie L. Wong Ethnology and Empire: Languages, Literature, and the Making of the North American Borderlands Robert Lawrence Gunn The Black Radical Tragic: Performance, Aesthetics, and the Unfinished Haitian Revolution Jeremy Matthew Glick Undisciplined: Science, Ethnography, and Personhood in the Americas, 1830–­1940 Nihad M. Farooq The Latino Nineteenth Century Edited by Rodrigo Lazo and Jesse Alemán Fugitive Science: Empiricism and Freedom in Early African American Culture Britt Rusert Before Chicano: Citizenship and the Making of Mexican American Manhood, 1848–­1959 Alberto Varon Emergent Worlds: Alternative States in Nineteenth-­Century American Culture Edward Sugden Haiti’s Paper War: Post-­Independence Writing, Civil War, and the Making of the Republic, 1804–­1954 Chelsea Stieber The Garden Politic: Global Plants and Botanical Nationalism in Nineteenth-Century America

Mary Kuhn

The Unintended: Photography, Property, and the Aesthetics of Racial Capitalism Monica Huerta

THE

The Unintended M O N I CA H U E R TA Photography, Property, and the Aesthetics of Racial Capitalism

UN M O N I CA H U E R TA

INTENDED

Photography, Property, and the Aesthetics of Racial Capitalism

NEW YOR K UNI V ER SIT Y PR ESS New York

N E W YOR K U N I V E R S I T Y PR E S S New York

N EW YOR K U N IVE RS IT Y PR ESS

New York www.nyupress.org Sections of chapter 3 originally appeared as “What’s Mine: Involuntary Expressions, Modern Personality, and the Right to Privacy,” J19: The Journal of Nineteenth Century Americanists 4, no. 2 (2016): 359–389. Ł C19: The Society of Nineteenth-Century Americanists © 2023 by New York University All rights reserved References to Internet websites (URLs) were accurate at the time of writing. Neither the author nor New York University Press is responsible for URLs that may have expired or changed since the manuscript was prepared. Library of Congress Cataloging-in-Publication Data Names: Huerta, Monica, 1981–  author. Title: The unintended : photography, property, and the aesthetics of racial capitalism / Monica Huerta. Description: New York : New York University Press, [2023] | Series: America and the long 19th century | Includes bibliographical references and index. Identifiers: LCCN 2021039782 | ISBN 9781479812424 (hardback) | ISBN 9781479812400 (paperback) | ISBN 9781479812493 (ebook) | ISBN 9781479812431 (ebook other) Subjects: LCSH: Images, Photographic—Social aspects—United States—History—19th century. | Racism—Economic aspects—United States—History—19th century. | Portrait photography—Appreciation—United States—History—19th century. | Intellectual property—United States—Cases. | Photographs—Law and legislation— United States—History—19th century. | Privacy, Right of—United States—Cases. | United States—Race relations—History—19th century. Classification: LCC TR23 .H84 2022 | DDC 770.973—dc23/eng/20220331 LC record available at https://lccn.loc.gov/2021039782 New York University Press books are printed on acid-­free paper, and their binding materials are chosen for strength and durability. We strive to use environmentally responsible suppliers and materials to the greatest extent possible in publishing our books. Manufactured in the United States of America 10 9 8 7 6 5 4 3 2 1 Also available as an ebook.

To the space we leap or settle into every time we write, and to the wild thoughts, beloveds, muses, ancestors, animal companions, long-­lost loves, and unlikely notions that wait for us there and while we’re drifting there.

Contents

Pr e fac e

Read, Don’t Move ix

I N T R O D U CT I O N Without Intention . . . . . . . . . . . 1

1 E X P R E S S I O N . . . . . . . . . . . . . . . . . . . 35 2 P R O P E R T Y ’ S P R O S C E N I U M . . . . . . . . . . . . 7 7 P R O P E R T Y ’ S H O R I ZO N . . . . . . . . . . . . . 119 3 P R O P E R T Y ’ S E D G E . . . . . . . . . . . . . . . 155 4 5 E X P R E S S I O N L E S S . . . . . . . . . . . . . . . . 189

C O DA Relations beyond Property . . . . . . . . . . . 215

Ac k now l e d g m e n t s  2 23 No t e s  2 27 Bi bl io g r a ph y  2 67 I n de x  29 7 A b ou t t h e Au t hor  30 9

Figure P.1. Carte-­de-­visite, captioned “Learning Is Wealth: Wilson, Charley, Rebecca & Rosa, Slaves from New Orleans,” 1864. Photograph by Charles Paxson. Cartes-­de-­Visite Collection, Photographs and Prints Division, Schomburg Center for Research in Black Culture.

Pr eface Read, Don’t Move

No ease makes this scene familiar. Three children sit and read or pretend to read in a semicircle with an older man (figure P.1).1 Reserves of inequity inhere in awkward staging and confident caption. Learning Is Wealth sought to assuage some and discipline others in its function as prediction. Reaching toward aphorism, Learning Is Wealth unvoiced persistent questions: by whom? for whom? In this book, I read photographs as mise-­en-­scène for adjudicating value and harms through property’s “protections.” My hope is that engaging these scenes might help keep uncomfortable what images like this one made familiar about reading photographs. The caption’s primary conceit is that the subjects, designated as “slaves from New Orleans,” did not have ties of affiliation and ancestral connection other than settler-­slaveholder claims and were not previously involved with wealth creation. The additional conceit is that “wealth” is a neutral term rather than a product of dispossessive practices and histories. But the slave market in New Orleans was the largest in the South and as such was a crucial economic engine for “westward expansion.” That phrase, like the designation of “New Orleans,” holds within it the trafficking of kidnapped African and African-­descended peoples through imperial conquest as connected but non-­equivalent to the “malleable and promiscuous” forms of Native lifeways’ dispossession, which were carried out in part by the transformation of environments into land, aided after the Civil War by the expansion of modern financial corporations and investment houses.2 Any “wealth” was inconceivable without every version of colonial violence. Perhaps evoking “New Orleans” would have reminded northern viewers how devastating the Union’s naval blockade of the Gulf was for the Confederate army and the beings living in the lands it controlled. Perhaps the absence of an adult woman—­there were adult women who had been brought north with this group—­echoed racist indictments of ix

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enslaved women’s capacities for caretaking, indictments that justified multiple forms of violence and elided the overlapping histories of relations and resources from those relations that those posed as readers might have been carrying into the studio.3 Rebecca Huger, Rosina Downs, and Charles Taylor, the three children sitting with Wilson Chinn, became well known for being light-­skinned children who had been enslaved.4 When their images began to circulate in Harper’s Weekly, Rebecca was said to be about eleven years old, Rosina “not quite seven,” and Charles, about eight.5 The many images they appeared in stoked fears of white enslavement and the terror of slavery’s sexual violence, in addition to being palliative emblems for one version of abolition’s call. These cartes were attempts by abolitionists to bring some of the threats slavery posed to the nation “home,” as it were.6 And while it might have also been experienced by the children as a game of playing pretend, reading with historian Mary Niall Mitchell, here is an echo of antislavery children’s literature and a reenactment of the fraught lesson of Little Eva’s teaching Tom to read in Harriet Beecher Stowe’s Uncle Tom’s Cabin, one scene in what Laura Wexler calls sentimentalism’s “expansive imperial project.”7 Imagining that learning as depicted enabled a novel, virtuous relation to wealth fuels the sentimental appeal.8 The children posed next to Chinn replay the “surplus of difference” of light-­ skinned characters in what Daphne Brooks terms literary and theatrical melodrama’s “grammar of racial liminality.”9 Surveillance theorist Simone Browne describes how these cartes were “sold by the Freedman’s Relief Association . . . and circulated as a way to invoke fascination . . . with the one-­drop rule made collectible.”10 These overlapping, non-­identical elisions and citations supported attachments to future horizons that would not be disruptive for whitened people.11 The ongoing attempt to ensure the comfort of some again on the backs of the many continued in the middle of battle, and even as some of the children’s kin took up arms or had been involved in fighting for their freedom.12 More, the reading practice that imagined these uncomfortable people neatly aligned with the caption was itself central to the networks that extracted value and to the racialized depiction of that value.13 Through a convention that predates photography, the frame creates the illusion of a room in an image that does not have room for every figuration and relation therein.14 Although the child “literally enriched the slave­ x

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owner with its birth, she could be an assertion of humanity and autonomy on the part of her parent,” as historian Jennifer Morgan explains.15 The image does not have room for caretakers besides Chinn, though it depends on alluding to precarious familial networks. That is, while the image does not have room for other caretakers, it does have room for the presence of their absence. The caption’s insistence on wealth as the singular consequence or motivation for learning also renders the image at a slant relation to enslaved and free people who learned to read and write, or who practiced other forms of literacy, and for whom neither wealth nor comfort had yet arrived. Neither does the image have room for Saidiya Hartman’s insight that, after emancipation, “to be responsible was to be blameworthy.”16 In their varied unease, the group was already to blame for stories they were not telling about learning or wealth. This group’s capacities had been caught up with financial imaginings structuring global economic systems, literalized in the scars on Chinn’s forehead in the shape of the letters V.B.M., three of what Morgan terms the “obscene abstractions at the heart of the slave trade that reverberated across the social and economic categories that racial slavery would call into being.”17 As Darcy Grigsby has observed, given how Chinn’s body and face are angled, the letters are not legible here, and so do not immediately unsettle the very notions of reading and text the image relies on (except, of course, they do).18 In addition, the girls would have been valued more—­ more obscene abstraction—­before reaching maturity, when their reproductive output could be speculated.19 I am not exhausting here the sustained precarity or regimes of numeracy at work in the image or in bringing the group to this image. And this carte-­de-­visite needs at least one other conceit for its mise-­ en-­scène to function in line with its caption: that the event of holding books in their hands was the primary avenue for learning whose value could be measured by wealth. Here, only books make real the acquisition of intellectual, spiritual, and material “wealth.” However, the more you look at the image, the more the intended meanings of learning and wealth—­as historical occurrences, metaphors, or money—­slowly slip away from their claims. The longer you stay with it, the image is not clear about whether there’s a teacher here besides the books in their hands. Chinn’s pose—­intent and square-­shouldered—­could imply that it’s him. In the Harper’s Weekly article about this group, Chinn was reported to be about xi

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sixty years old.20 And his swivel seat—­the only one visible—­looks more like that of a schoolmaster than a seat you might take in a parlor. But as some scholars have noted, whatever Charley is sitting on elevates him to Chinn’s seated height. Reading the staging as more important than the props could give teacherly authority to Charley instead, and Charley’s youth could grant him passage into the role of Stowe’s Eva.21 Charley’s downward glance could be reviewing Chinn’s page as though checking his work. Yet, looking again, one can see that Charley’s book faces down and hangs limp from his hands, closed and unread. Irrespective of whether he had been told to seem as though he were supervising, Charley is attentive to Chinn, if not to the book he is holding. Rebecca, the older girl, reclines awkwardly against an unseen prop where Charley’s knee might be resting to steady itself. At least here, the pose she’s found doesn’t seem like that of an authority figure. Rosa, the youngest, supports her head on her arm (fist?), her child’s cheek likely pudging around her little round knuckles, and what seems like her irritated gaze does not rest on the words on the page of the book in her lap. In a spectrum ranging from discomfort and mild disinterest to frustration and noncooperation, the children all seem to have fallen out of the most likely instructed poses, no matter if there were hidden props holding them up; they visually loosen the affective trappings that might have fulfilled the caption’s promise. Because maybe the lesson being passed between them is not from a book. Could learning be happening in the tradition of Black learners orally passing on lessons that had been overheard?22 If we look in Tina Campt’s register of “visual frequencies,” perhaps the echo of those other lessons vibrates here precisely because no one is still in the choreography the caption strains against history to conjure.23 What matters to me and to this book is that Rosa is not only not reading (like Charley), but she is also not holding any pose or expression that would even remotely make the image do its “work.” Rebecca is not comfortable, but she could have seemed, even barely, as though the book in her hands had her attention. Rosa could have been a little passive (like Charley and Rebecca), and the ideology meant to resound through the image would have been able to glide over Rosa to try its “work” on us. That is, to encounter what we might call her expression is to make both the scene and the caption’s claims fall apart. Her unfulfillment of every register that might reinforce the intended ideological work of the image renders it xii

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into a series of questions. Other images of these same children attest that there were days Rosa posed convincingly. What made this moment different from others taken that day, or from other days? This day might have been tedious with posing, the meals insufficient, the directions annoying. I wouldn’t have wanted to sit and be told to pretend to read for minutes (hours?) on end while others watched and while a large-­format camera loomed, leered. But for this one, was she angry at Rebecca or one of the other children? Surely, they were often playmates, since they traveled together to Paxson’s studio and on the abolitionist lecture circuit afterwards. Had she just asked for something that was not given? Other scholars have done and will keep doing the important work of reconstructing their individual stories beyond what this scene relies on and denies. But their lived trajectories beyond the frame are not what keep me here. What I’d like to retain as a mode of inspiration for this book is Rosa’s snub from within the photograph to (even passively) stage the photograph, a subtle vibration of what Hartman calls the “radical imagination and everyday anarchy of ordinary colored girls.”24 Rosa’s doing so then is a refusal of any traditional frameworks now for photographs like these. And, at the same time, her vulnerability as a child—­that is, her child’s form of refusal—­doesn’t neatly hook her into liberal humanist politics’ ready-­made stories, upheld by a beguiling but inadequate notion of self-­possessed individuals, nor into a story about a clean rejection of those politics. These are the reasons why Rosa offers this book its ethics, in line with Stephen Best’s proposal for “a historicism that is not melancholic but accepts the past’s turning away as an ethical condition of my desire for it.”25 Borrowing this critical inclination from Best, let’s sit with Rosa’s brief and incomplete photographic apparition a little longer, while she turns away from our interpretations, irrespective of who was watching then or of who would ever after see. Let’s imagine that, after Hartman, what might also be described as a pout can teach us another register, a “radical imagination” for learning from a photograph, while keeping her reasons safe from onlookers (including me and you). Rosa is not enacting the responsible readership of any sentimental appeal, nor, in seeming to frown, is she a hopeful symbol for a nation’s united future.26 Glowering at the floor, she is even less the grateful, redeemed Christian child, the thankful-­to-­be-­free formerly enslaved child who might cleanly justify anyone’s sacrifices on the battlefield, at the voting booth, in xiii

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their pocketbooks. The snub might be a tantrum—­one we’d have a hard time blaming her for. (A question for another day: Would this be the first time we were asked to be instructed by what amounts to a tantrum, and to lesser effect?) A snub like the “gestic hail” Autumn Womack terms “looking out,” where “looking out instantiates a temporal slowdown that structures photography’s future networks of circulation.”27 In “looking out” to “slowdown,” Rosa’s expression more closely approximates later forms of “snapshots” and “candid cameras,” caught as she is in a moment just beyond what could be read as control, but without the certainty that she didn’t have it in that moment, the one just previous, or in the next. She stretches the carte into a snapshot, even though scholarly timelines and camera advertisements would claim that these didn’t exist for at least two and a half more decades.28 Then again, maybe she was missing her people, or a patch of favored grass under a shading tree. And if the image plainly fails at its ideological work—­t he only reason it was being printed in the first place—­why would this bungled image have been printed, cut, and sold? Especially when cartes-­de-­visite were, by this time, not expensive to print, and especially when other images make clear that the photographers and white abolitionists did not want for either ideas or poses for framing these children inside their political vision as in a too-­t ight room. Or, even, if Rosa was in a bad mood on this day in this precise moment, why not leave her out entirely? I ask these questions to point to a potential fissure between our reading practices and how Rosa might have been read at the time, when her “intention,” like her “consent”—­t hose other hallmarks of liberal discourse—­was precisely beside the point. Let’s hold Rosa’s snub as a bit of time-­traveling—­t hough not exactly “where the future is nesting”—­ without deciding what it was about.29 With many fraught images, this scene of failed instruction asks questions not only about histories that are difficult to “access,” but also about the centrality of reading practices for images to the kinds of histories we mine from them. This is one problematic from which Hartman crafts “close narration” in Wayward Lives, Beautiful Experiments.30 Continuing to read in that vein, though not to the fullest extent of Hartman’s ends, we see that Rosa’s snub emerges as itself study—­as in studying more than the book; studying by way of circumventing the lesson; studying the impulse to recoil; studying to deepen an inner sense that this place is not xiv

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safe even if adults say it is; studying anger and frustration; studying what there is to sense elsewhere from where you’re told to look; studying the confusion that grief ignites; studying how to carve out a space from right here that can hold what can’t be held; studying the connections no longer here but not gone because they are felt; studying the ability to refuse a pose and studying discomfort instead; studying the limits of refusal, too; studying the edge of an edge here where space and time cuddle and curve against each other here and light years away, bending the distance; studying that turns into an otherwise mode of being that doesn’t recognize the confines of prescribed studying. These speculations do not aim to “locate” her. Instead, Rosa’s snub might be held (rather than determined) as a plenitude. Perhaps there could be a way of allowing Rosa—­her “legibility” imprecise—­to anticipate this book’s reading practice for what Rosa is undoing (again, in Hartman’s poetics): the promise that a pose can align with something we call an intention to become legible as expression.31 Expression is not often a term under analysis. It is more often used as a synonym for an idea of performativity that sheds intention all together, for a theatricality where the success of gestures reflects back on intentions, more ubiquitously for rote communication or, even more commonly, as an idea of self-­expression. (Express yourself neatly echoes the Latin root, expressio, where “yourself ” is what you are thought to be “pressing out.”) But Rosa so un-­posed suggests, instead, that the idea of expression needs to be redefined as in excess of questions of intention and, instead, inclusive of a sense of withdrawal and disadequation between pose/intention. Expression as itself a problem that can unsettle the claims of power if subjected to the question of time broader than History, in the sense that time, no matter how material, can never not also be experienced figurally. Expression like a loose seam where Western epistemologies and cosmologies meet, creating an idea of Man and earth that relied on a monopoly over God, history, light, sense, and sight. Expression encountered as a question where the appearance of a pose and its presumed intention meet at an unpredictable, historically contingent slant, where an aesthetic code determines which kinds of expression are which—­involuntary or not.32 To our eyes, Rosa does not hold still in the pose that would have “completed” the captioned image. Rosa’s study, potentially, of the internal network of her own impulses and proclivities or even of none of these and xv

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nothing—­finally inspires the question this book seeks an answer to: Is there also a chance that her unposed pose—­that is, her expression (the expression that expresses now beyond what was conceivable of her by those who put her in front of the camera)—­was not entirely legible as itself, maybe even imperceptible as an expression in 1864, when she wasn’t posing, or was posing but not “correctly”? Does her expression, in looking beyond the book, a felt more than seen insistence without a discernible direction that now challenges the frames that would have made her legible and so limited by others’ (including our) capacities to interpret her—­does that same expression help us forge some other connections with the fact that this image was printed? Does her form of snubbing study insist, instead, beyond a join between educational performances and the creation of private wealth toward some other, where property’s hold over (even unintended) expressions is no longer the mode through which this image makes its way into archives, and no longer the reason we organize to study with one another? (And I do not mean that she is insisting, but that her snub could nonetheless insist for us.) Because it’s also possible that her expression was perfectly intelligible, but what was missing was desire, inclination, or capacity to offer her the kind of care she needed. Rosa moves me in this book to reach for stories about photography’s history as property that are discomfiting in order to offer alternative modes for what and how we study. Her avoidance of pretending to read, in touch with the needs of her moment, was perhaps an intuitive response to the limits of what only reading yields (it could just as easily become a practice of submission), the limits of the books that exist to be read and that are said to be important to read—­books that were themselves caught up in the workings of information circuitry and property rights suffusing the extractive economies that crossed through and over the people who had been part of another’s wealth. The rest of this book encounters some of photography’s nineteenth-­ century legal episodes to ask questions at length and with patience about the connection between reading photographs as expressions and the idea of value at stake in property protections of photographs. This book moves forward with Rosa’s irresolution here (a form of care she might have been offering herself ) by being committed to questions about how expressions become legible as such in order to be recognized as objects of property rights. I proceed with gratitude to Rosa for finding her own reasons, which xvi

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needn’t have had a relation to either Reason or reasonableness, and which only incompletely appear.33 Her expression that might not have been seen to express and a sense of intention that remains tucked safely away in spacetime while another portion time-­traveled to ask the question—­even as from then on she might have made a life with every piece—­point me now toward a mode of studying photography beyond reading what and how she was told: as though learning is, or should bear a dependent relation to, wealth.

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INTRODUCTION Without Intention

Studies of racial capitalism can help us ask questions about the adjudication of property rights in photographs.1 More often, to study photography, critics and historians tend to follow a variety of techniques attempting to marshal light, chemistry, and mechanism; imperial modes of staging, thievery, and surveillance; inventors and masters; embodied practices; minor keys of fugitivity; the epistemes that taxonomized its movements and mechanisms; the industries that made use of its reproductions and modes of interpretation that learned to see and unsee at once.2 Yet each of these trajectories that become identifiable as photography or photographs intersects in some way with property rights. In every new imperial instantiation of a market, property-­making was reimagined through operationalized dispossession and the speculation and figuration of extracted value, productive of and facilitated by the variable phenomenon of race.3 That is to say, the history of photography and the history of racial capitalism were ever conjoined. In particular, the legal paths of prints and reproductions, photographers and their subjects, reveal a proximity between commingled, unequal dispossessions and photography’s history as a medium of expression and form of commerce. Critics have made important interventions toward understanding photography as an implement for colonial regimes and photographic registers of imagining worlds to supersede racist and capitalist realism’s confines.4 Yet there is still room to understand further how lawyers, photographers, and subjects articulated photography’s harms and claims to art in property’s terms from inside the history of race. I argue in this book that examining legal episodes in the late nineteenth and early twentieth centuries can illuminate the subtle pathways of racial capitalism’s reproduction through the ways whiteness makes use of the camera’s everyday aesthetic work, especially in performance practices, novel forms of commerce, and the circulation of reproductions.5 The ubiquity 1

Introduction

of new kinds of cameras helped transform a specific aesthetics of whiteness into a technique of power that hinged on the ability to delimit (which is to say, imagine a specific sense of ) intention and its absence. The Unintended argues that it is this capacity—­to authoritatively determine what qualifies as intention and how to figure its presence or absence—­that can crystallize what’s elusive about whiteness even as its figurations make racial capitalism function: both abstraction and specific value, a governing universal that sets the terms of commercial engagement and the capacity to profit, and, for some, the potential for individuation: a capitalist aspiration made into a condition of being through an aesthetics of whiteness. By an “aesthetics of whiteness,” I mean a set of procedures expressed wittingly and unwittingly by jurists and photographers alike to accomplish at least two things: (1) making whiteness visible as a material for study while it is also duplicated and presented for artful “appreciation” and adjudication while (2) nonetheless upholding the option of abstraction for whiteness, where profits can accrue to a holder because they exist as an abstracted system/structure outside a single person’s control. Whiteness portends to be a universal and thus act in the world as a neutral value, but it also can validate the utterly particular, such as an attribute of a photograph or the manner of a person’s pose. The stories I tell are part of what Hartman names “the ambiguous legacy of universalism” and “the exclusions constitutive of liberalism.”6 The key is that whiteness is a by-­product of the production of the white male subject as the governing universal; that is, whiteness functioning as an aesthetics of power is a symptom of hegemony. It is necessarily capricious, shifting from universal to particular whenever convenient or expedient—­whiteness as a universal that needn’t defend its universality as a value, and whiteness as a particular attribute valued for reasons stated both obliquely and directly. The workings of racial capitalism help produce and feed off that abstraction. Abstractions—­in legal or economic terms—­ become the operation of power that allows whiteness to reproduce itself and oppression at once in a way that is central to the inner workings of circulation and value production of racial capitalism. The sense of an “aesthetics of whiteness” is produced in my case studies by a set of aesthetic judgments (to borrow Kant’s famous term) that are themselves part of a larger cultural logic specific to the nineteenth century. That logic takes the form of an unspoken set of scripts shared by artists, authors, photographers, lawyers, credit reporters, judges, actors, journalists, and advertising companies. Although 2

Introduction

not the central focus of this book, certain subjects resist by refusing to conform to the logic that a pose could be “legible” (and so viable) as an expression properly expressed (and so potentially owned)—­or not. I approach these aesthetic codes with curiosity about their outsized effects, because the limitations and incoherences of whiteness instantiated as an aesthetics of power are not, with some study, hard to recognize. Photographic Prophecy

Legal episodes have the capacity to—­like a camera—­capture and hold still what could be lost in the flux of cultural transition and translation. Like photographic prints, court cases are embedded in but still curiously articulate themselves as separate from the terrain they mine for principles—­those extant, those emerging, those being redefined. In the late nineteenth century, photographic techniques and technologies evolved to affix even the smallest movements to a surface—­famously, as in Eadweard Muybridge’s and Étienne-­Jules Marey’s experiments.7 And they evolved again on many streets as amateur photographers became equipped with point-­and-­shoot cameras, and while Kodak’s Brownie was embedded into rituals for bourgeois notions of how to relax and have fun. At the same time as these scientific and social experiments took place, so too did the law redefine the protections afforded to the medium, its makers, and their subjects. Reading a piece of nineteenth-­century legal writing presents the unexpected interplay between legal thinking and photography as more than simply a choice of discourses—­the way, for example, Roland Barthes proposed the relation in Camera Lucida. The structural relation I exhume brings forward the importance of thinking law in terms of aesthetics. Barthes (bewitchingly if not concretely) placed a legal relation at the root of photography’s “disturbance,” which he suggested occurred in photography’s production of a mode of seeing “oneself (differently from in a mirror): on the scale of History.”8 He resolved photography’s potentially dissociative disturbance in a peculiar way. According to Barthes, the disturbance is ultimately one of ownership. Law has expressed it in its way: to whom does the photograph belong? Is landscape itself only a kind of loan made by the owner of the terrain? Countless cases, apparently, have expressed this uncertainty in a society for which being was based on having.9 3

Introduction

Unbeknownst to Barthes, by remarking that “being [is] based on having,” he aligns photography’s emotional and psychic disturbances with precisely the workings of racial capitalism I seek to explore.10 It’s a faint flicker for him: his glancing attention to law and political economy’s intersection with ways of apprehending self and others quickly becomes a “closed field of forces” in an image. But the historical specificities of legal ownership prefigure and fundamentally inform the pure “History of Looking” Barthes desires.11 Yet they recede from his frame, from his own looking, to appear as an abstraction about “being.” By preempting the occurrence of “countless cases” as encapsulated by a simple and single “choice” of law’s “expression,” Barthes mentions and swiftly sidesteps cases, choices, and what exactly it means to afford law an “expression” (as though a singular voice). These questions dissolve for Barthes into his preoccupation with photography’s apophatic nature, where “it is not it that we see.”12 But if we move from Barthes to Oliver Wendell Holmes Jr.—­who would go on to be appointed to the Supreme Court by President Theodore Roosevelt in 1902—­what emerges is more than either an incidental “choice” or single “disturbance,” but rather a structural relation between legal thinking and photography, where expression is precisely the question at issue. This structural relation reveals an opportunity to consider the intertwined trajectories of photography and Legal Realism’s recalibration of a camera’s expression from within racial capitalism’s workings. One of the most important figures in late nineteenth-­ and early twentieth-­century US legal history, Oliver Wendell Holmes Jr. wrote “The Path of the Law,” a proto-­Legal Realist work, as a pedagogical text.13 His father, Oliver Wendell Holmes Sr., is often quoted for his mid-­nineteenth-­ century writings on stereoscopes; it is not unlikely the younger Holmes would have spent his childhood in conversation with his father about what different kinds of photographic machines offered the imagination. The idea of formal training for lawyers was relatively new as the younger Holmes wrote; institutions of certification were likewise newly being established. In “The Path of the Law,” Holmes’s first insistence was that the law was not a mystery but a profession, perhaps to underscore the need for institutions dedicated to legal study.14 As a kind of answer to the active philosophical question about a person’s capacity to generalize from particulars, Holmes foregrounded the role of uncertainty in lawyerly practice. Uncertainties and contingencies emphasized the need for lawyers to become proficient at 4

Introduction

probabilistic thinking. But Holmes did so through an unexpected analogy: of lawyers having to “prophesize” the law: The means of the study [of law] are a body of reports, of treatises, and of statutes, in this country and in England, extending back for six hundred years. . . . In these sibylline leaves are gathered the scattered prophecies of the past upon the cases in which the axe will fall. These are what have properly been called the oracles of the law. Far the most important and pretty nearly the whole meaning of every new effort to legal thought is to make these prophecies more precise, and to generalize them into a thoroughly connected system.15

That a lawyer might prophesize the law meant that the holding itself had yet to be discovered—­and that the goal of a lawyer’s training was to put her in the best position to do so. Framing a lawyer’s thinking as inheriting but improving upon “prophecies of the past” meant bringing a method (as in a techne, per Alain Pottage) to prophecy, to successfully render “these prophecies more precise.” This is the task in which a photographic functioning could intervene.16 Surprisingly, Holmes’s depiction of legal thinking as prophetic precision bears a striking relation to the photochemical processes of nineteenth-­ century photography. Among the more well-­known elements of the essay is Holmes’s elaboration of the “bad man” of the law. He proposed this personage to show how a lawyer should evaluate the distinction between laws and morality. Describing one such distinction, Holmes wrote, “You see how the vague circumference of the notion of duty shrinks and at the same time grows more precise when we wash it with the cynical acid and expel everything except the object of our study, the operations of the law.”17 Here, a cynical acid acted as a wash not unlike the way developing fluids crystallized an image, here “the operations of the law,” where before there was blur. That is, in elaborating a legal method, the language of “The Path of the Law” suggests that legal thinking began to have a photographic imagination, revealing a potential debt to photography’s aesthetics inherent to legal thought. Holmes’s aim in articulating how legal thinking could be scientific, perhaps unintentionally, suggests that legal practice not only could work on cases about photographs and their technologies but also could itself 5

Introduction

function as photographic. According to Holmes, coming to a legal decision was a process of interaction between the particular and the generalizable, much in the way a nineteenth-­century photograph was forged by an interaction between the (generalizable) light waves that bounced off a particular object/subject through the camera’s lens and onto a negative (or plate), forging there (generalizable yet particular) relationships with the (general) chemicals infused onto the (particular) negative in order to make (particular) markings, and finally, after a wash, a particular, recognizable image appears through the generalizable process. A chemical reaction occurred at the site where a scene or person reflected into a copper (or tin) plate or an albumen-­coated glass plate. A general chemical principle and an incomplete representational remnant of a specific scene forged one another through the chemical-­material processes that rendered a photographic image, enacting a process of mutual refinement. Holmes articulates what it would mean to “make prophecy more precise,” through just this kind of oscillating process between general principle and instant case. The goal, according to Holmes, was to make legal thinking into the “mediating instrument to safeguard both generality and precision,” which is how philosopher of science Chiara Ambrosio describes eugenics founder Francis Galton’s “emphasis on the limitations of empiricism.”18 Thinking the law this way would save legal thinking from a tendency toward “judgments inarticulate, and often unconscious.”19 For Holmes the point of training jurists was to make the unconscious grounds for legal conclusions visible, to negotiate at once the particulars of a case, potential governing precedents, the predispositions of a certain judge, and their own capacities for discernment. If we read Holmes’s as a photographic imagination, legal discernment would happen through a specific set of aesthetic presumptions, that is, through a reading practice that sought to grapple with the “limits of empiricism.”20 This mode would be differently visionary and literally visual. “More precise” legal thinking would envision, as in predict, from the legal past’s “oracles” and “sibylline leaves.” I call this Holmes’s photographic logic because its articulation of legal thinking partakes in aesthetic discernment; it is an articulation of judgment in pursuit of a code. Such a code would differentiate legal thinking from critical thinking in a general sense; it would bring principles, precedents, universals, and particulars in a single case together, just as materials, chemicals, light waves, and contingencies forge each photographic print. 6

Introduction

His instruction to discern a “legal unconscious” through a process that can be read as instantiating a photographic logic to prophesize leads us, finally, to photography’s “optical unconscious.” A photograph’s capacity to hold still accidents like happenstance and unseen subtleties is the prophetic, “magic value” of a photograph, according to Benjamin. In the functioning of legal thinking, like the functioning of the camera, lay the potential for future prophecy—­as opposed to a quality inherent to either legal principles or a given, to-­be-­photographed scene. Thy Phu argues that Benjamin’s term helped “introduce unspoken assumptions about technical capacity” into Marxist photography criticism, where “the concept of an unconscious optics [offered] a visual parallel” to Fredric Jameson’s political unconscious.21 Jameson’s “rival hermeneutic . . . over more specialized interpretive codes,” you will remember, situated cultural objects in “a collective struggle to wrest a realm of Freedom from a realm of Necessity.”22 Learning from Phu, I aim not to take for granted (in photography or law) a singular relation between technical capacities and an optical-­political unconscious. Rather, I contend with a widened interpretive field for photography’s “spark” in racialized performance practices and locate that “spark” as the site of legal struggle. Moreover, I argue that juridical interpretations of expressions can be understood only from within the overlapping, unequal colonial dispossessions on which they rely. I use the term “aesthetics” as more than a critique of the tyranny of beauty standards; it is a way of bringing into focus how power mobilizes and remobilizes form, either as “beauty” or that other “eternal” category of aesthetics, “truth.” Caribbean philosopher Sylvia Wynter makes a crucial distinction among distinct aesthetics that helps me articulate my own investments. In the widest sense, Wynter proposes aesthetics as codes that beget “altruism-­induing genetic kin relatedness.” The widest sense of her meaning exceeds this book’s work, but her isolation of different modes has been incredibly generative. For Wynter, one notion of aesthetics is “transcultural” and “operates at the level of purely organic forms of life . . . from that between cells to that between peoples, with both forms of cohesion being based on differing forms of communications whether chemical or, in our case, discursive-­semantic.” Transcultural aesthetic codes induce a sense of altruistic relatedness among forms of life, whether human or non-­human. Another mode is “our present culture-­specific mode” of aesthetics.23 In the stories I tell, white supremacist aims include setting the 7

Introduction

terms of life and death by claiming the latter, “culture-­specific mode”—­in social practices and juridical protections of whiteness—­as the former, a “transcultural,” universal, or natural mode. What I take up as my work is disentangling these claims. By an aesthetic life of power, then, I mean to signal the slippages and unintended results from dominative enforcements of a “culture-­specific mode” that can nonetheless generate in excess of itself. Exposing an aesthetic life of power makes the lower frequencies by which it becomes “irresistible” available for critique in a new way, by zooming in on moments when the enforcement of certain codes seeks to cleave power from life. Analyzing from among aesthetic propositions about photographs in legal episodes shows which understandings of expression become sensible in and disappear from the legal scripts jurists used. But I also learn from Hortense Spillers’s sense that “however else dominative practices might be explained, they are . . . irresistibly struck by the irrational. . . . No reason convincingly explains them.”24 When aesthetics is not a synonym for art or appearances, the term underscores that cultural logics (often “struck by the irrational”) are at work in legal arguments to analyze how expressions are deemed as such, whether of a camera’s subjects or created through a photograph. In this book, photography and law converge and in so doing betray an aesthetic, a cultural logic, an unstated “discipline” of interpreting objects like photographs and actions like poses that are or are not understood to adequately express.25 I contribute to what legal scholar Angela Harris has called “an important strand of the new racial capitalism literature [that] traces the historical role of white supremacy in the processes of dispossession, extraction, accumulation, and exploitation that are central to today’s capitalism.”26 Building from work in literary studies, law and humanities, and visual studies, I mean to give historical specificity to the aesthetic life of whiteness as a structure of power by marking how it functions in local episodes of legal judgment, when a particular aesthetics (or discipline) of whiteness brings the abstraction of whiteness into being. My point is not to argue that there is one such aesthetics of racial capitalism, but rather to insist that asking questions about power’s functioning in this register helps make connections among courtrooms, darkrooms, and other cultural spaces like stages, parlors, and studios. I am also not exchanging the systemic for the local, but rather aiming to overlap the cases I examine with the many 8

Introduction

systems and structures at work in them. Legal scholar Brenna Bhandar’s powerful analytic frame of the “colonial logics of property” helps me show how through an aesthetic life, colonial logics bleed into unexpected corners of everyday life, conjoining with the properties of being and becoming a whitened person. What I offer is a heuristic for studying photography’s legal trajectories as imbricated in the multiply layered dispossessive work of racial capitalism, and reproductive of racialized forms for ascribing value in order to differentially secure property rights over images.27 I use intellectual property conflicts in the late nineteenth century to scrutinize photography’s “spark of contingency” as a specific form of threat to whiteness.28 This “spark” is the occasion for legal conflicts that beget property rights and embeds specific, racialized presumptions into the right to privacy as it is articulated alongside photography’s intrusions. Racial capitalism and its surveillance mechanisms most immediately conjure the histories of enslavement and conquest, commodities produced through extractive industries dependent on multiple dispossessions, and uneven distributions of wealth and well-­being, all and each of which have symbolic as well as material pathways.29 Dispossession, as Jodi Byrd, Alyosha Goldstein, Jodi Melamed, and Chandan Reddy have elucidated, “is an insatiable predatory relation that entails a specific manner of world making that is at once predicated on and generative of a dialectic of biopolitical sorting.”30 The more familiar landscapes of this “dialectic of biopolitical sorting,” what Lisa Lowe has called “operations that pronounce colonial divisions of humanity,” include oceanic trades in kidnapped African peoples, the settler capture of Native lands, plantations made into sharecropping fields made into corporate agribusinesses, those fields, factories, and railroads worked by peoples who sometimes did and sometimes didn’t bend colonial logics to organize around how their extracted labor joined them (although not seamlessly) to one another, the offices of bankers, financiers, insurers, and institutions conjuring financial instruments through which to facilitate compounding extracted value into outlandish wealth, environments and their relations translated into functionaries for capital, all protected by the slave patrol structures that became police departments and differential enforcements of criminal law and carceral regimes.31 Per Lowe, these landscapes are linked by “imbricated processes, not sequential events; they are ongoing and continuous in our contemporary moment, not temporally distinct nor as yet concluded.”32 My studies zoom in on 9

Introduction

the localized vantages for these processes in court cases delimiting photography’s property protections and harms as mise-­en-­scènes of empire and market-­making in the register of Lowe’s sense of intimacies. Given its more familiar landscapes, studies of racial capitalism have paid robust attention to the conscription and persistence of life and liveliness under its modes of extraction and control. In this vein, Manu Karuka has meaningfully “theorized capitalism itself as a mode of relationship, involved in the production of relationships.”33 The cultural work of conscripting relationships to camerawork, I’ll show, can be seen in the property-­making function of whiteness as it consolidates anew in what historian Destin Jenkins has called Imperial Jim Crow.34 I read in the legal confusion that photography produces in cases about copyright, the right to privacy, and publicity rights how aesthetic workings (protocols and scripts) of whiteness limit wider, more varied senses of relation in solidifying property’s protections through an aesthetics of whiteness. In the stories that follow, the primacy of racialized expression’s intelligibility is at the service of valuation, though neither seamlessly nor singularly. The Unintended proposes that analyzing how jurists speculated intention in order to adjudicate expressions in/of photographs as property offers historically specific instances of racial capitalism re-­enchanting everyday life. To ask questions about the imagined and speculated limits of intention and its absence in the late nineteenth century is to glimpse the underbelly of the supposed consecration of “possessive individualism” that elided other modes of relation.35 This book argues that accounts of involuntarity—­in all its manifestations—­are foundational to whiteness in two senses: first, because articulating relationships to intention’s absence is foundational to modern epistemologies of performance, photography, and the forging of property relations in images; and second, because whiteness is inherently a speculative project and involuntarity is ever subject to the eye of the beholder. What emerges from these stories are the tattered fringes of self-­control’s fictions and enforcements. Yet, at the same time, these speculations over involuntariness protect whiteness—­and those who can make a claim to it—­against the fungibility that delimited racialized lives differently subjected to cameras. These stories work at an oblique angle to Hartman’s description of, “The fungibility of the commodity, specifically its abstractness and immateriality,” which “enabled the black body or blackface mask to serve as the vehicle of white self-­exploration, renun10

Introduction

ciation, and enjoyment.”36 The “choice” and “choosing” whitened litigants and jurists can claim over their expressions to circumvent or control a trajectory of commodification beyond their control, then, are the very tools of domination posed through an aesthetic code. Though it is unfamiliar to pair with racial capitalism’s working, my hope is that a focus on how epistemes for comprehending, practicing, and interpreting expressions caught in and activated by photographs are in racialized motion at the end of the nineteenth century helps us ask new questions about how extractive modes of relation secure white supremacy’s hold over legal imaginations as over the means of production. Asking questions about power through aesthetic codes opens modes of relation in the present to the histories and afterlives through which white supremacy structures how American law understands itself as part of “the various strategies of state racism [that] produced . . . subjugated and subordinated class[es] within the body politic, albeit in a neutral or egalitarian guise.”37 It is the specificity of photography as an accumulation of techniques, conventions, and set of histories of mechanical reproduction that makes this book’s analytic work possible. Intricate as the task may be, and building on Ariella Aïsha Azoulay’s and others’ important work in studies of photography, we may find that photographs can help further unsettle the imperatives of property from inside the colonial histories of race.38 Expression Is a Question

Because photography participated in the broader recalibration of the idea of expression in Anglo-­Atlantic aesthetic and scientific discourses, I turn now to pull at that history’s loose seams. I mean expression in a historical sense: physiologists and artists alike joined the appearance of a facial feature, an emotional reaction, a body’s carriage or posture in their studies of expression; but I also mean expressions as in an artistic creation or performance, as well as the more general capacity to be intelligible. Throughout the eighteenth and nineteenth centuries, prominent Anglo-­Atlantic discourses speculated about the soul’s tangible, material presence, and about the physical manifestations of character (i.e., the capacity for moral character) by presuming to characterize one’s expressions. Perhaps most famously, the idea that bodies expressed as a matter of legible coherence included thinking of the human face as a conduit for the spirit, mind, or soul. 11

Introduction

Expression as an object of study fundamentally depended on differentially prescribing capacities for the inner workings of self to become visibly manifest in signs “pressed out” into expressions.39 Thinking expression as a historical question that sheds light on its more colloquial uses helps me engage it here from within Western cosmologies. These cosmologies linked some people with the capacity for making art that helped to figure the “transparency” of Western ideas of Man, alongside the pronounced “affectability” of racialized peoples that Ferreira da Silva distinguishes.40 Wynter, Spillers, Hartman, Ferreira da Silva, and more recently Zakiyyah Iman Jackson have analyzed how differentiating capacities for expression and affectability were central to the construction of “humanity” counterposed to “the animal” held together, per Jackson, by antiblackness.41 As a differential capacity of body and for/of art, deciphering the recalibrations of expression joins Western conceptions of Man and Art to the productions and extractions central to racial capitalism via presumed and prescribed capacities. In the context of colonizing cosmologies, above and beyond representativity, a central question for photography’s most ardent critics in the nineteenth century was precisely whether there was any expression to photography beyond its utility in cataloguing worldly phenomena. Expression was a term that photography took (or tried to take) on from painting. For example, painter Charles Le Brun, who studied with René Descartes, explained the importance of expressions to painters this way when he presented at L’Académie Royale de Peinture et de Sculpture in seventeenth-­ century Paris: Expression, in my opinion, is a simple and natural image of the thing we wish to represent; it is a necessary ingredient of all the parts of painting, and without it no picture can be perfect; it is this which indicates the true character of each object; it is by this means that the different natures of bodies are distinguished, that figures seem to have movement, and everything which is imitated appears to be real.42

For Le Brun, an “expression” both preceded painting and was constitutive of it; it was inherent in the object being represented and it was also that which only a successful painter could render. An artist was distinguished precisely by her ability to recognize, extract, and then paint authentic 12

Introduction

expressions. In particular, Le Brun conceived of expressions as produced by movement. An expression evoked an “essence,” in that an expression was the visible proof that an essence existed and moved (in a person, in a soul) beyond “ordinary” sight. At the center of early photography debates was not a question of indexicality as a new phenomenon in and of itself, but rather what, how, and whether photographs expressed something, in Le Brun’s sense, other than what they “reproduced.” To wit, it’s been too easily overlooked how realistic the etchings, woodcuts, and other forms of “representing” were, forms that both predated and persisted alongside photographic ones.43 Instead, what seemed new was the almost pornographic—­as in excessive, as in erotic—­mechanisms of photographic technology, and the related question of whether that kind of mechanistic indexing could itself be understood as a practice of aesthetic expression.44 And yet scholars attending to photography’s connection to scientific experiments in chemistry, astronomy, and natural science emphasize that while mechanistic aspects took center stage, the earliest photographic arts were nonetheless understood as natural.45 Expression seen as a question brings this contestation over meaning into greater focus. Its connection to nature was both photography’s threat and gift to epistemes where claims about discerning capacities for making expressions asserted a monopoly over god and earth and conjoined with specific understandings of art. As is well known, photography’s earliest proponents—­for whom “mechanistic” included photography’s manual work, and not just the machine—­asserted that daguerreotypes and talbotypes were uniquely useful to painters, archaeologists, and travelers alike.46 With astonishment and wonder, Edgar Allan Poe described the mechanistic reproducibility of photography and its level of precision as “magic.”47 Oliver Wendell Holmes Sr., who was at one point dean of Harvard Medical School, wrote with amazement about stereoscopes’ capacity to inspire imaginative travel from the comfort of one’s home.48 In his first public address in Paris, Nadar sang the possibilities of photography because of how it could both truthfully transmit “faraway” art and preserve the transient and ephemeral, whether that was a mortal person or the shape of a sand dune, in part, because, as Eduardo Cadava tells, he came to see “a world that, having become a series of images, is increasingly composed of proliferating copies, repetitions, reproductions, and simulacra.”49 Daguerre, in first presenting the 13

Introduction

daguerreotype—­by which he meant the machine and not the image or plate—­emphasized that it would now be “possible to take in a few minutes the most detailed views.”50 François Arago, understanding it more “as an invention—­rather than as a pictorial medium,” spoke of how much the new technology would aid the accurate measurement of stars’ light intensity and of its potential for archiving Egyptian hieroglyphics.51 Arago recommended, and the French state followed suit, the purchase of Daguerre and Niépce’s “process in order to place it in the public domain and thus make it legally accessible to anyone.”52 The idea was that its workings were so dependent on how nature worked, that it should not be patented but rather enjoyed outside the limitations of a price point. The trajectory of ownership in the United States followed a different set of priorities.53 What was thought of as obvious photographic strengths were, at the same time, bound up with shifts in natural science. Meanwhile, these technical strengths could be seamlessly translated into settler colonial affects, impulses, and projects. Photography (and so photographic seeing) evolved as a form and practice alongside transformations in Anglo-­Atlantic ideas of nature, Man, and vision that intersected with those about racialized notions of expressions.54 But in the nineteenth century, it was becoming more difficult from inside Anglo-­Atlantic epistemes to understand Man’s expressions as corresponding to a soul. For one, Western natural scientists were reformulating what was considered static about “the real,” refiguring the very character of light and matter. One of the most wide-­ranging shifts, about which I’ll say more in chapter 1, was a shift from a conception of light as substance—­composed of corpuscles: bodies or units of light—­to a conception of light as a formal configuration, as a wave. . . . Natural philosophers of the second half of the nineteenth century came to understand matter itself in terms of spatial arrangements and polar forces rather than essential categorical distinctions.55

In this shifting episteme, “objects in the world, like objects of art, existed in and through their structure,” rather than through an idea of “essence” at the root of earlier notions of expression.56 Photography, then, helped further question the character of artistic expression by asking whether something that could be rendered sensible by the workings of light and 14

Introduction

chemistry might itself be already ontological. If light’s reflections could register the shape of a leaf on a plate (“pencil,” as in Henry Fox Talbot’s use, then meant a ray of light), it was not necessary for expression to depend on Anglo-­Christian cosmologies to be in connection to nature’s workings. At the same time, the confidence of asserting expression as a “simple and natural image of the thing we wish to represent” to indicate “true character” recalibrated what it meant to represent nature. If species took their shape through the generations of relations and environmental adaptations of natural selection, ideas about expressions as evidence had to adjust to the new contingencies of deep time.57 While the temporal field for understanding expressions had expanded, so too had “nature and culture [become] interconstitutive entities,” as photography historian Geoffrey Batchen has explained.58 The performance and juridical regimes of expression I analyze as part of racial capitalism are, then, attempts to recalibrate the relationship between (the possibility of ) souls and expressions, expression and nature, and expressions and property. But whether you hold in your hands Sir Charles Bell’s physiological study Expressions of Emotions, Charles Darwin’s Expression of Emotion in Man and Animal, Samuel Morton’s phrenological volume Crania Americana, or any of the manuals of “physical culture” (late nineteenth-­century forms of aerobic or “wellness” practices), the project was the same: to understand, track, and discern or habituate a legible expression in terms of both structure and practice. The most common intellectual pairing of Darwinism with photography comes by way of his cousin, Francis Galton. Galton’s “composite portraits,” which return in chapter 4, would betray “commonalities” among a presumed group. Fictive images stood in for “types,” meant to prove the existence of “degeneracies,” themselves predicated on the fictions of race and class. Daniel Novak has argued that “what Galton describes as a ‘pictorial average’ of a group, a typical body, free of the ‘peculiarities’ of the individual, offers a photographic embodiment of the aesthetics and ethics of racial difference.”59 Where aesthetic and scientific discourses had been concerned with understanding how Western “spirit” made itself visible, where there once was evidence of spirit’s work, there now existed the possibility for finding—­seeing in order to track—­ physiological “origins” and “development” in statistical generalization of structure and features. For Galton as for Herbert Spencer, one of his most influential interlocutors, these superimpositions became expressions of a 15

Introduction

“generalised picture.”60 The visual grammar to understand people—­whose trajectories, not coincidentally, parallel changing depictions of political economy—­subject to habits formed in deep time, was nonetheless open to accidents that could take on the weight of destiny through their photographic documentation.61 There is some cross-­pollination here with a more familiar story in which photography aids the scientification of “self,” and is put to use to find more precise names and elaborate taxonomies conjecturing origins. In “Notes on Love and Photography,” Cadava and Paola Cortés-­Rocca write, Photography shatters the subject of reason—­a subject that would be complete and coincidental with itself—­by introducing a plurality that is not produced by the metonymic force of unconscious desire, but by affects and the gaze: “I see, I feel, hence I notice, I observe, and I think.” It tells me that I do not exist before my image—­that I exist only as an image, or, more precisely, only as a series of images, none of which are ever one.62

If photography’s “disturbance” helped “shatter the subject of reason,” it also helped imagine solitude as a condition rife with its own pathologies. By the turn of the century, in just one example, the photographic camera is a condition of possibility for Henry James’s short story “The Private Life,” where a character split in two, never in the room at the same time as himself.63 It is not a coincidence, I think, that photography predates existentialism, nor that it’s present as analogy and metaphor in the thinking of Sigmund Freud just as much as for Frederick Douglass, Nathaniel Hawthorne, Harriet Jacobs, Edgar Allan Poe, and Edith Wharton.64 By and large, the literary cultures of these figures have been studied in terms of realism’s trajectories rather than shifting epistemes for notions of expression. Critics have importantly shown how these cultures intermingled with photographic imaginations in fictions that became “locked in the versions of the credible,” as Victorianist Catherine Gallagher crisply characterized realist fictional regimes.65 Asking questions about the recalibration of expression continues connecting studies of realism to visual studies scholars’ work. For Nicholas Mirzoeff, for example, the “extended sense of the real, the realistic, and realism(s) . . . is at stake in the conflict between visuality and countervisuality. The ‘realism’ of countervisuality is the means by which one tries to make sense of the unreality created by visuality’s 16

Introduction

authority from the slave plantation to fascism and the war on terror.”66 Encountering expression as a question builds on generations of work across fields. But maintaining expression as a question refuses to re-­settle whether existence precedes essence, thereby insisting on the co-­presence of cosmologies where the coordinates for expression are distinct from those being proposed or those at hand.67 The specific question of whether aesthetic expression has a steady and reliable connection to intentions (and how to tell?) was one conundrum photography introduced into critical discourse. Art historian Robin Kelsey explores how critical accounts of the contingent, accidental, and unintentional shifted in order for photography to be understood as an act of authorship, and so that a photograph could become seen as analogous to an author’s or painter’s expression.68 Kelsey uses the term “chance” as an umbrella term to join the various notions of the absence of a photographer’s “hand,” “intention,” and “control” to organize the cultural shifts that ultimately allow for modernist photography’s sanctification of the photographer’s eye in catching “the decisive moment,” a phrase famously associated with Henri Cartier-­Bresson. This is photography’s capacity to question the effect and value (aesthetic or philosophical) of the murky relations between absent or invisible causes and their visibilized effects. For Kelsey, this capacity becomes increasingly connected to photography’s standing as art, which is also to say, as creative expression. My locating photography in the longer history of expression’s recalibrations is not meant to re-­place photography in painting’s purview, the way modernist curators first institutionalized photography as art.69 Art historian Steve Edwards has even suggested to scholars of photography that “the category ‘art’ may block the kind of thinking we need to undertake in order to grasp the workings of authorship and property in the capitalist mode of production.”70 Instead, energized by thinking with Azoulay and Grigsby alongside Ferreira da Silva, Wynter, Spillers, and many others, I’ve taken what seems like a side road to put photography in motion along multiple bodies of knowledge to keep untangling some of the imperialisms of thought from which its property protections emerged. As historical concepts that purport to describe bodies and art, Western discourses delimiting and disciplining expression depend on the “intimacies of four continents,” as Lowe describes “the circuits, connections, associations, and mixings of differentially laboring peoples, eclipsed by the operations that 17

Introduction

universalize the Anglo-­American liberal individual.”71 This dependence parsed modes of being by presuming control over visuality (which could only be incomplete). At the same time, thinking of photography in a history of expression’s recalibrations is a question of ongoing unsettling for our present. Photography as part of a history of expression’s recalibration emerges not as representation, pure mechanism, visibility, a facet of realism, or even only of “mechanical objectivity” or the purview of a particular field. (Fields of inquiry imply fences, and I wonder whether either good or bad neighbors aren’t the foremost goal, but rather finding as many co-­workers as possible.) I engage photography to pull at the loose seam in Western epistemologies that relied on a monopoly over God, earth, history, light, sense, and sight in such a way as to structurally reinforce racialized dispossessions, outsized suffering, and premature death through the differential legibility built into owning images.72 Approached this way, photography might best emerge not as a singular object of history, but instead as a space for questions about how modes of extraction secure white supremacy’s claim over imaginations as over the means of production—­just as its figurations are also portals for other modes, in the ways Kimberly Juanita Brown, Tina Campt, Jasmine Nichole Cobb, Tiffany Lethabo King, Saidiya Hartman, Leigh Raiford, Christina Sharpe, Autumn Womack, and others have been illuminating.73 From my specific position as a queer Chicana, this book offers its study of photography and an aesthetics of whiteness through which its property rights were litigated.74 While relationships between expression and nature are renegotiated in the afterlife of slavery, one regime of racial capitalism includes what seems self-­evident in bodies of law that come to protect copyright, privacy, and publicity rights. The history of the idea of expression encountered as a question is then also an alternate vantage on the history of race, a way to join the coordinates of Frantz Fanon’s “racial epidermal schema” to epistemic shifts that figure and refigure hierarchies of being alongside capacities for art-­making, and the other practices equally part of these histories.75 Spillers’s encouragement to illuminate the “semiosis of procedure that . . . enabled” the “hieroglyphics of the flesh” under enslavement points me here to consider how a semiosis of procedure worked in courtrooms for parceling expressions that deserved protection. In interrogating expression I join Wynter with Spillers to embed the property protections of photographs in a genealogy of co18

Figure I.1. Kodak advertisement, 1906. Wayne P. Ellis Collection of Kodakiana, John W. Hartman Center for Sales, Advertising and Marketing History, Rubenstein Library, Duke University.

Introduction

lonial power dictating legal regimes for adjudicating expressions, because as Spillers says, “the ‘body’ should be specified as a . . . particular instance that belongs, always, to a context.”76 If notions of fictionality through aesthetic forms were created alongside the fixation of racial categories, these notions and forms have dictated much about the grounds of believability and narrative fiction.77 Just the same, fictions of biological racial inferiority and white supremacy became believable, credible and creditable—­in ways I discuss in chapter 1—­through the quotidian interplay of visual media at the same time as realism became the form and texture of both fictionality and commercial credit.78 For now, embedding photography in a history of expression helps me explore the aesthetics of whiteness that make photographs intelligible as property to further emphasize the figurality at the heart of racial capitalism, as dependent on the figuration of slaves as on fictions of value and futurity.79 This generation of figures is imbricated in the “ideas about value developed alongside other concepts that were meant to position economics as the site of rationality and knowability,” as Jennifer Morgan explains.80 To make racial capitalism’s figures visible is to piece apart the epistemic hold of capitalist realism. This book attempts to rethink the coordinates for property-­making when expression is linked to questions of race and layered regimes of value and speculation (in performance and in law), and when race is a figuration of legibility and colonial dependencies at once. These coordinates and dedications are how my questions exceed the typical considerations of Legal Realism as Holmes began figuring it in “The Path and of the Law,” and for which he became a figure. A Pause Like the Click of a Button

The stories in this study are part of the movement of shadow and light as refracted between the darkroom and the courtroom in the nineteenth century, bound up in what prompted Siegfried Kracauer to consider photography a “secretion of the capitalist mode of production,” though for Kracauer that “secretion” was a matter of technique, not history.81 The Unintended tries to slow down the moment the mechanized reproduction of photography seemed to speed itself, and so the history of racial capitalism, up. It focuses on the legally murky period in the United States, from 1882 to 1903. In addition to the legal sanctioning of Jim Crow segregation, 20

Introduction

Figure I.2. Kodak advertisement, Saturday Evening Post, April 29, 1899. Wayne P. Ellis Collection of Kodakiana, John W. Hartman Center for Sales, Advertising and Marketing History, Rubenstein Library, Duke University.

this period saw substantial shifts in photography’s markets and mediums, and in its form and aesthetics, especially connected to new journalistic technologies and practices. Before specific images prompted legal actions in property and privacy’s terms, photography’s processes and mechanisms were involved in patent rights conflicts. Later, what appeared as the print, what Sojourner Truth and studio advertisements called the “shadow,” might “belong” to the sitter who purchased it. But the negative often did not. Like the camera, its adjacent equipment, the chemical solutions used to prepare the negative, develop the print, and affix the image—­all these were part of a studio’s property. Truth, as Darcy Grigsby has shown, was one of very few who held both the copyright in their image and the negatives.82 The Eastman Kodak Company, among others, helped create a new market for amateur photographers by beginning to target advertisements toward consumers with little knowledge besides that in the directions that 21

Introduction

came with their cameras. Kodak’s first ad with language for amateurs was published in 1884.83 Newspapers on both sides of the Atlantic called these amateurs “camera fiends.”84 These “camera fiends,” or “Kodakers,” as they were also pejoratively called, were the first to wield the power of photography surreptitiously. Even as most cameras were about three or four times as big as the small box cameras that would appear in the 1930s, this was also the moment when miniature cameras, like the button camera and the hat camera, appeared. More consequential, an amateur photographer did not have to develop her film. As photography critic Catherine Zuromskis describes, “Once the roll was exposed, the entire camera was sent back to the factory where, for a cost of ten dollars, Kodak technicians would process the film, print and mount the one hundred 2 1/2-­inch circular prints, and return the camera to its owner loaded with a fresh roll of film.”85 It was gelatin bromide, roll film, and an extensive marketing scheme that led to Kodakers’ prevalence as a group, and then as a leisure practice.86 But these were also the cameras, Womack reminds, that “shored up lynching as a particularly visual affair.”87 Part of what facilitated the amateurism boom was that the production of photographic images became itself geographically displaced from the instant of capture on new kinds of film. The important point here is that photography’s commercial production and capacities for dissemination began to bear in a new way on the practice of taking photographs and being photographed. While photography’s materials and chemicals were ever connected to markets and commerce that exceeded a single location, in this later moment, images were caught up in commercial networks of production and exchange in new ways. These material disjunctures in the production and consumption of images made possible by visual and print media registered in legal arenas as new forms of intrusions and harms inextricable from the ongoingness of racial violence and colonial dependencies. Seen one way, this was a new moment in photography’s history, in which “photography was finally able to catch up with the speed of the century.”88 But seen another way, this moment intensified the iterative potential of all photographs—­from the first heliograph to digitized reproductions.89 After it became materially possible (and then easier) to cheaply reproduce an image in newspapers, the legal questions of who owned a photograph became more racially pressurized than when daguerreotypes were the 22

Figure I.3. Kodak advertisement, Century Illustrated Monthly, November 1888. Wayne P. Ellis Collection of Kodakiana, John W. Hartman Center for Sales, Advertising and Marketing History, Rubenstein Library, Duke University.

Introduction

primary commercial form and enterprise. In relation to these shifts, as legal scholar Jessica Lake describes, “The established legal doctrines of contract, copyright, breach of confidence, and defamation, previously effective in regulating the rights of a ‘pictured subject’ were found wanting.”90 The task for jurists was to construct a new, propertied taxonomy for the iterative potential of photography and its capacity to circulate far beyond the control of subject or photographer. In these ways, commercial networks challenged the presumptions of whiteness to enforce an interpretive field. What did it mean when a whitened someone’s face or form could be gazed upon in a parlor or courtroom far away when they weren’t the ones who sent it? The way courts answered takes us to the heart of photography’s (legal) remaking through property protections. While Lake emphasizes white women’s centrality to early privacy cases, this book exhumes the overlapping dispossessions implicated in whitened reputations as a form of property, new industries in information (e.g., newspapers and private commercial credit), and the “visual imperialisms” through which a racialized concept of ownership coheres.91 The Aesthetics of Racial Capitalism

Paired together, Rosa’s unposing, Holmes’s “The Path of the Law,” and the historical recalibration of expression as a term that applied to both being and art are an invitation to explore photographic “sparks” as sites of legal struggles.92 In the United States, the end of slavery and the popularization of new technologies for enforcing servility, including prisons, also meant a redefinition of the legal relations between ownership, persons, and their expressions. Building on the foundational work of Sarah Haley, Saidiya Hartman, Robin D. G. Kelley, Jennifer Morgan, Cedric Robinson, Sylvia Wynter and many others’ ongoing critiques of Marxist accounts of political economy, historians Destin Jenkins and Justin Leroy have described the significance of thinking with the term racial capitalism this way: Racial capitalism is not a moment anterior to deracinated capitalism, nor does capitalism’s racial character diminish or disappear over time. It is also a methodological practice—­a way of seeing—­that asks practitioners to question the structuring idioms, themes, and subjects in the study of capitalism in the present.93 24

Introduction

If racial capitalism is both a nonsingular object of study comprising multiple and multiply figural systems at work, and a methodological approach, then it is also a dedication to deciphering the constitutive figurality of capitalism’s modes for extracting value from the radical difference that inheres and compounds in life in order to build wealth.94 Deciphering between two of Wynter’s registers of aesthetic codes is precisely how I “question the structuring idioms, themes, and subjects in the study of capitalism,” and why I’ve included chapters that think with performance and photographic portraiture on either side of the three chapters that delve into particular legal episodes. Deciphering an aesthetics of whiteness in legal episodes lays bare the contingencies at work from within the law’s colonial trajectories. Among Marxist accounts of law, the most thorough examination of photographic media is still Bernard Edelman’s Ownership of the Image, about which I’ll have more to say in chapter 2. Edelman looks in particular to Louis Althusser’s “double-­mirror” of the law and Evgeny Pashukanis’s theory of the subject in law. For Edelman, the subject in law is produced by capital alone. What I do take up from Edelman and Marxist approaches to the relationship between law and political economy is the dedication to analyzing law’s functioning in the widest sense. However, in this study, law’s functioning is inclusive of figurations of race, where an aesthetics of whiteness speculates intentionality in ways that uphold capital’s interests, but exceed the structure of any mirror. Other law and humanities scholars have also turned to an aesthetic register to analyze law’s functioning. Julie Stone Peters has parsed historian of law Pierre Legendre’s interest in the law’s “aesthetic dimension” as “part of its coercive power. For the aesthetic is, by definition, incapable of mistake. . . . Thus, the aesthetic function in law at once produces and ratifies the normative order as normative. Its aesthetic makes law infallibly right.”95 Jeannine DeLombard has encouraged scholars to “examine ‘the technical aesthetics of law.’”96 But Legendre presumes that law looks only to law for its legitimating codes. Different from Legendre and Edelman, aesthetic codes here are not only a question of the “coercive power” of capital in occluding modes of production. Expanding on the insights of Peters and Derek Miller, as well as art historians Steve Edwards (writing about Britain), Darcy Grigsby (writing about the United States), and Anne McCauley (writing about Britain and France), and with Wynterian aims, I 25

Introduction

articulate how legal pronouncements mobilize aesthetic codes of whiteness to lubricate the enforcement of a property right in ways that are related to, rather than demarcated from, other cultural realms.97 I argue that the choreography of specific performance cultures renders whiteness with and without the camera explicitly in mind into a speculative aesthetic code whose logics of futurity limn with the financialization of “personality” in the late nineteenth century. I aim for this kind of specificity in an effort to learn from legal scholar and critical race theorist Cheryl Harris’s foundational argument that “whiteness shares the critical characteristics of property even as the meaning of property has changed over time.”98 In chapter 1, I offer that in performance cultures that intermingled with the stage and the parlor, habits of grace were also forms of being deputized to surveil a social environment, just as whitened reputations undersigned credit and became properties upheld by courts. These are some of the practices and histories through which property in whiteness exceeds the analogy to wages (with very material effects) and works more like what Veblen defined as an intangible asset.99 At one and the same time, someone learned to imagine that they looked prettiest in a photograph through those same habits. I say much more about this in chapter 1. The idioms—­expression, intention, privacy, immunity—­through which property rights in images became solidified limn our present to this past, where the “normative order” is “ratified” through an aesthetics of whiteness, but not without struggle. In all, I’ve written this book to understand how it came to be that a Georgia Supreme Court judge emphatically endorsed the existence of a right to privacy in Pavesich v. New England Life Insurance Company (1905), a case that would stand as a conflicting precedent alongside Roberson v. Rochester Folding Box Co. (1902) until the mid-­twentieth century. He did so by likening the circulation of photographic images without consent to enslavement. Justice Andrew Jackson Cobb was a son of the Confederacy, as legal scholar Anita Allen has shown: His father and uncle owned large plantations worked by enslaved people on the lands called Georgia; they were authors of the Confederate constitution and soldiers for the Confederate army; Justice Cobb’s father swore in Jefferson Davis as president of the Confederacy.100 Cobb’s contention is also why this book begins and ends with photographs of formerly enslaved or enslaved people. Because while Cobb’s assertion seems—­at the very least—­far afield, placing it in the 26

Introduction

trajectory of the intertwined figurations, extractions, and dispossessions constitutive of racial capitalism makes it possible to hear the assertion anew with some orientation. Writing about property in images in the later nineteenth century is necessarily to be writing in the afterlife of slavery. Generations of scholars have done crucial work elaborating how the trade in enslaving Africans was one fundament of a world system of financial capital.101 In piecing together those trajectories with this book’s legal tangles, Stephen Best’s work is crucial. Per Best, the logic of American enslavement lives on in a poetics of possession to make quantifiable, and thereby tangible, what never was; property comes to depend on “fugitive” factors like capital, credit, and commercial goodwill, where owning slaves is the central metaphor for the liberal rights of self-­ownership, privacy, and intellectual property, as clearly evidenced in Pavesich.102 My work here begins from Best’s proposition. Seen from a legal perspective, it is remarkably easy to “make” a given object into property, that is, to invent a property relation where there wasn’t one before. We can think of the logic of property as structurally “seductive” in that way, or as “contagious” in another. Just consider the objects and non-­objects that qualify as private property, a category that has included land, persons, works of art including literature and sheet music but not sound—­and then also sound, trademarks, likenesses, ideas, brands, and icons.103 Property’s omnivorous quality meant that, like many other previously unowned objects, photographs were added to the Copyright Act of 1865 with very little fanfare, even as there were legal challenges clarifying its central terms for decades afterwards. The traditional sense of a property right is infamously founded on the “natural” notion of ownership that a whitened man asserts over himself, buttressed by claims to exclusive knowledge of a monotheistic divinity’s intention. The idea of a soul and the potential for seeing grace in the world—­in its connection to a Christian God—­validated this belief in and enforcement of private property. Expanding the ramifications of this intellectual history, religious studies scholar J. Kameron Carter studies “racial capitalism and colonialism [together] as theological discourse,” what he calls the political theology of property.104 Carter illuminates how property’s most clinging logics make and remake metaphysical claims: capture precedes transformation in order to be revealed as the “truth” of a moment or a person. It is as a retrospective act that property rights 27

Introduction

propose the relations conjured to inhere in the object itself (whether land, air, shores, technologies, songs, novels), or to have been “labored” into an object by Man. With Carter’s insights at hand, our interrogation of the juridical processes of property-­making is one way of deciphering the law’s metaphysical work as inextricable from racial capitalism and colonialism.105 Or, to use Edelman’s phrasing, the “soul of law is its practice.”106 Perhaps surprisingly (or perhaps not), in the allotment of profit mechanisms, jurists echo aesthetic codes from performance practices that understand themselves as spiritual work. The cases I analyze arise from the circulation of a whitened person’s image without their consent. The languages of estrangement, illness, and loss of autonomy run through them. In previous historical accounts, race and capitalism are incidental to conflicts over property rights in images and the right to privacy.107 In this book, however, the struggles to lay claim to a whitened person’s image illuminate the strenuous work jurists do through an aesthetics of whiteness. That work ultimately occludes the dispossessive mechanisms upholding the interests of capital. To access this version of a “legal unconscious,” I follow local moments of ascribing property rights through acts of “judicial criticism,” a term Derek Miller proposes in his study of the commodification of performance.108 Like Miller, I focus “not on the articulation of legal rules but on the definitions and values at stake.”109 As both a questionable aesthetic form and a new form of property, photographs caused courts in this period to grapple with ontological questions: What kind of object was a photograph and its reproductions: document? hearsay? evidence? authored work? identification?110 I read legal episodes to understand the registers of performance through which jurists pose whiteness as a grammar of existing inside pale skin and a form of legal logic that begets proprietary force.111 On the one hand is a conversation about legal designations of expressions deserving of protection as property, and on the other is a series of performance practices for cultivating expressions. This pairing helps me propose a way that studies of racial capitalism help me ask questions of photography’s history, where an aesthetics of whiteness helps produce property rights where there were none before. Overall, these cases contribute to continuing to understand whiteness as a structure of power. While Holmes tried to make the unconscious visible in legal terms, whiteness was again made into the universal referent 28

Introduction

for how “general” property rights worked, and in images, what they would look like. We know that whiteness as a structurally upheld social configuration of power has needed reinventions of force and violence to cohere. The technology of racial difference in the uneven trajectories of racial capitalism developed through what Ruth Wilson Gilmore has characterized as the uneven distribution of vulnerability to premature death.112 When we ask questions about whiteness as an aesthetics of power in these legal episodes, it emerges as a property interest, the way Harris argued in her foundational work, as an embodiment that secured the right of property ownership, and as an aesthetic code that travels in law and culture to uphold the interests of capital.113 Because photography lives at the join of material and immaterial structuring networks of production, consumption, and capital, photography is the primary though not singular nexus for asking questions about the aesthetics operative in ascribing new forms of property relations. That networks of figuration and meaning-­making crisscross each photograph is the material counterpart to historian Martin Jay’s characterization of photography’s cultural work as “enchantment.”114 Because photographs gather meaning into themselves just as much as they project meaning, their “reality effect” calls viewers to work to make their realities part of a photograph’s. Azoulay calls this gathering force of photography a “civil contract,” to unthink a single “sovereign” designation over either a photograph or photography.115 I make use of photography’s non-­sovereign capacities while they are in motion in America’s courts, and while jurists struggle to designate ownership. Asking these questions in these ways helps us to better understand the interrelation of three propositions: (1) that racial capitalism has an aesthetic life; (2) that one arena for this aesthetic life is law; (3) that these come together in Jim Crow’s America, which was also Kodak’s America, through the speculative horizon of intention. In struggles over property in images and the right to privacy, the flashes of autonomy’s fictions were yet again revealed as whiteness morphed to lay its claims anew. More than any others, Black studies scholars taught me how to decipher visual archives and find fissures from which other forms of imagining relations were and could be lived out.116 There has been much crucial work done on the legibility of race as a visual sign and on the systems of surveillance that conscripted racialized expressions as “unruly” according to racial capitalism’s delimitations and reproductions.117 I join these scholars, who 29

Introduction

think carefully about visuality and subjection, adjudication, performance, and the theorization of racial categories.118 I add to conversations about the forms through which racial capitalism outlives legalized enslavement by showing how whiteness is bound up with abstractions (value, property, rights, expression, arrangement, privacy, likeness) that produce specific instantiations of property as the purview of whiteness in order to protect whitened lives from becoming too legible and too available for wide interpretation. Scholars exploring whiteness as a structure of power rely on Black theorists, critics, and historians at least as early as W. E. B. Du Bois, who famously explained the “sort of public and psychological wage” that whitened workers held in their identity “while they received a low wage.”119 Social-­historical studies have been important for explaining how white identities complicate class affiliations, and in particular, how they create imbalanced political and social dynamics in the labor movements of the nineteenth and twentieth centuries.120 For some critics, whiteness works as an ideology with aesthetic codes that supplant it, but whose codes and instantiations can also be reappropriated.121 In another mode, film critics analyze the ways film narrative’s structure helps “articulate white supremacy,” where white supremacy is presumed by the skin color of the actors who are distinguished and protected by the film’s structure.122 That is, to write about whiteness and aesthetics is often to write about the boundaries of aesthetic expressions for those deemed non-­white. Rather than presuming race as only a question of delimitation, Cedric Robinson insists that “the production of race” is “chaotic. It is an alchemy of the intentional and the unintended, of known and unimagined fractures of cultural forms, of relations of power and the power of social and cultural relations.”123 I approach the history of photography precisely at a moment when expressions deemed “unintended” begin to matter in a new way and while an aesthetics of whiteness was defined, in part, through speculative claims to discernment of and ownership over unintended expressions. Whiteness works not only as the power to enforce circumscribed living for non-­whitened people, but also as an aesthetics that involves shared principles of interpretation, universalized dicta of art-­making, and a heuristic for reading images. By coming into being anew in relation to property rights in images as a code for delimiting intention or its absence, whiteness consecrates itself as capacity to surveil. 30

Introduction

Approaching how whiteness works as a logic and mechanism of power through an aesthetic life not only exposes how it seeks to delimit relationality, but also emphasizes again that “white” as a category of identity does not function like other racialized categories of identity, even as whiteness has been experienced as an identity whose boundaries have shifted over time.124 Like Karla Holloway’s study of “the structural and cognizable association of law and literature,” I also inherit questions from Toni Morrison in calling attention to how whiteness “invisibilizes” as it delimits what is representable (i.e., able to be expressed) in canonical literature.125 To paraphrase Morrison, in light of the fact that virtually all of American legal subjects were positioned as white, I am interested to know what that assumption has meant to the legal imagination.126 By far, the most influential text on the join between whiteness and property has been that of Cheryl Harris, which interrogates how “according whiteness actual legal status converted an aspect of identity into an external object of property, moving whiteness from privileged identity to a vested interest.”127 Harris’s insights resound throughout this book. I found in writing that the more I exhumed the colonial intimacies in each case, the more Harris’s astonishing range and specificity rang true in the making of photographs into property. More recently, legal scholar Anjali Vats has analyzed how intellectual property upholds white supremacy by delimiting “creators” through a racialized “set of rhetorics about citizenship,” where “whiteness and its attendant interests structure intellectual property law, and often in the guise of equality and race neutrality.”128 Undoubtedly, Vats is correct in proposing that “intellectual property law is also a ‘racial project,’ that reproduces particular racial orders, in which people of color are coded as lacking the capacity to create.”129 I am with Vats in her conclusions but differ in how I arrive there and in what the ramifications are from the differences in approach. First, I approach the reproduction of racial capitalism in intellectual property by not presuming that white supremacy and capitalism function in a stable and singular transhistorical dynamic. By interrogating their relation through an aesthetics of whiteness, I am not proposing a singular heuristic for their dynamics. “The racial regime of ownership requires continual renewal and reinstantiation to prevail over other ways of being and living,” even if its repercussions are consistent and consistently devastating for human and non-­human life.130 Legal historian and property theorist 31

Introduction

K-­Sue Park, in her early American studies of foreclosure as a tool of Native dispossession, asserts a “generative dynamic between race and economic innovation,” a generative dynamic in the sense that power and its enforcement make use of imaginative capacities, even if their aims—­domination, dispossession, entrenchment—­seem to be static rather than generative.131 These “racial practices and the concomitant processes of racialization were key to producing the mechanisms of the market, the values and commodities it circulated, its viability, and its success.”132 Building on Harris, Vats, Bhandar, and Park, I analyze the generative dynamics of legitimating photographs as property and follow each case’s archives as they leak into modes of performance and photography that exceed the images at stake. What emerges is more like Robinson’s figurative chaos, and less like any single dynamic or heuristic, whether between law and capitalism, whiteness and law, or whiteness and racial capitalism. The first chapter lays out our late nineteenth-­century scene as one of racial-­spiritual performance scripts in the repurposing of François Delsarte’s popular acting manuals in the United States.133 It begins in an unlikely place: a San Francisco photographer describing differences between Chinese and whitened Americans’ photographic portraiture preferences. I argue that alongside courts’ protections of whitened reputations and private commercial credit’s financialization of personality traits, whiteness functioned increasingly as an intangible asset. I show how cultivating expressions worked like “photogenic drawings,” channeling waves of spiritual light, and deputizing whitened people with capacities to surveil. The second, third, and fourth chapters use the implications of the first at various scenes of property-­making, each of which is well-­known to law and humanities scholars. I read each case like a photograph, mapping overlapping histories that accrue into and out from it, contributing new insights into these cases by allowing their implications to reach out from specific juridical trajectories. I especially read for instances where assertions about expressions outpace legal history’s capacity to offer an account. In the second chapter, about Burrow-­Giles Lithographic Co. v. Sarony (1884), the Supreme Court contends with the question of who owns a portrait of Oscar Wilde. I consider the implications of a property right understood as a capacity to “arrange” a subject’s face, given the frequent caricature of Wilde that relied on antiblack scripts. The third chapter analyzes the first extended legal analysis of an individual’s right to privacy, Samuel Warren 32

Introduction

and Louis Brandeis’s “The Right to Privacy,” published in the Harvard Law Review in 1890. Although law review articles were then a fledgling form, this one founded a body of law, gave rise to a historiographical conundrum, and delimited “citizens” according to a settler colonial aesthetic code that invisibilized ongoing racialized surveillance. The fourth chapter turns to Roberson v. Rochester Folding Box Co. (1902), a case seen as an origin for publicity rights. I argue that the barely discernible “likeness” at stake resonates with silhouette drawings and composite portraits in the context of courts turning to privacy to protect whitened subjects from associations with criminality. In the last chapter, I reencounter Frederick Douglass’s portraits to try to think with more precision and capaciousness toward pedagogical praxes that summon another aesthetic engagement than that shaped by what has come before. In the coda, I offer gathered thoughts on what a mode of privacy for ancestral rest could afford. An attentive reader will notice echoes of Rosa’s “radical imagination” throughout the book: a camera’s subject that imagines a photography-­ to-­be, a sculptor with an alternative historical sensibility, an actor who quits a show with too many antiblack utterances, prohibitions against photographers from witnessing sacred rituals, family members held hostage as property using photographs to keep in touch with kin across distances, contemporary artists reimagining epistemes for looking. These glimmers, for the most part, are not operationalized into the book’s argument. But they matter to the fifth chapter and coda in particular, to modes of scholarly praxis to which I’m committed beyond these pages, and to a way of carrying forward Rosa’s indefinite inspiration even in this extended exposure of the aesthetic life of power.

33

1

EXPRESSION

The Colder and the Harder the Picture

In 1881 a whitened San Francisco photographer was frustrated with the way Chinese migrants posed. Chinese people, to him, seemed to have only one way to pose—­and it was the wrong one. It is not once in a year that you find a Chinaman who wants to strike any other attitude. He believes that when he has his heels pointing toward each other and his elbows crooked as if they were cast-­iron he is the picture of dignified repose. The higher the social standing of the Chinaman, the stiffer he wants to look.1

The photographer deploys aesthetic assessments as part of a cultural counterpart to civic and political forms of exclusion. By 1890, there were more than twenty-­five thousand Chinese people living in San Francisco, and among them, it seems, a significant number sought out studio photographers. Our “veteran” photographer claims to have photographed enough Chinese people to accurately distinguish how they preferred to convey their social standing in front of a camera.2 For the man behind the camera, there was something in the very postures and poses of his Chinese subjects that over-­performed their rank and, in that way, sealed in their out-­of-­placeness. It is significant that, as historian Anna Pegler-­Gordon has shown, it was Chinese migrant women who were first subjected to visual regulation through photographs as part of immigration documentation by the 1875 Page Act, and throughout the exclusion era.3 But when this photographer was objecting to Chinese posing practices of masculine subjects, there were still very few immigration cases, and not yet many immigration photographs that would have been taken.4 The “identity documentation”—­when implemented—­was to be a mechanism for 35

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assessing “identity and their moral character” under the suspicion of being sex workers or performing an intolerable “attitude,” to use the photographer’s term.5 Yet this photographer’s version of “visual suspicion” is distinct from that operative later in the immigration photography to which Chinese elites vehemently objected “through formal protests and legal challenges, arguing that photographic documentation practices unfairly and illegally singled the Chinese out for visual suspicion.”6 If, as Iyko Day has suggested, “Asians gave human shape to the abstract circuits of capitalism” in such a way that theirs were “racial signifiers of inscrutability, perpetual foreignness, transnational mobility, and flexibility,” then here is an instance of a photographer deputizing himself in a mode of safeguarding aesthetic codes to guard political-­economic ones.7 This chapter’s concerns begin to emerge as we think with the distinction between the racist seeing that limns with representational ways of thinking about photography (and folds into bureaucratic uses) and this photographer’s version. The kind of ultimately racist critique that the photographer forges does not assemble the usual tropes of either “inscrutability” or “cunning,” but instead identifies a desire to be “too” scrutable, that is, too available to the camera, too available to their own codes for interpretation. His is not the “immigration officials’ concerns about Chinese inscrutability and invasion,” but rather a concern about a divergence in the ideas of expression at work in practices of posing for the camera.8 The photographer’s frustration with Chinese subjects posing as an object among objects bears out Anne Cheng’s insights about the “expansive embroilment” between “the ornamental and the Oriental,” though in this case the photographer does not gender his subjects feminine.9 What the photographer objects to is his sense of what Chinese people don’t understand or fail to value about being photographed and what whitened people do know and do value about how to find a desirable expression, where arranging one’s body is understood as a way to convey one thing or the other. These objections limn with the questions of representation and fidelity (or not) to photography’s “truth-­function,” but involve a much wider field of inquiry about what photography’s aesthetics should be as a system of works and processes of generation, perception, interpretation, experience, and sensation. That there is ultimately a superior system in his evaluation is the rote conclusion of white supremacy as aesthetic judgment. He says, 36

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White people want to look as if they were entirely unconscious of sitting for their picture, but the Chinese subject wants to have every line of his face and costume announce that he has paid for his picture, and that he is thinking of it. In the points that white people are most particular about the Chinese are thoroughly careless. A Chinaman doesn’t care whether you touch up the wrinkles in his face or tone down the unevenness of his features. He does not seem to have an eye for such things, but he wants every line of his dress brought out as clearly as possible. He is particular to have his toes pointed out, and wants to have his shoes come out in the picture as plainly as his hands and fan. He is bound to have a fan. If he has his picture taken with a bouquet of flowers on the table by him, he wants to see every flower done justice to. The colder and the harder the picture and the less light and shadow on it, the better he likes it. Of what may be called the essentials of a picture he has no regard at all, but is scrupulously exact in his ideas of the things that are not essentials at all. Nothing would disgust a Chinaman as much as to give him a thoroughly artistic picture with a profusion of high light and correspondingly deep shadow. He wants it to be like himself, without color.10

The photographer begins with a kind of anthropological interest in how different peoples use posing for a photograph to communicate status (“The higher the social standing of the Chinaman, the stiffer he wants to look”). He is interested in how a Chinese person understands looking stylized as a matter of “social standing.” At stake is a principle that informs the greater aesthetic work here in the judgment that “white people want to look like they are entirely unconscious of sitting for their picture.” What he notices is that his Chinese patron is most pleased with a photograph that eliminates dimension entirely: “the colder and the harder the picture and the less light and shadow on it, the better he likes it.” What was absent for the photographer, of course, was the historicity, the burdens, the desires (if we trust that he got it right) in the two forms of posing—­the supposed nonchalance of people who would be called white, and the felt formality of people who migrated from China to the lands on which San Francisco was built. Art historian Marci Kwon, writing about early twentieth-­century Cantonese opera through photographs of San Francisco’s Chinatown in the late nineteenth and early twentieth centuries, notes that actors’ portraits were similarly posed, with their feet pointed out at an angle. Kwon 37

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calls this pose one of “insistent frontality.” In images posed this way, she writes, “a body . . . could evade immigration laws, but only in the confines of the photograph.”11 Their goal, per Kwon’s elegant formulation, was to achieve “flatness with dimensionality.”12 Pegler-­Gordon describes how Chinese migrants understood “the practices of registration and documentation requirements [by immigration officials] as repressive but probably associated the frontal perspective with honorific representation, as was common in Chinese portraiture.”13 And where immigration officials would argue for the need for photographs as part of their structure in terms of making particular the racist notion of “indistinguishability” among Chinese people, here the photographer claims that their own practices for posing rub against photography’s potential to differentiate by enacting modes of posing that align a person with a class or group. But as this photographer’s description proceeds, his cultural bias and particular photographic training gradually betray his initial interest in an incongruence. Although the photographer does not make it explicit, the “thoroughly artistic picture with a profusion of high light and correspondingly deep shadow,” which would “disgust a Chinaman,” is what a whitened person would consider an ideal image of themselves. The Chinese picture-­sitters who have come to his studio have not been interested in images that the photographer can understand as “lifelike,” whereas a whitened subject of a photograph is obsessed with their image being beyond “merely” lifelike: they wanted their portrait to seem as though they had no idea the photograph was being taken in the first place. There are two registers here of visual representation’s fictionality, understood as a capacity to perform what would become an expression for a camera, rather than valuing photographs for their indexical function. One version of engaging with photography’s expressive capacity—­a mode of fiction—­is “true” to the two-­dimensionality that results from an image being taken by moving into a pose that would equate the form of the body with the form of the photograph, by way of its taking on a pose that tends to articulate “flatness with dimensionality.” For the other, the pose is itself an enactment, as in a performance, of a not-­knowing-­the-­camera-­was-­there-­at-­all in order to manipulate from within the two-­dimensionality of the future image a fictive account of living in three dimensions. The operating fiction is that living does not happen “for” the camera, even as the qualities chosen to 38

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express a quality of living are only for the camera. The distinction is about what kind of fiction an image is understood to take part in, and what the fiction is imagined to successfully access in its portrayal or display. Therefore, the distinction at work is about what expression is by what it means for a subject to become expressed through a photograph-­to-­be. The disruption here of what expression is also implies another distinction at work: from among the anticipated reading practices that will engage and so understand (or misunderstand) those expressions when created through an image. These fissures between Chinese and whitened American photographic practices of posing as practices of differing understandings of expressions illustrate, among these other observations, two different ways of performing for a camera in anticipating a photograph-­to-­be. For the Chinese subject crafting his photographic image, a Western conception of interiority is precisely beside the point to a desirable photographic expression. The Chinese migrants this photographer had come into contact with disarticulated a connection between interiority, intentionality, and expression. What matters instead is positioning the surface of his body as “flatness with dimensionality” in relation to the camera’s work: “the Chinese subject wants to have every line of his face and costume announce that he has paid for his picture, and that he is thinking of it.” In her study of “unfeeling,” Xine Yao offers insights about a Chinese concept of “face” that sheds further light on what the photographer was not trying to understand. Yao describes a Chinese concept of “face” that “brings together individual composure and social relations, an alternative taxonomy of affective expression that troubles the colonial ruse of universal true feeling.”14 It seems to the photographer as though Chinese photographic subjects valued the potential representation of their “thoughts” by way of the image only when those would be directed to and about the photograph-­to-­be. Perhaps another notion of “face” was at work articulating toward another set of social arrangements. The camera implicated by this photograph-­to-­be is a tool for articulating a social self, not one for revealing a private self, if a private self is normatively understood through a “colonial ruse of universal true feeling.”15 The ideal final image could, instead, be an extension of the belongings in the photograph—­dress, shoes, flowers, and adornments. The photographer concludes with an exposition of how Chinese photographic preferences are flawed, thus inferior. Although he initially discerns 39

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a Chinese person’s “expertise” in signifying “dignified repose,” he leaps to conclude that what he himself determines as postural incompetence is a shared condition, and that Chinese sensibilities are not as sophisticated as either white Americans’ or photographers’: “Nothing would disgust a Chinaman as much as to give him a thoroughly artistic picture with a profusion of high light and correspondingly deep shadow.” The photographer ultimately decides that being Chinese negatively affects “taste” and ideas of “beauty,” insofar as it is already a disadvantage to simply be Chinese: “He wants it [the photograph] to be like himself, without color.” He doesn’t, for example, imagine that the stylization in front of the camera could also have been a way to distinguish themselves from the criminal photography that the San Francisco police department practiced early on.16 In this example, photography is first a way to understand a differing relationship to self-­expression as a performance of social status. But appearing in front of a camera also puts pressure on the way culture inflects aesthetic sensibilities, where posture and expression are subject to aesthetic judgment, even as, in this telling, the capacity to pronounce aesthetic judgments becomes a way to enforce “an emergent Anglo-­American settler imperial imaginary.”17 The San Francisco photographer begins with insights that supersede an immigration official’s protocol, but he ultimately falls in line with the desire to subject Chinese people to white supremacy’s codes—­those visual, those legal, those political. I want to read the photographer’s leap from one mode to the other as precisely what facilitates and justifies the final move. He does not need to explain how judgment follows from his observations. He only needs to assert them. The performance of a logical aporia is how he makes claims about racial superiority, in the grammar of one’s positioning for the camera: “He wants it to be like himself, without color.” This brief account offers another way into the history of race and racial capitalism; after all, this is a scene of a commercial exchange. The episode asks us first, to consider that posing for a camera implied a set of practices, and that practices of posing shifted in relation to the intent to convey sincerity. Analyzing the practices of cultivating one’s capacities for posing in terms of their expression historically shows how imbricated late nineteenth-­century photographic practices were with social performance. I analyze one strand of these practices in relation to emerging knowledges of proprioception and kinesthesia. As this chapter will explore, the codes 40

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that govern desirable social expression help incarnate what Pierre Bourdieu called “dispositions toward the future.”18 If, as Matthew Taylor and Priscilla Wald have argued, modern biopower has to “enlist the participation—­ through belief, dedication, identification—­of the population,” these practices are one example of the quotidian life of modern biopower.19 At the same time, the specific procedures of private commercial credit rendered believing in and cultivating the capacity to discern true expression into new forms of intangible assets that could materially accrue through affiliation with whiteness.20 Veblen distinguishes intangible from tangible assets in that intangible assets “are immaterial items of wealth, immaterial facts owned, valued, and capitalized on an appraisement of the gain to be derived from their possession. These are also assets to the amount of their capitalizable value,” disconnected for the most part from “factors of production.”21 Thinking of whiteness as a structure of power taking one form as intangible assets helps us disconnect its figurations and defenses from the labor market without contending that we replace one form with the other. These assets were bound up in but distinct from the post-­emancipation shift Karuka has characterized in whiteness as “a shareholder form, the passive ownership of functionless investors in racial capitalism.”22 Where whiteness as a shareholder form emphasizes accruing benefits through passive ownership, thinking of the practices whitened people cultivated in their reputations and personality as investments in “intangible assets” in whiteness continues to emphasize a potential shared, market-­based return, but attends to the bleed between active, quotidian investments and potential future payout. As a shareholder, one waits for the market’s dispersal of capital gains. But if you hold intangible assets in whiteness, you might more actively ensure their future value and high appraisal rate. Thinking of whiteness as an intangible asset helps underscore the perceived stakes in protecting whiteness against the myriad threats to which its logics of containment and control were always vulnerable precisely because they relied on others’ speculation and a shared marketplace. When thinking whiteness in terms of visuality, critics and art historians have written about the development of practitioner protocols and technological markers that made pale skin appear as such in prints. That these prints were affiliated with the mechanistic would go on to carry the weight of proof—­in courts, parlors, and lockets.23 But focusing instead on the cultivation of expression through performance exercises allows another join between race, visuality, and the photographic to come into focus: that the 41

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idea of a camera’s expression was racialized beyond the development of its own technology. To think with expression as a process of disciplining performance, I move our focus from power relations once they have become embedded in or thwarted by images, to consider the racialized connotations of specific practices. I use the historical cross-­pollinations in gendered and racialized cultivations of expressions for performances on stages, in parlors, and in public to expand how we situate photography in visual and performance cultures. My aim is to understand anew how performance cultures contributed to a “possessive investment in whiteness” that generated value by inculcating modes of differentiating capacities among people. I elaborate the specific processes of racialization and procedures of financialization through which practices of expression were embodied with and without the physical presence of a camera. I further understand expression as a complement to Kyla Schuller’s study of “impressibility” as a “biopolitics of feeling,” the metrics through which white supremacy reinforces itself through epistemes that portion out capacities to live in bodies that feel as a matter of racial difference.24 What Schuller studies as “impressibility” is translated here by performance practices as capacities for expression. These notions of expression, as Lindsay Reckson elucidates, were part of the “fantasy of the body’s communicability, its ability to function as an imminently reproducible sign.”25 In addition to the racialized development of photographic technologies, the bureaucratic and disciplinary functions the camera served (as in anthropological studies, and later, immigration protocols), whiteness as an aesthetics made use of the photographic imagination. Art historian Michael Fried has offered the dialectic of absorption and theatricality to account for the valuation of a posture of “not being aware of being watched” in French painting.26 Whitened San Franciscans’ photographic posing aligns in some ways with Fried’s account of “anti-­ theatricality.” But for our purposes, Julie Stone Peters clarifies, “the key paradox of ‘absorption’ in theater is that it is artificial. For a performance to show absorption, there must be spectators. . . . In performance, absorption is a ruse.”27 Fried’s and Peters’s accounts of “absorption” help further situate what the photographer in San Francisco identified as a cultural difference before it was articulated as racial incapacity. Performing as if the camera were absent constitutes not only a visual convention or a ruse of performance. In this book, it is also a posture of racial authority in a 42

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code of superior performance—­and the instantiation of the freedom to do so. My aim is to explore the matrices of power and positionality even in the micromovements—­whether taken up willingly, enforced, or a matter of happenstance—­before the camera fixed them into place. Doing so enlarges, first, why critics look in certain ways at photographs and, second, expands the historical-­conceptual horizons there are to read from a singular photograph, and from the history of photography more generally. What follows is just one late nineteenth-­century avenue for thinking about the cultivation of whitened expression, whose coordinates in aesthetic and critical discourses photography helped destabilize even as it borrowed the term from Western painterly discourses. I read these as part of what W. E. B. Du Bois called “the supporting arguments” that “grow and twist themselves in the mouths of merchant, scientist, soldier, traveler, writer, and missionary.”28 Exploring expression as a question of cultivation interconnected with photographic experiments with light offers an important initial foray into the legal conflicts I go on to explore in the next chapters—­a kind of prequel. This preliminary shift in focus is a pivot from reading an image to reading a process. Involved in that process is an education in gestures as well as in assumptions about what one’s pose “reveals.” The question of photography as “capture” and “trace” has been a productive question for critics and historians to tell visual histories of people who were used as objects of study for science, caught up in practices of surveilling the criminalized and incarcerated, and including patients subjected to photographic healing techniques, to name only some groups whose non-­choice to be in front of the camera was not part of the ways their images would have been understood as they were taken and put to use.29 This scholarly literature focuses on how immigration officials, police departments, scientists, and ethnographers use photography in varying modes of surveillance.30 I return to these regimes of visuality in the third and fourth chapters. Narratives about photographic self-­representation have tended to focus in one way or another on the agency of the sitter. Photographic “traces” read this way have been part of an “undoing” of power in the present. Revisiting key moments in the history of photography’s legal encounters reopens and reconfigures questions about the visibility of intentions in order to renegotiate them, as with Rosa’s snub. To begin with expression as a question puts us inside the interpretive complex that photographs encompass, draw on, and activate through their 43

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circulation and bears on the study of realism. As a literary genre, realism purports to understand the bodies on which and through which it is acting. Recently, critics have importantly reworked ideas of realism in relation to emerging scientific and medical knowledges about bodies and emotions.31 Given this work, the conventions critics pair with “realism” simultaneously index what’s pernicious about whiteness as an aesthetics of power, the lives it conscripts with its un-­empirical, unfixed universalism and those it dispossesses of conditions for living. These are some of the reasons the idea of “self-­representation” falls short of offering an account for why a person becoming white should prefer to look like she doesn’t know the camera is there, and why that becomes not only a legible form of graceful expression, but one that is thought of as ideal by a photographer in San Francisco, but then also by jurists in courtrooms determining photography’s harms and property protections. To ask questions about expression as it is being reconstituted in the late nineteenth century in ways coded as “realism” mobilizes a fuller understanding of how white supremacy inscribes as it curtails aesthetic “standards.” Naming an expression as such necessarily conjures an epistemic rather than a cultural claim. The aesthetics of whiteness I analyze here, then, constitute the aesthetics Wynter might term “culture-­specific,” and the postulation of those standards as descriptive of expression repeatedly claims a “transcultural” mode in the chapters that follow. The whitened people whom the photographer determined had the superior pose—­and thus understanding—­had been taught how to cultivate their expressions, just as he had been taught to read them. Turning from the image to the pose and to a specific cluster of performance practices in the context of private commercial credit begins to show how they function together as an aesthetics of racial capitalism. Photography is internal to the emergent forms of theatrical realism, especially in the latent (but nonetheless present) idea of harnessing the materiality of light as a quality of whitened and whitening bodies, especially on later nineteenth-­century stages, where, as Daphne Brooks describes it, “the culture of performance responded to the uncertainty of corporeal autonomy by producing a range of liminal and embattled types and icons.”32 Film scholar Phil Maciak describes the realist camera as one that “must tease spiritual and temporal transcendence even as it reminds spectators of the materiality and grit of the contemporary moment.”33 Similarly, Reckson sees secularism as “a modern mood: an affective comportment that regulates the subject 44

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not just ‘underneath the skin’ but also through Jim Crow’s very production of skin as a highly symbolic and overdetermined surface.”34 As I’ll show, American Delsartism’s ideas of “transluminosity” betray an “occult” photographic structure that impacts conventions of appearing before the camera in poses that do not want to look like poses, but may—­like a camera—­internally harness light. One way of understanding the appeal of Delsartism is precisely how it absorbs aspects of the unruly, fantastical, and grotesque spectacles of nineteenth-­century stages by offering an occult mode of disciplining a speculative sense of control. Through Delsarte’s students’ works and performances, the cultivated preparation for failures of control is coded as a property of whiteness. I mean property as in a facet, but in later chapters this facet becomes a functionary of a property right. Expressions conceived as a question of legibility require the precise carriage and positioning of one’s body, but also require knowing how one’s carriage might or might not be seen to evoke something like grace in order to be distinguished from working bodies. At one and the same time, grace links whiteness to light and aggregates in an economy of presumed spectators and prospective consumers as an intangible asset that would be constantly reassessed and reappraised, and whose potential gains depended on that appraisal.35 In a consumer-­driven marketplace growing its modes of codifying creditworthiness, investments in intangible assets in whiteness continued to pay out over time. Credit reporters and courts were securing the general category of reputation as the property interest of a whitened person that required legal protection. The cultural-­economic functions of whiteness in the marketplace for credit were recognized as an abstracted property right in reputation.36 Although “reputation came to be seen as a democratizing force in the ‘culture of contract,’” reputation itself was racially coded.37 J. Allen Douglas has done extensive work to show how southern courts built up justifications for protecting reputations in whiteness that, while structurally produced, were also subject to community recognition even as litigants and jurists struggled to make those claims through logics of blood quantum. While Douglas does not use his archive of case law this way, it is another place to look for evidence of how the property interest in whiteness changed shape and crystallized in the later nineteenth century. As we situate reputation as a phenomenon of legal protection and economic value, it emerges not as a “democratizing force,” but rather as part and parcel of 45

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racial capitalism’s functioning in inequitably distributing resources, well-­ being, and prospects for living. This chapter analyzes practices to increase one’s ability to express grace, precisely when that quality could go on to build local trustworthiness in a reputation or in face-­to-­face interviews with potential lenders to acquire credit. A set of speculative practices for whitening bodies sought to make them work like divinely appointed cameras in a marketplace shaped by consumer surveillance. A System for Expression

François Delsarte died before his performance practices could be published. They were nonetheless known and studied on both sides of the Atlantic. Born November 11, 1811, in Solesme, he died at the age of sixty in Paris, which makes him a contemporary of many figures in the early history of photography. His mother had arrived in Paris with two small children after leaving the impoverished physician patriarch of the family. Delsarte’s mother and brother died shortly after reaching Paris. Once orphaned, so the story goes, he was taken in by a musician who had stumbled upon the autodidact Delsarte as he was writing musical notation in the sand, and then nurtured his talent. It was first as an opera singer that Delsarte became well known in Paris, but an episode of laryngeal tuberculosis interrupted and then ended his career. His voice was so badly damaged that he was thereafter unable to perform. Having read widely in medicine, political theory, philosophy, and aesthetics, he built a livelihood close to the stage by developing a “system of expression” for actors and singers.38 Perhaps inspired by the seeming capture of light on plates, his methods were part of a then-­increasing formalization in acting instruction and the long-­standing desire in theater history to find a system of “notation” for acting’s art. Through teaching, he became “well-­known” as a professor by midcentury.39 Delsartism connects the history of performance to the shifting idea of expression on-­and offstage. Performance studies scholars often link Delsarte to modern dance, acting, “physical culture,” and other “self-­improvement activities” like aerobics and sports, with additional connections to Charles Peirce’s studies of semiotics.40 The “modern” aspects of his system marked a transition away from melodrama and toward theatrical realism. If “the language of melodrama requires the body to speak loudly,” the Delsartian 46

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system produced both gestural facility and a psychological attentiveness to coordinate between mind and body, understanding these as overlapping systems waiting to be read. It presumed, in particular, the distinct calibration of a white body’s “volume.”41 The practices aspired beyond the logic of a one-­to-­one correlation between a singular emotional state and any particular gesture, working to be distinguishable from “the dissonant bodies of the spiritualist medium and the racially liminal figure [which] emerged in concert with the raucously disruptive figures of the English pantomime, the American minstrel show, and transatlantic sensation melodramas.”42 That is, part of the “modernity” ascribed to Delsartism comes from its mode of disciplining and distinguishing whiteness as a horizon for lived experience from racialized spectacle, even as scholars have shown that whiteness was precisely inextricable from minstrel performances.43 For Delsarte, the actor’s “task involves a kind of body-­mapping: working from outside in, the actor observes the manifestations or signs of feeling in others; working at the same time from inside out, the actor consciously applies his or her feelings and reactions.”44 There are several processes overlapping here: a performer initially understands themselves as calibrating multiple registers of their body according to a set of laws I’ll explain shortly, but then also interprets another performer/person through the same set of laws and their desired effect. The production of gendered whiteness in the late nineteenth century was specific in its protocols, and included ideas about how to walk.45 Beyond those who were professional practitioners, Nancy Lee Chalfa Ruyter has estimated that as many as 80 percent of students of Delsarte’s system were women with no formal affiliations with the theater.46 Paige V. Banaji and Jane Donawerth have argued that Delsartism represented a shift away from restrictive social conventions upholding whitened women’s subservience, silence, and softness.47 More, Donawerth asserts that the contemporary practices of “elocution offered [white] women an avenue into public speaking and a means of powerful physical training that countered the passivity of the nineteenth-­century ideal of delicate femininity.”48 Elocution, which diverged from Delsartism in its purported emphasis on ancient Roman “programs for training the ideal Roman orator” to train United States citizens, “was part of a punitive regime of body discipline and vocal discrimination.”49 Think again of Rosa, Rebecca, Charley, and Chinn, who could have been reading aloud to one another, practicing, perhaps, 47

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their elocution.50 Elocution, thought to be “the preeminent performance of whiteness,” could nonetheless be repurposed to “democratize access to instruction in spelling and pronunciation [bringing] Black voices more prominently into the public sphere.”51 When translated to the United States, Delsarte’s exercises also built on a longer tradition of “genteel performance” and etiquette manuals “packed with hundreds of detailed rules covering not inner morals but outward conduct.”52 Critics have noted that the emphasis of these manuals shift away from a language of character and toward personality, registering what historian Josh Lauer has called “a new capitalist vernacular,” where “personal identity was conflated with financial success and, more poignantly, failure.”53 Numerous handbooks detailed an emphasis on personality, and especially charm, in getting ahead in business, presuming business to be the structuring function and purpose of a life. This financialization of personality—­becoming a “rational” metric and mechanism for success—­was figured in concert with shifts in both the structure of consumer capitalism and the imaginative worlds of realist fiction, as Deirdre Lynch, Mary Poovey, and Annie McClanahan have argued.54 Modes of reading and narrativizing “credit” in identity, McClanahan argues, “borrowed the realist novel’s ways of describing fictional persons as well as the habits of reading and interpretation it demanded.”55 Lauer further describes the massive compiling of information new credit bureaus embarked on in the nineteenth century, including “personal life, habits, property, and financial reputation of all American merchants and entrepreneurs.”56 These records were intimate, including health histories, the way a family and household were organized, details about employment, and even what someone looked like. Because of these new infrastructures for commercial credit, “one’s reputation as ‘good pay’ or a deadbeat [was] no longer an isolated local matter; it was inscribed in one’s financial identity and transmitted throughout the nation.”57 Most importantly for us here, these agencies sought to formalize any “individual’s local reputation into an easily readable, centralized summary of creditworthiness for remote lenders. . . . They created the modern concept of financial identity.”58 Applicants for credit would face credit managers who, using “the three Cs—­ character, capital, and capacity (one’s work experience and ability to earn a living),” then “scrutinized the disposition and manner of applicants and made their own judgments about their honesty.”59 For Lauer, this history 48

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is “ground zero for understanding how Americans learned to bare their financial souls, and how the language and logic of capitalism were embedded in contemporary notions of identity.”60 This is the specific context in which, per Salazar, a “reputation was a commodity form.”61 But if we join credit reporting and commercial surveillance to what Simone Browne has called “racializing surveillance,” these credit agencies emerge not only as “inventors” of commodified credit information and managers of expansive commercial surveillance, but also as supplemental to securing whitened people’s access to credit in the shifting and credit-­ based marketplaces of the nineteenth century. As Salazar describes, “The accounting books of midcentury credit agencies, which . . . began appraising character’s value as capital in their reports to banks by classifying the character of loan applicants with evaluative designations such as ‘A number 1’ or ‘second-­rate.’”62 Modes of abstraction to secure private credit as capital in addition to the commodification of that information reveal “the combination of erasure, extraction and surveillance [that] has enabled racial surveillance capitalism to survive.”63 Thought of within this cultural economic context, Delsarte’s system for expression, one among many practices of self-­presentation, emerges as a way for whitened people to continually refine their reputations as economic investments while engaging in practices experienced as artful and divine—­ just when reputations and personalities functioned as new forms of financial assets. The legal protection of whitened reputations and “reputation” as a category that upheld whiteness—­often, as Douglas has shown, to protect the projected value of whiteness itself from someone undesirable who nonetheless had a reputation of “being” white—­had the additional effect of protecting communally held intangible assets in whiteness. The cultural shift from an emphasis on character in a production economy to personality in a consumption economy, previously charted by critics in terms of inner versus outer focus, can more precisely be understood as effects of the financialization of consumer surveillance alongside the juridical protection of whiteness. To analyze Delsarte and his students is, then, to think not only about professional acting, dance, and parlor games of statue posing, but to think through a holistic approach to a powerful episteme for expression in the context of personality’s financialization. The dissemination of Delsarte’s systems “exerted massive influence” on the “presentation of the self in public.”64 For whitened women, Delsartist performances and pastimes were a 49

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significant outlet both as a profession and as a practice of physical culture. Through his students, Delsarte’s influence reached from Broadway and some of the most well-­known nineteenth-­century colonial spectacles and into whitened bourgeois parlors. In the United States, from 1870 to 1900, approximately 274 teachers and performers indicated that they were either Delsartians or at least influenced by the approach.65 Of those who identified as professional Delsartians, about 226, or 82 percent of this group, were women.66 But these numbers do not quite capture the extent of Delsartism’s influence. A brief account of two of his students’ professional biographies helps lend more specific contours to how these practices reached beyond the professional performance cultures of the stage. His American boosters included dramaturge and theatrical designer Steele Mackaye, Mackaye’s student, actress Genevieve Stebbins, and trained elocutionist Anna Morgan. Mackaye was sent in 1857 to boarding school in Newport, Rhode Island, where on summer vacations he hung out with brothers William and Henry James, nineteenth-­century stars of the Anglo-­Atlantic world. After an early career as a visual artist (a friend with whom he sketched was Winslow Homer) and participating in the Civil War, he became an art broker. After studying with Delsarte in Paris, he turned his attention firmly to performance and became a popular playwright. For example, late in his career, Mackaye collaborated with Buffalo Bill Cody’s Wild West Show in Madison Square Garden.67 And to the relief of everyone who has had to scoot into a middle-­of-­the-­row seat, he was the first to put folding seats into theaters. In the years just before he died in 1894, Mackaye was working on a Spectatorium, “with twenty-­five telescopic stages on six miles of railroad track” that would be “in full view of nine thousand people watching a six-­act historical drama, The Great Discovery, or the World Finder.” The entire spectacle would be “performed essentially without spoken words, for the Columbia Exposition in Chicago in 1893.”68 His Spectatorium was never finished, but with the Wild West Show keeps in the foreground the interconnections among popular spectacles, screen and performance cultures, and the ongoing dispossessive figurations of so-­called “World Finders.”69 Genevieve Stebbins, another American Delsartian and Mackaye’s student, published instructional books for cultivating expression and dynamic breathing. Her books foreground two essential points: that these practices had multiple audiences, and that Delsartism not only coincided with im50

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perial spectacle but was also bound up with Anglo-­Atlantic intellectual exchanges, which were themselves shaped through imperial power dynamics. Stebbins, who’d been born in San Francisco and “descended on one side from a long list of Amherst professors who devoted themselves mostly to theology,” had left the stage after ten years of performing in New York to teach.70 According to one historian, she sought to “devote herself totally to teaching, demonstrating (through Delsartian presentations), and writing about the theory and practice that she had developed on the basis of both Delsartian training and other studies.”71 Her first trainings alongside Mackaye were at the Lewis B. Monroe School of Oratory in Boston. In 1878 she was admitted for vocal training at the School of Oratory and was taught by Mary S. Thompson, who became her collaborator during the next fourteen years. Stebbins was well versed in the work of elocution specialists like Alexander Melville Bell, whom she quotes in her Society Gymnastics, and with the work of other scholars of expression like Samuel S. Curry and Moses True Brown. With Thompson, Stebbins established a school in Boston, before they moved to New York City to teach and provide matinee performances to audiences made up predominantly of whitened women from 1887 to 1893 at Madison Square Theater.72 But first, in 1881 she traveled to Europe to specialize in Delsarte’s system, connecting with Abbe Delaumosne, who had written the system’s earliest treatise. In Stebbins’s performances and texts, the capacity for cultivating expression as a form of grace often intertwined with claiming a “classical” lineage while wielding Orientalist aesthetics. For example, Professor Currier, a member of the elocution department at Wellesley College, invited Stebbins “to address the students on artistic physical culture,” prompting the students to “go wild over Delsarte.”73 At the symposiums she offered, Stebbins was “picturesquely gowned in a soft clinging white silk with a Roman sash” whose “little zouave jacket in gay colors” produced a so-­called “oriental effect.” Her “history of dramatic expression” included “poses and dances of the various periods,” beginning with “movements of the Egyptian priestesses,” “the Greek idea of dancing and artistic management of the body,” “the spritely Spanish and gypsy dances,” and “closed . . . with the stately bows and slow paces of the minuet.”74 The “array” in Stebbins’s production recalls Zahid Chaudhary’s notion of an imperial aesthetics that “renders the world defamiliarized” in a “process that mystifies the linkage between self-­domination/self-­alienation and the domination of others.”75 51

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Such would have been the effect of Stebbins’s costume changes as elisions of and gestures toward imperial histories seeming to be controlled in the moment by Stebbins read as a stand-­in for European empires. Delsarte’s exercises also coincided with practices of statue posing and tableaux vivants that delighted ladies of a certain class.76 One popular manual from 1864 by James Head, Home Pastime, or Tableaux Vivants, taught women how to recreate “scenes” in their homes. These at-­home, performance-­based forms of entertainment have been read as having liberatory ends, or at least the potential to loosen gender’s performances for whitened women.77 The liberatory potential for whitened women notwithstanding, their practices were part of how whitening peoples laid claim to and recast ancient histories. In Stebbins’s performance of “Miriam, the Prophetess” in Boston, the stage was decorated with “Egyptian” details; the “arrangement of the stage was a little odd and out of the ordinary, the footlight curtain of deep red being hung on cranes, which was thrown back to form the sides of the play, while a curtain from above fastened to the top of the scene produces the effect of a picture deeply set in a frame.”78 At an 1894 performance in New York, she posed as “Venus with the apple, . . . while music played softly and slowly,” then “transformed herself into the flute-­playing Satyr,” before taking on the characters of Melpomene, Diana, Ceres, Ariadne, Atalanta, Hebe, and Apollo. The World reported, “for no mere limitation of sex is a bar to an enthusiastic Delsartean like Mrs. Stebbins.”79 These performances were perhaps not only about recasting antiquity as the fictional site of whiteness’s deep history but also about learning how to whiten so well you would no longer have to think about it. It bears emphasizing that this mode of staging antiquity, including Egyptian antiquity, as among the histories available to be seamlessly “performed” and so controlled, stands in contrast to, for example, African American artists’ engagements with classical inheritances. Where Stebbins laid claim to Mediterranean antiquity as though a forebear in order to suffuse her own gendered racial authority, African American and Ojibwe sculptor Edmonia Lewis, for example, questioned this conception of history-­claiming in her Death of Cleopatra.80 If Stebbins’s performances mirrored the imperial aesthetics of world’s fairs in laying claim and exhibiting control over world history, understood as an amalgam of all time and every environment by the logic of empire, 52

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her expansive study relocates American Delsartism from an isolated facet of performance history into the broader currents of Anglo-­Atlantic intellectual history, per Ruyter and Bordelon. In Delsarte’s System of Expression, first published in serialized installments in 1885 in the Voice, an Edgar S. Werner publication, Stebbins drew from more than her study of Delsarte to situate its practices. The book itself—­once compiled as a book—­was a best seller, with new editions published periodically until 1902’s final “revised and enlarged” version. Some of the highlights of this expanded edition included a “translated manuscript of Delsarte’s” and “twelve new chapters by Stebbins; thirty-­two illustrations; and a reprinted . . . article on Stebbins herself.”81 Stebbins’s reading practices and intellectual borrowings “of over one hundred artists, thinkers, and scientists” give further sense of the Orientalizing currents running through American Delsartism.82 She was also “very impressed with Swedish, or Ling, gymnastics” and “ceremonial forms of Oriental prayer,” which Ruyter notes were “probably some adaptation of yoga exercises.”83 After this kind of research and decades of instruction in expression, elocution, and performance, in 1913 Stebbins published her own “system of expression,” which begins with Delsarte’s law of correspondences, about which I’ll have more to say later. Through these interconnections between formal and social performances, intellectual history, spectacles, and screen cultures, the influence of Delsarte and his students joins imperial projections of power, the history of photography, and the history of expression as a practice of posing with which the camera was bound up. Expression, as idea and mode of disciplining, fed photographic practices and theories of expression to become the realist fantasy of aligning expressions from the page to the stage, what Novak calls “a mise-­en-­abyme of the theater within theater, performance within performance.”84 But, as Stebbins’s menagerie shows, this mise-­en-­ abyme between theater, performance, and photography was being staged with the globe as imperial dominion in mind. In a way that is helpful here, although descriptive of a slightly later moment, world historian and media theorist Carolyn Biltoft has argued that League of Nations lantern slide presentations, like world’s fair exhibition spectacles, showed how the techniques of modern power functioned increasingly through the fusion of the strategies of mise-­en-­scène (producing words, images, ideas, facts, and criteria), of mise-­en-­valeur (developing and acquiring material 53

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wealth worldwide), and finally of mise-­en-­place (securing political territory, populations, and above all a state’s global “position”).85

Stebbins’s performances and Mackaye’s production of Cody’s Wild West Show were not explicitly connected to state functionaries in the same way as the fairs or the League. Nonetheless, Biltoft’s theorization of spectacles of power as relations between mise-­en-­place, mise-­en-­scène, and mise-­en-­ valeur underscores how, as a cultural imaginary and set of practices and forms, these performances concretized the intangible assets everyday whitened people held in whiteness while subjugating colonized, non-­whitened peoples to their imagination. As Mirzoeff describes of the longer trajectory of coloniality’s production of modes of seeing, “this seeing-­in space is the sensing of how to place people in relations of hierarchy to extract value.”86 At the same time, these practices enlisted people “in their own surveillance,” so that it would not be a stretch to understand Delsartism as ancillary to “credit monitoring services,” which emerged “to assist in the management of the economic self, reflecting what some see as a broader ‘financialization’ of contemporary life.”87 Seen as part of these overlapping political, symbolic, and economic trajectories, Delsartism connects practices of cultivating expressions to whiteness as a structure of power gathering itself anew (and far from the first time). Grace and Light

As a converted Catholic, Delsarte understood his work as an interrogation of being human, drawing on physiognomy, Swedenborgianism’s “intensely literal concept of spiritual correspondences,” and mystic Catholicism, as Greg Cavenaugh has shown.88 For Delsartism, expression was a matter of spiritual revelation, though as Cavenaugh asserts, scholars often miss the “ontological-­spiritual” pursuit of its practices.89 His central question was, “How do feeling, body-­life or sensation, and thought function in man, understood as a reflection of God?”90 His system helped actors reveal the divine, by which he meant both the individual soul and God’s presence. What connected these was “transluminosity.” Anna Morgan, who by the early 1880s became well known through “public readings,” defines expression as the very proof of being (as opposed 54

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to being dead), and being as both a spiritual and a material condition.91 Like Stebbins, Morgan first studied elocution, among other arts, at the Hershey Music School and was also first trained by Mackaye in a curriculum of theatrical and political history, literature, playwriting, etiquette, acting, and performance. She traveled with the well-­known Redpath Lyceum Bureau as a dramatic reader of naturalistic style, and later taught drama at the New Chicago Opera House Conservatory. In 1898 she opened the Anna Morgan Studios in Chicago’s Fine Arts Building. In Stebbins’s and Morgan’s manuals, the goal of expressing (the singular key component of this ontological-­spiritual pursuit) was to express grace. Following a Delsartist regimen would help women becoming white “appear graceful and pretty even when nature had denied them these qualities.”92 The mission to become graceful interrogated being human and was itself a theorization of grace as a racialized characteristic. The law of correspondences, the root of the system’s “occultism,” both presumed and prescribed the discernibility of spirit well beyond Delsarte’s Catholicism.93 The “law” dictated that it was “possible to trace every movement of the body back to the sensation, thought, or emotion which created it.”94 In a simplistic understanding of “correspondences,” there is a one-­to-­one correlation between expressions and the soul’s movement; meaning-­making is not an act of “interpretation”; rather, reading/viewing depends on knowing a quasi-­linguistic code. Instead, Cavenaugh contends that Delsartian correspondences involve a Romantic’s search for infinitude rather than a realist’s search for exactitude: “The artist and the critic alike are thus required to have sensitivity to these spiritual correspondences, for failure to interpret and appreciate them properly is both an aesthetic and a moral sin.”95 He goes on, “A key element of occult thought in the nineteenth century (and of western occult thought throughout its history) is the belief in secret communication between and among presences, an animism wherein everything speaks to and with everything else, if one knows how to listen.”96 In a Delsartist’s “spiritual-­ontological pursuit,” representation is already ontological, rather than a way station from which one discovers or reads against the grain to discover “reality.” The law of correspondences, then, involved multiple and, to use Cavenaugh’s term, “unfinalizable” correspondences between multiple and “unfinalizable” bodies.97 To be a practitioner just as to be an onlooker was both to participate in a hermeneutics of spirit and to become part of the earthly presence of grace. 55

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The notion of “unfinalizable” correspondences relied on a belief in the “transluminosity” infusing all beings. Transluminosity moved beyond the physiological, beyond the strictly visible, beyond even the rational. It is a “spiritual light which penetrates and permeates all existence,” and “binds the physical and the spiritual: ‘[a]rtistic gesture is the expression of the physiognomy; it is transluminous action; it is the mirror of lasting things.’”98 We would not be wrong, I think, in hearing the specter of photography in the “mirror of lasting things.” This occult photographic specter echoes Maciak’s description of D. W. Griffith’s “vision of white supremacy—­inherited from the Dunning school—­[as] rooted in the violence of secularism.”99 Maciak is analyzing film, but I wonder whether it’s not true of photography as well: This medium is magic because it so seamlessly leads its spectators into imagining themselves as both rational and open to the transcendence of reason: it is one of secularism’s most effective disciplinary technologies. Animated by the convergence between reason and the supernatural, it is also productive and protective of that convergence.100

Similar to the secular balance Maciak parses in the magic of film, transluminosity invoked submergence in spirit and in the materiality of light. Hearing transluminosity this way, Delsartist laws of correspondence are themselves internal to photographic histories: part natural, part mechanical, part spiritual, part speculative, part magic. This is not just a general understanding of the connection among beings. Physical efforting (i.e., transluminous action) could cultivate the expression of transluminosity, make it ever more visible, more and more perfectly expressed. Delsartist practices sought to be mechanisms through which to seize and project light, to create habits for whitening people from the inside out. In the late eighteenth and early nineteenth centuries, experiments leading away from theories of light as made up of “corpuscles, or particles” and “towards the theory of light as waves” were facilitated, in part, through chemical experiments with silver nitrate that would ultimately fix a scene to a plate of copper or tin.101 Kelley Wilder has argued for “photography as a middle point in a long continuum of experiment on the solar spectrum,” joining Sir John Herschel’s A Preliminary Discourse on the Study of Natural Philosophy (1830) to a “photographic pre-­history,” credited as he is 56

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with “coining the name ‘photography,’ and the words ‘positive,’ ‘negative,’ ‘snap-­shot,’ and . . . ‘cyanotype.’”102 Herschel’s studies of light joined with other natural philosophers immersed in similar questions who “wished to study beyond the violet end of the visible spectrum.”103 In revisions and rejections of Newton’s studies, one of the challenges Western natural science faced was how to manage definitions and so representations of spectra and spectral phenomena. Herschel increasingly used projective methods to make “charts” of light’s curves. In these studies, “the view” played an epistemologically organizing role. The ability for a single observer to “comprehensively” view “all the details of a curve” of light created its “proof,” recalling, for one, the colonial reinvigoration of picturesque aesthetics in the same period.104 These aesthetics for understanding light through projections as waves, alongside “the social stratification of science from art,” would, “between around 1850 and 1870,” align with Lorraine Daston and Peter Galison’s notion of “mechanical objectivity.” Mechanical objectivity sought “to suppress interpretation, judgment, or theory in the reporting and picturing of scientific subjects—­to produce a perfect mimetic copy rather than something new.”105 It “took on a moral aspect because these aspects of subjectivity were thought amenable to control through self-­ restraint; it centered on the scientific image because images were thought least vulnerable to such subjective intrusions—­protective charms against ambiguity, bad faith, and system building.”106 Delsartism’s performance practices crystallized these new ideas of light as a series of (eternal and eternally resonant) waves that refracted as a spectrum and aspirations toward being able to express states of whitened being, comportment, personality, status, and emotion, with a kind of mechanical or mechanized objectivity. In the context of light’s materiality depicted and understood as waves, Delsarte’s students’ texts broke the body down into zones that corresponded to certain kinds of motion by conveying different kinds of energy, each broken down into smaller and smaller parts. This correlation and cultivation of energies in their particular zones would make one’s expression legible to others—­that is, the exercises would manage the movement and emissions of spiritual and material light. Preparing for performing meant practicing how to give physical shape through transluminous action to expressions that could be identified/legible in any moment. On the one hand, an idea of shaping expressions to be legible through harnessing and emitting light likened being itself with being as though in a photograph, especially if we 57

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Figure 1.1. Illustration captioned “Natural poise” in Anna Morgan, An Hour with Delsarte: A Study of Expression, illustrated by Rose Mueller Sprague and Marian Reynolds (New York: Edgar S. Werner, 1891).

think of Talbot and Herschel’s earlier botanical interests. Carol Armstrong explains that there was an early “connection between an interest in the very structure of photosynthesizing plants” and “the nature-­based observation of nature that photography offered.”107 Further, this aesthetic code anticipated being as a becoming through photographic aesthetics of delay, reproduction, the gather of an affective field, a momentary spark, the overlapping temporalities that explode or transgress a moment—­where expression becomes an index for (a limited sense of ) being. The promise came through a faith in reducing the materiality of light to its projection as a wave and in signs as stable, even if both were ultimately thought to be “unfinalizable.” Each zone through which a student would access and marshal transluminosity was identified with one of three kinds of energy: spiritual, emotional, or vital.108 Besides zones, Stebbins “classified positions of the body into three types—­excentric, normal and concentric.”109 When limbs and trunk moved, each displayed the energy that moved through it, whether spiritual, emotional, or vital. The directions in which energy flowed were thought to portray certain kinds of emotions. Each region’s energy and that portion of the body’s position yielded an even more subtle and particular array of attributes, emotional states, and temperaments that would, when marshaled correctly, enhance a performance. Proposing transluminous revelation, Delsartism appealed to Western natural science of light, seeking harmony with the spiritual correspondences the system itself plotted. This configuration for expression rendered performing socially or professionally into a process of legibility. The cultivation of the correct habits and efforts

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Figure 1.2. Illustration captioned “Conceit, self-­esteem” in Anna Morgan, An Hour with Delsarte: A Study of Expression, illustrated by Rose Mueller Sprague and Marian Reynolds (New York: Edgar S. Werner, 1891).

were shaped by the expectation of audiences who could appreciate “the view.” Morgan’s pedagogical text, An Hour with Delsarte, is organized by laws such as the law of velocity, the law of direction and extension, and corresponding exercises.110 According to the “law of velocity,” for example, “the velocity of any agent is in proportion to the mass moved and the force moving.”111 The assertion is that ideas have a corresponding mass and thus need to move through internal space with a corresponding amount of force. But other assertions are not explained through appeals to Western natural science—­for example, why a weighty gesture might need slow movements and large space in which to do them. According to the “law of priority or sequence,” as Morgan describes it, “impression always precedes expression; we must have before we can give, and give in the order of having.”112 The “extension of gesture,” another of the laws (of direction and extension), is “shown in the degree of our self-­ surrender or the completeness of our giving up to the state by which we are dominated.”113 Delsarte’s method could give the impression of a strictly mechanistic relationship with one’s embodiment. But looking more closely at Stebbins’s and Morgan’s texts yields, instead, an articulation of intention’s limit, coinciding with new understandings of musculature as interconnected systems of forced and unforced action and constriction. These disciplining practices did not seek a “freedom of will,” nor exactly a greater jurisdiction of the will as a source of intention. Rather, as Daston and Galison described “mechanical objectivity,” Delsartist practices anticipated a future moment that would be—­in the ideal case—­marked by “freedom from will.”114

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Not Ordinary Labor

American Delsartism’s practices and manuals reimagined, in particular, procedures for intention and for reading intention: its source was understood to be a will, but any occasion of an intention’s expression would be a meeting between will, choice, and the disciplining habits meant to harness transluminosity. While its “ontological-­spiritual” framework tapped into a transluminous connection among beings, Delsartism in the United States was also attuned to how muscles worked. Delsarte’s students reimagined his practices not only amidst accounts of light as waves, but also alongside understandings of the flow of nerve-­force through reflex arcs. Students paid close attention to the muscular system, understood in terms of strength and flexibility, and relations among parts of the body. Delsartism’s mystical Catholicism and investment in physicality oscillated between a split and a join between control and intention, where that instability itself could be manifest in a person’s expression. It was through mechanistic calibrations of musculature and nerve-­force that a Delsartist would practice expression in a photographic mode of harnessing light. An article in the Independent Record (Helena, Montana) titled “About Women’s Arms” predicts, “We are going to have an era of arms,” where “the ideal arm has a beauty of a wholesome, almost of a pastoral order; it bears showing. It is clear-­skinned and rounded and there is a gracious dimple just at the side of the elbow. . . . It is a blemish if the lines are so full as to suggest the seraglio rather than the green fields.” The article names Stebbins’s arms as “about the best arms of contemporaneous femininity” amid a lengthy catalogue and analysis of other women’s arms.115 The attention to dimples and blemishes as to musculature in this moment of industrialization distinguished bourgeois whitened expression from a projection of how mechanized forms of labor were shaping working people’s bodies. Performance historian Susan Foster recounts that the terms “muscularity” and “musculature” were coined in the 1880s at precisely the same time that Bastian invented the term “kinesthesia.” As an expanding labor force committed to routinized repetitions of specific actions in industrial production, and regimens for physical education began to develop each muscle separately, a newly volumetric apprehension of physicality began

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to emerge. Tensile and three-­dimensional, any or all of one’s muscles could be summoned into action, and by contrast, taught to relax.116

This is the sense of embodiment that Delsarte’s students were writing and performing against, even as the idea of training muscles was central to Delsartist practice.117 Carrie Preston locates Delsartism’s investments in musculature in a genealogy of transnational kinesthetic modernism, what Hillel Schwartz terms the “new kinaesthetic.”118 The word “kinesthesia” “was coined . . . in response to a growing body of research establishing the existence of nerve sensors in the muscles and joints that provide[d] awareness of the body’s positions and movements.”119 Schwartz describes the “new kinaesthetic” using examples from theorists, movements, inventions in dance, graphology, drawing, physical culture, fashion, and medicine. She proposes that “this kinaesthetic demanded sincerity, the loving accommodation of the force of gravity, fluid movement flowing out of the body center, freedom of invention and natural transitions through many fully expressive positions.”120 The meaning of kinesthesia since then has been expanded and revised, and from the early twentieth century through the mid-­twentieth century “was largely replaced in neurological investigations by the concept of proprioception.”121 The distinction between kinesthesia and proprioception is that proprioception names a “more focused system of spinal-­level neural arcs that continually adjust for the body’s changing relationship to gravity.”122 And while the term and study of proprioception had many currents, especially in sports, in the late nineteenth century, kinesthesia—­the term, the practices that grew up around the research, and the thinking about the term and practices—­named a phenomenon and cluster of conversations about nerve sensors, muscles, and joints that were thought to provide another kind of awareness of the body’s movements and positions.123 A short bit from A Delsartean Scrap-­book, compiled by Frederic Sanburn, locates Delsartian practices as precisely invested in a kinesthetic sense of embodiment. As Sanburn describes it, Ordinary labor, a blow, a simple motion, use but a few muscles and joints; noble feelings and elegant manners require the whole body to respond without tension or effort. In labor the brain commands special muscles to do

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a special work, but when the man does not move, but is moved, a wave of feeling passes over him and his whole body becomes eloquent. . . . To express reverence and love the whole body speaks in unconscious rhythm.124

It’s explicit that Delsartians were putting their practices in the context of a racialized industrial society and its class divisions. These were to be forms and practices to distinguish a person from, for example, “the unfeeling Chinese coolie” who was “numbly machine-­like,” and from “the unfeeling female sex worker” who “was insincerely artificial in hers.”125 At the same time, Sanburn synthesizes knowledge about how muscles interacted with the nervous system (“a few muscles and joints,” “the brain commands,” “special muscles,” “his whole body becomes eloquent,” “the whole body speaks in an unconscious rhythm”). Delsartism accrued social value to itself in functioning as ameliorative of the transformation of work into mechanized labor. Delsartism ensured racialized class distinctions because its students could become expressive, could become an “eloquent body” rather than a body that did “ordinary labor.” Claiming (and being allowed to claim) these capacities in theory and practice was, in Christina Sharpe’s phrasing, “freedoms for those people constituted as white . . . produced through an other’s body,” here, through the imagination of other racialized, working bodies.126 Given the sustained attention, wrought force, and varied tensile skills that were inextricable from industrial forms of labor, Delsartism struggled with the paradox of cultivating the appearance of an absence of “tension or effort,” and subsequently, with the role of intention and cognition to produce the look of effortlessness. In an episteme where only bourgeois whitened bodies could obtain the expertise to translate and move light, for the student of Delsarte, embodied cognition meant submitting to a process of “losing herself.” Only by losing herself would she “achieve the ease from which a powerful performance could emerge.”127 Any “command” over one’s body was in the service of conveying “passion with the least sense of effort.”128 Matthew Sommers identifies the evacuation of ideas of autonomy from these notions of expression: Not only should the body express itself spontaneously from its center . . . to its extremities so as to produce natural and graceful gestures, the body and the voice should also give spontaneous expression to the thoughts and feel62

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Figure 1.3. Illustration captioned “Alas poor soul! what grief is thine?” in Anna Morgan, An Hour with Delsarte: A Study of Expression, illustrated by Rose Mueller Sprague and Marian Reynolds (New York: Edgar S. Werner, 1891).

ings that are held in the mind. However, spontaneity does not mean utter freedom or pure intuition. All expression that the body does spontaneously or automatically—­“emotion is always spontaneous”—­has to be balanced by “voluntary control” and “conscious deliberation.”129

In these terms, Stebbins’s and Morgan’s texts trained women to whiten by surrendering to the dictates of this infrastructure for cultivating grace in their bodies and learning to believe that they alone possessed the system for discerning its presence or absence. These practices trained their sight as much as their bodies. By reading and attending symposiums and seminars, women would whiten through training themselves and their capacities to 63

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evaluate which expressions were graceful, even as they were inculcating a felt sense of anticipating being interpreted, even when no one else was there to see. The first lesson of Stebbins’s Delsarte’s System of Expression includes a series of “decomposing exercises,” by which the student is encouraged to release effort from certain parts of her body to attain “perfect flexibility.”130 Stebbins began many of her volumes with Mackaye’s training exercises, especially those for relaxation (decomposing) and poise (equilibrium). She added energizing techniques to complement Mackaye’s decomposing and breathing exercises to “control tension and to use the body’s energy efficiently rather than haphazardly.”131 The decomposing exercises were similar among teachers and the basis—­conceptual and practical—­of the system. They included studied repetitions of incremental movements of specific body parts, specifically to anticipate that an actor, or a lady at a party, would have limitations in conveying a perfect—­a s in perfectly authentic—­performance. Decomposing exercises anticipated mistakes and a nonalignment between a desire or intention and a performance. They did so by preemptively habituating expressions into a body. The incarnation of habits through small, repetitive movements was also a way to refine the luminescence that infused a being to become visible as an expression to others. For these reasons, Stebbins’s Delsarte’s System of Expressions included careful exercises for each part of the body. She explained the exercises through liquid metaphors like channels, streams, and rushes to describe how students would be moving energies and forces through their limbs and trunks. The metaphors recall kinesthetic knowledges, relying as they did on attunement to how a body moved through space as a relation between muscles and the nervous system, creating sensations, balance, and orientation all the while. Stebbins’s liquid metaphors created a specifically relational dynamic between the capacity to control through an intention as in a direction of attention and force and the mechanisms of her own body. Stebbins describes, for example, how withdrawing the “vital force into the reservoir at the base of the brain” would “free the channels of expression” so the “current of nervous force can thus rush through them as a stream of water rushes through a channel, unclogged by obstacles.”132 The idea of forces moving like liquids characterized intention itself as a material force that could be felt and directed. At the same time, Stebbins implies that intention 64

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and attention—­what we might now think of as conscious attention—­may create “obstacles” for the “nervous force.” Intention understood this way could be an obstacle, but could also facilitate “decomposing.” Morgan describes the exercises in Delsarte’s system as “a flexing or freeing process . . . which is the first step toward restoring them to the pliancy of unconscious freedom.”133 She explains that students should “[surrender] the body to the discipline of an aesthetical gymnastic drilling.”134 It is in order to not have to think about one’s gestures later, “to be natural,” that one studies gesture.135 What she calls the “flexing or freeing process” should progress down the body “until the entire body becomes readily responsive to the slightest calls of the will.”136 The will is distinct from the intention directed through liquid nerve-­force in exercises that “destroy . . . unbending muscular rigidity largely imposed by conventionality, and infuse an air of elastic independence,—­so fundamental an element in a graceful carriage.”137 Morgan trained the mechanisms thought to supersede the will and make it temporarily subservient, so that the person need not rely on choosing a gesture in a later moment: “All gesture, to be natural, must be unconscious, or seem to be so; the reason that studied gestures are often stiff, embarrassed, and self-­conscious is that they have not been sufficiently studied.”138 The hand in particular was thought to disclose each of the three major states of being, its “involuntary movement . . . frequently betrays the truth.”139 The goal was to surrender specific intentional flows (i.e., effort) to faith in the habits of grace and “the slightest calls of the will” that might exceed the attention intention required and whose contours had been carefully cultivated. The fullest sense of the system’s goal was for newly acquired grace to become unconscious—­that is, no longer a product of intention understood as directing attention to a specific movement. The acceptable effort took place before any action (gesture, posture, pose) was evaluated as an expression—­that is, before the performance. That effort—­rehearsal—­ habituated a person’s face and carriage into graceful expressions that would happen in another moment. Because the effort of practice, or rehearsal, was thought to be a way to free the material force of intention, and so the movement of light, a student was asked to shake each limb, each eyelid, and their lower jaw. Programmatic shaking was thought to help, over time, evacuate any too-­tight flows of intention and help prepare the aspiring actor or lady to more completely and more authentically express onstage. 65

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It was, of course, possible for students to be wrongly and poorly instructed. Poorly instructed students might not only insufficiently loosen flows of intention, but also “make ridiculous exhibitions of themselves by the agonizing sinuosities which they throw into their gestures, and the airy nothingness which pervades all their movements.”140 The balance was between tightness, “agonizing sinuosities,” and an “airy nothingness,” movements too insubstantiated with energetic flows of force and light. This method trained expressions by marshalling a specific, directed and material understanding of intention, a liquid force moving that could produce small, practiced movements—­in such a way as to produce their happening, later, “involuntarily,” but gracefully. There are sections in Morgan’s text that seem to contradict this sense of aspiring to a later moment of surrender. She writes, for example, that Delsarte’s system afforded a way to build “muscular strength,” not “at the expense of flexibility,” but in order to “obtain freedom and elasticity of action, but one which adds force and meaning to our every movement. It frees the body from all restrictions, and renders it as it should be,—­ subservient to its master, the will.”141 She goes on, Has it ever occurred to us that we are constantly creating impressions by our unconscious expressions, and in consequence are possibly being judged sickly, weak, conceited, vain, or vulgar. People form their estimates of our character, not necessarily through our language, for perhaps they have never heard us speak, nor through the expression of our faces alone, but through the bearing of our entire bodies.142

Morgan sounds very much like “motivational psychology of character builders,” for whom a desirable will “was no longer determined by the automatic impulses of animal instinct, the dumb repetitions of routinized habit, or the predetermined behavioral scripts of social conventions, and thus whose actions could be taken as an authentic manifestation of its own determinate intentions.”143 She insists that it takes strenuous effort to cultivate an “attractive habit of bearing.” (This kind of effort understood as distinguished from labor will show up again in chapter 3’s analysis of the right to privacy.) For Morgan, grace is also inextricable from portraying success; in particular it is desirable to “cultivate an appearance of bodily repose.”144 Edith Wharton’s Lily Bart in The House of Mirth would 66

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recognize Morgan’s presumptions of publicness.145 This demand for training oneself into looking like ease came with an awareness of the new ways people were being read, especially in urban centers like Boston, Chicago, and New York, where Delsartists were concentrated. With ever more strangers to meet or pass by, a whitened bourgeois person would have more occasions in which she wanted to be distinguished. Morgan wrote, “In other words, we must free the body from the stiffness of individuality by yielding it up to the claims of universality.”146 Part of this work was also unlearning aspects that had, themselves, been unconsciously learned. In the long theogony of Christian biblical grace, it is easy to find a notion of effortless efforting. The strange double bind in an Anglo-­Protestant context was that while one need not perform good works to be saved (one was saved by the acceptance of God’s grace), good works remained crucial, if only as proof of one’s salvation. Delsarte’s mystic Catholicism would have abided more closely to ritualizing experiences and practices of grace. Where the Mind Cure Movement found this kind of ritualistic renouncing therapeutic, in The Varieties of Religious Experience, William James likewise conceived of religious inclination as a “letting go” or a “surrender” of self.147 American Delsartists opened the question of how much a force like intention, analogized as liquid force, producing transluminous action, could ask the body to cooperate without becoming either machine or “mere” laborer. In Delsarte’s students’ texts, the management and training of the unruly body are ever at risk of slipping out from under a manager’s fluid force of intention. The manager has to nonetheless believe in her capacities, maybe especially in surrendering to the mandates of graceful rather than mechanical or overly muscular expressions. The system’s “mechanical objectivity required painstaking care and exactitude, infinite patience, unflagging perseverance, preternatural sensory acuity, and an insatiable appetite for work.”148 Using limbs, trunks, and digits to express (not itself original in the late nineteenth century), where nerve-­forces, like muscles, were known to occur in reflex arcs beyond the conscious attention or control of the person who could nonetheless be seen making moves.149 We can think of the micro-­attention of its incremental practices for nerve-­force, muscle tissue, and awareness as becoming a photographic implement of grace. Delsartist pedagogy held in tension the surrender of a given performative moment and the faith in the “slightest calls of the will,” as distinct from the fluid force of intention. Harnessing and incarnating translumi67

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nosity, whitened women could be made to “glow rather than shine,” as Richard Dyer describes whitened people’s “special affinity between them and the light.”150 And, at the same time that Delsartists cultivated expressions, and through the same understanding of what expressions were, they practiced the habit of surveilling. What Kind of Sign

Earlier Anglo-­European acting practices, from which Delsarte diverted, were oriented around quieting involuntary movements rather than exploring them and producing pathways of habit for them to more easily occur. In the seventeenth century, actors and visual artists alike consulted John Bulwer’s Chirologia, or The Natural Language of the Hand (1644), and Charles Le Brun’s Methode pour apprendre dessiner les passions (1698). These showed actors how to take on poses that were both varied and specific for portraying emotional states. According to Peter Brooks, the “simplicity” or “surface” nature of melodrama’s gestures, poses, and signs was not the result of a critical failure or a lack of sophistication; rather, he explains, the “expressive means of melodrama . . . correspond[ed] to the struggle toward recognition of the sign of virtue and innocence.”151 A pose’s rigorous specificity signals how earlier performance practices mobilized static poses to affirm a Manichean order in a given story. For actors of the melodramatic stage, emotional expression occurred at its “heights” and had stable, coherent meanings; they marshaled static movements toward revealing a stable moral world. Minimizing extraneous movements was a critical aspect of an actor fulfilling their role. For Mackaye, the making of any sign in a performance was embodied and more than conscious—­it was environmental and interrelational. The actor made apparent and visible parts of the creative process not easily accessible for poets, novelists, even scientists, what he called the “realistic hypostatization of relations,” which Fischer has translated as “embodied cognition.”152 The transition away from melodrama included Delsartists’ understanding of their “grammar” for expression. As Morgan distilled, “It was only fools who would think that there was one particular gesture that corresponded perfectly to an emotion.”153 Expression was not here a singular emission, but rather a process that actively unfolded and was ultimately uncontrolled (“unfinalizable”), though habituated. 68

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The Delsartian text’s tricky pedagogical task—­to teach students how not to look taught—­is evident in their unstable narration. Unlike Stebbins’s, whose narrative voice more seamlessly inhabits the position of a teacher, much of Morgan’s text is written as though from the vantage of the space around a potential student’s body, where interpretation might happen. Yet the Morgan text’s conceit is that it is written as though from inside a body, from the place where movement happens. In an opening chapter, Morgan rehearses a conversation in her class. She encourages students to repeat that they want to learn expression: “not dramatic expression, not facial expression, but expression only,—­expression pure and simple.”154 Writing as though in the fictional classroom, she clarifies, “Expression is a sign of the being.”155 And being, for Morgan, “is that which exists in any way, whether it be material or spiritual.”156 What is gestural—­what became expressions—­were connected to Delsartism’s spiritual-­ontological project, as excavations and disciplines of being. These excavations and disciplines were not thought of as performing artifice, but rather a kind of spiritual archaeology. As I’ve argued, this project of inculcating habits, fundamentally a project of incarnation, digested photographic logics in the body’s expressivity of transluminosity. Delsartism’s spiritual archaeology sought to carve habits into bodies by redirecting the liquid force of intention to transluminous actions. This “carving out” presupposed a future moment of becoming “the view” as in a photograph, as in becoming a non-­static sign. In Delsartism, séméiotique meant becoming habituated enough to consistently convey transluminosity without visible effort in one’s expressions. Fischer argues that Delsarte’s use of the term séméiotique “precede[s] by decades the earliest appearance of Peirce’s theory of logic as semiotic and Saussure’s linguistics-­based semiology.”157 For Delsarte, séméiotique “reveals the meaning of the types which form the object of the system. It offers to us a knowledge of the form or constitutional types, of the fugitive or accidental types, and, finally, of the habitual types.”158 This understanding was of embodiment made legible, signifiable, textual.159 Most helpfully for us, Foster describes the trajectory of Delsartist semiotics in modern dance less as a kind of cartography or taxonomy than as a method of interrogation and continuous interpretation: “Early twentieth century dance pedagogy presumed that a natural grace lay hidden beneath surface distortions. Where naturalness and grace of motion were cultivated in the eighteenth century, now they were discovered.160 One can finally 69

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only signify successfully, for Stebbins as for Morgan as for the modern choreographers who learned from them, by not “efforting” in the moment of meaning-­making, but by cultivating a faith in surrendering to one’s physical mechanisms beyond absolute control of them. This searched-­for but never-­ reached horizon in a future moment of performance distinguished séméiotique. Even if the relation between the sign and the signified was “naturally” arbitrary, its consistency (if not singularity) was thinkable only if a whitened bourgeois body could work mechanistically, photographically, to harness material and spiritual light, and make itself glow. Learning to be whitened and bourgeois with Delsartists meant cultivating a form of living in a body while thinking oneself to be both uniquely capable of expression and subject to another’s whims of interpreting whether you’ve done it right, while also learning that you held the same capacity for discernment. With Delsartism, what’s cultivated (and known as grace) is the capacity to become innocent of one’s intention while maintaining the right to assert control over any expression one didn’t intend. The idea of graceful expression was then also part of the symbolic capital of whiteness, as Delsartists trained their bodies to become un-­mechanistic but operate like cameras that could express spiritual light caught from within, and in a future moment, without effort. Speculating Intention

These trainings had a limit point. The most familiar part of the racist handbook plays out in Delsartist manuals in the capacities to balance life forces. Morgan writes that Delsartism fully recognizes the fact that the artistic, like the poetic, temperament is essentially a matter of inheritance, not of study; that its promptings are intuitive, not volitional; and that while cultivation can do much to hasten development and expansion, it cannot supply the material to be developed and expanded.161

In addition to what can be read as a disclaimer, Morgan subscribes to tenets of physiognomy: “A full, high forehead, with well-­proportioned features, contrasted with a low, receding brow and projecting cheekbones, outwardly mark the extremes between intellectual superiority and mental density.”162 She goes on, 70

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The highest and lowest grades of intelligence in mankind closely approximate in appearance these external distinctions of feature; and as we said of the limbs in the chapter on the vital division of the body, that they attain the greatest perfection of physical strength among the inferior races of men, so in the highly sensitive organisms of the more advanced races, as the quality of the material becomes finer and the quantity is lessened, there is a gradual development toward the perfection of flexible strength.163

This is one of Morgan’s most explicit articulations of habituating expressions to reinforce white supremacy.164 Delsartism provided a program through which practices could make a series of presumed “superior” traits more explicit, purporting to cultivate grace, and insisting on a transluminous connectivity between beings, while enforcing strict limitations among them. Morgan proposed that Delsarte’s exercises addressed “the demand for something more than mere unmeaning grace.”165 In addition to adding strength “to our movements,” there would be “grace and ease” in such a way that held meaning, even as it was a studied, strenuous, and demanding notion of ease. It is no ease at all. Morgan writes, “This is the test of greatness; those only are great who have so disciplined the body that it has become the servile creature of the soul, mirroring with equal truth its lightest fancies and its gravest thoughts, at the master’s will.”166 “The master’s will” is subjected to being disciplined while loosening limbs, flexing muscles, and finally, releasing in order to find proper expression. As we think about how Delsartism infused whitening (for one another) with strenuousness, the structure for suspicion, and the presumption of authority and capacity, whitening as a cultural project emerges as structural paranoia, rather than response to visibilized others. Morgan’s and Stebbins’s texts seek to inculcate habits that presume a relation to light as a matter of waves, to anticipating spectation, and distinguishing graceful bodies from those that need to work, while suffusing physiognomic presumptions about how some bodies look. Their texts relegate the will to an act of speculation—­at best a manager and an operating fiction that insists on an internal relation of “master” and “subject.” Intention is figured as a force that might move like fluid but needed to be surrendered in order to appear most graceful. While it could mistakenly be read as reifying self-­control or self-­possession, sitting with Delsartian logic reveals anything but. Here is a series of surrenders to speculated internal 71

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logics, a quiet but insistent release of strict intentionality, a giving in to practice, giving in to flex and flexion, capturing light and conveying visible signs of grace, becoming a mechanism that stopped short of becoming mechanical. This grace could appear only in something like an “accident,” since the aim was to surrender intention. And, maybe more powerfully, learning and submitting to these practices inculcated a sense of being a disciplined reader of expressions gracefully made, or not. Perhaps this was an instantiation of whiteness as a set of practices that reified “the capacity to be an owner.”167 What sense of ownership more holistic and reactionary at once, than the one presumed over even what you don’t knowingly control? Delsarte’s American students made use of the edge of control in order to conceptualize what it meant to express in these performance practices—­that is, how the practices open us up to thinking of expression as constituted by not being able to fully and perfectly, even mechanically, decide which piece of body should end up where. These practices and concepts formed a foundation for modern dance through Ruth St. Denis and Isadora Duncan, who both looked back to Mackaye and Stebbins, especially in cultivating “lightness of the body.” These practices arise from a dedication to racist and classist ideas about physiology, and the desire to cultivate whitened bodies who could make expressions distinguished from “mere laboring” habits and musculature. Delsartian exercises and practices circulated among whitened ladies in parlors, but were, at the same time, flexible enough to give performers like E. Pauline Johnson (Mohawk) a mode of appearing and claiming space as modern, as performance studies scholar Colleen Daniher has argued. Daniher writes, “American Delsartism’s rhetoric of bodily legibility may have been strategically appropriated by gendered racialized subjects whose own bodily legibility as modern remained contested, struggled over, and newly forged.”168 Rather than standing in contrast to or outside it, through Johnson, Daniher proposes, race and indigeneity played an important role in shaping modernism in performance.169 At the same time that Delsartism could be refashioned toward other ends, these were practices meant to ensure that those born with the capacity to be seen as graceful could continue to speculate that distinction. This is not the only instance of forms for expression put to white supremacy’s use in addition to the philosophical and intellectual work that they purported to be doing. Arguably, in Anglo-­American cultures, forms

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and the idea of form itself were ever doing race work as a critical part of their aesthetic work. What is particular here is how the “grace” toward which these practices aspired and through which their exclusionary logics worked—­this body can be graceful, this other body cannot be or learn to be graceful—­provided openings for performers like Johnson while keeping the primary purveyors of these practices in an apprenticeship to their own embodiment. Sacred Trade

A few years after Stebbins performed at Wellesley at the invitation of Professor Curry, his wife, Mrs. Anna Baright Curry, asserted that statue posing “tends to a trading off of those things that a woman should hold most sacred.” Ana Curry was an elocutionist in Boston described by the St. Louis Dispatch as having “an Anthony Comstock expression.” In a debate with Stebbins, the “argument [between those onstage] waxed so hot that it finally ended in a perfect fusillade of words.” Curry objected to “the gowns that are worn, clinging robes of Grecian cut,” and also asserted that “art in nature never poses.” According to reports, it was Stebbins who “alone retained her coolness” and won “the last word.”170 Vehement detractors like Curry understood the stakes of guarding the future value of their intangible assets in bourgeois whitened womanhood. One whitened woman “trading off” her “most sacred aspects,” threatened Curry’s own assets in whiteness. Understanding practices like elocution, statue-­posing, and Delsartism as contested is important even as they were part of the greater social, cultural, economic, and political matrix that reinforced Jim Crow segregation and reenacted imperial fantasies on stages and in parlors. If whiteness is a set of beliefs about oneself, history, and power, it is also a set of behaviors and practices that shift over time. A Delsartist’s “natural law of embodiment” makes use of the body, but understood as a potential photographic implement, harnessing and projecting transluminosity in order to be legible. Its “natural laws” prescribed embodiment and set the terms of legibility for expression, proposing a cultural-­specific aesthetics as universal. These practices of perfecting expressions threatened to thieve worlds and counter-­worlds not only through adjudicating grace but by inculcating notions for expression as legibility from within. The practices

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Delsartists championed upheld exclusionary practices and modes of being by calling them grace, beauty, and health instead. Even when not pinned to a god, this way of practicing expression involved faith in intention understood as a liquid force that can unearth internal transluminous action in any expression, given the right training.171 This calibration of expressions habituated muscle and one’s habits of interpretation at one and the same time. These habits presumed the authority to distinguish among the vanishing horizons of another’s intentions, just as its subjects were taught to speculate surrendering to a future moment that had been, nonetheless, predicted through careful, regularized, intentional effort. Part of the cultural work of a Delsartist’s speculation of intention was as a mechanism of discretion, one counterintuitive branch of what Paul Gilroy described as “the dismal order of power and differentiation—­defined by its intention to make the mute body disclose the truth of its racial identities.”172 At the same time, these terms for fostering social space cultivated the expectation of surveilling and being surveilled as a primary mode for forging relations. The “decomposing” exercises I thought with here unearth a larger interpretive field for the cases that follow. In the context of private credit and credit reporters, these exercises are not wages of whiteness experienced on the labor market, but rather practices popularized amid the instantiation of whiteness as an intangible asset that speculated its payout in part through future credit, itself a financialization (a form of translation) of local relationships into metrics that held (in the sense that they became) market value. While not the wages of whiteness we are used to thinking with, the importance and inner workings of intangible assets held in whiteness are critical to unpack. I am not proposing that the jurists to come were Delsartists. My encounter with Delsartism is, instead, a proposal for how figurations of whiteness mutate in the late nineteenth century and recalibrate expression in terms of intention and its absence to protect intangible assets in whiteness. The intermingling of stage and photography incarnated through transluminosity, the market in credit that relied on numeracies generated in face-­to-­face encounters with credit reporters, and the juridical protection of whitened reputations as property together helped whiteness function like an intangible asset in addition to a category of identification. These shifts help me reencounter the court’s valuation of the arrangement of Oscar Wilde’s body in a portrait taken by Napoleon Sarony in the next chapter. 74

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The Delsartist laws of priority, sequence, and correspondence are also not the paths of the law that Holmes imagined. He might not have anticipated that illuminating a “legal unconscious” meant following resonances between “laws of embodiment,” intellectual property, and privacy rights. And yet, law and humanities scholars like Julie Stone Peters, Austin Sarat, and Martha Umphrey have precisely been engaged in thinking the relation between law and performance. Peters in particular has done important work to unearth the cross-­pollinations between the theatricality of courtrooms, legal speech, theater history, and performance studies.173 In what follows, I use the unfolding “scripts” for whiteness from this chapter as a way into the logical and rhetorical acrobatics jurists performed to make photographs legible to property protections and forms of legal harms. I join performance studies scholar Robin Bernstein’s reading practice for material culture’s “scripts” with historian Natalia Molina’s articulation of “racial scripts.” Molina offers the term “racial scripts” to discern a “relational notion” of race as it is historically produced to recognize that these scripts can be recycled.174 Bernstein uses the term “script as a theatrical practitioner might: to denote an evocative primary substance from which actors, directors, and designers build complex, variable performances that occupy real time and space.”175 By thinking of the cases that follow as productive of “scripts”—­in addition to their role as legal precedents—­I follow Peters’s example in thinking law with performance and visuality at the same time. With Delsartism as a register for hearing anew the problematics courts struggled with in making photographs into property, I intertwine Bernstein’s and Molina’s senses of scripts to explore the aesthetics of whiteness and colonial intimacies at work therein. The curiosity is that, even decades after what Steve Edwards identified as the work of capital-­as-­author in early British daguerreotype patents, the new forms of commerce in reproductions disrupted that configuration (capital-as-author) as a legal metric, familiar enough in the United States in Matthew Brady’s receiving attribution for images made by others who worked in his studios.176 Having analyzed faith in occult practices for expressions thought to move light while moving with and like light, we move back to more direct paths linking darkroom to courtroom, and to the scripts that figured property.

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Figure 2.1. Oscar Wilde, ca. 1882. Photograph by Napoleon Sarony. Library of Congress Prints and Photographs Division, Washington, DC.

2

PROPE RT Y’S PROSCE NI U M

Hints of parlor life—­where a statue-­posing game might have been played—­ all appear in figure 2.1, recalling stages arranged just so. Oscar Wilde sits on a fur pelt draped over one side of the upholstered couch, partially cropped out and blurry. The “Turkish” rug covers a prop on which Wilde’s foot rests. In some ways, Wilde’s slack pose echoes the imbalanced order in the setting. His haircut seems uneven in part because his hair is wavy, in part because his head is turned, in part because the part down the middle is imprecise. His shirt collar sits low on his neck; is it even a bit big? His velvet jacket has piping along the collar and cuffs, as does the vest that hugs his casually tucked-­in tie. Wilde coolly rests a closed book on his knee—­is it his book of poetry? It can’t be The Picture of Dorian Gray just yet; that book would not be published for another eight years. The ordinary irony of the image is that, as was true for most nineteenth-­century photographic portraits, virtually none of the objects in the photograph belonged to the sitter. It is never their parlor. (It is also rarely a parlor.) It is almost never their fur pelt. Any patron of a photography studio—­and even more so in earlier daguerreotype studios—­would take their place before the camera as though on a stage. According to the commercial convention, the curving signature in the lower left-­hand corner of the print is also not Wilde’s; it belongs to the photographer.1 Yet the line of sight is so focused on Wilde, the viewer might imagine herself sitting across from him as he sits posed between slack and rigid, spine straightened and leaning forward, resting one cheek on the curled knuckles of his left hand, seat dipping at an angle far into the couch. He seems both propped into the awkward shape and just about at ease, as though there are secrets already held in common between us. In a way, it’s appropriate: much of his celebrity at the time was, in Michael North’s words, “based primarily on his abilities as a conversationalist.”2 According to the New York Times, the photographer Napoleon Sarony exclaimed, “A picturesque subject indeed!” when Wilde arrived at his Union Square studio 77

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with his white cane and his fur-­lined overcoat [that] demonstrated Wilde’s ability and desire to make visible those aspects of his persona he wished to underline, choosing his wardrobe—­bringing his own sealskin cap, long trousers, and knee breeches—­to create subtle variations in the look of the aesthete.3

José Martí was “obsessed by Wilde’s hair, his clothing, his shoe buckles, his breeches,” as evidenced by the accounts he wrote of Wilde’s trip for Latin American newspapers.4 To a viewer of Sarony’s portrait, what remains unknown—­and keeps drawing attention—­is whether Wilde, so posed, has shared or received the intimacies. At what moment in a story of casual confidence and charmed silence are we? And does the value held by copyright bear on the secrets just expressed or about to be? Or perhaps the equivocal pose was not caught in the middle of a casual moment. Perhaps Wilde, in the manner of Delsartians, did not precisely strike a pose to convey any kind of secret but rather found himself in it upon Sarony’s direction, and after so much of his own study of posing.5 If Wilde was enacting a “signature look,” even if his name did not appear in rounded letters in the corner, to whom goes the credit for the “look” of the image, especially as Wilde’s Irishness and style were then being caricatured in print and on stages? This is one question—­to whom goes the credit? for whom is the profit?—­that the photograph leaves open and that a court was tasked in adjudicating. In the early 1880s, not only was a photograph still unstably an artistic expression, the legal parameters for whether there were any expressions—­either a photographer’s or a subject’s—­that warranted proprietary protection were as yet unclear. So fetching was this version of Wilde’s portrait that a men’s clothing store commissioned the Burrow-­Giles Lithographic Company to make copies of it to use in advertisements for its store. The store was hoping to improve its hat sales and bring Wilde’s “European flair” to its customers. The store sought to invite customers to imagine that Wilde’s style could be purchased, perhaps unconsciously in touch with Cadava’s sense that portraits present a temporal stratification of multiple images, none of which are ever just one, the subject’s face is never simply a face but an archive of the network of relations that have helped constitute this particular face and body—­the pose it adopts, the clothes it wears, the look it takes, and what it wishes to mime.6 78

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Figure 2.2. Oscar Wilde, ca. 1882. Photograph by Napoleon Sarony. Library of Congress Prints and Photographs Division, Washington, DC.

At the risk of being a bit too literal, perhaps the store sensed another image in the network of portraits of Wilde from his session with Sarony where he did have on a hat (as in, for example, figure 2.2). Then again, this use of a man’s portrait not wearing the item being sold was not uncommon. Long before Geico commercials marketed insurance through strange misdirection, nineteenth-­c entury advertisements used barely related images and anecdotes alongside products to create surplus value from generating desire in potential customers. Wilde even understood the value of his image in precisely these terms. Laurence Dumortier relates that in a letter to Richard D’Oyly Carte, the producer of Patience and later Wilde’s own Vera, the person who arranged Wilde’s American lecture tour, Wilde suggests “I think if some large lithographs of me were got it would help business in these small cities, where the local men spend so little on advertising. . . . The photograph of me with head looking over my shoulder would be the best—­just the head and fur collar?”7

That Wilde distinguishes the photograph “of me with head looking over my shoulder” echoes the idea of posing to seem “innocent” of imposture 79

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and the San Francisco photographer’s valuing not posing for the camera in anticipation of a photograph’s two dimensions. Wilde could have been imagining the photograph “of me with head looking over my shoulder” as an attractive image of being caught unawares. Perhaps he was “looking over my shoulder” as though he’d just noticed the camera’s presence? And if so, then Wilde’s estimation of one publicity image over another operated according to a notion of expression where what a photograph conveyed was more than the details it could capture because of how his body, face, props, and setting were together arranged. The Court would decide how to parse this photograph as a creative expression precisely beyond the notion of an index in order to decide to whom a photograph’s expression belonged. Assigning a copyright—­a right to publication—­determined to whom the profit belonged: to the person depicted, to the person whose materials created the image, or to the company that reproduced the image in another context and with another resonance than the image on its own. In thinking through these questions, I am guided by Hartman’s assertion that “it is not simply that rights are inseparable from the entitlements of whiteness,” but “rather, the issue at hand is the way in which the stipulation of abstract equality produces white entitlement and black subjection in its promulgation of formal equality.”8 I ask questions about the Supreme Court’s interpretation of this photographic portrait of Wilde as a product of its photographer’s creative expression to solidify a metric for holding copyright in photographs. I ask these questions in light of the previous chapter’s exploration of cultivating an aesthetics of whiteness. I move forward with Hartman alongside Bhandar’s distillation of the colonial logics of property as productive of abstractions for value that are themselves already racialized. After Bhandar, I read this case as one instance of how legal protections of property “reflect and consolidate language, ways of seeing, and modes of subjectivity that render indigenous and colonized populations as outside history, lacking the requisite cultural practices, habits of thought, and economic organization to be considered as sovereign, rational economic subjects.”9 If American Delsartism managed imperial spectacle through embodied practices that taught whitened ladies to believe themselves the arbiters of a person’s expressions in part by training their bodies to become like cameras, the Court’s justification of photographic copyright managed Wilde’s racialized position as queer Irish colonial subject by 80

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imagining Sarony’s capacity to manipulate even Wilde’s facial expressions through the metric of an “arrangement.” Searching for a Visible Expression

By the time Napoleon Sarony brought a suit against Burrow-­Giles Lithographic Company for using the image he had taken of Wilde, the store had distributed more than eighty-­f ive thousand copies. The question at hand was whether Burrow-­Giles was at fault in using an image for commercial use that Sarony had made without compensating Sarony. Outside the Burrow-­Giles Company’s reproductions for the hat store, the images Sarony took of Wilde that day in January had been “transformed into trade cards for products ranging from cigars to ice cream. . . . They flew into shopfront window displays, were glued into scrapbooks, and carried in Americans’ pockets.”10 Given the other commercial uses of Sarony’s images of Wilde to which Sarony had not objected, the issue in this case was one of specific ownership, rather than a general objection to Sarony’s images being repurposed for commercial uses.11 The lower court agreed with Sarony and his lawyer, Mr. Guetlitz. A writ of error filed by Burrow-­ Giles Lithographic Company by way of its lawyers, Mr. Stein and Mr. Colman, then brought the parties back into a courtroom and, finally, to the Supreme Court. Stein and Colman argued “against the constitutionality of the act, so far as concerned photographs, claiming that the Constitution does not give the right to protect photographs by copyright,” but rather only “books or the writings of men of learning or genius.”12 This contested moment in the history of copyright is also typical of how methods for profit-­seeking and profit-­making become shorthand for marketing. The rightful allocation of profit in relation to the use of an image was yet an open question—­and one to which we’ll return in chapter 4. The reproduction of the photographic portrait asks of the law whether a camera could produce creative expressions as a way of determining who should profit from its reproductions. The question of creative expression was especially knotty because the portrait was of a person other than the one whose expression it was said to be. Wilde’s portrait thus reintroduces the question of cultivating expression—­in front of and behind a camera. The question at hand is not the production of grace on a stage or in a parlor, but the ca81

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pacity to profit in relation to the scope of copyright protections.13 Yet the way Justice Miller assigns a property right rhymes with Delsartism’s practices, joining the juridical biopolitical to that which was made “irresistible” through parlor games and photographic reformulations of posing to express whitened capacities and graceful accidents at once. As early as 1865, Congress had designated that photographs were copyrightable.14 It was the common practice throughout the nineteenth century that the photographer held the copyright in images taken in his studio and that he kept possession of the negative—­once the technology of reusable negatives became more widely used. Nevertheless, the question of the ownership of images remained unclear to many courts in the latter half of the nineteenth century precisely in cases like this one, where an image had been put to commercial use—­that is, where the image had been used to make a profit for an entity not involved in the making of or the sitting for the image. As legal scholar Christine Haight Farley has argued, there was the additional legal quandary of maintaining the status of evidentiary photographs that had, by the time Sarony was photographing Wilde, regularly been used in legal discussions as objective and factual reproductions, sometimes of signatures, sometimes of oak trees, sometimes of personal identity.15 Per Farley, Burrow-­Giles Lithographic Co. v. Sarony (1884) provided a litmus test for the distinction between evidentiary photographs and creatively expressive ones, even as, as Darcy Grigsby has argued, the court’s “phrasing was all but a capitulation to those who defined photography as a mechanical procedure, a technological invention worth of a patent, but not an art warranting copyright.”16 In its capitulation, the court drew up a metric not only for a property relation, but also for a genre distinction; and in each of these, an aesthetics of whiteness was formative. In the telling of literary copyright’s history, Paul Saint-­Amour has written compellingly of its legislation as a form of biopolitics.17 And recently, Derek Miller’s study of British and American performance copyright has crucially added to Saint-­Amour’s insight. Miller writes that “if the subject that copyright comes to imagine is a biopolitical one, the work that copyright protects is, oddly, its doppelganger—­a property form endowed with the lineaments of a life form.”18 Miller’s account of performance copyright culminates with the creation of a “performance-­commodity” through which “economic value (particularly exchange value) and other values 82

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parted ways.”19 Thinking about photographic copyright’s management of creative works as biopolitical in that it is “endowed with the lineaments of a life form” offers another reason for thinking with expression’s litigation as part of a “racial regime of ownership.” For Bhandar, a racial regime of ownership relies on “creating a conceptual apparatus in which justifications for private property ownership remain bound to a concept of the human that is thoroughly racial in its makeup.”20 Historicizing photography’s legal life in these terms challenges the idea of racially neutral metrics operating in literary copyright’s biopolitics because of a photograph’s unstable position between cataphasis and apophasis. Rooted in the fundamental uncertainty about whether photographs expressed or simply recorded, the Court’s making of at least one photograph into a creative expression challenged some of copyright’s cornerstone terms. First, the Court confronted the metric of originality by way of presumptions about how human faces do and don’t function like other mediums. Second, it struggled with the question of singularity by forging insufficient analogies with language, utterances that would need to be understood, and as such would need to be reproducible. And third, the Court proposed the photographer’s effect on his subject as visible in order to understand a photograph’s capacity to creatively express as a matter of “arrangement.” To the extent that these kinds of debates about photographs were central to the workings of an increasingly “immaterial” financial racial capitalism, the broader questions of profit and ownership as forms of colonial domination also became imbricated with the dint of imagery of all kinds.21 What was at stake was how the battle over the ownership of images would come to reinforce the postures and claims of whiteness as the taken-­for-­ granted standard against which all other photographs would be assessed and valued without being named. In Burrow-­Giles, a racialized aesthetic code for expression explored in the previous chapter entered the legal system by way of the price system. Who would pay? Who would profit? And from what understanding of capacities to pose, to arrange, to express? What’s been under-­theorized about this case, even as it’s been widely written about, is precisely its conception of Sarony’s photographic authorship in light of Wilde’s position as a queer Irish man whose image was racialized in newspapers and on minstrel stages. The reach of literary copyright protections, as I’ll show, had to be rethought to invent Sarony’s ex83

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pression in a photograph by way of Wilde’s. The Court based its reasoning on Sarony’s ability to manipulate or dictate what might have been thought of as the deeply personal and deeply individual: how Wilde moved, positioned himself, and “arranged” his face, even its unintended aspects. Creating a property right in an image from a sense of expression beyond the camera’s subject’s control meant, for one, presuming that subjects of the camera were not self-­possessed as a matter of law. This is why it matters who Wilde was, and what connotations his particular position brought into the court’s imagination of copyright. Where other critics and historians have connected this case to the development of intellectual property rights in general and copyright in particular, I argue that the counterintuitive logic at work in the case is bound up in the workings and figurations of racial capitalism in its sedimentation of Imperial Jim Crow. Through fine-­grained attention, I consider property-­making as a project from within racial capitalism by way of the strenuous, almost nonsensical analysis Justice Samuel Miller enacts to imagine that Sarony’s “authorship” of the image coheres as a matter of law. Echoing a Delsartist’s imagination, Miller’s counterintuitive logics rely on speculating intention by presuming the ability to discern the relation of Sarony’s intention to the photograph’s “visible expressions,” all the while relying on circumventing Wilde. Miller’s scripts mobilize the aesthetic work of whiteness to create a property right. Any expression, as a concept and phenomenon of experience, in a photograph or in a pose, can be a question about whether control is at work, who might be wielding it, and when. Miller’s assertion of Sarony’s authorship is made possible precisely through what’s amorphous about expression, as in the previous chapter’s discussion of the San Francisco photographer’s logical leap to issue a dictum about photographic taste. Similarly, the leap between Wilde’s portrait and Sarony’s copyright occurs by way of an assertion rather than a deduction of one from the other. To understand the full sense of Sarony’s authorship, I analyze a piece of Sarony’s marketing materials with the ongoing resonances between Delsartism and this case. I focus on the “generative dynamic” (Park) produced through speculative, “photogenic” whiteness—­a discipline that insists on grace arising at the limit point of control. This generative dynamic took the form of an aesthetic code, I argue, and as such could override both the historically inherited and material logics of property to nonetheless produce a property right. In this chapter, jurists conjure the justification of 84

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a property right by contending with the happenstance of any photograph, and what’s unintended is transformed into property’s proof. I begin with a brief overview of photography’s travels through law in different guises and the making of the idea of intellectual property. I show how the scripts for thinking about Sarony’s portrait in Burrow-­Giles Lithographic Co. v. Sarony resonate with a Delsartist’s speculations of control’s limits.22 This mode of approaching the case offers a way of thinking about whiteness as a speculative aesthetics by which property rights in images rely on and reinforce white supremacy’s hold over legal-­photographic imaginations. Thinking about the aesthetic infrastructure of racial capitalism helps us to name the now legal, now economic processes through which property rights in images were allocated. This is a question of how power at the intersection of institutions and markets entails aesthetic work to take effect. But allocating or denying property rights to images rests prima facie on the question about what photography is—­and secondly on what a confrontation with or injury by a photograph also is. In all this, we glimpse not that law is itself a metaphysics, but that it does metaphysical work on its subjects. In Colin Dayan’s phrasing, “The rules of law trade on the lure of the spirit—­banking on religion and its debate between matter and spirit, the corporeal and the incorporeal—­in order to transfer the power of the deity to the corrective of the state.”23 This metaphysical work is related to the aesthetic life by which that work is proposed and discerned, operating through assertions between reality and representation. Thinking with the question of photographic expression brings the law’s metaphysical work through property rights into relief by way of the hinge between “culture-­ specific” and “transcultural” registers of aesthetics (Wynter). It becomes feasible to decipher the mechanisms through which whiteness is put forward as an assumed and exclusionary logic. That logic, in turn, prescribes an implicit prerequisite of ownership. Photographic Instability

In the late 1870s and early 1880s, the truth-­value of any image coincided with the ability of an image to correlate with preexisting expectations. Photography’s standing as indexical had to be produced in the nineteenth century precisely because, as Zahid Chaudhary explains, “there is nothing predetermined about photography’s persuasive powers.”24 Tanya Sheehan, 85

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for example, has demonstrated how, in the case of medical photography, photography underwent a process of becoming a marker of “objectivity.”25 Historian Martha Sandweiss’s study of American landscape photography of the Southwest describes the slow adoption of the technology for settler imaginings of the region.26 Per Sandweiss’s telling, the medium did not initially satisfy audiences in the ways that panoramas, for example, gave viewers a satisfying sense of immersion in Manifest Destiny’s settler colonial fantasy, which needed landscapes to be imagined as empty space, rather than land filled with Indigenous peoples and lifeways.27 In light of the history of panoramas, which “cultivated a domestic fascination with imperial supremacy,” photographic landscape photographs were too literal, perhaps, to be inspiring.28 And, as Rosalind Krauss formatively argued, these images would need the modernist constitution of the gallery space to become legible as “art.”29 Historian Anton Gonzalez has shown how Black abolitionists like Henry Box Brown, William Wells Brown, and James Presley Ball carefully crafted narrative effects while making their own moving panoramas to buy their and their loved ones’ freedom, as Brown did for his family and to try to “secure emancipation” for all enslaved people.30 Critic Joshua Brown has demonstrated how even when halftone processes made it possible to print photographic images cheaply alongside text, it took until the second quarter of the twentieth century—­with the publication of Time and Life magazines—­for a print publication to adopt photographs as its primary visual medium.31 For a significant portion of the nineteenth century, photographs could be unsatisfying as evidence and insufficient as aesthetic experience, too. Their capacity to express in multiple registers had to be cultivated alongside bodies of knowledge and practices of viewing beyond the frame. Alongside the uneven adoption of photography as a mode of creative expression, for several decades—­and despite the fact that the trajectory of literary copyright in the United States was distinct from Britain’s—­the legal trajectory of photography in the United States followed a similar course as in Britain.32 In Britain, the person first designated to own any photograph in question was the person who owned the materials used to make it.33 This understanding effectively rendered the photographic subject, the photographer, light, and future spectators secondary to the chemicals, machine, paper, and printers that made the material photo-

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graph possible. The photograph that British common law fashioned was not the photograph critics have thought about, which, like legal prophecy itself, was forged in the tension between the indexical and the symbolic.34 Instead, for British law, a photograph was a coincidence of materials. That is, British law implied that a photograph was not constituted as a matter of law by its ability to signify beyond the materials used to make it. By the late nineteenth century in the United States, photographs had moved through several uses in court—­as evidence, as illustration, as example, as stakes. I have encountered twelve appellate and federal cases between 1830 and 1860 that somehow involved photographs. From what I’ve been able to tell, that number grew to 100 in the years between 1860 and 1880, only to increase exponentially to 786 between 1880 and 1900, and 2,742 between 1900 and 1920. The reason to make this trajectory explicit as a matter of sheer quantity is to destabilize the sense of photographs as either “information” or “evidence” that American courts transparently accepted, and to emphasize not only Grigsby’s assertion that “the early history of the copyright in the United States has received scant scholarly attention,” but also that there is still much room for further accounting of the relationship between photography, law, and racial capitalism.35 The earliest appellate cases where photographs were at stake in the United States were not about copyright, but rather about their standing as evidence.36 An 1869 article in the American Law Register asked, “Is a photograph, considered as a narration or delineation of facts, a piece of hearsay, or of original and direct, evidence?”37 The article tried to work through the difference photography made to the extant idea of legal evidence. With eyewitness testimony, for example, the Register article asserted that “the image which forms the standard of comparison is one created in the brain of a person who stands at once as photographer and identifying witness.” And in the case of a photograph used as evidence toward identification, “the photographer or other person vouching for the genuineness of the photograph, and the witness making the comparison, would commonly be different persons, and the image a tertium quid, extraneous to both.”38 That is, photographic evidence could corroborate other testimony in the nineteenth century, but could not itself be evidence independent of being a supplement. What ultimately distinguished a photograph from hearsay was its standing as “repetition”:

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It is wholly free from the infirmity which causes the rejection of hearsay evidence, namely, the uncertainty whether or not it is an exact repetition of what was said by him whose testimony is repeated by the witness. In the picture we have before us, at the trial, precisely what the apparatus did say. Its language is repeated to us, syllable for syllable.39

In order for photographs to be imagined as evidence, they are first contrasted with the imperfections of human memory, where the “recording” is imagined visually, as on a plate, versus the malleable “device” of memory, and second, as a form of reliably recorded “speech” and “testimony” that “is perfectly truthful and generally commensurate with the fact.”40 Joel Snyder, Jessica Lake, and Jennifer Mnookin have shown how judges in the nineteenth century struggled with the question of whether a photograph was evidence and what kind of evidence it might be. Judges were asking questions about photography’s origins: Was this object made by the machine? by man? by the sun?—­similar to questions in popular discourse around the new medium. Courts went so far as to designate a photograph “hearsay of the sun.”41 The cases I’ve looked at from the 1850s corroborate Snyder’s and others’ work in thinking about the mid-­nineteenth-­century evolution of an aesthetic discourse around photography. Yet the default of using photographs as legal evidence to corroborate testimony was adopted as early as 1859.42 When jurist and Northwestern Law School dean John Henry Wigmore published his foundational multivolume treatise on the law of evidence (1904–­1905), he cited photographs only twice. Both times he uses them interchangeably with the idea of a “copy.”43 Similarly, Simon Greenleaf ’s earlier treatise on the law of evidence, published between 1842 and 1853, cites photographs in the same sense, even as cases in different states continued to come to distinct conclusions.44 Evidence scholar Jennifer Mnookin has argued that as photography made its way through juridical categories, first as “illustrative evidence,” it produced new categories of evidence and transformed the original category.45 And historian of photography Vincent Lavoie, building on Mnookin, notes that Wigmore lumps photography with other “visual evidence under the authority of a witness,” similar to the 1869 American Law Register article.46 These categorizations of photographs in courts took place from within broader shifts in photographic technologies and cultural practices. At new 88

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“amateur” photography clubs, in their publications and exhibitions, they were “amateur” in the loosest sense, since they had access to established institutions in the art world. The next chapter orbits more closely the question of amateurs, but for now it is enough to note that these clubs were crucial to turning the discourse among hobbyists, entrepreneurs, and “draftsmen” for painterly achievement, to an appreciation of photography as an artistic endeavor. The latter was especially true with photographers like F. Holland Day who identified their practice as Pictorialism.47 This brief foray into the unstable career of photographs in US courts brings into relief that there was never anything obvious about how a photograph would be translated in a courtroom, let alone how a relatively new act (the flash of a sudden, hidden camera, for example) would be digested or adjudicated. Similarly, innovations (like roll film) did not, in and of themselves, secure any aesthetic or legal standing for photographs.48 Instead, acts that had existed in voyeuristic fantasies long before the technology made them possible drew on and then inflected existing legal paradigms. Thinking of photography in law and culture as in motion—­ particularly for deciphering the workings of racial capitalism—­shifts our focus from images in need of a ventriloquizing witness to the multiple stagings preceding any print. Overappropriating “the Real”

To date, Bernard Edelman’s Ownership of the Image is still the most extensive consideration of photographic encounters with law as substantive tangles of material, aesthetic, and legal relations. However, his main preoccupation is film. Yet his book serves as a helpful point of departure for rereading Burrow-­Giles, even though his argument focuses on French law. (He uses instances of cases in the United States without clarifying the differences between the two juridical traditions.) Edelman builds most explicitly on Marxist theorists, namely, Evgeny Pashukanis’s “The General Theory of Law and Marxism” and Louis Althusser’s “Ideology and Ideological State Apparatuses.” Edelman seeks to elaborate a theory of the “subject in law.” He looks to Althusser’s concept of the law’s “dual mirror,” in which the law produces the subject simultaneously as the subject produces the effectiveness of the law—­an encounter, one could say, with a photographic 89

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structure. (There would be more to say elsewhere about the conceptual work the figure of the mirror performs in this tradition of Marxist theorizing.) Althusser’s “dual mirror” of the law is how Edelman characterizes a property right in a photographic image as a matter of “overappropriation” of the real. For Edelman, the “real” in law is always already imagined as determined by a regime of private property, what he calls “a real already invested with property, in the public domain.”49 What law does when it confronts photographs, then, is “accomplish the ‘tour de force’ of creating a category which permits the appropriation of what has already been appropriated.”50 That is what he means to articulate in the term he offers for this legal maneuver, “overappropriation.” Pairing Pashukanis with Althusser, Edelman proposes that “the subject” in law is also then itself a (mirrored) effect of property.51 Edelman aims to describe “the constitution of the real—­or of the reconstitution of the real,” or, put another way, “a question of the process which will make the real an object in law.”52 He writes, It is an amazing “paradox” that the “reality” whose image is reproduced by the negative always belongs to someone. And the paradox of the paradox is that if what I reproduce “belongs” to everyone, that is, to the national community, if in other words what I reproduce is part of the public domain—­streets, rivers, territorial waters—­it will become my property only on condition that I re-­appropriate it.53

For Edelman, this central expressive paradox of photography reasserts the paradigm of ownership, solidifying and intensifying both the commodity form of/for creation, and the commodity form of the subject in law. This is how an act of photographing is presumed to be “commodified” in the sense that what becomes a photograph is always already imagined as someone’s property in order to be recognized by law. Edelman’s is a kind of theoretical restatement of Susan Sontag writing, “Photographs objectify: they turn an event or a person into something that can be possessed.”54 The problem is that, at root, these accounts “conflate—­yet again—­things and slaves,” as Grigsby writes in relation to critics who have likened “Truth’s photographs to slavery’s commodification of persons.”55 The options for creation in the legal realm as Edelman describes were never between ownership and something else. Ownership, 90

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in Edelman’s imagination of law, is prescribed by the dynamics of recognition and its absence, but only insofar as one absence can never disprove the existence of someone else’s property rights, just that the fact of property is waiting “in the wings,” so to speak, to be recognized. In the law’s imagination as Edelman depicts it, some object (or subject) is always waiting to be “overappropriated” by a camera.56 Edelman’s description of how photographic images (and, later, film) become owned does not leave room for the disorderly conversations through which these property effects and relations are forged in courts. Such effects require a perspective on the extent to which the real and the symbolic dimensions of law and political economy were intertwined and yet generated a variety of exchanges in which whiteness, for one, plays a formative role. Edelman examines photography (and cinema) concerned with the juridical production of “the real,” but asks questions only about and through the strictures of ownership’s inevitability.57 That is, there are neither narratives, cultural dynamics, nor quotidian experiences, only the hungry telos of property abstracted from a history where race parceled both property and being, even as, finally, Edelman conceptually rhymes (it’s a slant rhyme) with Pierre-­Joseph Proudhon, another nineteenth-­century political economist on whom he relies to underscore that all property is a form of theft.58 The questions studies of racial capitalism ask help us look more closely at scenes where property relations over images are established or denied, and as a particular, and particularly weak, sense of a right to privacy is being forged. There is more than a broad sense of thievery at work—­even if in the racial scripts that proffered an aesthetics of whiteness, thievery is also always at work. That is, neither Edelman’s nor Proudhon’s frames encompass the intricacies of legal wrestling with a photographic medium and racialized aesthetics. Closer attention exhumes the multiply dispossessive work of establishing metrics for value in images. And from inside the history of racial capitalism, courts consider how to characterize photographs, their expressions, and reproductions as property, or whether they fit the standards for property at all—­but if they do, then under what conditions, whose capacities, and which set of arrangements.59

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A Posing Apparatus

When he found himself in Napoleon Sarony’s studio that day, Oscar Wilde was on a whirlwind, fifteen thousand-­mile, eleven-­month-­long publicity tour, where he gave 140 lectures in 260 days and was interviewed ninety-­ eight times. His audiences included “newspaper reporters, theatergoers, dinner guests, college students, art lovers, scene markers, politicians, millionaires, cowboys, Indians, miners, train conductors, hotel clerks, and random passersby.”60 The tour was to publicize Patience; or Bunthorne’s Bride, a Gilbert and Sullivan production making its American debut. Richard D’Oyly Carte, the producer, had hired Colonel William Francis Morse to put together the lecture tour. During the Civil War, before serving as Wilde’s tour manager, Morse had led his regiment in war against the Dakota in Minnesota.61 Morse’s role as imperial soldier could have prepared him to publicize Patience because of the play’s themes. Solidifying the connections between the military-­imperial and the theatrical-­imperial, Patience used British military victories in the Anglo-­Zulu War, the Anglo-­Afghan War, and the impending Anglo-­Egyptian War as the occasion to satirize the British Aesthetic Movement, “pitting red-­blooded military men against artistic pretenders of dubious masculinity in a battle for ladies’ affections.”62 According to Michèle Mendelssohn, who has done extensive archival work on Wilde’s US tour, Morse might have even caused some of Wilde’s ongoing mistreatment by the press.63 The American production of Patience made Wilde not only one of the Aesthetic Movement’s prominent figures, but the very face of it. Wilde had partnered with the manager of the production’s tour in the United States and Canada to boost ticket sales. But, as it happened, Wilde hardly mentioned the production in his lectures.64 Nonetheless, the promotion proved successful for both Patience and the budding celebrity of “the science of the beautiful,” even as circulations of Wilde’s persona brought photographic studios in relation to another history of American performance and popular culture.65 As a response to the enthusiasm for Wilde, Currier & Ives, a prolific lithography firm, published a caricature of Wilde, titled The Aesthetic Craze. Mendelssohn has tracked the profusion of examples of racist caricature in response to Wilde’s expansive tour. In them, Wilde’s Irishness 92

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and questions around his gender and sexuality became an occasion for the deployment of the contours and textures of antiblackness.66 The Aesthetic Craze trafficked in antiblack caricature as a visual version of Molina’s “racial scripts.”67 Its caption read, in part, “Why Oscar you’s gone wild.” This small sonic bit of dialogue indexes what ethnomusicologist Matthew D. Morrison has referred to as the “performative scripts of blackface minstrelsy.”68 In her study of “the occasionally disruptive critical work of racist caricature,” Rebecca Wanzo offers the helpful term “visual imperialism” to understand this image of Wilde and images like it, which were not “critically disruptive,” but rather involved in “justifying colonialism and other state-­based discrimination.”69 This caricatured figuration, which I discuss more fully later in the chapter, was just one of many such instances of Wilde’s gendered racialization and helps contextualize how the Court might have understood Sarony’s interaction with Wilde through a camera’s lens as tantamount to authorship. Mendelssohn writes, for example, that “Wilde represented an interloper in Americans’ midst: initially as an Irishman passing for an Englishman, but also as the year’s most conspicuous symbol of a class of immigrants towards whom American nativists had grown increasingly hostile.”70 Mendelssohn describes how Wilde’s travels and the Gilbert and Sullivan production inspired various minstrel productions, which she also catalogues, including, for example, Haverly’s Consolidated Mastodon Minstrels’ production Patience Wilde; or Ten Sisters of Oscar, featuring famed female impersonator The Only Leon (Francis Patrick Glassey); a blackface version of Gilbert and Sullivan’s Patience called Black Patience; a blackface performance about the tour itself, retitled Oscar’s Arrival; Frohman’s minstrel company production The Utterly Too Too’s, or Parodies on Oscar Wilde; and both Hyde and Behman’s Minstrels’ performances about Wilde.71 Of the cultural work minstrelsy performed in addition to upholding state-­sanctioned violences, Daphne Brooks has formatively argued that it “extended and transformed the iconography of the transatlantic body, simultaneously racializing and policing that body for the purposes of mass consumption and collective desire.”72 Following Brooks, the minstrel shows and printed caricatures that figured Wilde policed and reinforced multiple gendered racializations at once. Though not widely caricatured like Wilde, Napoleon Sarony was a celebrity when, shortly after arriving by ship, Wilde entered his elaborate studio at 87 Union Square in January 1882. Sarony was a recognized ce93

Figure 2.3. The Three Graces, 1846. Lithograph by Napoleon Sarony. Jerome Robbins Dance Division, New York Public Library Digital Collections.

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lebrity photographer, even inspiring a character in a novel about artists in New York.73 By the time Wilde visited, Sarony had photographed Walt Whitman and Henry Ward Beecher, along with many well-­known actors and actresses.74 He’d been born to German parents in Quebec and moved with them to New York when he was ten years old. Earlier, he’d worked as a lithographer; lithography was then a well-­established “printmaking technique” that had “taken off commercially after the Napoleonic Wars.”75 Sarony learned how to make photographs while spending time in London. Upon returning to the United States, he was one of the founders of the Salamagundi Sketch Club, an association of artists founded in Greenwich Village in 1871.76 Not unlike Wilde, Sarony put effort into cultivating his style, “devoted,” according to the New York Tribune, “to high top boots, of the dashing cavalier style. They reached half-­way between the knee and the hip, and certainly made their wearer a conspicuous figure in the streets of modern New York.”77 Sarony was also known for wearing a crimson or scarlet fez as his daily headgear. It’s perhaps curious that the men’s hat store that commissioned Burrow-­Giles Lithographic Company to make copies of Wilde’s portrait did not use an image of Sarony for its advertisement instead. It could have been because Sarony’s small stature, advanced years, and grizzly facial hair (multiple accounts of Sarony insisted on the word “grizzly” to describe him) earned his appearance criticism. Or, perhaps, it could have been because the racial scripts surrounding Sarony were also uncertain. What one writer called his “Roman nose” another parlayed into an anti-­Semitic account, describing his “stature [as] dwarfish, his head large, his features in proportion to the latter.”78 The writer of this “New York Letter” uses the familiar recourse of aligning Sarony with a proximity to “Darwinism and evolution in a startling way,” with “nothing in nature much nearer the missing link.”79 It’s after this demeaning account that the writer describes a photography session with Sarony in detail: Sarony stands off a couple of paces and strikes an attitude; he surveys you with his head on one side; he informs you that your nose is crooked or that your shoulders are not broad enough for your head; never mind; he, (with a thump on his chest) Napoleon Sarony, will make that right. He turns and twists you about till, if you are a woman and have any picturesque possibilities in you, he has discovered the exact angle and pose in which they will come out most triumphantly.80 95

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Sarony hitched his commercial success to wealthy New Yorkers and the booming theater industry with studios at Broadway and Bond Street, just off Washington Square Park, and, later, just north in Union Square, where Wilde would find him. Actress Sarah Bernhardt, whom Sarony once paid $1,500 to pose for him, was said to have a “fondness for the Sarony style,” while “her wonderful facility and power in assuming any desired role were a continual source of delight to [Sarony].”81 Even if he had not participated in a lawsuit, Sarony’s biography already crossed between the histories of performance, commerce, photography, and publishing. In addition to photographing performances like Mackaye’s Wild West Show at Madison Square Garden, Sarony decorated his studio space in a way that reminds us how present imperial fantasies were in the everyday. William R. Bradshaw described Sarony’s studio for the Decorator and Furnisher in 1895, just a year before Sarony died; Bradshaw details an array of objects reminiscent of world’s fairs, as though transforming the studio into a showroom for spectacularizing acts of taking things that did not belong and calling it an art collection. There are antique carved cabinets in the Elizabethan and Renaissance styles containing pottery made by the ancient Mexicans and Peruvians. There is also an extremely fine Rococo cabinet of immense proportions beside which stands an Egyptian mummy in its sarcophagus of chiseled wood 3,000 years old. A sleigh of gilt carved wood of exquisite proportions is laden with Mexican saddles and housings of rare embroidery. A large sculptured group in plaster represents Columbus and his lieutenant Pinzon in the act of discovering the New World, near to which, on another pedestal, is a large but exquisitely modeled seated figure of Andromeda chained to the rocks.82

Much like the “array” gathered around Stebbins that was meant to distinguish—­by way of contrast and embellishment—­her expressions of grace, Sarony’s showroom held a series of objects from or emulating colonized peoples in “antique carved cabinets in the Elizabethan and Renaissance styles.” Trade routes, after all, are also often the routes of empire. Sarony, who faced a form of racialization, also derived comfort and pleasure from his displays of imperial theft and containment. Before we enter into the question of Sarony’s copyright in Wilde’s image, I will note that his biography also crosses paths with another portion of 96

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Figure 2.4. Sarah Bernhardt in publicity photograph in costume for the role of Adrienne Lecouvreur, 1887. Photograph by Napoleon Sarony. Billy Rose Theater Division, New York Public Library Digital Collections.

the history of property, by way of a posing apparatus he and his brother, Oliver, designed. After making the first design for a posing apparatus, Oliver acquired the original patent for it in the United States and the United Kingdom in 1866.83 Photographers Henry Peach Robinson and J. E. Mayall were said to have been at the first demonstration of the apparatus in London at the Royal Photographic Society that same year. Erin Pauwels describes the Sarony brothers’ contribution in making a stable, floor-­mounted rack and pinion system that could be easily hidden inside one of the lowboy cabinets or scroll-­backed chairs the brothers marketed separately. Most importantly, where old style stands could accommodate only upright sitting and standing positions, the Sarony apparatus had numerous adjustable, scoping arms designed to support an array of unconventionally animated poses, including dramatic leans, extended limbs and simulated dancing, running or walking. It was, in short, a means of reproducing the appearance of bodily motion in perfect, wet-­plate compatible stillness.84

The posing apparatus in this new form would bring a sense of movement (dramatic leans!) and immediacy (simulated dancing!) to photographs that 97

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Figure 2.5. Advertisement for Sarony’s Photographic Studies, 1880s. Photographs by Napoleon Sarony. Online collection, Metropolitan Museum of Art, New York.

had not previously been possible. With the new device, subjects could manipulate their bodies into more complicated or easeful-­seeming poses, and keep them supported for the ever-­briefer periods of time necessary to secure a series of stable images.85 And though Napoleon’s involvement with this first apparatus was primarily in assisting with marketing, he patented an improvement on that model the very next year.86 One critic describes Napoleon Sarony as a photographer who sought to move beyond the “conventionality of pose,” a description that could also describe the contemporaneous shifts in theatrical practice away from melodrama and toward what we now call realism, as discussed in the previous chapter.87 Another describes Sarony’s work as “all life and expression, only with far more abandon and intensity of action.”88 One writer noted that “the conservative sitter accustomed to the cast-­iron conventional flatness of the approved type of photographers the world over would be struck dumb at his first ‘posing’ with Sarony.”89 98

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An advertisement for his photography studios (figure 2.5) shows Sarony’s positioning of his business as entirely about his attentiveness to another approach to posing by way of the Sarony Posing Apparatus. When Sarony moved to New York in 1866, he began publishing these kinds of photographic studies as advertising for both the apparatus and his studios.90 Just as early electricians linked their expertise to science to legitimize their profession, his advertisement relies on the scientific connotation of the term “apparatus” to claim the usefulness, importance, and simultaneous thrill of his studio’s work.91 Sarony’s patent that would have been operative here was for the apparatus as an implement, and not for the poses themselves. The whitened woman in the advertisement poses more simply than Wilde. But as in Wilde’s portrait, the poses do not correspond to any particular emotional state or intended action; they seek more generally to connote something like variations of graceful expressions. The woman’s gaze shifts away from, then back toward the camera. She reclines comfortably on and draws a bit further away from an upholstered chaise. This kind of appearance of movement was meant to instantiate a new range for what a photographic portrait could convey with the Posing Apparatus. It allowed a subject to rest in varying positions while the plate was exposed. The collage of nonsequential images announced that at Sarony’s studio, there was no standard way to pose; the advertisement’s point is that she can be posed, that Sarony’s studio offers not just the images, but Sarony’s eye for posing clients, and that his studio is, in that sense, unique. We might see Delsarte’s influence: she takes on poses less as emotional states or specific actions, but perhaps in order to move light and types of energy, directing the flow of intention toward surrendering to the possibility of a graceful expression. In an interview, when Sarony was asked how to distinguish between proper and improper depictions of nude figures, he even sounds like any Delsartian, describing “the nude arrayed with the mystical grace of softly molded outline, of the rhythmic flow of limbs, of that unconscious yet captivating beauty of the flesh that expresses the purest movement of the spirit.”92 In the same interview, Sarony specifies that it is “an unconscious grace” that distinguishes a “nude girl” depicted as artful rather than obscene. Whereas, if he had placed the pupil of her eye right in the corner here, thus making her gazing backward at the spectator with a knowing look, that trifling change in the 99

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picture would have altered the character of the entire composition, and have given the figure a cunning look that would have been immodest.93

For one, the feminine figure engages in a precarious balance where a “trifling change” can alter the “character of the entire composition.” The promise of visiting Sarony’s studio was similar to the promise of Delsarte’s system, of ensuring a disciplined habituation. Even when a whitened woman was not paying attention, she could be seen to express without “vulgarity,” “cunning,” or “immodesty.” The theory behind Delsarte’s system rested, you will recall, on the careful, calculated relationship between willed action and fortuitous, habituated accidents, only some of which could be prepared for, but all of which needed to be speculated—­as in anticipated—­by training. A crucial part of the service Sarony advertised was about what happened before the photograph was shot, in the “posing,” and in hoping for accidents that might convey, perhaps, that the subject was not aware that the camera was there, even when, of course, she was. Originality and Arrangement

The question of whether and how a photographer was to be understood as analogous to the author of a literary text—­a s an artist—­vexed many throughout the nineteenth century. Michael North has made explicit that “copyright exists to protect works, not persons; expressive effort, not mere existence. Fictitious characters can be placed under copyright but not, ordinarily, real people. In terms of copyright law, then, Wilde was just another one of Sarony’s props.”94 But at the core of the legal quandary was the question of how a camera intervened on a scene, and whether Sarony could have arranged Wilde like a prop. That is, what North proposes as a given is actually the case’s primary question. The legal problem was at its root a problem of photography’s aesthetics, and especially, in Cadava’s language, the way a subject could “permit oneself to be imprinted on by another, transforming the subject into a photographic surface,” which in turn, in a “process of transformation . . . works to crush and even erase a person’s agency.”95 Asking whether a photograph could be creative expression in the context of an Anglo-­A merican cultural imaginary meant asking whether it was possible to discern a photographer’s 100

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“intention” from the photograph. It meant asking in copyright’s terms, What makes a photograph into an “original mental conception,” like the “writings” protected by copyright? Both questions—­e ach, in a sense, about whether a photograph could be thought of as art—­were asked to determine the absence or presence of a property right. I turn from the immediately pressing question of who owned the photograph to the question of what we learn from deciphering how a property relation was made with a camera. If Wilde was “just another one of Sarony’s props,” my argument here is that part of what makes that transposition believable in court is an aesthetics of whiteness. The Supreme Court had to decide whether Sarony properly held the copyright for the photograph, and whether he correctly indicated as much on the image. Justice Miller dealt with the simpler question—­whether Sarony had properly designated his copyright over the portrait—­first and most directly.96 Miller noted that the second issue, whether Sarony could have “authored” the photograph at all, and by extension, whether it was constitutionally sound for Congress to have included photographs in the Copyright Act in the first place, “[was] not free from difficulty.”97 The difficulty was that some still thought that “a photograph [was] not a writing nor the production of an author,” only “a reproduction, on paper, of the exact features of some natural object, or of some person, [and therefore] was not a writing of which the producer is the author.”98 A “mere reproduction” would not qualify for copyright according to the rubric for copyright that Miller had previously described in the Trademark Cases (1879). A few years before hearing Burrow-­Giles, Justice Miller wrote the opinion that distinguished a patent from copyright in the Trademark Cases (1879).99 Miller defined a work under copyright as the product of “creative labor,” whereas property held through a trademark did not involve “design” and could even “be something already in existence.” A trademark, according to Miller, did not depend on “novelty, invention, discovery, or any work of the brain” and required “no fancy or imagination, no genius, no laborious thought.”100 If there were to be photographs held by copyright, Miller had to locate “creative labor” outside the “reproduction” of a preexisting scene or the “accident” of “something already in existence” to show evidence in the photograph of “design.” He conceded that the proposition that photographs could be “original” ran up against certain popular notions of photography. 101

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It was specifically section 4952 of the Revised Statutes in 1865 that “placed photographs in the same class as things which may be copyrighted with ‘books, maps, charts, dramatic or musical compositions, engravings, cuts, prints, paintings, drawings, statues, statuary, and models or designs intended to be perfected as works of fine arts.’”101 Miller made note that in the Constitution, maps and charts preceded literary works in the list of mediums protected by copyright. It was a throwaway line; he did not suggest a direct implication between the comment and what followed. Nonetheless, the sequence registered some unease with the law’s analogy between writing, photography, and other forms of image-­making. The offhand comment might have betrayed a desire for one form to take precedent. But Miller focused on the implication that protecting multiple mediums implied that both “author” and “writings” were to be broadly conceived.102 Long-­standing English debates gave American copyright three of its major elements: originality as the marker of a copyrightable text; difference as a metric by which to understand works over and against similarity; and an individual author/property holder who corresponded to her “original work.” Copyright translated authorial “intention” into the metric of origins and originality.103 For Jane Gaines and others, the root of the “originality” concept in Burrow-­Giles’s evaluation of photographic copyright lay in a Lockean notion of property in self. Gaines pairs Hargrave’s Argument in Defence of Literary Property (1774) with Locke’s elaboration of natural rights to property to deduce a convergence between originality as a question of aesthetic judgment and a “natural rights” theory of private property. Both of these, she argues, arose from “the same philosophical root: property in person,” which I would translate this way: the metaphysics of property understood as ontology.104 However, in the critical conflation of originality, as in an aesthetic judgment about a creative work, and a “natural right” to property in person, there is an unhelpful ahistoricism in assuming that a theoretical origin of copyright in the eighteenth century coincided with the philosophical or even practical parameters of allocating the copyright to Sarony. The more general idea that property rights had a basis in natural law had fallen out of favor, in part as a reaction to the Haitian Revolution’s reconfiguring sovereignty in the formerly enslaved to determine “natural law.” Haiti’s 1804 constitution, for example, “prohibited white ownership of land. The fear that the European ‘planter’ would face not just revolt but a revolution in 102

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property relations was something not to be dissimulated—­it was the ‘real condition of existence,’” as Nicholas Mirzoeff explains.105 Property rights were increasingly understood as originating with legal-­political structures. For example, Darcy Grigsby foregrounds that in Wheaton v. Peters (1834) and Stowe v. Thomas (1853), not only did “American court justices reject the British precedent and vote against the common-­law rights of the author,” but it was held that “because copyright depended on the history of printing, there was no way it could be ‘natural.’”106 Moreover, the concepts of “originality” and “origins” were some of the very same difficulties posed by Wilde’s portrait. Miller’s opinion, rather than taking the grounds for origins and originality for granted, sought to address these as problems, rather than asserting them as first principles.107 Paul Hirst and Elizabeth Kingdom, echoing Althusser and Edelman’s sense of law’s “double-­mirror,” argue that the Court resolved this problem by assuming that Wilde held property in his image that transferred to Sarony: “The logic of the right of the photographer over his photograph also sanctions the right of the photographed over his image. In both cases the right derives from the subject being always-­already possessor of itself and its attributes.”108 But if we look again at the Court’s justification, this interpretation doesn’t quite hold up. First, a person did not have an established right to her image in New York, where the case originated, until 1903.109 When a person sued a photographer about her image before 1903, it was usually for breach of contract. Counsel for the Burrow-­Giles Lithographic Company exploited precisely this point—­that the image at hand was a portrait of Wilde, not of Sarony—­ while Sarony’s lawyer was insistent that the photograph was Sarony’s “invention.”110 More directly, Justice Miller did not lean on nor allude to Wilde’s right to his image to create Sarony’s “authorship”; neither did Miller thematize the contract between Sarony and Wilde to validate Sarony’s property right, though, again, this would have been perfectly intelligible since it was a common practice for actors to contract with photographers to distribute their images. If anything, because of counsel’s objection, Miller had to finesse that the portrait was not of the author. The Court was, in fact, uncertain about the power of contract to transfer Wilde’s expressions to Sarony. This begins to explain why the judicial metric became one of “arrangement” rather than “invention,” but brings forward the question of how someone could be thought to “arrange” someone else’s expressions.111 103

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The reason to look back to the English trajectory of literary copyright, then, is not because the United States’ was the same, but in order to understand how some of copyright’s operating terms bore the marks of racialized abstractions. In eighteenth-­century England, the proposition of a human face as singular served in its “obvious” distinguishability as an analogy for the idea of an author’s holding copyright in language. Whether one could distinguish a private property in language that was held in common vexed jurists and cultural commentators alike. The difficulty arose from defining what exactly made language personal enough to justify exclusive proprietary protections. Eighteenth-­century critics and proponents sought to differentiate between public utterances and language that had become personal, or “personal” enough to be owned. Where it could have become more important to discussions around copyright to emphasize the craft of writing as the reason for copyright—­that is, the work of making language into forms—­it was, instead, human faces understood as individuated “objects” that provided “proof ” that an author could manipulate language to her own ends. Well into the nineteenth century, the idea of a face as particular to a person often stood in for assertions of an author’s “voice,” “expression,” or “mental conception.” Francis Hargrave, one of the prominent figures in favor of perpetual copyright, invoked the human face in asserting the “subject of the property” in copyright.112 At the outset of An Argument in Defence of Literary Property, he invokes each person’s face as particular to herself to argue that each “personality” would invest a literary work with “originality,” even if there were some examples that could arise in which there were resemblances across works and faces. He wrote, “A literary work [that is] really original, like the human face, will always have some singularities, some lines, some features, to characterize it, and to fix and establish its identity.”113 He slid between an author’s presumed singular physical identity and the originality of his ideas not because faciality ensured something original about the work, but rather because a work’s particularity could be taken for granted. Because an author’s face could be presumed to be unique, so too could her authorial expressions be presumed unique as well.114 This way of figuring the originality of a literary work by way of the presumed singularity of each human face was not particular to Hargrave. In Jefferys v. Boosey (1854), a case about the publication of the libretto for an Italian opera, Justice Erle “strongly endorsed what he considered the rights of authors,” claiming 104

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that “the order of each man’s words is as singular as his countenance.”115 The perception that faces bore a relation to a person’s literary expressions as unique and thus original—­even if the relation was that both were “obvious,” even involuntarily unique, rather than on account of their labor or effort—­partially justified the idea of a property right in reproducing a literary text. Understanding copyright’s existence by way of faciality also brings forward how visual imperialisms could work against claims to literary expression. What’s more, the recourse to faciality to validate a notion of originality would have to recalibrate before Wilde’s portrait could stand as the “visible expression” of Sarony’s authorship.116 The sense of individual and proprietary authorship in the history of copyright was itself unstable. Mark Rose and Saint-­Amour forge their studies of copyright not only in terms of originality, but based on copyright’s elevation of Romantic understandings of authorship, where an author of her own, original genius conceives of and completes a work of art, literary or otherwise.117 That is, the kind of literary originality that could be owned was buttressed by a belief in “genius.”118 Saint-­Amour offers a subtle addendum to these stronger claims of Romantic authorship’s effects on copyright protections: By creating a terminal property form, they [lawmakers] also acknowledge that prior inventions and expressions are at least part of the raw material for future innovation, that creation ex nihilo, if it exists at all, is always compounded with reuse and recombination. Intellectual property law recognizes, in other words, that creation is social rather than solipsistic.119

Saint-­A mour’s insights about “reuse and recombination” in terminal property protections for texts deemed literary open the possibility that finding “originality” in a photograph was of a different order than finding “originality” in literary texts. That is, a photograph challenged the implicitly social aspects of creation Saint-­A mour puts at the center of copyright’s terminal limits. That photography posed a question to law about its own indexicality forced the Court to make the social aspects of creating explicit while yet prioritizing “originality.” Miller relied on the idea that a photograph was a “reproduction,” but only in order to assert that Sarony’s originality (and authorship) could be seen in Sarony’s “arrangement” of Wilde. 105

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No Ordinary Photograph

The earliest proponents of photography shared Miller’s attentiveness to Wilde’s portrait about what made daguerreotypes and talbotypes uniquely useful to painters, archaeologists, astronomers, and travelers. Miller, like contemporary photographers who wanted to be seen as artists, sought to distinguish between kinds of photography. He affirmed the lower court by distinguishing between an “ordinary photograph,” which was “true” in the vulgar sense that Baudelaire decried, and one that was authored and not only “merely” “true.” Miller did not wield Stieglitz’s language of “technique” to distinguish between these two kinds of photographic activity. Instead, he asked whether Sarony’s “original mental conception” had taken a “visible form” through its expression, at the same time that he articulated what about a photograph counted as an expression in the first place. To look for a “visible form” or “visible expression” of Sarony’s “original mental conception” distinguished the case from contemporary notions of copyright for literary works. In the latter half of the nineteenth century, what courts recognized as an author’s “writing” had changed. Until the middle of the nineteenth century, the “work” that copyright protected was the text in question, word for word, as Hargrave put it, “known characters expressed on paper, parchment, or some other corporeal substance.”120 A popular treatise on later nineteenth-­century copyright law, Eaton S. Drone’s A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States (1879), marked a considerable shift away from a material interpretation of the word “writing.” For Drone, the work consisted in the substance, and not in the form alone. That which constitutes the essence and value of a literary composition, which represents the results of the author’s labor and learning, may be capable of expression in more than one form of language different from the original. . . . [Thus] translation is not in substance a new work. It is a reproduction in a new form of an existing one.121

This was a move away from treating the work protected as though it were a physical object, consisting of typographical markings printed in a particular sequence, to a sense of the work as “the substance, and not in 106

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the form alone . . . which represents the results of the author’s labor and learning.”122 That is, legal literary authorship was no longer understood in terms of visuality. Copyright coverage became broader, no longer only about reproductions or unauthorized printings of a work, but encompassing the “intellectual work” that a given text required, and protecting what copyright scholars call “non-­literal copying.”123 If we take the previous chapter to bear here, as copyright expands its reach, it also aligns with forms of secularization. The idea of an expression that deserves legal protection as a “substance” beyond its pages echoes the idea of channeling transluminosity in that the substance of expression moves beyond the materiality of a marked page. Because mixing light with chemicals can make a version of me appear elsewhere than I am, a work of nature and machine betrayed the idea of a singleness of being that Western Man relied on. Seen in what Azoulay has called photography’s “non-­sovereign” mode of viewing, these assertions reveal copyright’s biopolitics as more in line with Delsarte’s mystic Catholicism than Lockean notions of property. Photography’s indexical tricks belie Lockean conceptions of property in self—­that is, both that a person has stable properties and that a person’s relation to self, gods, nature, or others needs to be, as a matter of metaphysical presumption, a relation defined through any “natural” sense of ownership or possession.124 For Miller, the law had deemed a photograph analogous to a map, chart, or literary work in that each was a “visible expression.” Both in order to analogize across mediums and because a photograph was at stake, Miller insisted that Sarony’s authorship was visibly evident in the visual form. This conception of authorship echoes the older understanding of literary authorship rather than that expressed by Drone, for whom copyright protected “the substance, and not . . . the form alone.”125 This more expansive sense of non-­literal copying facilitated Miller’s locating Sarony’s “original mental conception” just outside the frame while claiming to do the opposite. Miller thus created a logical tangle in arguing for the visibility of Sarony’s artistry in Wilde’s portrait while maintaining the possibility for evidentiary photographs, as Farley has proposed.126 Miller did not articulate what marked Sarony’s “arrangement” as “original.” Were there “mental conceptions,” for example, that could be ordinary even if they were arranged? What Miller did make clear was that in not describing what made Sarony’s “mental conception” original, he maintained 107

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precedent established by requirements for copyright as distinct from patents. To qualify for copyright protections, a person had to meet the metric of originality. “Arrangement” was finally how Miller joined an “original mental conception” with a “visible form.” An “arrangement” served as proof of the “creative labor” through which Miller had defined works that qualified for copyright in the Trademark Cases. But the designation of an “arrangement” also avoided either explicitly mentioning or implicitly gesturing toward the other workers in Sarony’s studio, who, as in so many photography studios, helped produce the portrait’s physical print(s). Articulating Sarony’s “arrangement” as justification of a copyright sidestepped delineating any interaction with the technical portions of photographic practices as creative (for example, the “click” of a button, the modernist “cut,” a photographer’s “intuition” or “eye” that could predict which instant to “catch”). These other understandings of the creative labor that produces a photograph would play a role decades later, in Pagano v. Charles Beseler Co. (1916). The Charles Beseler Company had made lantern slides from Pagano’s photograph of the New York Public Library and alleged that were Pagano’s copyright to be upheld, it meant that at issue was the ability to take images of public buildings.127 But District Judge Julius Marshuetz Mayer listed lighting, shading, positioning, and timing as determinate of Pagano’s creative choices even though the image under consideration was of a cityscape—­“a scene on Fifth Avenue in the city of New York from Forty-­First Street to Forty-­Second Street, which includes the Public Library”—­and not of a person who could be “positioned.” More dynamically than Justice Miller, Judge Mayer thought through the particularities of the photograph to justify Pagano’s property right in an image of a public building on a city street, of passersby who might not have known they were being photographed: “It undoubtedly requires originality to determine just when to take the photograph, so as to bring out the proper setting for both animate and inanimate objects, with the adjunctive features of light, shade, position, etc.”128 The “originality to determine just when to take the photograph” is a more passive sense of “arrangement” than Miller’s imagining of an active and physical placement of objects in an “arrangement.” In Pagano, the “arrangement” morphed into a sense of timing. This difference illustrates how much a specific interpretation of visuality could subtend a property right, and that the same interpretive structure morphed 108

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in relation to contemporary aesthetics of photography. That is, Miller and Sarony together with studio photography, and Pagano and Mayo together with modernist photographers differently distilled photography’s aesthetics into property protections.129 In Burrow-­Giles, the emphasis on “arrangement” likewise drew from contemporary painting aesthetics and theatrical practices. The attention Miller pays to texture and props could be seen as coinciding with an emergent Pictorialism.130 In Falk v. Schumacher (1891), the Court wrestled with the “spark of contingency” of a photograph in a way that differed from the argument for “arrangement,” but resonates even more with Delsartist principles.131 Falk was just as well known a photographer of the theater’s celebrities as was Sarony. He was especially well known for being a proponent of copyright protections for photographers, even as there were those who thought that his images owed more to the carpenters involved in building the props whereby his subjects could seem as though, for example, they could fly.132 The issue was that a child had put her finger in her mouth at the last minute. That finger-­in-­the-­mouth moment was the one held in the image. Ultimately, the work that happened in “production,” despite the finger in the mouth, carried the day.133 The “pre-­shutter” arrangement here rhymed with a sense that, as could be speculated of a film director, the finger-­in-­ the-­mouth moment could be justified as Falk’s “arrangement.” That justification relied on speculating according to an aesthetics of whiteness where even a finger in the mouth that wasn’t Falk’s could be imagined as Falk’s vision, precisely because the sitter (a child) was not understood as capable of “arranging” their own finger’s position. Falk won two other cases the same year, one involving a photograph of actress Julia Marlowe, Falk v. Gast Lithographic & Engraving Co. (1891), and another about a mother and child, Falk v. Brett Lithographic Co. (1891). He won four other cases after that, including Falk v. Donaldson (1894).134 In Grigsby’s account of this case, she notes that “the judge decided that the portrait was created by the photographer Falk, not the actress, because Miss Marlowe could not have produced (or anticipated) her side view, wherein ‘the lights and shadow might best reveal the beauties of face and figure.’”135 A photographer’s potential capacity to create was predicated on believing that the sitter had limits over controlling their expressions, specifically here, as Grigsby says, in sacrificing her personality to a pose imagined as given to her.136 109

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That the plaintiffs in these cases were men bears out Jessica Lake’s insight of the “masculine prerogative of copyright law.”137 But this overarching masculine prerogative does not mean that women photographers did not avail themselves of copyright protections. In Britain, Julia Margaret Cameron “registered 508 photographs over a period of almost twelve years.”138 In the United States, Farley explains, what won the day was that Falk’s “status, work, clients and, most importantly, his process was so similar to Sarony’s . . . and because he [Falk] was so litigious, the Burrow-­Giles framework began to function as doctrine in the years the followed.”139 Because this framework goes on to function as doctrine makes the reasoning behind Burrow-­Giles that much more important to understand. At the same time, only accounting for gender occludes how a gendered aesthetic of whiteness operates to cohere assertions that are also almost silly. Copyright struggles-­to-­come notwithstanding, counsel for the Burrow-­ Giles Company registered the awkwardness of a portrait serving as the test case for proving that a photograph could be authored. The company’s lawyers contended that there was no way Sarony “invented” the photograph in question, because Sarony could neither have invented nor created Oscar Wilde. The New York Times agreed: “Mr. Sarony was not the creator of Oscar Wilde, and a photograph was not such an original as could be copyrighted.”140 When critics claim that Wilde’s face served as a “guarantee of private property,” they treat “the face” too abstractly and do not account for the differential imagery circulating of the two figures, nor do they account for the specificities of how a photograph of Wilde became justified as Sarony’s property.141 Yet, in order for the logic of originality and the “visible expression” of authorship to make sense, Sarony needed to have exerted some form of control over Wilde. That is, given Miller’s reasoning, Wilde’s subjection to Sarony had to be visible on Wilde’s person as proof of the existence of Sarony’s authorship. This was not an equation between subjects; the subjects were not interchangeable and the existence of one’s right to property did not arise from another’s right to himself. Justice Miller did not describe coequal positions, but rather imagined an unequal, imbalanced exchange between photographer and photographed. Returning now to The Aesthetic Craze and the widespread racialization of Wilde in relation to “arrangement” as a metric for Sarony’s authorship: The lithograph depicts three figures, two of whom are gendered feminine. The figure meant to evoke Wilde pinches a sunflower between 110

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thumb and forefinger. The sunflower became the symbol of the Aesthetic Movement, but “The Big Sunflower,” as Mendelssohn tells, was also then a popular song performed by the Christy Minstrels.142 The hair on the masculine figure is drawn to suggest messiness and topped with a scrunched hat adorned with a frayed peacock feather. The shirt collar appears wide and askew, the buttoned jacket wrinkled, the kerchief as though peeking sloppily from a back pocket, a visual echo of a rumpled white sheet that spills from a woven basket and onto the grass. One of the feminine figures seems as though in the midst of a swoon, and the other feminine figure, drawn as though voicing the caption’s question, is in the middle of washing what could be laundry against a washboard slanting into a wooden bucket’s soapy water. The left foot of the masculine figure points perpendicularly outward and its laced-­up, wing-­tipped shoes curl up at their ends as though too large for the figure’s lanky limbs, as though a viewer is to imagine that inside the shoes there are not toes enough to fill them out. Antiblack caricature enacts its visual imperialism (Wanzo) in a way that recalls Zakiyyah Iman Jackson’s insights about antiblackness functioning by the “cast[ing of black(ened) people] as sub, supra, and human simultaneously and in a manner that puts being in peril because the operations . . . [construct] black(ened) humanity as the privation and exorbitance of form.”143 The figures in The Aesthetic Craze, in the idioms of antiblack caricature, insist on a connection to the category of “the human” precisely through “the privation and exorbitance of form.” It might be helpful to think of antiblack caricature as the visual life of Jackson’s revision of “plasticity,” as “a praxis that seeks to define the essence of a black(ened) thing as infinitely mutable, in antiblack, often paradoxical, sexuating terms as a means of hierarchically delineating sex/gender, reproduction, and states of being more generally.”144 In the image, antiblackness as a praxis of plasticity can carry Wilde’s Irishness and the gender and sexuality anxiety for which he was a figure, while making use of other figures gendered feminine as, as Jackson also argues, the “opacity, inversion, and limit” that allow the form meant to evoke Wilde to cohere.145 While it can only be ventured, it seems nonetheless important to suggest that the way Wilde’s image was insistently racialized in print and performance facilitated Miller’s notion of Sarony’s “arrangement” of Wilde’s figure, even as Sarony experienced instances where the bounds of whiteness did not include him. This was the same Court that overturned the 111

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1875 Civil Rights Act the year before its pronouncement in Burrow-­Giles. As Miller describes it, “selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by the plaintiff, he produced the picture in suit.”146 It is unremarked that an aspect of Sarony’s imagined capacity for “arrangement” might have been his management of Wilde’s perceived queerness and non-­whiteness, a positionality Wilde himself complicated by identifying with the Lost Cause while on tour, even paying a visit to Jefferson Davis.147 Yet the multiple policings of difference Wilde’s caricaturing evinced were important conditions of possibility for Sarony’s copyright. Moreover, that management of difference through “arrangement” made sense from within aesthetic codes that produced social value in whiteness as capacity for gracefulness. In light of the visual imperialisms surrounding Wilde, then, there are two senses in which Sarony could have “arranged” Wilde to become the photograph’s “author,” if we understand that arrangement as a potential management of the gendered, racialized, sexual difference with which Wilde became associated. The senses in which Sarony “arranged” Wilde refract differently in terms of the expressions Wilde might or might not have been controlling, just as in the Falk cases. In the first sense, Sarony would have “arranged” Wilde’s face together with Wilde: he asked Wilde to “make” a particular face, to relax or activate particular muscles, to soften his eyes and tilt his chin, and Wilde complied. But in another, stranger sense, Sarony “arranged” Wilde outside or beyond Wilde’s own control. That is, Sarony could have “overwritten” Wilde in order to make him a visible expression of Sarony’s “original” authorial vision. If we pause with Benjamin’s now-­canonical account of early film, the sense in which Sarony could have “arranged” Wilde beyond Wilde’s control becomes a bit clearer. German author and film theorist Rudolf Arnheim, Benjamin recounts, saw “the latest trend . . . in treating the actor as a stage prop chosen for its characteristics and . . . inserted at the proper place.”148 Benjamin describes how early film directors “produced” (and this was also Miller’s word) the expressions in their actors they wanted precisely by catching the actors off-­guard and relying on the camera to catch their involuntary expressions. Benjamin writes, 112

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Figure 2.6. Oscar Wilde, ca. 1882. Photograph by Napoleon Sarony. Library of Congress Prints and Photographs Division, Washington, DC.

Let us assume that an actor is supposed to be startled by a knock at the door. If his reaction is not satisfactory, the director can resort to an expedient: when the actor happens to be at the studio again he has a shot fired behind him without his being forewarned of it. The frightened reaction can be shot now and be cut into the screen version.149

These involuntary expressions better fulfilled a director’s “authorial” vision; a director’s “arrangement” of sound would “imprint” on the actor. This same technique was available to Sarony, even as his camera did not produce pictures that moved. Sarony’s “arrangement” further resonates with other photographic practices, like spirit photography, in which the camera—­and by extension the photographer—­was thought to have the power to “conjure” beyond the control of its subject.150 The additional difficulty Miller faced in ascribing a property right to Sarony was the practice whereby photographers de facto owned the copyright over the photographs they took, for example, of actors and actresses. The value of these photographs was not their “original mental conception” but that they “reproduced” figures of actors in them, and the property right was not held by way of copyright but rather a contract between photographer and photographed. Colonel Morse had, after all, sold Sarony the ex113

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clusive rights to photograph Wilde on his tour. As celebrity began to grow into itself a form of property (not solidified until the early twentieth century with the formalization of the right to own one’s image), actors began signing exclusive contracts with photographers, allowing their pictures to be taken in exchange for a royalty upon the sale of each copy. According to the New York theatrical producer Daniel Frohman, this practice did not last long, as actors and actresses eventually figured out that the advertising value of allowing unrestricted sale of their photographs exceeded whatever could be earned in royalties.151

Legal scholar Stuart Banner here overstates the case of publicity rights’ growth as merely on account of the spread of photography. For Banner, the increased distribution “undermine[d] the long-­standing assumption that fame implied the public ownership of one’s image. As that image was more easily reproduced it became more valuable, and the cost of letting others have it for free correspondingly rose.”152 Instead, photographs and actors together created the phenomenon of celebrity. The new vision of acting as a form of artistic expression, and of what Derek Miller has called the “performance commodity,” lent legitimacy to the photograph as publicity. Publicity via images in turn gave celebrity an arena in which to grow beyond local markets. Put simply, the photograph needed the actor as artist and purveyor of a performance-commodity to become publicity in the first place. In the alignment of photographic authorship with the management of difference, the photograph became the “record of the arrangement of a creative scene.” Miller designated authorship in a photograph as “visible,” but transformed the photograph itself into being, in some ways, besides the point. The Court imagined that Sarony’s intervention could make the photograph express what had happened outside the portrait’s frame. What remained were the imagined capacities of Sarony and Wilde, respectively, and the question that persists is not whether but how much Wilde’s position as queer, colonial, racialized subject affected Miller and the Court’s deployment of an aesthetics of whiteness to conscript ownership via “arrangement.”153

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More Than Self-­Possession

The Supreme Court upheld the circuit court’s finding that the portrait was constitutionally protected by the eighth section of the eighth clause of the Constitution, and that Sarony had properly marked the image with notification of its protection by copyright. The circuit court had originally given Sarony six hundred dollars for the plates and 85,000 copies sold and exposed to sale by Burrow-­Giles Lithographic Company, and ten dollars for copies found in his possession, as penalties under section 4965 of the Revised Statutes. But maybe more importantly, the court conveyed that Sarony had the capacity to arrange (as in to manage) Oscar Wilde’s capacity to express (as in to convey an impression).154 The Republic, a Columbus, Indiana, newspaper, characterized the results of the case this way in its headline: “Oscar Wilde’s Legs Copyrighted.”155 Photography posed a challenge to copyright because of its strained relation to the production of expression, a notion which itself existed inside gendered, racialized, and sexualized imperial logics. Miller did not exhaust the creative potential of photographic practice, but he did offer one account of the creative labor of “taking” a photograph by way of “arranging” a pose/scene. Finally, Miller agreed with Sarony’s assertion of the “camera with its appurtenances” as one kind of brush that I use, and which I employ to increase the intensity of the vision, to inject into art the living, palpitating lines of the actual figure, . . . to grasp and exploit the higher rhythm of nature. . . . I think my work proves that photography has aspects personal and individual apart from mechanical considerations. The camera and its appurtenances are, in the hands of an artist, the equivalent of the brush of the painter, the pencil of the draughtsman, and the needle of the etcher.156

Miller does not use Sarony’s language of “intensity,” but by way of the metric of an “arrangement,” elaborates how a photographer’s capacities could be understood to supersede their subjects’—­whether a wintry street corner or a personality. A few years later, a circus poster in Bleistein v. Donaldson Lithographing Co. (1903) determined what was particularly helpful about the rule of arrangement in deciding rights over a chromolithograph.157 It was Oliver 115

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Wendell Holmes Jr., author of “The Path of the Law,” who wrote the opinion. In explaining that jurists should not import their own aesthetic judgments into their pronouncements, the court reasoned that the metric of an “arrangement” supplied a sufficient basis for determining the work’s originality. What was valuable about this metric was that the chromolithograph could be understood as “authored” without having to encounter jurists’ deliberation about whether it was a “beautiful” image. Where in Burrow-­ Giles, “arrangement” served as a way to manage difference, in Bleistein, the Court insisted that the rule of property maintenance should supersede considerations of aesthetic value. Bleistein offered even less language about what exactly had been arranged, just that an arrangement had occurred to make the original images possible. A couple of years after Bleistein, American Mutoscope & Biograph Co. v. Edison Manufacturing Co. (1905), which favorably cited Burrow-­Giles, continued to rely on the logic of “pre-­shutter activity” as essential to the idea of authorship in an image.158 And even a decade later, in Gross v. Seligman (1914), the court considered the “work” the “composed scene,” looking back to Burrow-­Giles, and interpreting Miller as conferring copyright to an “artist who used the camera to produce his picture . . . just as he would have been had he produced it with a brush on canvas.”159 By 1921, Judge Learned Hand (potentially everyone’s favorite jurist name) asserted that he could not conceive of a photograph that did not have the “imprint” of the author in Jewelers’ Circular Publishing Co. v. Keystone Publishing Co.160 The multiple colonial convergences in Burrow-­Giles bear on the legal nature of photographic authorship, but also reveal high stakes for an ongoing cross-­pollination between photography, theater, visual imperialisms, and law. Reengaging precisely how property rights were conjured in Burrow-­Giles helps us conceptualize how the ill-­fitting imperative of sovereignty—­as Azoulay has argued—­was produced in law over photography. The property right here was created by a particular understanding of composition as arrangement before the image, rather than subsuming the “real” to the photograph. To earn the copyright in a photograph from a scene is to have acted on a scene and, here, a person. Holding expression as a question here has yielded insights into how whiteness as an aesthetics functions through continuous speculation: it helps determine a property right in its presumed capacity to manage what and who was conceived through the policing of difference. These local workings cohere with An116

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jali Vats’s elucidating of the connection between intellectual property and the history of race and empire: “Intellectual property actively contributed to white supremacist projects of slavery, settler colonialism, and imperial expansion . . . by allowing whites to own not only the physical labor of people of color but also their intellectual labor and likeness.”161 Where Edelman proposed that the “process of capital becomes the very process of intellectual creation,” in Burrow-­Giles, whiteness and colonial domination’s visual logics generated the aesthetic code through which capital functioned to designate Sarony as author-­owner of Wilde’s expression.162 More acute under the strain of point-­and-­shoot cameras (which take center stage in the next chapter), an aesthetics of whiteness managed and presumed control over racialized, sexualized difference in the imagination of a property right over photography’s reproductive capacities. Photographic copyright as imagined by Miller rested not on equality with the figure in the photograph (Wilde), nor did it exactly function like a “mirror” for the subject in law, nor for the “overappropriation” of the subject in the photograph.163 Instead, copyright was conjured through “fugitive factors” (Best) of the photograph’s “imaginative surface” (Hartman): a figure of a figure (the metric of “arrangement”) of an (in)capacity figured by a conjoined positive-­negative capacity/incapacity to effect and interpret “involuntarity,” or to be incapable of the same.164 Copyright in a photograph was forged as the figural capacity to control what another could not or did not—­or might have, but did not have the capacity to claim. The property relation—­aided by an aesthetics of whiteness—­was exclusionary in form because it relied on understanding expression as the purview of whitened reading and making. The “arrangement” of expression in the photographic portrait depended on conferring the capacity to “arrange” Wilde, controlling the terms of identity and difference by posing it one way or another even before the camera’s shutter closed.

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Figure 3.1. Marion Manola in a Newsboy trading card, 1890. Charles H. McCaghy Collection of Exotic Dance from Burlesque to Clubs, Jerome Lawrence and Robert E. Lee Theater Research Institute, Ohio State University.

Figure 3.2. Marion Manola in a Newsboy trading card, 1890. Billy Rose Theater Division, New York Public Library Digital Collections.

3

PROPE RT Y’S HORIZON

In two Newsboy Tobacco Company trading cards of light opera singer Marion Manola (figures 3.1 and 3.2), a white-­feathered cap adorns her dark, cropped, curly hair, but expresses differently. The feather has a lyrical curve in figure 3.2, while in figure 3.1, it almost disappears behind her head, hiding, maybe waiting to be seen. In figure 3.1, the dramatic lighting against dark wood panels coaxes the buttons on the velvet bodice to glint and gleam, while in figure 3.2 the white, pleated collar reaches out from the same bodice that here is more muted, her figure only one of many accessories lost amidst the staged flotsam and jetsam “offstage.” Her legs are poised in both, one delicate foot in front of the other; her left hand clutches a sword holstered at her hip; fringe dangles from the sash slung across her waist, from the split, bell sleeves of the costume, and from the hem that skims her uppermost thigh. Depending on the way her body angles toward the camera, slight distinctions in her facial expressions arise: Manola is defiant, under siege in figure 3.2; in figure 3.1, she is intrepid, already victorious. Another photograph was taken of Manola in a similarly short costume while she performed in 1890 at New York’s Broadway Theater. At the theater manager’s request, a photographer positioned himself in a box seat and caught Manola off guard—­in a moment and mood that could have been recognizable as desirable to the San Francisco photographer in chapter 1. The differences between the Newsboy trading cards echo the effect the loud crack from the camera’s flash might have made during her performance—­and, subsequently, in the photograph itself. Her surprise and unknowing—­along with any accompanying involuntary expressions—­might have been caught by the camera. This other photograph, missing from the archive, is the one for which Manola sued both Ben Stevens, the theater’s manager, and the surreptitious photographer, Henry Myers.1 While the previous chapter made use of the predominance of Wilde’s caricatures, this photographic absence drives this chapter forward with an insistent question: What did it take? 119

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Manola’s suit against the theater manager and the photographer hiding in the box seat was cited by two young Boston lawyers in an unlikely place: the first legal argument for an individual’s right to privacy. This chapter looks again at Louis Brandeis and Samuel Warren’s article “The Right to Privacy,” published in 1890 in the Harvard Law Review, and reads it in light of previously unknown aspects of Manola’s case. Doing so brings forward an overlooked part of their foundational argument, which bears a relationship to the slight differences between these two images of Manola, slight differences that would have read to Delsartists as exposing deep meaning. Because, as it happens, Warren and Brandeis not only counterintuitively posed copyright as one of the origins for a right to privacy, but they did so by likening facial expressions to works covered by copyright.2 For them, facial expressions, like literary works and paintings, were to be understood as “personal expressions.” In a way that resonates with my reading of American Delsartism, Warren and Brandeis designated “casual and often involuntary expressions” in particular as those at stake. Few critics or historians have noted the functions this unexpected phrase plays in their argument.3 However, through it, whether photographs captured, shaped, created, or were themselves personal expressions became significant to the existence of a right to privacy in the moment it was named as such. By “casual and often involuntary expressions,” Brandeis and Warren meant the kind of slight gestures, postures, and facial expressions that differed in Manola’s trading cards, might have been caught by the box seat photographer, and—­here is the crucial point that echoes back to previous chapters and forward to the next—­of which Manola herself may not have been aware, but which she might have practiced. Understanding their sense of involuntarity as a distinction between labor and effort, “The Right to Privacy” paradoxically argued for a privacy right by equating expressions that could have superseded control to artistic expressions protected by copyright precisely because new kinds of cameras might be watching and catching them. Accounts of Anglo-­American privacy tend to foreground preserving individual autonomy by protecting the ability to withhold information.4 Legal scholar William Prosser famously characterized invasion of privacy as “four distinct kinds of invasion of four different interests of the plaintiff, which are tied together by the common name, but otherwise have almost nothing in common except that each represents an interference 120

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with the right of the plaintiff, in the phrase coined by Judge Cooley, ‘to be let alone.’”5 The four torts protected in privacy cases were (1) intrusion, (2) public disclosure of “embarrassing” private facts, (3) “publicity which places the plaintiff in a false light in the public eye,” and (4) “appropriation, for the defendant’s advantage, of the plaintiff’s name or likeness.”6 According to Prosser, there were three interests behind each of these: emotional tranquility, reputation, and proprietary. Because of this, for Prosser, calling privacy a distinct right simply muddled legal thinking, even as, by the mid-­twentieth century, the large majority of states adopted some form of its existence. However, in taking for granted that a photograph’s violation of privacy was tantamount to the tort of publication of private facts, scholars have foreclosed the question of exactly how that violation was thought to happen, and what social, cultural, and material factors and power imbalances were at work to make that “violation” intelligible, not just to an individual, but to a courtroom. Eden Osucha argues that the Brandeis and Warren argument is an instance of “the privileged condition of being racially unmarked in a historical era newly obsessed with marking race.” Per Osucha, what can be recognized in their argument as a privilege appears as “a conceptualization of the properties of legal personhood that remains rhetorically abstract while nonetheless referring to evidently transparent, ‘natural’ signifiers of personhood such as ‘personal appearance, sayings, acts, and . . . personal relations, domestic or otherwise.’ Notably, these qualities compose the very grammar of the racial stereotype.”7 Building on Osucha’s insights about the properties Brandeis and Warren name, and in line with Miller’s articulation of Sarony’s copyright, we will see that Brandeis and Warren’s argument betrays an aesthetics of whiteness that while “rhetorically abstract,” in the context of what has come before, begins to take on the contours of a material and cultural life. Brandeis and Warren’s formulation of the right to privacy bears on legal privacy but also rests on the gendered and racialized nature of expressions, another extension of what Hartman called “the outstretched hand of legislated concern.”8 Because they embed privacy in the longer history of copyright, the article reflects back on how racial capitalism’s mechanisms manage difference through aesthetic codes that become property logics. The idea of “privacy” that emerges carves out a way for whiteness to provide reprieve for settlers on Indigenous lands from being subject to the media economy in which photographic technologies and the expansive 121

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reach of new forms of journalism were bound up and to which others were subject. Closely attending to “The Right to Privacy” in light of the previous chapters, while examining the cases and texts Warren and Brandeis cited and relied on, we can see exactly how the sense of privacy they offered differentiated a right for some to effectively own their expressions even when they were made involuntarily, while preserving the discretion to decide which was which. Photographed in Tights

Distracted in the middle of her performance by a flash from one of the theater’s box seats, Marion Manola realized that her photograph had been taken, “threw her mantle over her face,” and quickly “ran off stage.”9 Once the initial shock passed, she returned to the stage and carried on in her role as Bul-­Bul, a young debtor in the light opera Castles in the Air. The case has received significant scholarly attention as one to which Warren and Brandeis gestured as evidence for violations of privacy already recognized in law. However, little attention has been paid to the particulars of the performance, which offer clues to what Manola sought to protect through a privacy action in the first place, beyond what she offered to the court. Castles in the Air opened at the Broadway Theater on May 5, 1890. Charles Alfred Byrne wrote the libretto and Gustave Kerker composed the music. At the time, Byrne was a noted drama critic and journalist. Before turning to writing plays, he had founded several periodicals, including Truth, where he published the notorious (and notoriously false) “Morey letter,” for which he was indicted for criminal libel. The forged letter claimed to be from General James Garfield to a fictitious Mr. Henry L. Morey, said to be a union president in Lynn, Massachusetts. The letter, “purporting to give Garfield’s views on the question of Chinese labor,” was published while Garfield was running (successfully) for president in 1880 against Winfield Hancock.10 Byrne’s shift from publishing political fictions that exploited racist resentment against Chinese migrant workers to publishing comedic operas that mobilized imperial fantasies reiterates, for one, how porous the trajectories were between print culture and performance. It was said that Byrne’s inspiration for the “slight motive” in Castles in the Air was “from a one-­act farce [attributed to] Cervantes, written about 1590 and entitled ‘Los Dos Habladores.’”11 Castles transposed the one-­act, 122

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about a man seeking reprieve from a loquacious wife, to Martinique, one of the French colonies in the Caribbean, at a “none in particular” time in history. “None in particular,” after all, is the preferred historical temporality of imperial fantasy. The story of how the wealthy landowner Cabolastra (sometimes reported as Cabolastro) hires Bul-­Bul to “outtalk” his wife into being quiet was partly set in Saint-­Pierre’s main public square. When not in the town plaza, the scenes unfolded in Cabolastra’s gardens and mansion. In the town square, “a motley crowd of glove-­sellers, perfumers, barbers, cobblers and peddlers of every shade, French in name but Oriental in nature” were described as an “effective background for a vain old judge, Filacondre.”12 De Wolf Hopper, who had pulled the company with Manola together, initially played Filacondre.13 In some accounts, Filacondre was called a judge, and in others a “colonial police magistrate.” Here I’ll only note that the double-­vision of colonial judge-­police was perhaps accidentally apt. The imaginary Martinique in Castles sought out some forms of fidelity to the Martinique that had been shaped through the kidnapping of indigenous Africans to cultivate sugar.14 On the island that became called Martinique, Caribs had been “successful in defying first the Spanish, and then later the English and French,” such that in the sixteenth century the Spanish shifted focus to the Greater Antilles, and both the French and English were warded off by indigenous Carib communities throughout the seventeenth and early eighteenth centuries.15 After being colonized by the French in the later seventeenth century, Martinique, Guadeloupe, and Saint-­Domingue were “increasingly linked to sugar production for metropolitan consumption” from the early eighteenth century on.16 But it was after the Haitian Revolution that Martinique became “France’s largest and most productive sugar-­producing island in the Caribbean.”17 In the “motley crowd of glove-­sellers, perfumers, barbers, cobblers and peddlers of every shade,” Castles evoked not colons, wealthy Creole planters, but petits blancs who had potentially been formerly indentured or were poor whitened settlers, and enslaved Africans and their descendants, including gens de couleur who had been either manumitted or born free. Since the story was said to take place “at some point in history,” it could be that Byrne had in mind the French recapture of Martinique following six years of British occupation during the French Revolution. I wager this because of the roles that debt and the colonial judge/police played in 123

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the story. In the French crown’s recapture of its Caribbean colonies, the Haitian Revolution emerged as the most important victory that was also the crown’s most consequential defeat. Napoleon Bonaparte reinstated the colonial police and slavery in Guadeloupe through force. And although the British had not abolished slavery in Martinique, intraclass conflicts continued to impact Martinican society, especially between colonial officials and Creole landholders. Byrne wouldn’t have needed the historical Martinique to imagine wars for freedom and the social conflicts of colonizers, resonant as they were in a post-­Reconstruction United States. Nonetheless, these historically specific dynamics might have shaped the cross-­class romance between Bul-­Bul and Blanche. I also point to this period of Martinican history because there were three new administrators sent to the island from France after it was recaptured from the British: “the captain general, the colonial prefect, and the chief judge” were sent to “realign the island and its inhabitants with the metropolitan France to solidify French power in the region.”18 Perhaps this was part of the imperial imaginary that Filacondre was fulfilling while Cabolastra entreated Bul-­Bul to silence his wife. In the Martinican colonial political economy, fantasies about elite whitened women like Cabolastra’s chatty wife and his daughter, Blanche, were crucial to maintaining colonial power structures—­in another echo of the United States. Byrne’s move to write a comedic opera where a cross-­class romance is folded into a ploy to discipline a long-­winded wife recalls the ways that “elite Creoles [in Martinique] . . . promoted a racialized ideal of female sexual honor and economic leisure . . . while in fact counting on these women to manage enslaved workers, negotiate with local creditors of all racial backgrounds, and otherwise assist in family business affairs.”19 It is perhaps also useful here to note that Fanon begins Black Skin, White Masks with the problem of language. I mention this not because Fanon would have been thinking or aware of Castles, but because in the register of misogyny played for comedy, Byrne’s investment in controlling wealthy whitened women’s language as the work of empire hit upon a Fanonian insight that Wynter later builds on when she writes, “For it is by means of the strategies of representation alone that each human order and its culture-­specific mode of empirical reality can be brought into being as such a ‘form of life’ . . . and therefore language existence.”20 124

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The fictional Martinique, then, served as a double-­mirror for an imperial-­fantastical mode where another empire’s colony was the setting for a humorous spectacle about enforcing whitened women’s expressive compliance. More, in Castles, the carceral whimsy of imperial governance intersected with the instability of speculative financial markets, literalized in the play when Bul-­Bul “wins the lottery” so he can pay the debt he accrued by writing bad checks and can marry Blanche. For Byrne, the imaginary Martinique was another of what Du Bois described as “those outlands where like a swarm of hungry locusts white masters may settle to be served as kings, wield the lash of slave-­drivers, rape girls and wives, grow rich as Croesus and send homeward a golden stream.”21 Since the surprise photograph of Manola is unavailable to us, we can only guess that the photographer might have chosen to capture a scene where Cabolastra convinces Bul-­Bul to “outtalk” Cabolastra’s wife in exchange for relief from Bul-­Bul’s unrelenting creditors (and the threat of imprisonment). This ploy is the entirety of “Los Dos Habladores,” where the character Sarmiento entreats Roldán to “outtalk” his wife, Beatriz, by which he means for Roldán to erupt in an aggressive profusion of language to stun the equally verbose Beatriz into silence.22 There would be more to say elsewhere about the proposition that only the overproduction of language by another can enforce silence. But this setup is similar to Cabolastra’s invitation to Bul-­Bul to come and quiet down his wife. As soon as Bul-­Bul arrives, Cabolastra’s daughter, Blanche, played by Della Fox, enchants the young debtor. None of the accounts I found suggested it, but Bul-­Bul could have been part of the gens de couleur just as likely as petits blancs. I make this suggestion because Byrne had written journalistic political fictions fostering racial resentment and comedic operas rife with racial caricature, as with The Pearl of Pekin, set in 1861 China, which included songs like “(We Are) Four Little Tchin-­Tchin Girls” and “Bad as They Are, We Love These Men.” With Arthur Wallack Byrne he had produced a version of Uncle Tom’s Cabin where at least one Black actor was said to have quit because of how many racial slurs appeared in Byrne’s version.23 It could be said that this performer, like the Black performers and Black audiences performance studies scholar Douglas Jones analyzes, was part of what Jones calls the “Black Below.” Actors of the “Black Below,” according to Jones, had stopped “conflating blackface with the performers’ race as one and the same, but [rather] un125

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derstood blackface as a specialty act that facilitated the display of particular sorts of acrobatic, comedic, dramatic, and musical flair.”24 The photograph of Manola in question could have been timed for a scene in which she, as Bul-­Bul, and his sweetheart Blanche stole a moment for love. Is it possible and maybe even likely that the romance plot also threatened to stoke racial fears? Before Bul-­Bul’s lottery ticket wins him millions, even his uncle, Filacondre, the island’s “judge,” had been hunting him. The reason Manola gave at the hearing for not wanting to be photographed as Bul-­Bul was not about the scene the photograph might have depicted but about her costume exposing her stockings.25 Yet, in addition to the Newsboy trading cards with which we began, the Brooklyn Daily Eagle reported that Manola had “been photographed in tights several times before this” episode at the Broadway Theater.26 Newsboy trading cards depicting celebrities were often distributed to customers with the company’s products, meaning that images of her legs in tights had circulated just as far as Newsboy’s cigars. Were it to have been printed, neither an image of Manola in stockings (exposed or not) nor the potential for wide distribution would have distinguished the surprise image taken in the Broadway Theater.27 Then again, Manola was no stranger to being covered in the press. Her divorce the previous year from fellow actor Mr. Mould had been reported, for example, in the Boston Globe.28 One legal scholar has argued that the real issue was simply one of compensation.29 Manola had been paid for the Newsboy cards, but she would not have been compensated for the image taken by the photographer hidden in the box seat. This was likely true. Newspapers described Manola as the most impressive member of the company when it was formed in the winter of 1889–­1890.30 She could have had a sense that she was the most valuable actor onstage. Born in Oswego and raised in Cleveland, Manola was a light opera singer first brought to the American stage by John A. McCaull, a successful, Scottish-­born Confederate colonel and Baltimore lawyer who transformed himself into a theater producer. The New York Times reported that her “rapid promotion [in light opera] did not spoil her. . . . She studied hard and was appreciated, for she was a good singer, and a good actress as well.”31 Before Castles, she had performed with McCaull’s company as Aminah, a snake charmer in The Begum, a comic opera set in a fictional India by Harry B. Smith, with music by Reginald de

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Koven. Manola stood out from other actresses of the comic opera stage whose musical gifts infrequently matched their beauty. A Dramatic Mirror reporter remarked, “There is in her face a something more than prettiness, and her slender figure is a graceful relief to the eyes after the numerous over-­plump beauties.”32 This reporter’s “relief ” notwithstanding, the more successful she became, the more she developed “eccentricities which occasionally brought her into collision with her managers.”33 Yet a proprietary interest in one’s image was only then being forged. Manola’s case took place before courts reached a working consensus on how to adjudicate the challenges point-­and-­shoot cameras posed to a “division” between public and private spaces—­one that always has to be reasserted and rearticulated.34 Not until a decade after Manola’s case did courts begin to consolidate around the idea that photographs taken in public spaces were not violations of privacy. And not until 1903 did New York pass a law asserting a person’s right to her image in the event that another sought to profit from it, in response to chapter 4’s primary case study. Lake has argued that privacy cases in the late nineteenth and early twentieth centuries mark a “transition between masculine notions of privacy grounded in physical property and a feminine framing of privacy as a way of shielding the body from unwanted looks of others.”35 Taking Lake’s insight with us, let’s think further about the commercial protocols into which Manola’s privacy suit intervened. For the photographer or owner of the studio to have contracted for actors’ photographs was a practice decades-­old when Manola stepped onstage as Bul-­Bul. The understanding was that both photographer and actor benefited from a photographer’s incentive to sell as many prints as possible.36 But seeing Manola’s interests as only commercial both misreads practices of profitability and fails to account for how photographic expression and expression through performances co-­constituted one another in the second half of the nineteenth century. In addition to the gendered, racialized dynamics which Manola relied on for the court to recognize her privacy right, there is another set of dynamics at work in her objection to being caught onstage unawares. In Manola’s case, although neither defendant appeared at the final hearing, the judge upheld the injunction against the theater’s and the manager’s use of the photograph. Their absence further suggests that Stevens’s aim

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was not necessarily the image itself, but rather the publicity stunt of having a camera’s flash light (loudly) go off while Manola performed, as one scholar has suggested.37 But even if his true motivation was the stunt, that alone does not account for Manola’s initial filing or the episode’s inclusion in “The Right to Privacy.” As I’ve been suggesting, perhaps some of her claim to privacy sought to guard her professional reputation as Manola and personal reputation offstage by seeking to manage the distribution of an unstated aspect of her performance as Bul-­Bul—­a costume with stockings and potentially face paint? a role that asked her to kiss a woman onstage?38 There was also something else about this box seat photograph that might have threatened to blur the distinction between the two. The Manola case was just one among many American and British cases to which Warren and Brandeis referred in their widely cited and lauded article. The sum of these cases formed the basis for their main contention that an individual’s right to privacy already existed in common law even though, in 1890 when they were writing, it had not yet been acknowledged as such. Their law review article has been read in a number of ways: as a legal argument with unusually far-­reaching ramifications; as a cultural text; and as a text that participates in ongoing debates about what privacy is and why it matters for a government to protect its citizens in privacy’s terms.39 Benjamin Bratman describes its wide reach: “Over one hundred years after it was written, courts as divergent as the Supreme Court of Mississippi and the United States Court of Appeals for the Ninth Circuit have dubbed it as ‘momentous’ and ‘brilliant.’”40 While scholars continue to debate the merits of their argument, its effect on American law is unmistakable. What remains curious is that as a text, the argument of “The Right to Privacy” is uneven at best; at worst it does not quite logically hold together, although it is more often presented as an impressive piece of legal work. The article begins with a short gloss of the development of a “right to life” from “tangible” property to man’s “spiritual nature,” which called for “intangible” forms of legal protection. Their characterization of historically shifting property rights follows a “civilizationist” account—­that is, an inverted story about imperialism and colonization. They cast the evolution of the law as inevitable and reasonable while at the same time deeming its reach insufficient to the present, in which “solitude and privacy have become more essential to the individual.”41 In order for their larger argument to work, privacy had to stand as distinct from property, even 128

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as they framed the need for a right to privacy from within the expansion of property rights, and copyright in particular. Brandeis and Warren use this naturalized—­though imperially enacted and enforced—­framework of the expansion of property to justify considering the emotional effects of privacy’s violations. Warren and Brandeis staged a “right to privacy” at the intersection of two larger and much older legal debates: (1) the relationship between mechanical reproducibility, the publishing industry, and an individual’s right to profit from their creative product; and (2) the question of courts defining legal principles anew.42 The imperative to distinguish between law and politics drove the latter debate and shaped much of nineteenth-­century legal thought. This is because “The Right to Privacy” stands at the fulcrum of the transition that legal scholar Morton Horwitz charted in The Transformation of American Law: The Crisis of Legal Orthodoxy.43 For Horwitz, a shift from classical to progressive or realist legal thought marked a shift in what he calls “legal architecture”; where classical legal thought was characterized by a “conviction that there existed a structure of impartial and self-­executing norms,” progressive legal thought “sought to combine a pre-­modern sense of moral outrage with both the social reformers’ instrumental commitment to the social sciences and the modernists’ critique of positivist social science.”44 Similarly, Warren and Brandeis depict law as defined by a series of principles, expansive enough to be unchangeable through time, and yet a breathing body of thought, developing in conversation with political climates, society’s needs, and cultural mores, simultaneously incomplete and yet capable of fulfilling its own needs.45 It is helpful here to remember that Platonist aesthetics—­at the heart of Romanticism—­orbited the tension between the timelessness of beauty and the question of changing taste. It would seem that nineteenth-­century law also wrestled with this tension between the inter-­temporal and immediate dimensions of law. Making a Right to Privacy

By calling it “somewhat notorious,” the young lawyers distinguished Manola’s case from among the many others they cited.46 While its notoriety might have referred to Manola’s fame, their phrasing also betrayed more general misgivings about whitened women performing.47 According 129

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to their description, the actress was abiding by her contract in playing the character of Bul-­Bul; she did not, as a private person, choose to appear in public with stockings exposed. Barbara Hochman explains contemporary misgivings about whitened women onstage: “At the heart of that debate was the question of whether an audience, watching an actress, is looking at a physical body or at a representation.”48 But if it was unclear to audiences whether they were watching a woman or a representation (i.e., a character), then a photograph of Manola as Bul-­Bul was only allegedly a photograph of Manola at all. It could have made perfect sense for the defense to argue that it was a photograph of the character Bul-­Bul—­except that was not the case they made. Since they did not, and in light of the potential ambiguities of Bul-­Bul and Blanche’s romance, it leads me to believe that all parties understood that something about this surprise and surreptitious photograph blurred a distinction between Manola the performer, Bul-­Bul the character, and the whitened woman who had a life offstage. Visual culture scholars have described photography in the kind of aggressive terms that seem to make sense of Manola’s unrest over the secretly planned, then pointedly public photographic act. Osucha and Lake have shown how early privacy cases involving images of whitened women like Manola produced justifications for privacy to protect whitened women. For Osucha, this kept them from becoming commodified.49 Among the many cases Lake analyzes, in De May v. Roberts—­a case not about cameras or photographs but about looking—­a woman gives birth in her home. The doctor had invited a friend along (a non-­doctor spectator) to her home, and only later did she find out that the additional person was not medically trained. The Michigan court claimed that privacy rights protected the whitened woman. The court used her gendered and racialized position to register “the distress that could be caused by being subject to a certain kind of look.”50 Lake does not distill how the accumulating legal property in whiteness intersected with the emergent notion of gendered privacy protection. But in Manola’s case, the threat intersected commercial interests, the racism that hides too successfully behind “propriety,” and how racialized gender helps reproduce white supremacy in and out of courts. This account of protecting whitened women coincides in some ways with how other historians and legal scholars understand “The Right to Privacy.” For example, in Lawrence Friedman’s synthesis, the early right to privacy protected middle-­and upper-­class Americans from the “new 130

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Figure 3.3. Marion Manola in Clover, c. 1890. Photograph by Benjamin Falk. Billy Rose Theater Division, New York Public Library Digital Collections.

kind of power” of invasive journalism aided by cameras.51 Brandeis and Warren’s language in “The Right to Privacy” provides ample evidence for Friedman’s and others’ conclusions. They described journalistic practices this way: The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers.52

This short passage pulses with bourgeois outrage, which is appropriate given Warren’s patrician upbringing in Boston. The son of “a Jewish merchant family in Louisville, Kentucky, who would go on to become a celebrated Supreme Court justice,” Brandeis might have then claimed the same aspirations.53 One way to read the excerpt is as evidence of a 131

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Habermasian dissolution of the public sphere.54 The “prurient taste” of the “indolent” likely meant the (racialized) working-­class consumers of cheaper, more widely circulating newspapers.55 We could also study the ethnic composition of new journalists in addition to the consumers of inexpensive dailies like Frank Leslie’s Illustrated Newspaper, to shore up evidence that the production and protection of whiteness often entail a story about proprietary virtue. Alternately, we could propose that the passive voice (“has become” and “are spread”) betrayed a tension between the production of affect and the distribution of media. The passive voice cannot resolve whether media created “prurient taste,” “indolence,” and “triviality” or whether they were conditions that media then magnified. Where the first sentence situates the press as the shift’s cause, what follows suggests that once “gossip . . . has become a trade,” it was no longer possible to track cause and effect. But thinking photography’s proprietary delimitations as part of the work of racial capitalism with “The Right to Privacy” offers still another avenue for inquiry. Attending to the fragile concept of privacy as it was forged in relation to photographic practices and property interests newly reveals how it unfolded from within an imperial settler colonial imagination. Brandeis and Warren were not attempting to “resolve” the tension between the unequal and inconsistent divisions of public and private spheres. Nearly a century later, Sontag put it this way: “In a world ruled by photographic images, all borders . . . seem arbitrary.”56 What I want to emphasize is that whiteness as an aesthetics relied on imagining ownership where a lack of intention could be speculated even when it was presented as discerned. “The Right to Privacy” crystalized this aesthetic code for a whitened person’s ownership as a matter of presuming the right to enforce boundaries over visuality in (1) a capacity to produce involuntary expressions that are nonetheless your own and (2) the right to decide which would be understood as such, whether yours or someone else’s, in order to forge a whitened person’s right to privacy. The summation of these racialized capacities made into legal rights was, as I’ll argue in this and the next chapter, about the variable capacity to dictate the interpretive field—­t hat is, another way of delimiting the imaginative conditions for domination.

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Kodaker Harm

Warren and Brandeis wrote “The Right to Privacy” just as new kinds of photographers roamed outside studios taking pictures “in an instant.” Azoulay has proposed that the shutter mechanism itself was “developed as an imperial technology.”57 With an attention to the choreography around which the point-­and-­shoot turns as an instantiation of power, Reckson has relatedly proposed “the gesture of touching a button reveals modernity as performance: as movement predicated on, and producing, the stillness of some bodies.”58 Just as cameras were made possible by empire’s trade routes and industrial commercialization, its workings likewise relied on the imperial everyday. Warren and Brandeis saw the potential for new technologies to reinvent photography’s intrinsic contingencies and potential production of harms in legal terms. The transformation of photography’s production and consumption cycles and practices mirrored both the trajectory of contract after the Civil War and the development of tort law to cover the increasingly widespread injuries of industrialization.59 They wrote, “While, for instance, the state of the photographic art was such that one’s picture could seldom be taken without his consciously ‘sitting’ for the purpose, the law of contract or of trust must afford the prudent man sufficient safeguards against the improper circulation of this portrait.”60 That photographers could make a photograph without the subject’s sitting for it unsettled the legal relationship that had existed between photographer and photographed subject. In cases that involved images or their descriptions being circulated without the plaintiff’s consent—­Prince Albert v. Strange (1849), Tuck v. Priester (1887), and Pollard v. Photographic Co. (1888), to name a few—­courts found that defendants had committed breaches of contract.61 However, the invention and proliferation of new cameras changed the relationship that could exist between photographers and photographed subjects to such an extent that the photographic act could take place in the absence of any relationship, especially contractual ones. They wrote, “Since the latest advances in photographic art have rendered it possible to take pictures surreptitiously, the doctrines of contract and of trust are inadequate to support the required protection, and the law of tort must be resorted to.”62 Or, as Lake describes, “The established legal doctrines of contract, copyright, breach of

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confidence, and defamation, previously effective in regulating the rights of a ‘pictured subject’ were found wanting.”63 Potential injuries caused by photographs pointed to the insufficiency of contracts; for whitened people caught on the move, in secret, by surprise, and not in a studio, contract was no longer enough to secure their sense of safety. Showing just how much these technological shifts coincided with legal ones, Samantha Barbas, reading Randolph Bergstrom’s study of defamation cases in turn-­of-­the-­century New York, recounts that “the number of defamation cases that appeared before the New York Supreme Court increased by over twenty times between 1870 and 1910.”64 In these cases, the issue litigated was whose harm counted. As Barbas explains, “New access to legal representation made these lawsuits possible. This era saw the development of the contingency fee agreement, in which a lawyer took a plaintiff’s case without charge; when a settlement or judgment was achieved, the lawyer was to receive of portion of the damages, anywhere from 5 to 50 percent.”65 So it was not only shifts in photographic practices and the insufficiency of contract to cover new kinds of harms, but also the availability of legal representation and the new, juridically protected value in whitened reputations that made lawsuits for defamation more prevalent in the media environment in which Brandeis and Warren imagined a privacy right. As amateur photographers became more common, photography societies sprang up to recreate the social exclusivity eliminated by newer, cheaper cameras. Clément Chéroux describes a “double nature” to photographic amateurism.66 One kind of amateur “appeared along with gelatin bromide” and was “passionate about photographic techniques.”67 This group of amateurs would have been involved, for example, in the Camera Club of New York, which broke away from the Society of Amateur Photographers in 1888, and the Pasadena Camera Club, which, Nicole Dawn Strathman writes, “was home to some of the most prolific photographers of the Southwest tribes, including George Wharton Jones, Adam Clark Vroman, and Charles Fletcher Lummis of the famous ‘Pasadena Eight.’”68 The New York Times even “carried regular notes on amateur photography in its Monday editions” when Warren and Brandeis wrote.69 But the “second category of amateurs shows a certain indifference to technique . . . [and] found more enjoyment from working in the family circle.”70 British and American newspapers pejoratively called photographers who roamed outside family circles and camera clubs “camera fiends.”71 Gradations of 134

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access, agency, and imperial pursuits were played out in the abundance of new cameras, amateur photographers, and new opportunities for subjects to be caught unawares.72 In addition to a shift in the consumer markets for cameras, and as Reckson argues, point-­and-­shoot cameras affected the choreography of photographic practice in multiple ways.73 For one, they eliminated the need for photographs to be taken by those who knew how to work in a darkroom.74 In the late 1870s and early 1880s, dry gelatin superseded wet collodion plates, even as they first became available as early as 1873.75 Because dry plates were so sensitive, they needed a shutter—­that is, they were too sensitive for the more prolonged action of taking off and then replacing the lid on the camera lens. The first crude shutters opened by way of an air bulb and a tube; they opened and closed in front of the camera like a trap door. These complications and limitations help explain why it was not until the mid-­1880s that operators began to understand dry plate photography as firmly established.76 The “detective” camera was first marketed in 1886, and cost about forty-­ five dollars, which was a huge sum for most people. Two years later, Kodak would put out a lightweight model that cost twenty-­five dollars and explicitly targeted new photographers.77 By 1896, the company had sold over 100,000 handheld cameras. These handheld cameras did away with the need for tripods or dry plates. Detective cameras were small and equipped with roll holders: a little under 7 inches long and about 3¾ inches deep, weighing about 22 ounces, with enough film for a hundred exposures. These sold for about twenty-­five dollars. For ten dollars they could be reloaded by the dealer. In addition to marking the beginning of a new business of photo-­finishing and photo-­development, these point-­and-­shoot cameras not only proliferated the ideas of “amateurism,” “quickening” time, and “shrinking” space, but also dislocated the darkroom from an amateur photographer’s practice. So-­called Kodakers were the first to wield the power of photography without the kinds of expertise needed earlier in the medium’s history, even if one branch of amateurism sustained a commitment to technical knowledge.78 These seem to have been a pronounced “threat” in the few years before Kodak began to market—­pointedly with the Brownie—­“to children with the aid of Palmer Cox’s popular illustrated Brownie characters.”79 Kodakers, by contrast, could be newly secretive and take photographs without 135

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setting up beforehand, and without warning. With new kinds of cameras available to these new kinds of photographers, predominant discourses of photography shifted to emphasize a seeming “onslaught” of visuality.80 The debate over how to be in this new media ecology filled the pages of popular journals, monthly magazines, and newspapers. These publications, in turn, were another kind of “onslaught,” with magazines increasing in readership “from 18 million in 1890 to 64 million in 1905,” and “newspaper readership increasing 400 percent between 1870 and 1900,” when “the number of newspapers doubled.”81 Amid this print culture profusion, the Ladies’ Home Journal took note that the “etiquette” around photography was not meeting the standards of “propriety.” The article’s author was especially concerned that “girls and young women otherwise well behaved are particularly heedless of the feeling of others on this point. They have an idea that everything and everybody may be considered as fair game for their cameras, and that no one should interpose objections to being ‘snapped.’”82 The harms of photography are imagined by this author as a question of manners rather than a matter of power: “The code of good breeding applies to the ‘kodak’ with just as much force as it does to any private right.”83 The Ladies’ Home Journal’s objections to the habits of “kodaking” recast some ways critics have talked about this moment in photography’s history. “Button pressers” here were thought to be mismanaging the power to make more images quickly.84 In contrast, one historian suggests that amateur photographers sought to give “fixity” to a sense of “weightlessness,” a term he borrows from Nietzsche.85 Most often, the increased circulation of print and photographs was described through metaphors of natural disasters in historical sources just as in photography’s historiography. Kracauer, writing about illustrated newspapers, sketched out how “the flood of photos sweeps away the dams of memory.”86 To him, “the blizzard of photographs betrays an indifference toward what the things mean.”87 The terms of natural disaster and massive weather event are echoed by scholars depicting what historical actors described as “onslaughts.” For example, historian Sarah Igo tells it this way: “The first newspaper photograph was published in 1880, opening the floodgates for the mass circulation of images. By 1885, ‘illustrated journalism’ had arrived in the form of 10-­cent weeklies such as Harper’s and Scribner’s as well as ‘society news’ pages in venues like New York’s Town Topics, 136

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a self-­proclaimed pioneer of society journalism.”88 Mary Ann Doane—­ with film in mind—­likewise refers to a “discursive thematic of excess and oversaturation.” Doane goes on to explain how the “sheer quantity of images . . . [was] perceived as the threat of overwhelming or suffocating the subject.”89 In nineteenth-­century legal struggles over photography, its blizzards, floods, and suffocations produced uncertainty rather than stability. Or, as the Atlanta Constitution wrote in response to Manola’s case, “There is a difference between bewildering the spectators in the theatre for a few moments with a glimpse of something gorgeous and the cold matter-­of-­ fact reality of a photograph to be hawked about and critically examined.”90 The perceived visual saturation produced through photography’s varied dissemination did not offer “fixity” or even the consistent effect of “weightlessness,” so much as it raised new legal questions, including questions of privacy and ownership, made all the more pressing through the metaphors of natural disaster that communicated photography’s colloquial “threats,” given the new avenues and instruments through which profits were being made and lost, and that these could pose new threats to intangible assets held in whiteness. Seen another way, the point-­a nd-­shoot camera gave new form to an old phenomenon. It is true that in front of these new cameras, subjects could be caught before they had time to pose. But the camera’s potential thievery of what was unknown to its subject was constitutive of all photographic acts. In placing herself before a camera, however willingly, the subject made herself helpless to both circumstances and interpretations beyond her control: the caprices of light, exposure time, chemical reactions, shutter speed, the quality of materials, the competence of the practitioner, the available technology, including the developing process, the capacity to crop, tint, or alter the image after the plate or paper’s exposure. Writings on photography, from the most celebratory to the most satirical, note the camera’s capacity to offer a higher “truth” than what a subject may have known about how she appeared. But while the point-­ and-­shoot did not invent the camera’s contingencies, it did put a different kind of pressure on the inherent involuntariness of being in front of one, revealing anew liabilities that had previously been experienced in more controlled forms. Yet, the protection of “personalities” seemed to Brandeis and Warren to be in new peril when subject to amateur cameras. If goods like photo137

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graphs “flowed out of hierarchies of capitalist corporations to an anonymous market of consumers,” to use Susan Buck-­Morss’s formulation, the possibility of having photographic portraits recirculated in advertisements and newspapers seemed to catch whitened people of means up in networks of production whose harms might have been invisible to them—­until they weren’t.91 The pressure on whitened people’s emotions with which amateur photography became associated alongside “new practices in journalism” formed the cultural context for an odd equation of publication with quotidian communication in Brandeis and Warren’s argument. They set the stage for this equivalence with an epigraph from Millar v. Taylor (1769), a British copyright case and the culmination of thirty years of actions by London booksellers against Scottish booksellers.92 The ruling determined that an author would have perpetual rights to her work. Mark Rose describes the debates that led up to Millar, in which “authorship and the literary work became dependent on the problematic concept of personality.”93 As in Francis Hargrave’s account, parsed in the previous chapter, “personality” here presumed that individuals were demonstrably particular; “personalities” justified how a literary work could be conceived of as individuated even as it was “made” from a shared language. Brandeis and Warren’s argument for a privacy right summoned this paradox internal to copyright—­that the publication rights of a literary work were justified by the presumed individuality of a person’s “communication”—­and proposed it as a legal principle. In “The Right to Privacy,” a philosophical question, in this case the capacity for language to be individuated, lived amidst and upheld commercial interests. The young lawyers deemed the nature of publication a “right of determining” in order to accomplish the conceptual sleight of hand of equating a personality with a literary work: “The common law secures to each individual the right of determining, ordinarily, to what extent his thoughts, sentiments, and emotions shall be communicated to others.”94 They restaged the paradox of copyright outside the history of publishing, portraying copyright instead as regulation of how much one person says to another in everyday communication. The conflation of these terms is emblematic of how the article marshals its rhetoric, and for that reason I call attention to this sentence. First, the word “ordinarily” absorbed any number of distinctions between publishing and communicating, trans-

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forming an economic category (publication) into a social norm (“right of determining to what extent”). Second, the word “ordinarily” alluded to new pressures on communication effected by the growth of communications technologies in the second half of the nineteenth century, of which amateur photographers were both symptomatic and representative. To suggest an “ordinary” time when communication could be dissociated from publication implied that casual communication had become so imbricated in a web of technologies that the “right of determining” of traditional copyright was now compromised. The right to privacy, then, would supplement the “right to prevent” communication from becoming published, which made best sense in a world where the right to prevent had already been conceded. For them, a “right to prevent” existed in common law and needed to be supplemented. But, as in the previous chapter, protecting authors and creators from copyright infringement was not the stable legal ground that Warren and Brandeis implied.95 Instead, their equation of communication with publication held the additional proposal that copyright was “wholly independent of the material on which the thought, sentiment, or emotions is expressed.”96 They offered no proof for their assertion of “independence” from the “material” on which the “thought, sentiment, or emotions [were] expressed.” Unlike Judge Miller, who hesitated about the analogizing catalogue in the copyright protections statute, they repeated the catalogue of protected mediums to insist that an organizing principle existed beyond the mediums themselves. That catalogue was included in every nineteenth-­ century legal treatise with a section on copyright, slander, and libel. The list’s prevalence suggests that it was legal common sense to analogize various media as having been “authored,” even as the precise definition of authorship was open to interpretation. (Hence Miller’s logical contortions.) The 1790 Copyright Act first covered charts and maps, then books, followed by engravings and etchings, referred to as “prints.”97 Legislators secured copyright for different mediums by adding them to the existing catalogue, which suggests that a principle of protecting the “message” was being enforced.98 Brandeis and Warren argued that the “principle which protect[ed] personal writings and all other personal productions, [was] not against theft and physical appropriation, but against publication in any form.”99 The expansiveness of “personal productions” made conceptual

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space for facial expressions to count as a medium; left unanswered was how facial expressions—­socially intelligible and, thus, far from singular—­were proof of personality.100 Urging Distinctions

Some scholars view the invocation of a “right to an inviolate personality” as Brandeis and Warren’s justification for deriving privacy not only from the “right of property in its widest sense,” but also from man’s “spiritual nature”; they propose that this language distinguishes their sense of privacy from property.101 But the expansive notion of property at first reinforced the legal recognition and protection of “spiritual natures.” Edelman might pose that here was the simultaneous production of a property right and a legal subject through the seductive language of spiritual natures, emotional well-­being, and the secular-­sacred notion of psychological interiorities.102 If privacy protects these aspects of personhood to ensure “dignity,” “autonomy,” or “spirit”—­perhaps in ways parallel to protections of property, but understood as distinct from them—­scholars have tended to conflate these “interiors” with depth. But by not asking how Warren and Brandeis presumed that a court would recognize depths, and by not naming the surfaces or structures by which those depths might be perceived, scholars have recreated another set of assumptions: that personality, spirit, and emotion are equivalent with hidden interiors. These “visible” forms of intangible property joined other forms of commercial law and practice, wherein—­as in the history of credit rating agencies—­rumors about one’s character could be used to assess creditworthiness.103 As I argued in the first chapter, markets in private credit and the related financialization of personality and local relationships morphed one function of whiteness into working like an intangible asset. Because rumors in newspapers had become a new form for commerce, in this environment, trafficking in rumors was a business model that threatened these assets, which were both individually held and socially experienced. To indicate the extant protection of “inviolate personalities,” Warren and Brandeis called upon Judge Cooley’s phrase “the right to be let alone.” In his 1888 Treatise on the Law of Torts, Cooley wrote, “The right to one’s person may be said to be a right of complete immunity: to be let alone. The corresponding duty is, not to inflict an injury, and not, within such 140

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proximity as might render it successful, to attempt the infliction of an injury.”104 If Cooley had privacy in mind, his version is not, as twentieth-­ century commentators insisted, about ensuring either relationships or a healthy democracy.105 For Cooley, “to be let alone” is a remarkably expansive form of solitude. It imagines solitude in at least three registers: as sanitized “immunity,” innocence from inflicting injury, and a matter of physical distance. This use of Cooley in “The Right to Privacy” introduced a list of immunities afforded by the law: “the right not to be assaulted or beaten, the right not to be imprisoned, the right not to be maliciously prosecuted, the right not to be defamed.”106 What animated these rights, according to Brandeis and Warren, was an “inviolate personality”: “the principle which protects personal writings and all other personal productions, not against theft and physical appropriation, but against publication in any form, is in reality not the principle of private property, but that of an inviolate personality.”107 The assertion that “an inviolate personality” is a legal principle that works alongside property but is distinguishable from it follows the presentation of rights as immunities—­that is, rights in their negative form. Where we might intuit the (civic, spiritual, and creative) fruits of a privacy right as protecting something like a fullness of experience, “inviolate personalities” in the article do not have specific substance other than their asserted relation to this set of immunities. One’s “inviolate personality,” therefore, does not signify robust homes for meaning or experience that exist “beyond” the legal existence of immunities. If they indicate a presence at all, it is only at the boundary of a negative sense of rights. This absence of positive meaning makes possible a kind of fullness that can only be speculated. After that, Brandeis and Warren assert that a “personality” can be known through modes of expression supposedly analogous to one another.108 Even as they leaned on Cooley’s phrasing, Brandeis and Warren did not, however, define personality in terms of isolation as Cooley did, but rather emphasized personality’s construction through being seen. The visible expressions of personality were those that privacy protected, even if they did not offer a positive definition of personality beyond these visual traces. Analogizing among forms duplicates how American courts more generally reproduce inequity by absenting bodies in and through language while preserving a court’s discretion. In court (as on the street, as through 141

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a policeman’s gaze), whether a person had “depth” that qualified as “emotional” or housed a “spirit” was a matter of discretion. In the unnamed and, therefore, elusive ability to choose what markers designate a “good” or “reliable” body (and then for a court, jury, or police officer to change his mind) lay the possibility for injustice. This is what we expect; this is the devil we know. It is curious, then, that the question of how “involuntary expressions” embedded on a photographic surface qualified as proof of the “depths” that privacy protects—­if privacy was meant to protect depths at all—­has remained unasked. Having established the form of an expression as incidental to copyright, and all mediums for personal expressions as analogous to one another, Warren and Brandeis wrote, “If, then, the decisions indicate a general right to privacy for thoughts, emotions, and sensations, these should receive the same protection, whether expressed in writing, or in conduct, in conversation, in attitudes, or in facial expression.”109 One historian notes that this is “little more than a catalog correlating feeling with facial expression.”110 He is right. However, this form of embedding personality, spirit, and emotionality in the history of copyright and the mere possibility of being seen presumes living as already embedded amid surveillance and accepts the logics of market values to be intrinsic to social relationships. Other modes of relating not rooted in speculating, extracting, or anticipating metrics of valuation of visibility as a measure of being understood were occluded by this wrinkle in the legal imagination. Anticipating the objection that there is a marked difference between choosing to publish and involuntary or accidental acts of expressions by faces and through gestures, Warren and Brandeis sought to prove otherwise. I quote their justification at length because it is crucial to what follows. It may be urged that a distinction should be taken between the deliberate expression of thought and emotions in literary or artistic compositions and the casual and often involuntary expression given to them in the ordinary conduct of life. In other words, it may be contended that the protection afforded is granted to the conscious products of labor, perhaps as an encouragement to effort. This contention, however plausible, has, in fact, little to recommend it. If the amount of labor involved be adopted as the test, we

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might well find that the effort to conduct one’s self properly in business and in domestic relations had been far greater than that involved in painting a picture or writing a book; one would find that it was far easier to express lofty sentiments in a diary than in the conduct of a noble life.111

Their contention that copyright protections recognized the labor of art in order to encourage art and effort recalls again early conflicts around copyright, but also the variable relation to effort for Delsartists, Wilde, and the purpose of Sarony’s posing apparatus. Of the older copyright debates, Rose explains, “The proponents of perpetual copyright focused on the author’s labor. Those who argued against it focused on the results of the labor, the work.”112 While Brandeis and Warren aimed to distinguish the occasion for labor from privacy and personality, they also did away with the idea that copyright protects the labor of art, since there might be more “effort to conduct one’s self properly in business and in domestic relations” than “in painting a picture or writing a book.” Part of what they registered were ongoing philosophical debates over effort itself. Recalling that kinesthesia was then a relatively new term that indexed and was deployed in racialized understandings of embodiment, John Dewey’s “Psychology of Effort” took an interest in the kinesthetic sensations of effort. Dewey asserted that strenuous acts of mind take the entire body in order to be fully revealed.113 Where the difference between the categories of “effort” and “labor” might be seen in terms of their respective products (a life well-­lived over and against a work of art), Brandeis and Warren parse “labor” from “effort” to propose that acts of “effort” can outweigh those of “labor” in terms of both sheer quantity of time (the effort to conduct a life well-­lived is “far greater”) and difficulty (writing in a diary is “far easier”). Let’s put their distinction between labor and effort aside for a moment. For now, this is the key point: without involuntary expressions and outside recourse to an amorphous set of “feelings” with which a subject “regards herself,” there was no explicit difference between the privacy right for which they argued and extant legal protections. For Warren and Brandeis, “the test of deliberateness” somehow distinguished “casual and often involuntary expressions” as more deserving of legal protection than artful, “conscious products of labor.” “Casual and often involuntary expressions” were more deliberate and more effortful than art. We could call on Delsartian

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praxis here to fill in the puzzle of how any whitened person’s expression made involuntarily could be thought to supersede art when tested in terms of the amount of deliberation it took to produce it. But in addition, Mary Ann Doane helpfully describes a series of nineteenth-­century debates about photography’s indexicality that mirrored this tension in their argument. She writes that “in instantaneous photography, it is the automatic rendering of an instant, the forceful ‘taking’ of a picture that becomes problematic.”114 That is, the photographic rendering of an instant is both automatic and forceful; precisely because of this both-­ness, the medium “becomes problematic.” Doane means that photography becomes aesthetically problematic. However, this tension between a camera’s force and its “automatic rendering” causes Warren and Brandeis to view photographic takings as meriting legal concern—­but for those whose efforts could be conceived as more laborious than labor. Warren and Brandeis depicted the potential for surreptitious photographers as immanent. Not only could instantaneous photographers make a passing gesture into “permanent form,” but countless other (working-­class) hands would also be part of the process. This argument for the right to privacy may also belie the anxiety, not just that the photographer might have been an amateur, but that workers not present at the taking were equally authors of these amateur photographs. When a photographer with a portable camera sent her film, for example, to the Kodak Company to be developed by that company’s employees, the threat photographers posed was not only that they converted a subject’s involuntary expressions into the photographer’s, but that “involuntary expressions” made their way onto prints by way of unidentified workers. This opens but does not answer the question of whether the “labor” of facial expressions mirrors the unseen labor that creates a photograph, especially once the development process has become mechanized. These aspects of photography’s history as a dispersed production cycle help us understand—­but do not fully articulate—­ why expressions were the most vulnerable and thus exemplified the need for a new form of legal protection. Warren and Brandeis posed the results of photographic transgressions by amateur photographers on unsuspecting subjects as “mental pain and distress, far greater than could be inflicted by mere bodily injury.”115 This “divestment” happened by way of making “permanent” what a subject might not have been aware of about herself, but also constituted expres144

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sions that in the aesthetic codes of whiteness I’ve been exploring were uniquely available to white people. This photographic potential to catch but also to shape the evanescent enmeshed in modes of production that dislocated bourgeois codes of domination shaped the right to privacy. But implying that privacy’s presence for capture relied (precariously?) on those moments when a person expressed more than she knew betrays an impulse to control the field of interpretation, just as much as it articulated feeling newly vulnerable to cameras. It’s important to note that for the subjects of How the Other Half Lives (1890), let alone the many subjects of “ethnographic” photography, their involuntarity was signaled with every shot, no matter the expressions caught and made. Gerald Vizenor (Anishinaabe) foundationally analyzed how power dynamics become visual-­textual-­linguistic conventions in, for example, how Indian as a dialogic construction “is poselocked in portraiture, intaglio, photogravure, captivity narratives, and other interimage simulations of dominance; the poselocked fugitives of ethnocentric discoveries, not the traces of heard stories, or the tease of natural reason, transmotion, and native survivance.”116 Vizenor’s insights into the aesthetic life of power to “poselock” resonates with but is non-­equal to the phenomenon of Riis’s working-­class subjects, who were often “caught” unawares in the middle of the night, frightened awake from their exhausted slumber by a camera’s flash. Their involuntarity not only made the images possible but also legitimated their evidentiary force as part of Riis’s larger project. The reassurances of contract had likewise not been accessible to the subjects of medical scrutiny in Charcot’s “documentation” of hysteria, in G. B. Duchenne’s cataloguing of “mechanisms of human facial expressions,” to the enslaved people Joseph T. Zealy brought to his studio for Agassiz’s commission, to subjects of “public health measures” like “African American washerwomen in Atlanta and Baltimore and Chinese laundry workers in San Francisco, suspected of being vectors of tuberculosis and plague . . . prone to ‘sanitary surveillance.’”117 The same could be said of San Francisco Chinatown’s inhabitants photographed by Arnold Genthe.118 The reassurance of contracts for whitened people between photographer, subject, finite possibilities for transmission, and the absence of either photoengraving or halftone imposed a number of limits on the circulation of images, all of which were importantly absent in “The Right to Privacy.” 145

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That the point-­and-­shoot could “take” expressions a person did not know she was making called into question the metric by which expressions qualified as one’s own. At the same time, it transformed the posture that the San Francisco photographer recognized as the most desirable—­posing as though you did not know the camera was there—­into the most threatening. According to Warren and Brandeis, it was precisely this ability to take “casual and involuntary expressions” that transformed a photographer from a nuisance to a legal threat for the camera’s whitened subjects. “The Right to Privacy” proposed that a person’s ownership of her expressions surpassed her capacity to control them and used an abstract notion of “personality” to mark the ownership, even as that was precisely a category that had become, over the course of their young lives, financialized. How often a person is not aware and not in control of her slightest movements in public reorients our sense of privacy’s history from a right that reinforced autonomy to a right whose existence at first relied on the threat posed to whitened people in its flashes and instants of absence, but only insofar as to reinforce a notion of whiteness as an aesthetics whose protection relied on determining whether someone’s intention had been present at all. And in precisely that indeterminacy existed the space for white supremacy to masquerade as sight. Expressions deemed involuntary overtake the context of their appearance in at least two ways: neither the person seeing them nor the person expressing them has an account for what they mean. This moment of indecision, in real time, might be very brief—­if it happens at all. But if the right to privacy aimed to protect these yet-­inconclusive moments, then the right does not primarily exist to protect being perpetually hidden or the absolute control over information—­although it might do these as well. Posing these involuntary expressions that a camera might “catch” as those in need of protection, this kind of privacy asserted these expressions as the hinge that justified a privacy right. To claim legal control over these expressions was a way to assert and articulate what it meant to be a whitened subject of racial capitalism precisely because these kinds of expressions would not qualify as products of labor or effort of non-­whitened subjects. The distinctions Warren and Brandeis make between labor and effort reinforce the aesthetics of whiteness I have been exploring. Their assertion of the existence of privacy hinged on reading expressions as arising from

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the kind of speculative will that Delsartism inscribed into its students and justified Sarony’s authorship of Wilde’s portrait. What Brandeis and Warren laid claim to was a notion of expression as more valuable, more effortful because it was unintended. As such, there is something more we can understand about the stakes of whiteness as the aesthetics of racial capitalism here. Ironically (or predictably), what was effortful about the article’s long passage is exactly the portion of its logic meant to render natural their assertion of effort as more valuable than labor, and thus unable to be questioned. Privacy, then, becomes a means of circumscribing the creation of a privilege in the guise not of an abstraction, but of an assertion of natural law. This, then, would serve as a foundation for that more profitable form of “labor” wherein there is little in the way of labor, just a claim to effort more laborious than labor. Brandeis and Warren did not deny that a person’s expressions might adhere to an aesthetic code in order to protect a more abstract notion of rights-­bearing individuals, of inviolate personalities and sacred selves beyond sight, animating the negatively stated boundaries of legal immunities. Rather, it mattered to them and to their articulation of privacy’s protection that Manola, for example, existed in the world as seen. This is how the unstable racialized and gender-­bending performances in the imperial Martinican fantasy of Castles in the Air live on in “The Right to Privacy,” not as a strict correlation, but as the embedded implicit threats to Manola that brought her to court and might have kept her “infamous” and unreported case in their imaginations in the first place. Because, in addition, Manola and the imagined subjects of surreptitious cameras mattered to Warren and Brandeis for more than having been seen. In their formulation, visibility in public presupposed a saturation with cameras-­in-­hiding. What was constant was the probability not only of becoming part of a mediated reality without consent, but also of expressing beyond one’s control and having that “involuntary expression” used in another context. This is what happens in the cases I take up in the next two chapters. In a context where whitened and whitening social and professional performances shared idioms, involuntary expressions rendered personal expressions into artful ones in two ways: because a sense of whitened identity could arise from the parts of ourselves that were not controlled in a specific moment, and because expressions, when seen, were available to

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interpretations that exceeded intentions, especially when captured in a photograph and disseminated in a cabinet card or lithographic reproduction. In emphasizing involuntary and casual expressions, Brandeis and Warren figured privacy’s horizon as synonymous with both the property rights that later would cluster around images and aesthetic codes of whiteness as the grounds for the legal interpretation of a threat. Unsought and Unknown

Brandeis and Warren prominently cited an E. L. Godkin article, “The Rights of the Citizen to His Own Reputation,” published in Scribner’s Magazine earlier in 1890, to support their critique of invasive journalistic practices alongside their critique of amateur photographers. The young lawyers echoed Godkin’s objections to the way “freedom of the press” had intersected with the business models through which newspapers were carrying out that freedom in late nineteenth-­century markets—­by then, Godkin had been circulating these objections in the press for decades. To help contextualize an unremarked aspect of Godkin’s oft-­cited article in a way that bears on privacy in Warren and Brandeis’s article and situates it firmly within ongoing, overlapping dispossessions of racial capitalism, I’ll first offer a bit about Godkin. Edwin Lawrence Godkin was Irish by birth and trained as a lawyer in England. He worked as a correspondent “writing historical pieces for a penny-­weekly magazine, John Cassell’s Workingmen’s Friend,” before becoming one of the founders and first editors of the Nation in 1865. He edited there until 1899, though he continued to write for other venues. He also served as editor of the New York Evening Post from 1881 to 1899, a publication that was owned by Henry Villard. Villard was president of the Oregon and Transcontinental Company (which set down the first tracks in the Pacific Northwest) among other railway ventures.119 The Evening Post, then, is one example of how railroad profits made a popular media venue possible.120 Godkin retired from his post in late 1899 on account of health struggles and died of a brain hemorrhage in England in 1902.121 Godkin had been an early denouncer of the shift toward “sensationalistic” journalism. He took issue with how the changing business of selling periodicals affected journalism. His critique seems to have limned, later in his life, with more general doubts about the experiment of democratic gov148

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ernance. In “The Real Problems of Democracy,” published in the Atlantic Monthly in July 1896, Godkin voiced misgivings about democracy, but not about the ultimate triumph of the “Anglo Saxon race.”122 His critique of journalism and ambivalence about democracy should also be considered alongside his investments in white supremacy, especially as a supporter of William Jennings Bryan’s Democratic candidacy for president against William McKinley.123 Bryan and the party’s inclusion of a free silver platform in that election marked a significant formalization of the party’s politics away from its antebellum antistatism, which had formerly been epitomized by its opposition to “greenbacks.” Godkin’s article “The Rights of the Citizen to His Own Reputation”—­ cited prominently by Brandeis and Warren, and many historians and critics who’ve written about “The Right to Privacy”—­asserts privacy as the necessary precondition for a person’s reputation, and individual reputation as foundational to society’s well-­being. Legal historians cite Godkin’s article admiringly, remarking on his “code of honor” and overlooking the settler colonial assumptions and political contexts that frame Godkin’s investments in privacy and reputation as such.124 For one, reputation and individuals are both, for Godkin, whitened and masculine. Godkin describes privacy as “a distinctly modern product, one of the luxuries of civilization, which is not only unsought for but unknown in primitive or barbarous societies. The savage cannot have privacy, and does not desire or dream of it. To dwellers in tents and wigwams it must always have been unknown.”125 Godkin frames masculine reputations as a “first form” of property in a whitened settler framing of history as part of a white supremacist project, and as a matter of money. Scholars have not yet incorporated Godkin’s characterization of privacy as a civilizational “evolution” unique to whitened masculine settlers into their accounts of the history of the right to privacy. Importantly, he is not writing about any particular Native lifeways, but rather is a bad/ malicious reader of the ongoing and multiple forms of state-­enforced or state-­sanctioned surveillance of Native peoples in highly public and publicized ways. To name just one of the more conspicuous examples, the US Bureau of Ethnology was created in 1879 to facilitate the operationalization of anthropologists’ violations of Indians’ privacy as academic “method” and the use of technologies like phonographs and photography to document Native life.126 Godkin repeats what Vizenor names 149

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“the crude notions of a vanishing race, cultural hearsay, racial speculation, and the gossip theories and catchwords of ethnography.”127 This does not mean that various peoples did not set limits on their would-­be surveillers. As Nicole Dawn Strathman explains, In the Southwest, twenty-­one tribal communities ended up prohibiting photography. Taos and Sandia pueblos forbade photography of ceremonies in 1920, Isleta in 1889, and three communities of San Felipe, Santa Ana, and Zia as early as the 1850s. . . . There were several reasons to ban photography, including the disrespect of a sacred space, potential loss of ritual power, and commercialization of religion (from the sale of photos), but, perhaps most important, photographs could be used to document outlawed religious practices.128

In addition to limits set on would-­be surveillers, Shamoon Zamir has shown that there were many, like Alexander B. Upshaw (Crow), “who worked extensively with [Eduard Curtis] between 1905 and 1909” on the work that would culminate in twenty volumes of The North American Indian.129 In another well-­known example of state-­enforced dispossessive conditions for the emergence of Godkin’s “gossip theories,” law and literature scholar Beth Piatote (Nez Perce) explains that from 1879 onward, the mass removal of indigenous children from their families and homelands relied in part on a gendered discourse that constructed Indian mothers as incompetent and their children as being in need of rescue. This discourse worked within a legal structure of wardship . . . and perversely created legally minor status for multiple generations of indigenous populations: adults were wards, and so were their children.130

Building on studies of gendered discourses of domesticity, Piatote’s important work shows how Native writers responded to “national domestication projects of settlement and expansion” during the assimilation era by reimagining the “familial space of the Indian home” to “illuminate the layered, complex meaning of domestic subjects.”131 Godkin revises these state-­enforced privations of conditions for “privacy” into an incapacity for desiring privacy. This is how he makes his claim that laws should protect whitened people over and against the mul150

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tiple forms of violations to Indigenous privacy. These active and ongoing violations recast as non-­desire made intelligible the selective protection via privacy for the people Godkin imagined deserved it. Evident in Godkin’s justification of a right to privacy for whitened masculine people is another of Vizenor’s insights, namely, that “surveillance is a pretense of being,” for Godkin, “and not a trace of native presence.”132 Having unwittingly articulated the conditions of racialized surveillance as “a pretense for being” a whitened man, Godkin’s denouncement of “muckraking” arose from his concern with “reputation” as related to a perceived weakened control over public whitened personas in a way that could impact livelihoods. For one, commercial credit relied on the value of whitened reputations. Second, concerns over “reputations” in the late nineteenth century became more prevalent just when “railroad financiers and other corporate titans were keenly aware of the threat to their reputations—­and bank accounts—­posed by the quicksilver spread and international reach of damaging pieces of information.”133 That is, Igo suggests that characterizing this time period only in terms of “muckraking” journalism and greedy readers ignores the political economic pressures to control the same by those who stood to lose the most. Godkin’s own position as editor of the Saturday Evening Post was directly connected to the well-­being of the Pacific Northwest Railroad. This new journalistic marketplace changed the conditions for control over one’s persona through legal protections called privacy rights—­and what privacy could mean. That is, a right to privacy or a right to one’s image could act as a bulwark for maintaining the inequity on which fortunes and dispossessions balanced. For Godkin, the idea of legal privacy is explicitly, not implicitly, a guardrail for whitened men’s reputations through a settler project of race and class distinction. Godkin proposes that privacy “is not one of the incidents of life in a camp, or a barrack, or in a man-­of-­war, or in a tenement-­house, or a caravan.”134 While privacy is neither “desired nor dreamed of ” in his “gossip theories,” privacy is also not available to soldiers in times of war or peace, migrants, or the urban working class. Godkin nonetheless narrates this condition—­which at first he posits as circumscribed—­as shared and “flourishing” “the world over,” and most specifically as “a desire on the part of their neighbors [those who had retreated into private houses] to know what was going on in the private houses.”135 But even this “desire to know,” or “curiosity, in its larger and nobler aspect,” is a matter of seg151

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regated affects and capacities. This kind of curiosity, for him, “lies at the root of Western, as distinguished from Oriental, civilization.”136 Godkin’s version of privacy—­which Warren and Brandeis rely on and courts and scholars have often taken for granted—­bears out that “the modern distinction between definitions of the human and those to whom such definitions do not extend is the condition of possibility for Western liberalism, and not its particular exception.”137 Like Warren and Brandeis, Godkin asserts that “a particular class of newspapers has . . . converted curiosity into what economists call effectual demand, and gossip into a marketable commodity.”138 The investment in “propriety” that appeared in the Ladies’ Home Journal is recast as fear of what market economies can do to the most intimate relations. The conditions of possibility for the right to privacy, then, are not just amateur photographers and muckraking journalism, but also settler colonialism, Jim Crow segregation, imperial racial capitalism, and the dispossessive scripts and figurations that inhere and move between these linked and non-­equal processes. It’s clear that Godkin understands that capitalism affects relations and that an assurance like a right to privacy might guard against those effects for whitened settlers. When his politics and the very often cited article are more fully taken into account, privacy’s logics emerge as a facet of what Cheryl Harris called “the legal legitimation of expectations of power and control that enshrine the status quo as a neutral baseline, while masking the maintenance of white privilege and domination.”139 Reading “The Right to Privacy” more fully embedded in its racial figural circuits and citations places it firmly within a varied set of “insatiable predatory relations” made to seem neutral through an aesthetics of whiteness that presents itself as an honor code to protect intangible assets in whiteness.140 No historical account of privacy—­be it critical, legal, historical, or sociological—­accounts for the full stakes of the inclusion of involuntary expressions in the litany of expressions a right to privacy should protect, nor for the settler imperial logics and intimacies that shone through Warren and Brandeis’s citations of Manola and Godkin. That said, there were privacy cases that were not about being caught unawares by cameras in public, but were about different absences of control. For example, in Feeney v. Young (1920), Feeney had agreed to be filmed while giving birth. What she had not agreed to was the commercial release of the film of her caesarian operation to a general public.141 152

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But situating “The Right to Privacy” in the deeper photographic and ethnographic history of “racializing surveillance” (Browne) and “predatory relations” (Byrd, Goldstein, Melamed, and Reddy), clarifies how it is part of the trajectory Harris describes as “the legal legitimation of expectations of power and control” through aiming to protect whitened subjects from being “caught off guard” by cameras and their reproductions.142 Settler history-­telling and fantasy, refracted through shifts in production for point-­and-­shoot cameras, changed the experience of being photographed, and seeped into the structure of Warren and Brandeis’s argument in multiple ways. In a growing economy of information, where reputational effects could secure future economic opportunities for whitened people, an individual’s right to privacy gave whitened people recourse to protecting that which they had not intended to escape their control, structured through an aesthetics of whiteness that presumed a capacity to surveil as a mode of being (Vizenor). In Warren and Brandeis’s version of a right to privacy, what becomes visible is also what Tiffany Lethabo King describes as “the violent ways that settler human self-­actualization depends on the most violent forms of Black and Indigenous death.”143 The methodological vantage of racial capitalism’s study in the register of deciphering between culture-­specific and transcultural aesthetic codes (Wynter) here yields is a more subtle understanding of the limits of the whitened imaginations that structured the right to privacy alongside state-­sponsored racial surveillance practices and in confrontation with the potentiality of camerawork and information circuits to disperse the capacities to interpret. The right to privacy emerges not as the consecration of a neutral private sphere over and against a public one, as in Jennifer Nedelsky’s proposal to think beyond bounded metaphors in thinking privacy.144 This prism for thinking a right to privacy from within the figurations and relations of racial capitalism is also neither an articulation of privacy as a “zone,” nor what Robert Post has termed a “ritual idiom,” nor a consecration of “spiritual selves” under the law.145 As Manola filed for it, as Godkin articulated it, as Warren and Brandeis inherited it, and as it would be rearticulated in the twentieth century as an “ethnographic” question of cultural difference, this right to privacy asserted an aesthetics of whiteness in a capacity to surveil and delimit interpretive fields. Privacy emerges as a figuration of legal protection of intangible assets 153

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in whiteness from becoming fungible through one’s photographic image being circulated for another’s profit. This racialized capacity for desiring (and living in the legally sanctioned conditions for experiencing) privacy understood in terms of expressions, intended and not, structured a right to privacy that presumed a racialized sense of expressions and people worth protecting from hungry markets in information, both intangible and too tangible at once.

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Her face is hiding. Her neck and shoulders are bare. We can almost make out that her earlobes are attached, that her neck looks long, although the angle suggests that her neck might not be slender. Her face seems oval-­ shaped, her chin, rounded at the tip, could be fairly narrow. We could infer that her hairline sits low on her forehead. We could guess that her mouth is as fine as her nose, which itself could be pointy. That day in the studio, she wears a large, rectangular barrette in dark hair gathered in an elaborate bun at the nape of her neck. The heavy shading on her left cheek suggests that she is strongly lit from behind and to the right. And because she turns away, the decision to light her that way shades her face by comparison. It is impossible to be sure. The shading could have been added in the lithographic translation as the image was prepped for mass reproduction, the traces of an over-­inked plate. It could also have been produced by several stages of copying, scanning, and printing. But at any of these stages of mediation, her neck and exposed shoulders remain the focal point, rather than her face. Her face—­its features and any expression—­barely appears. Abigail Roberson was seventeen and an orphan (newspapers insisted on this detail) when she had her photograph taken at a studio in Rochester, New York. In the most ordinary of modern rituals, she assumed her place in front of a camera. As in other cases that came before the courts, the owner of the studio sold the photographic negative to the Franklin Mills Company without Roberson’s knowledge or consent.1 The company added the words “Flour of the Family” above a lithographic copy of Roberson’s image to advertise its flour (figure 4.1), transforming a portrait into an advertisement and distributing at least twenty-­five thousand copies of the image in a large format (twenty-­two by thirty inches). Roberson said she happened upon the advertisement “in an out-­of-­the-­way tavern” while on vacation in Vermont. The “shock made her ill.”2 (It was perhaps unfortunate for Roberson that she lived in Rochester instead of California, which had criminalized the nonconsensual publication of a person’s portrait in 155

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1888, as part of the state’s libel laws.3 The law was later repealed in 1915.) Roberson, who would sometimes be referred to as an “infant” in the case, brought charges against the Rochester Folding Box Company, which had produced the ads for Franklin Mills, supported by her aunt, Margaret E. Bell. Roberson alleged that the ridicule she suffered caused “severe neurasthenia.” She demanded fifteen thousand dollars for the medical care she had received.4 The Roberson case differs in important ways from what’s come before. In Burrow-­Giles, the rights of the person in the portrait, Wilde, were not at stake, and he was photographed while under contract and on a publicity tour. Manola’s surprise photograph would have been taken while performing for her job. For Warren and Brandeis, an aesthetics of whiteness was folded into the argument of their law review article. In Roberson, the plaintiff was neither a public figure, a performer, an author, a lawyer, nor an aspiring celebrity when she came upon herself in the ad. Legal historians contextualize the cluster of cases behind Roberson v. Rochester Folding Box Co. (1902) as one of many episodes in expanding definitions of property rights at the turn of the twentieth century, as a facet of the cultural life of privacy, and as one among many cases that gave rise to publicity rights and the “laws of image,” of “circulating portraits.”5 Samantha Barbas explains, “Photographers made a business selling random portraits of ordinary people to the advertisers of consumer products. . . . The newspapers regularly reported stories of average people who quite literally woke up one morning to find their photographs emblazoned on ads for random food products, patent medicines, and beauty items.”6 Amid the frequency of this phenomenon, studies of racial capitalism help me piece apart the value alternately ascribed and denied to Roberson for her portrait. Jurists wrestled with whether a pretty white feminine face had its “own” value as a figure for generating desire. But the fullest answer to that question exceeds the legal categories at play and includes overlapping and multiply dispossessive histories that created whitened, domesticated femininity as market value. To explore the juridical evaluation of Roberson’s image, I organize the central disagreements in what became known in the press as “the right to privacy case” around another set of commercial reproductions of the same image. These additional reproductions, which circulated in newspapers, help me further untangle the adjudication of what Allan Sekula decades 156

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ago called the making of a “social body” through photographs and their reproductions.7 It was, after all, the New York Police Department that, before Roberson filed her suit, had debuted the nation’s first “rogue gallery” in 1858. But instead of a “lurking, objectifying inverse in the files of the police,” Roberson’s image resounds between honorific and repressive.8 This tension, internal to her image, points me to cases that took up the right to privacy in the aftermath of Roberson and sought to protect whitened people from visual associations with criminality. At the same time, Roberson’s image in the flour ad relied on “the legal construction of a racially stratified national family.”9 Reading the visual instability of reproductions of Roberson’s image alongside other nineteenth-­century visual forms yields two additional contributions. First, I reencounter three legal conflicts from previous chapters from another angle. Roberson’s lawyer claimed that equity could make room for the emerging, tendentious relationship between property and privacy rights. Brandeis and Warren, you might recall, had not turned to equity in their argument, perhaps in the interest of proving that privacy was already implied by extant legal protections. Even more likely, the young lawyers sought to distance a privacy right from property protections, while creating a form of privilege through copyright protections, though unclaimed and unnamed as such. The second and third disagreements in Roberson are related: namely, whether there was a right to property and/or a right to immunity at stake in the claim to a violation of Roberson’s privacy. In the lower court, Justice Davy had initially granted the injunction against the folding box company, even though he recognized that Roberson had “no claim known to common law, equity, or statute.”10 In nineteenth-­century terms, and, as we’ve seen in previous citations of Cooley’s Treatise, immunity implied a right to solitude. But the way subsequent jurists distilled the right to property demanded that creative potential be realized not through isolation, but rather through an older, settler colonial sense of property’s origins: by acting on one’s environment. Curiously, in the image to which she objected, Roberson’s turned face satisfied each of these conflicting claims of property and immunity without resolving them. Second, aspects of the legal architecture that secured distinctions in visual regimes, what Sekula parsed as “the systematic defense of social relations based on private property,” come more fully into view if we think with the aesthetics of whiteness that have come before.11 Roberson’s un157

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ambiguously ambiguous image—­largely unremarked by the multiple scholars who have analyzed the case—­articulates some of the conceptual limits I’ve been thinking with: of making involuntary expressions worthy of legal protection; of the capacity mechanically reproduced images had (or not) to “catch” expressions, involuntary and not; of immunity’s basis in an abstract sense of solitude; and of the presumed relation between self-­possession and its expression, under whose strain the right to privacy and photographic copyright were forged. Jurists in Roberson articulated irreconcilable, gendered, and racialized relationships to cameras: a camera as either a violation of immunity or the means by which a person could realize her immanent potential. That is, courts registered that “the camera extends sense perception” and “encompasses both aspects of consciousness: it functions both as a sensory prosthetic and as an armor against the world.”12 In this chapter, cameras’ prosthetic extensions of sense perceptions work alongside Jeannine DeLombard’s distillation of a “human being [as] a particular bundle of fluids and tissues; [where] legal persons, by contrast, are varying bundles of rights and duties, powers and obligations.”13 I situate legal conflicts arising from moving between bundles of tissues, bundles of rights, and sensory extensions alongside the contemporary visual idioms of silhouettes and composite portraits, and with the courts’ efforts to argue for or against the applicability of immunity, property, privacy, and equity. Jurists deploy each of these legal idioms to conjure a stability that is better characterized, per Karuka, as reactionary.14 Through this layering, the juridical process of reinforcing capitalist realism emerges as reactionary to (rather than effortlessly in control of) shifts in visual fields, technology, and new registers of commerce. I continue to take seriously Karuka’s shift in attention “from the production and reproduction of capital to the production and reproduction of relationships.”15 From this vantage, the questions in Roberson reintroduce how photography strained the presumption of sovereignty in the idea of adjudicating value. The idea of property in images stretched to mitigate relationships between whiteness and criminality, while also relying on the legal production and enforcement of whitened families. Osucha situates the legal (re)creation and protection of white supremacy in this case as protection of whitened womanhood vis-­à-­vis privacy from commodification.16 There is no doubt Osucha is correct. And yet, the struggle to ascribe or deny value in Roberson’s image (as contested commodity) betrays the limits of the aesthetics of whiteness in the attempt to quadrate value with 158

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Figure 4.1. Lithographic advertisement for Franklin Mills Flour Company, captioned “Flour of the Family,” c. 1900. Rochester Folding Box Company.

intention. The insistence that the image was a “likeness” registered future threats to intangible assets held in whiteness that the circulation of images could cause. And the question of whether Roberson’s face was a source of value relied on the legal protection of white heterosexual marriage and reinforced its terms. Finally, law, whiteness, markets, and patriarchy reinforced one another and upheld their purportedly neutral metrics of speculating intention—­yet again—­in Roberson.17 The Very Notion of Equity

One of the most far-­reaching legal debates in which Roberson participated was over the reach of equity. Equity developed in England as a way the court of chancery could mitigate severities chancellors perceived in common law—­this version is called negative equity. The attorney for the folding box company, Elbridge Adams, understood courts of chancery as making decisions out of “necessity, an innovation to a greater or less extent upon the existing rules of the common law. These pioneers in the work of building up a new and less rigorous system of jurisprudence, appealed to, and were governed by, the eternal principles of absolute right, and were even guided in their judgments by their own individual consciences.”18 These courts operated according to the chancellors’ discretion. In this 159

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more proactive version, equity courts and the notion of equity did not begin from a uniform set of laws; rather, over time, they developed a set of precedents in parallel with common law, a capacity that has been called positive equity.19 These two conceptions of equity—­first, a failsafe to protect against abusive chancellors, and second, capable of producing positive law—­were at the heart of the disagreement in Roberson. In the United States, separate equity courts were abolished in New York in 1846; cases that would have been tried in those courts—­injunctions, stolen property, money conflicts—­were subsequently folded into general law. This model became standard for all courts, including the federal court, and remains so today. In Roberson, equity’s uncertain grounds brought the question of property directly to bear on privacy as cause for legal action. Although in the aftermath of the case, Adams would publish thoughts about Roberson, it was the lawyerly move of Milton Gibbs, who represented Roberson, to consider Roberson’s case from within the reach or limitations granted by equity.20 Gibbs avoided an explicit claim to property and did not present privacy as a form of property. Gibbs would later go on to become district attorney, deputy attorney general, and a judge on the New York Court of Claims.21 Given how crucial patriarchal claims of property as “household” were to opposing women’s suffrage, Lake argues, Gibbs’s insistence makes sense in the context of his political trajectory in support of women’s suffrage.22 In Roberson, an expansive notion of equity did not necessarily arise from the idea that property had been infringed upon. Justice William Rumsey explained his decision to uphold the lower court’s injunction against the Rochester Folding Box Company and the Franklin Mills Flour Company with an argument for an expansive notion of equity: “The very origin of equity in Rome and in England was that there was a wrong for which there was no remedy, or no adequate remedy at law.”23 For Rumsey, equity meant protecting more than physical property; instead, equity’s broad parameters justified his discretion in a matter with little precedent. Equity allowed him to expand legal protections for the new social, material, and economic reality of the circulation of mechanically reproduced images. According to Rumsey, these changed conditions were sufficient cause. Roberson’s case became well known, perhaps especially because, you will recall, this kind of harm to whitened people had become relatively commonplace. The next year, the New York Court of Appeals, through Chief Judge Alton Parker, rebutted Rumsey’s expansive sense of equity with a conserva160

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tive one. Decades before being elected chief judge of the Court of Appeals, Parker had graduated from Albany Law School and played an active role in New York’s Democratic Party politics. He managed Governor David Hill’s campaign in 1885 and held several other elected and appointed judicial positions. Parker maintained his position as chief judge until he resigned to run as the Democratic Party candidate for president against Theodore Roosevelt, a campaign that figures in this story a little further on. For Parker, equity’s purview was already defined, and it was Roberson’s responsibility to prove injury, where for Rumsey equity existed to expand the law’s purview. Parker not only insisted that there had not been any injury, for reasons I will explain later, but he also insisted that extending protections to cover Roberson’s claim through equity opened up the possibility for the right to privacy to not be “confined to the restraint of the publication of a likeness but must necessarily embrace as well the publication of a word-­picture, a comment upon one’s looks, conduct, domestic relations or habits,” and for “litigation bordering upon the absurd.”24 Although equity had begun as an amorphous body of law without guiding principles above the conscience and discretion of chancellors, according to Parker it had developed principles over time to which courts were responsible. If they were not responsible to them, so Parker asserted, the “floodgates” of litigation would open. His metaphor recalls the characterization of nineteenth-­ century print culture by critics and historians in terms of natural disasters. Warren and Brandeis elided the distinction between everyday communication (becoming known) and the publication of one’s image. They did so to make the publication of one’s image without consent actionable. Parker used similar logic in likening one’s “features . . . becoming known to those outside of his circle of friends and acquaintances” to Roberson’s complaint. But for Parker this similarity disproved that the dissemination of one’s photograph counted as “infringement.” His argument was that since the “likeness” was a “good” one, circulating it was not a violation, nor was any emotional injury to Roberson believable. But Barbas underscores that although it was already then clear that “pretty” girls could “sell anything,” “the first modeling agency in the United States did not take off until the World War I era,” and that actresses like Manola “who sold pictures of their faces and bodies to advertisers were condemned as dissolute, no better than prostitutes.”25 In all, Parker refuted the expansiveness Rumsey asserted for equity and reversed the injunction. 161

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The dissent, written by Judge John Chapman Gray, strongly disagreed with Parker over equity, describing its reach as expansive. Gray was an early teacher of equity law in the United States, and throughout his careers as jurist and teacher, Gray favored a broader reading of equity.26 According to Gray, equity could anticipate legislation, “extending the principles of common law.” I quote his dissent at length because it figures prominently in Pavesich v. New England Life Insurance Co. (1905), a case I discuss in the next chapter: In the social evolution, with the march of the arts and sciences and in the resultant effects upon organized society, it is quite intelligible that new conditions must arise in personal relations, which the rules of the common law, cast in the rigid mould [sic] of an earlier social status, were not designed to meet. It would be a reproach to equitable jurisprudence, if equity were powerless to extend the application of the principles of common law, or of natural justice, in remedying a wrong, which, in the progress of civilization, has been made possible as the result of new social, or commercial conditions. . . . Equity has neither fixed boundaries, nor logical subdivisions and its origin, both in Rome and in England, was that there was a wrong for which there was no remedy at law.27

Cultural mores and “commercial conditions” shifted more quickly than legislation or developments in arts, sciences, technology, and commerce. The debates about equity, and especially Gray’s dissent, recall legal scholar Kunal Parker’s argument that, at the turn of the twentieth century, jurists cleaved temporal markers away from the material/chronological, and into a distinct container of legal time.28 For Gray as for Rumsey, equity, divorced from the hold of precedent, and attentive to new conditions in an emerging sense of separate legal time, gave courts the ability to extend “principles” in Roberson. But this reasoning would not prevail. More Than a Likeness

Whether equity established legal grounds or offered a modal justification for the expansion of common law’s principles in new social and economic conditions, Roberson’s action implicitly depended on whether people could identify her in the flour ad.29 In Jane Gaines’s estimation, “privacy law has tended to treat iconic likeness as straightforward and 162

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unproblematic: A likeness is that which someone recognizes as someone else.”30 Fittingly, then, Roberson and her lawyer insisted that the image was undoubtedly her. The Buffalo Times referred to it as “an unmistakable likeness.”31 In addition to conceiving of the original image as a perfect index of Roberson’s identity, jurists called the Rochester Folding Box Company lithograph a perfect “copy.” The court’s interest in the quality of the “likeness” and in “likeness” as a metric of judgment arose from some familiar reasons. For one, state institutions like police departments and immigration officials valued photographic images for their capacity to resemble the individuals they aimed to detect. Yet it was far from inevitable that this capacity would be reliable, in courtrooms, or elsewhere.32 A photograph on its own did not guarantee legibility or an identificatory function, even as this assumption still shapes its bureaucratic uses. Thy Phu, for example, has written elegantly about images that could be “largely illegible to immigrant officers, who tended to look for likeness.”33 Adams, the lawyer for Franklin Mills, insisted that his clients had no idea who the woman in the image was, or whether she was alive or dead when they chose her image. But Adams never claimed that it was difficult to identify her. Even when scholars engage the image in their analysis, they often do not remark that Roberson not only looks away from the viewer, but has her back to the camera, exposing her bare neck and bare shoulders, while hiding most of her facial features. She looks away as a matter of convention, in a visual echo of a silhouette. Then again, the posture could simulate a mirror’s reflection as she walked by, and satisfy a Delsartist’s provocation to find herself best in an expression for which she might have trained but which she might not be actively intending in the moment. There is much about her face and any potential expression that is unclear. Even if this was not remarked by either party, I insist that identificatory assumptions about this image were approximations at best. She is hardly visible. What appears in the lithograph is a suggestion now of a line, now of a shadow, just barely a series of visual implications. To continue unraveling the cultural work this image does in the case, I want to think a bit more about the visual resonance between Roberson’s turned face and silhouettes. The popularity of silhouettes arose from the idea that it was possible to discern more about a person from their abstracted silhouette than from their features straight on. The popular 163

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aesthetic practice arose alongside physiognomy and phrenology, where scientists desired and attempted to abstract traits such as character and intelligence from the body’s measurements.34 A neck’s shape signifies as powerfully as eyes, the length of a nose, a chin, a forehead signifies just as much as a widow’s peak or its absence. The idea borrowed from physiognomists, who employed silhouette drawing, was not one of mere correspondence, but rather that a silhouette could be more telling of character than features alone, than of anything, even, that you might say or do. This Anglo-­Atlantic representational tradition begins to help explain why Roberson insisted on perfect identification with the image, and potentially why neither plaintiffs, the press, nor any scholar has questioned its status as a “likeness.” Silhouette drawing as visual predecessor for Roberson’s image marks a cleavage between the “likeness” assumed in court and the cultural inheritance of a silhouette as somehow more than likeness. But the tradition of silhouette portraits does not alone fully articulate a threat to Roberson in the circulation of this particular image, especially since silhouettes were most popular in an earlier nineteenth-­century moment.35 Because this was not obviously a likeness of any particular woman, her turned face could also operate like a vanishing point of identity rather than the (still imprecise) specificity of a face-­forward portrait. As a vanishing point for identification, cartoonists well understand, the image more easily welcomes projection, especially by the jurists who were deciding whether Roberson had suffered harm through its circulation. If Roberson’s non-­ identifiability approximates being unaware of the camera, it literalizes the aesthetic codes of whiteness I’ve been discussing. These could have closed the interpretive circle between this uncertain image and Roberson. It’s possible that Roberson felt more identifiable, the image understood as more of a likeness precisely because of its identificatory instability. An understanding of her racialized femininity as in jeopardy could have reinforced her identifiability through the aesthetic code where those with a claim to whiteness decide which expressions are which, rather than adhering to a strict reading of the image at hand. Perhaps what some jurists understood as rightfully hers was a capacity to delimit her expressions, involuntary or otherwise. The halftone process and photoengraving inaugurated a new transmissibility to images, outside their original context and beyond the bounds of imagined contracts. These forms of facilitated dissemination forced courts 164

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to struggle not only over the bounds of equity, but also over whether a right to immunity would mean something more subtle, and more far-­ reaching, than a right to solitude. The Right to Be Let Alone

In the second half of the nineteenth century, there was initially no economic incentive for photographers to distribute images of unknown people; neither was there a cheap way for advertisers to appropriate images of people whom they had not photographed.36 The halftone process had been popularized in the 1870s but was not perfected for another decade. It was photoengraving that finally made it possible for publications like newspapers to print photographs alongside every manner of news. These technological incentives provided photographers, newspapers, and advertisers with the reason to distribute reproductions of images, while at the same time it became increasingly important to protect certain people “beyond the reach of market forces.”37 As in Burrow-­Giles, these printing processes facilitated the Rochester Folding Box Company’s reproduction of Roberson’s likeness (and barely visible expression) as part of the Franklin Mills Flour brand. In light of these new conditions, Rumsey leveraged equity beyond the question of monetary compensation to include protection of Roberson’s right to be let alone. Like Warren and Brandeis, he asserted a right of personal immunity interchangeably with the right to be let alone. But Rumsey interpreted personal immunity as Roberson’s “right not to be interfered with to [her] damage or danger or discomfort” in the use and dissemination of her image—­more like Cooley and less like Warren and Brandeis.38 According to Rumsey, This right of immunity extends not only to protection against physical injury, but against any action which threatens physical harm, although, as a matter of fact, no harm may have resulted from the action. It also applies to every act which in the slightest degree injures the reputation or the character of the person against whom it is directed. The theory evidently is that the right of protection to the person should be complete and perfect and that no one should be allowed to do any act which interferes or threatens to interfere with the physical comfort or safety, or which attacks the reputation or char165

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acter of any person, and thereby affects injuriously his feelings or subjects him to humiliation or disgrace.39

The principle of immunity from harm arose from the belief that the law should protect a person from “all interference.” He cited Cooley’s Treatise on the Law of Torts, first published in 1878 with both students and legal practitioners in mind, the same year that Galton published his first composite portrait studies in Nature.40 Cooley’s Treatise underscored solitude as the predominant feature of a “right of personal immunity.” But his version of solitude was potentially incommensurable with a world of cameras and circulating portraits, and did not have room for imagining the dispossessions on which its utterance depended. Nevertheless, Rumsey relied on Cooley for the idea of solitude as the characteristic most worthy of legal protection and extrapolated from the protections of slander and libel laws that “the right of protection . . . should be complete and perfect,” including harm to “physical comfort or safety,” “feelings,” “humiliation or disgrace.”41 Rumsey used Cooley’s treatise to derive the reasoning that Roberson’s feelings deserved protection, even in the absence of physical harm and recognized property interest. But was the circulation of Roberson’s image either a form of “interference” or like a “threat of physical harm”? Rumsey avoided the lithograph entirely in parsing these questions. More, if an image were a form of invasion, did that change what counted as immunity, the way, per Jennifer Mnookin, accepting photographs as evidence refigured the category of legal evidence?42 As I’ve noted earlier, Cooley’s version of solitude was not, as twentieth-­ century defenders of privacy would come to insist, about maintaining either relationships or a healthy democracy. Cooley wrote in a context of “personal immunity’s” legal expansion, where assault came to include attempted assaults, including the “attempted blow” and the “many elements of injury” that may “not always be present in [explicit] breaches of duty.”43 In the section where he described a right to be let alone as a right of “complete immunity,” he did not refer to images or their circulation. Rather, he delimited what constituted an attempted injury: But the attempt to commit a battery involves many elements of injury not always present in breaches of duty; it involves usually an insult, a putting in fear, a sudden call upon the energies for prompt and effectual resistance. 166

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There is very likely a shock to the nerves, and the peace and quiet of the individual is disturbed for a period of greater or less duration. There is consequently abundant reason in support of the rule of law which makes the assault a legal wrong, even though no battery takes place. Indeed in this case the law goes still further and makes the attempted blow a criminal offense also.44

But as we’ll see, the “aloneness” and immunity from assault attempts Cooley described as neutral categories came to signify a class of whitened people’s “right” to stand apart. What came into being through immunity in Roberson was a new way to secure the “natural” legal foundations of a rentier class, even as other class dynamics would remain in place. While “the right to privacy case” was covered extensively in the press, no published report I could find found it strange that Roberson was barely recognizable in the Franklin Mills lithograph. This public discourse around Roberson made her into a kind of public figure. The Buffalo Review reported that “law journals, magazines and newspapers in all parts of this country, in Paris and in London took up the matter and discussed it from many points of view.”45 Each recounted Roberson’s right to be let alone and to immunity amid cameras that could catch you unawares and amid newspapers and companies that could use your image out of its original context. In a telling example of the commercial circulation of images, the Philadelphia Times printed a version of Roberson’s image from the flour ad with the large headline, “Girl Does Not Want Her Picture on Flour Bags.” As you can see in figure 4.2, the headline is not so large as “Spring Underwear and Hosiery.” The reproduced image and its embellishments shed light on the Rumsey court’s reasoning, which would take place later that summer, and the placement of the image next to another emphasizes that the value in a whitened feminine face was an ongoing question. In the Philadelphia Times reproduction, the image has been redrawn. The rectangular barrette has disappeared. The hair’s shading seems to have been lightened. Some of the contrasting shadow along the collarbone, neck, cheek, and brow has disappeared; the effect is that the skin tone is brighter than in the Franklin Mills advertisement. The pleats of the off-­the-­shoulder blouse in the ad have become more like the ruffled embellishments of a gown, with slightly more shoulder implied by shading meeting the sweep of the garment. The artist for the Philadelphia Times added an oval frame, and to that frame they’ve added a drawing of three flowers, resembling one daffodil and 167

Figure 4.2. “Girl Does Not Want Her Picture on Flour Bags,” Philadelphia Times, April 29, 1901, 3.

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two pansies, one lighter and one darker. Since daffodil has its Latin root in the name Narcissus, I wonder whether the artist sought to playfully register the uneven resonance between a photograph and a mirror. The French root pensée (thought) for the pansy joins the image to idioms for keepsakes like lockets around necks and frames on a bedside table. Yet even if we set aside the etymological roots of these floral embellishments, they index intimacy, whether of romance, kinship, nostalgia, or another set of affections. What’s also striking about the Philadelphia Times’ version of Roberson’s portrait is how elongated the neck has become and how much, by contrast, the skin tone has been lightened. Without resting too much analytic weight on what could have been introduced by the processes of reproduction that now overlap in the image—­drawing, printing at scale, wear over time, digital scanning—­we should note that these slight variations emphasize again that Roberson’s identifiability was likely not primarily about the precision of the image. Her image was malleable, and recognizably malleable. The artist, it seems, made use of that malleability by relocating the image from the “flour bags” to the domestic realm, with the oval frame, flowers, and additional sartorial flair. Of course, the ad distinguished Franklin Mills flour through a claim to the same domesticity, ordaining the flour and Roberson as “Flour of the Family.” “Flour of the Family” made use of the homophone to recall the colloquial phrase “flower of the family.” Flower of the Family was even the title of an 1854 novel, later translated into both French and German, and whose subtitle in some printings was “A Book for Girls.” In the novel by Elizabeth Prentiss, “Mother makes all the bread.”46 The phrase connected, as Osucha argues, Roberson’s pale skin to the purity of the flour for sale, and to the wholesomeness of a hearth.47 Her whitened femininity was meant to conjure a seamless connection between Franklin Mills Flour and “the family.” The care with which a family might look after its “flower” here transfers via Roberson to the care Franklin Mills wants to convey of its preparation of flour for market. Her cheek, neck, and shoulders underwrote the high quality of the flour: fresh, white, pure, clean, and worthy of familial trust, investment, and pride. If Roberson’s turned face could register an image potentially involuntarily given, her “ruse” of absorption (Peters) here generated value for Franklin Mills. In any store in which the flour was sold, Roberson’s turned feminine face was meant to generate the surplus value in a customer’s desire for Franklin Mills flour over and against another brand of flour, bear169

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ing out again Anne McClintock’s insight: “the cult of domesticity was. . . . an indispensable element both of the industrial market and the imperial enterprise.”48 The phrase “Flour of the Family” relied then not only on conjoined networks of commerce and empire but also on the ongoing legal production of white, heterosexual, patriarchal families. We can think, for example, of “miscegenation statutes passed by state legislatures of the Jim Crow South between 1870 and 1890 regulating the status of the marriage contract by defining racial identity and prohibiting interracial unions, annulling marriages, and subjecting the parties to criminal prosecution.”49 The presumed commercial value of a domesticated notion of femininity was itself a legal and cultural production that relied on multiple forms of ongoing dispossessions, held together by cults of domesticity and sentimentalism to become intelligible as anything other than relations forged by differential enforcements of violence. Joining studies of law, colonialism, immigration, marriage, and family, Yu-­Fang Cho and Beth Piatote (Nez Perce), extending the foundational work of Hendrik Hartog, Amy Kaplan, and Laura Wexler, among others, have demonstrated the entangled legislation upholding white heterosexual marriage. Cho examines an “emerging official sexual norm” as tied up with “the uneven effects of the institutionalization of white heterosexuality,” through immigration law.50 This social landscape and its cultural touchstones produced through the political valuation and legal protection of white heterosexual marriage, in Roberson, become commercial value. At the same time, these structural contexts reinforce the fact that Roberson might have been the “Flour of the Family” and able to sell the idea of domesticity for someone else’s gain, but could not herself be a household’s head. Her turned face, then, additionally evokes how coverture “hid” whitened women behind whitened husbands within the dispossessive legislation and imperial conquest that white heterosexual marriage relied on to exist. It is in this legal-cultural context, that the Philadelphia Times’ refashioning of Roberson’s image was visually suspended between a lithographically reproduced photographic portrait, a mirror, a drawing, and a locket. The visual play the artist introduces spotlights the violation involved in distributing an intimate image on “flour bags” that belongs under the protection of an intimate love relation. The editors do the same with the indecorous phrase “flour bags” instead of “advertisement,” which would have been more precise. I include the entire page of the Philadelphia Times because Miss Carrie Band’s 170

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image appears next to Roberson’s to announce Rev. Dr. Herron as a dinner guest. Band is likewise embellished with daisies, but her more traditional portrait unintentionally plays up Roberson’s identifiability as indefinite. And yet the artist’s rendition of Roberson duplicates the publicity of the flour ad. That recirculation signals, at least, the incompleteness of what was being said to be adjudicated in court: that it was only the circulation of Roberson’s image without her consent that violated her right to be let alone. The problem that Roberson’s image raised for a right of immunity was that its initial taking might not have interfered with her at all; the process might not have interrupted her solitude in the moment of capture. Gaines contends that the “privacy doctrine . . . defers to a construction of personhood that does not necessarily require the existence of a real body (whether in the past or the present) as its support.”51 But in Roberson, the “empirical real” mattered deeply, as did the “existence of a real body,” only not in the sense that we might imagine. The concept of solitude that carried weight encompassed not just experiences of solitude, but also memories of having enjoyed it. Gibbs, Roberson’s lawyer, contended that Roberson’s harms were only made worse with the passing of time. He repeats Godkin’s understanding in “The Right of the Citizen to His Reputation” of how injuries to reputation worked: “A wound to the reputation not only does not heal, but grows deeper every day which goes by before the appearance of some formal and public refutation of the slander.”52 “With sarcasm,” Gibbs was reported to have fulminated: No consent to publish was obtained in this case. . . . They stole this picture. They defiled this girl. They hung her picture in saloons and on billboards; they might next tack it on the bunghole of a beer barrel. It is not necessary to have a property right to establish an equity. They have used her face for commercial purposes, not to honor her. Personal privacy is established by court decisions. That is just the nutshell of this case. If a woman cannot own her face then any thief can steal it to use as he wishes. I do not think that Mr. Adams would tolerate seeing the picture of his wife planted on every billboard in the city or on beer kegs or cigar boxes. Neither does this poor young girl.53

Adams, for his part, argued that “feelings,” by which he meant Roberson’s reaction, “were not actionable, so he could not see how the plaintiff could 171

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recover damages as no libel was alleged. He cited the case of the late Prince Consort Albert of England, who objected to the printing of certain etchings owned by the queen.”54 Yet the lithographic likeness held up in court as such above and beyond how much of her face was made available to the camera, and to the viewer. Calling it a “likeness” was ultimately a contention that people could identify Roberson, which was also a contention that her “immunity” was infringed by people who did not know who she was. Once Abigail had been identified with the “Flour of the Family,” word of mouth could have accomplished what the image alone could not. A rumor of Roberson’s association with the image could have filled in for an uneasy or utterly absent capacity to identify her—­or any woman. To speak of Roberson’s right of immunity, then, could only tangentially be about the image, and in other ways only tangentially about Roberson or the effect of this incident of unwelcome publicity. Immunity became a state that had been infringed upon without the temporal coincidence of the threat and the act that caused it. Rumsey’s decision implied that a person’s bounds exceeded an individual and included her sense of interference even with an image by which she may not have been identified. We might also see the edge of Roberson’s face as a vanishing point for the idea of expression as a visible phenomenon. This vanishing point for expression more generally parallels how foolproof detection via photographic image was betrayed by the edges of Francis Galton’s composite portraits. For Galton, the blurred edges in his composite portraits were part of the statistical “noise” that lent them their mode of proof. He asserted that his portraits represent the picture that would rise before the mind’s eye of a man who had the gift of pictorial imagination to an exalted degree. But the imaginative power even of the highest artists is far from precise, and is so apt to be biased by special cases that may have struck their fancies, that no two artists agree in any of their typical forms. The merit of the photographic composite is its mechanical precision, being subject to no errors beyond those incidental to all photographic productions.55

When he made his composite portraits, “each member of the group to be synthesized had his or her picture drawn on transparent paper. By exposing a photographic plate to each of these images, a composite image would 172

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arise.”56 Galton meant for the composite portraits to “uncover” a “criminal type” that would make criminals more recognizable to the police. The goal was to preserve “respectable classes” by making “criminals” identifiable by sight. But multiple “similar” portraits superimposed one on the other blurred at the edges of features. The edges of face outlines likewise blurred into texture rather than line. Read through the emerging science of statistics’ logic, and “Galton’s dream of a truly pictorial statistics,” these blurred edges proved that many photographic negatives had been combined “scientifically” to “reveal” the criminal type through an aggregation of faces.57 The blurred edges could be interpreted as nothing but the standard deviation present in any body of data; they proved the correlation, and in this case, the existence of “an averaged figure, whose lineaments have been softly drawn.”58 These “noisy” edges for Galton in “truly generic composites” became “unimportant details” and “the purely individual peculiarities leave little or no visible trace.”59 But they operated as vanishing points for the very idea of a typology. That is, “imprecision” at their edges retroactively proved the broad contours of overlapping faces as tantamount to a logic of “type.” It may seem far afield to propose that protecting Roberson’s turned face resonated against the visual noise—­rather than “precise” or “indexical” likenesses—­used to delimit criminal predilection as visual cues. And yet “several states passed laws that prohibited the publication of ‘criminal news, police reports . . . or accounts of . . . bloodshed, lust, or crime.’”60 Legislative bodies were active in guarding the publication of police activity. In addition, in the sixth chapter of the Treatise, in a section about liability for false imprisonment under certain conditions, “Wrongs Affecting Personal Security,” Cooley himself wrote, If the wrong party is arrested they are liable for false imprisonment and good faith is no defense. . . . But where a sheriff, acting upon a description and photograph, arrested the plaintiff by mistake, as the person wanted in a distant city on a warrant for felony, it was held by the Supreme Court of Michigan that if the officer in such cases acts honestly and prudently, and makes such inquiry and investigation, as a reasonably prudent man would and the circumstances permit, he will not be liable.61

Cooley assumed that even when a wrongful detention occurred, any photograph’s meaning was stable. But he preserved police use as evidence while 173

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accounting for the possibility that photographs could mislead or that a person might “honestly and prudently” believe that a photograph identified someone and also be wrong. Cooley, though, granted an officer’s mis-­seeing the benefit of the doubt, because he imagined both photograph and officer as innocent: the “description and a photograph” and the “honesty and prudency” of an officer mutually constituted one another. That is, both senses of “honesty” needed to be imagined and imaginable in order for the officer not to be liable for wrongful imprisonment. Roberson’s image—­its turn away and the blur of her features echoing silhouette and composite portraits alike—­both challenged and underscored the solitude idealized by the right of immunity as the court via Cooley understood it. Roberson’s turned face could articulate “immunity” and its impossibility. Her turned face questioned whether the circulation of the image was either a violation or the encapsulation of a right of immunity. But did Roberson turn away, or was this a pose? If she did turn away before the shutter closed, she was already protecting herself. The turn away could act as a defense and in that way ensure immunity and freedom from interference. The resulting absence of her expressions and features—­ perhaps in a larger community than that of Rochester—­could have protected her from being recognized at all. Or, if this was the pose, it could have been meant to communicate her vulnerability before the camera. Yet her back, shoulders, and the outline of her face put pressure on the fact not just that she might not be recognizable, but that there might always be a camera watching. As such, Roberson’s image asked the court to reimagine what protection—­detectable beyond markers that, when photographed, could betray even an “honest and prudent man”—­might mean. Here then are the conceptual limits of protecting through an aesthetics of whiteness. The same turn away from the camera that protected Roberson from sight left her vulnerable. The gathered hair marked the figure as feminine so that her bare shoulders appeared as almost too bare, reminiscent of Manola’s legs in stockings. Roberson’s turn away could mark her as unknowing. The inscrutable visual vanishing point that promised but ultimately hid identity could also be what enticed and asked the viewer to keep looking. Guilt, compassion, outrage, love, or some combination could lead a viewer (like Rumsey) to want to keep her safe, to protect her as much as an alternate reading could assume she already was. Reading the image as an emblem of involuntarity refracts through an aesthetics of whiteness and the produced 174

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social value of whitened femininity (enforced as a matter of patriarchal law, and traded upon in various markets) to become vulnerability. That the Times artist emphasized the idea that Roberson’s image was in jeopardy of being “on flour bags” also brings forward the debates about value in the case. Justice Parker—­in asserting that there had been no violation, and giving himself over to the interpretation of being a bad reader of images and markets—­argued that Roberson’s image was ultimately incidental to the advertisement, that it was merely a way to attract attention to the piece of paper that bore the name Franklin Mills Flour Company. The product itself generated the value, not the face that drew attention to the advertisement. Seen one way, this could be sound logic, since, as Barbas describes, “in most cases, unless an actor or other public figure was involved, the individual’s photo had no market value.”62 But Parker’s logic opposes more than a century of advertising, where companies like Franklin Mills Flour become connected to images, personalities, catch phrases (like “Flour of the Family”) and even the fonts and colors by which companies identify themselves to become brands.63 It is fitting, then, that we turn now to the question of property. The Scope of Property

The allocation of property rights is more broadly part of the “reactive nature of imperialism” that attempts to conscript other modes of relations than those sanctioned by property logics.64 That is, property logics in Roberson, but also in previous chapters, played out by swallowing other possibilities of relations than those abiding capitalist realism’s terms. The reason, again, for lingering with these figurative intricacies is to unearth not only the colonial intimacies therein, but also the potential in these local moments when culture-­specific aesthetic codes apparent in jurists’ semantic turns betray themselves as such. While the purpose of equity and the expansion of “personal immunity” were two of the larger legal debates in which the company’s capacity to derive value from Roberson’s image participated, another legal context for Roberson was the theory of property as a “bundle of rights” and a set of jural relations. The claim that a property right did not arise from a single condition but rather from a “bundle of rights” was not necessarily new in the nineteenth century, but it had, by then, gained in standing. This 175

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understanding of property emphasized the state’s determination of property rights. This emergence coincided with the passing of a natural rights paradigm where property was best understood as a stable object external to the holder of title; “an evolving logic of property insisted that ownership was a situational medley, involving a shifting set of social relationships.”65 And, as J. Allen Douglas has argued “legal value emerged from, and varied according to, other persons’ legal interests in the object.” He goes on, “The abilities of property and personality, as conceptual frameworks for legal discourse, to legitimate judicial decisions, provide a basis for claims, and act as a referent for legal resolution yielded, instead, to a contested discourse concerning the meaning and value of property and personality itself, a discourse that treated both concepts as open questions in need of answers.”66 These “bundles of rights” could include the right to enjoy property and the right to profit from one’s property, but also varied “according to other persons’ legal interests”—­each of these was vexed by the question of value in Roberson’s face. That property relations would have to be “invented” between one’s image and oneself is, again, distinct from Edelman’s proposition of a world imaged by law in which images “overappropriate” a “real” always already conceived as propertized. Were Roberson’s extant property rights to have been impinged, justices struggled to put forward a consistent sense of property protections and their justifications. These struggles reveal again how conjuring either property relations from images or the grounds for privacy was far from settled or obvious. What resulted were not only logical puzzles but questions of secular belief in a cultural matrix that would solidify the quicksand of whiteness into a structure of power. Even Rumsey’s favorable decision was fractured by several notions of property: property in person (which the original special term court cited as its justifying principle), property in person as freedom from interference, property as the potential for profit (notwithstanding an intention to make a profit), and the unremarked copyright that governed photographic images. Rumsey leaned especially on the reason for the denial of a right to privacy in Schuyler v. Curtis (1895) and on Marks v. Jaffa (1893). In Schuyler, Philip Schuyler filed a suit to prohibit his aunt and stepmother’s bust from appearing alongside Elizabeth Cady Stanton’s. Schuyler insisted that Mrs. Mary Hamilton Schuyler would have disapproved of the comparison the Women’s Memorial Fund intended to make between the two women 176

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through “two statues to honor ‘Woman as the Philanthropist’ and ‘Woman as the Reformer’ at the Columbian Exposition in 1893.”67 The New York Court of Appeals reversed the injunction granted by the lower courts, and claimed that though a right to privacy might exist, it would not apply because Mrs. Schuyler was dead.68 In Marks, a newspaper asked readers to vote for the more popular of two actors, and published their images alongside the poll. Even though they were actors, the court sided with the actors on the basis of an “invasion of privacy.”69 Rumsey echoes “The Right to Privacy” in suggesting that if there was a right to property at stake in Roberson, it rested on the fact that the “scope of personal immunity [had grown] beyond the body of the individual.”70 Yet courts were just then defining the bounds of personhood anew, as Barbara Welke’s important work on personal liability law’s expansion shows.71 Roberson’s lithograph put pressure on a sense of “property in your person” by calling for more precision about the bounds of personhood in relation to the material world. Yet courts did not articulate that any sense of personhood was being imagined. Which people were envisioned to leave actionable traces outside their bodies, as in images, and if so, how far would a property right stretch to cover them? The growth of forensic science, as in fingerprinting, is one answer to some of these questions in their applications in criminal law.72 The divergence between visual traces that would qualify for property protections and ones that would not helped distinguish between “honorific” and “repressive” images.73 But Sekula’s influential proposition that the “objectifying inverse” of “every proper portrait” lives in police records relies on an idea of a social whole.74 As I’ve been arguing, the “systematic defense of social relations based on private property” had to be recalibrated for the new kinds of threats posed to white supremacy. The assumption of property as the purview of whiteness and multiple forms of racialized dispossessions were all crucial in underwriting the relations that made a portrait or a mug shot legible. It was not only the production of criminality through overlapping visual codes from within the longer trajectory of “racial surveillance,” but the specific aesthetics of whiteness that became internal to property relations in images that intervened to create claims to visuality through which some could be protected. Given the resonances of Roberson’s image with composite portraits, it is helpful to think a bit more about the relationship between criminality and publicity. Julie Stone Peters reexamines nineteenth-­and early 177

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twentieth-­century “penitentiary performances” like the lockmarch and prison sightseeing to bring forward the ways carceral landscapes served as tourist locations. She quotes Jeremy Bentham at length on the interconnections of publicity and law: Publicity is the very soul of justice. . . . It is the . . . surest of all guards against improbity. . . . It is through publicity alone that justice becomes the mother of security. By publicity, the temple of justice is converted into a school of the first order, where the most important branches of morality are enforced, by the most impressive means:—­into a theatre, where the sports of the imagination g[i]ve place to the most interesting exhibitions of real life.75

Peters uses this moment in Bentham’s writing to parse his proposition that “legal institutions must learn to exploit the ‘impressive means’ of theater: that is, they should act like theaters.”76 For Peters, Bentham’s interest in publicity bends toward theatricality: justice depends on theatricality to take effect. The coverage of Roberson in newspapers across the country helped produce the idea of justice whereby New York’s legislature took action. But the proposal that “justice” itself is intimately related to publicity points us back to cases that took up a right to privacy after Roberson. One of the relatively few court decisions that accepted a limited right to privacy outside the context of commercial use of a person’s image was Pritchett v. Board of Commissioners of the County of Knox (1908). A homeowner claimed a violation of her privacy because prisoners in a nearby jail could see into her home.77 The next year, in Downs v. Swann, William F. Downs was initially successful in gaining an injunction enjoining police from being able to photograph and measure him. Downs had been arrested and detained by police for the charge of embezzling public funds.78 The circuit court and the Maryland Court of Appeals subsequently dissolved the injunction, because “Maryland was allowed to delegate its police power to subordinate boards and commissions.” Downs was included in the record as a “criminal” even though he had not yet been convicted of the embezzlement charge. In Downs, a person could be categorized through photographic means by police regardless of their conviction’s status. What won the day was suspicion as its own evidentiary force. By contrast, in Hodgeman v. Olsen (1915), the police were allowed to use a whitened person’s records, photograph, and fingerprints only after they were con178

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victed.79 While there is some inconsistency, these cases suggest that an additional aftermath of Roberson was in the protection of some from visual associations with criminality. More, these visual associations with criminality were seen by some jurists as actionable. If Roberson’s image hovered between visual registers, the idea that whiteness needed protection from visual associations with criminality outlasted her case. The folding box company’s thievery had only recently become affordable. For Rumsey, property included the potential for profit from that property, regardless of the intention to make a profit. Further, if the argument could be made, as it had in Burrow-­Giles, that the photographer had “arranged” Roberson, the photographer might hold the copyright. Amid these overlapping contingencies, a whitened woman’s right to her image had to be invented if it was going to exist. Rumsey curiously leaned on copyright to justify Roberson’s proprietary interest, while not confronting the contradiction between the metric for photographic copyright as established in Burrow-­Giles (“arrangement”) and the idea of holding property in one’s image. Holding property in one’s image was itself also at odds with the history of the technology, the legal-­ material history of photographic practices, and the uses of photographic images in courts in ways I’ve discussed. Rumsey invoked Roberson’s network of personal relations as grounds for her property claim. But in analogizing the lithograph to private letters and “every act which in the slightest degree injures the reputation or the character of the person,” Rumsey wrestled with the image only to finally sidestep whether the image was Roberson’s property, and focus instead on the injury the image caused.80 The “property” at hand, according to Rumsey, was both profit potential and her well-­being, including being free from misinterpretation by public opinion. What Rumsey left undecided was the relationship between the image and the injury, and what material, affective, or aesthetic pathways connected the unconsented circulation of one’s image with the integrity of a self, outside the rumors an image might incite. Chief Justice Parker ultimately found for the folding box company both because he feared opening the courts to spurious suits and because he thought some “moral obligations too delicate and subtle to be enforced in the rude way of giving money compensation for their violation.” For Parker, to consider Roberson’s feelings meant staking legal decisions on unstable grounds, extending redress past the “tangible.” Parker and Gray, 179

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who wrote the dissent, diverged on the question of whether any harm had transpired in the publication of the image as an ad. Where Parker denied harm because the image was a good one, Gray focused on the extent of injuries suffered by Roberson. Gray believed that Roberson’s injuries were both to body and to mind, and that made all the difference to his justification of remedy for injury “where the nature, or character, of the act itself is well calculated to wound the sensibilities of an individual, and where the doing of the act is wholly unjustifiable, and is, in legal contemplation, a wrong, even though the existence of no property, as that term is usually used, is involved in the subject.”81 Gray saw “no difficulty” in imagining Roberson’s humiliation, humiliation as a form of injury, and the act of taking someone’s picture as a potential violation. Gray equated a person’s security with the security of her property in light of being violated by “scandalous portraiture and display of one’s features and person” as “against the display and use thereof for another’s commercial purposes or gain.”82 Where Parker framed being seen—­one’s face, features, and expressions—­as constitutive of being in society, Gray asserted a distinction between the dissemination of an image of one’s face and features and the quotidian experience of existing in the world as a visual experience. But the irony of Gray’s dissent is that he derives a right to privacy from the security Roberson might need or want as tantamount to the security afforded to her purse. Brandeis and Warren might have been dismayed at the equation between a person and her property right. Parker upheld the distinction between an image as property and a person, only to ultimately disagree with Brandeis and Warren. He found that there was yet no such claim to a right to privacy under law, that there was no discernible right of property in one’s image, and that no right of immunity had been infringed upon. What was objectionable to Parker—­and reminds of Prosser’s twentieth-­century objections to privacy’s standing as a right—­was the number of claims that could be seen as “invasions of privacy” if the publication of one’s image counted as “infringement” to “immunity” in the way that Rumsey asserted. Roberson, then, was not entitled either to protection against the conduct of the folding box company in reproducing her image or to damages for medical treatment. It did not matter that the circulated image had an injurious effect on Roberson; what mattered was that the portrait was not a false or libelous one. Unlike Rumsey, who found in Roberson’s beauty a potential for profit, Parker did not. 180

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According to Parker, Roberson had not made herself beautiful; Nature had. In fact, according to Parker, her beauty might have been a negligible part of the advertisement. As Osucha observes, he could not imagine that the circulation of her image as the “Flour of the Family” was an injury to her reputation precisely because it was flattering. A good portrait could not cause harm. That she was embarrassed by the circulation of a good portrait proved that the injury was on account of her predilections, and not, therefore, a matter of law. Parker’s portrayal of the absence of injury and nonexistence of privacy asks us again to take seriously monopoly power as central to regimes of “rights,” where both property and personhood were also always questions of position, defined by patriarchal virtue, as Imani Perry has argued, of where one “stood” and then also of where they could stand, inside both the body politic and the marketplace.83 This conclusion—­that one might not own their face—­was picked up by the Boston Globe in another reproduction of Roberson’s turned face (figure 4.3). The headline that accompanied it, “Has Not Right to Her Own Face,” was meant to be self-­explanatory. It is both a summation of Parker’s opinion and a provocation. The image is presented without adornment; there are none of the embellishments of earlier reproductions. Describing the “right” denied as “to her own face” instead of “to an image of her own face” deploys hyperbole for effect. We can safely presume that the headline was meant to shock readers, and that that shock was to act as shared proof that injustice to Roberson had been done, but also that the threat of injustice might be looming for any reader around the next street corner, too. No judge fully resolved whether photographic reproductions coincided with or challenged holding property in your person. For Parker, the text of the advertisement was what ultimately arrested attention even as an image could pique interest. The potential for profit was not made at the moment when a person looked at the advertisement, but when the person considered the product, in this case Franklin Mills Flour. And because Parker deemed the “likeness” a flattering one, any injury was a matter of taste and not subject to slander or libel protections. Whereas, for Gray, it was believable that the “effect” of its circulation caused her grief, not just in mind, but in body: her physical ailment (although he said that the expense was not at issue) was an injury to her property because it was an injury to her person. Roberson’s lithograph participated in expansive understandings of property rights in tension with the idea of property as a relation that states 181

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Figure 4.3. Reproduction of Abigail Roberson’s lithograph that had appeared in Franklin Mills flour advertisement. “Has Not Right to Her Own Face,” Boston Globe, July 7, 1902.

bestowed and courts mediated. To be said to own your face and its image’s distribution was also to imagine that the state bestowed that ownership. It’s the winning argument that counsel made in Pollard v. Photographic Co. (1888), where a photographer made Christmas cards from the image of a woman and sold copies of prints he’d made from the negative.84 The legal imagination of holding property in an image of your face required imagining a moment when your face was not your own. Counterintuitively, the public could potentially be more adamant in claiming a face as naturally one’s own because the image circulating in the press could have been of any whitened woman, not just Roberson. Immunity vis-­à-­vis Cooley and property vis-­à-­vis Locke conflicted in their sense of what protections a whitened person warranted because they were at odds about what a person, who existed as a visual event, was. The solitude implicit in the right of immunity and the self-­possession and creative potential undergirding the idea of a natural right to property in self 182

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betray their conceptual limits through Roberson’s turned face. That is, as philosophical foundations, they were in conflict over what kind of knowledge counts as a knowledge of existing in the world. But in order to function, each framework cut off, first, a sense of relations to other people and second, the sense of relations that existed without reference to a profit motive. At the same time, each jurist registered distinct and irreconcilable relationships to cameras. A camera can either violate immunity or aid in realizing the immanent potential of a person. It cannot do both at once. Yet these two conflicting senses were maintained in the irresolution offered by Roberson’s turned face. Only a turned face could seem to illustrate both a violation of immunity, a right to property, and their opposites. Only a turned face could make both available and unthinkable a violation of a right to privacy, at least according to the terms Brandeis and Warren set out in “The Right to Privacy.” The Roberson cases highlight the tension created by Brandeis and Warren’s forging privacy in light of the dissemination of potentially surreptitious photographs and Burrow-­Giles’s definition of photographic copyright as the “arrangement” of the photographic subject’s expressions. The involuntariness at issue in previous chapters is made literal by Roberson’s image, where her expressions are shielded and imply an idea of involuntary expression’s being observed and the idea of choosing not to be seen.85 From the ambiguous image at the center of the case, and in the contradictions wrought by an aesthetics of whiteness meeting extant law, the three courts through which the case passed differed in the legal grounds they found to either protect Roberson or not. The image could have been an expression of involuntariness itself and, at least according to the aesthetics of whiteness I’ve been exploring, that is the kind of expression most her own precisely because it stretched the logic of intention. It could appear that she had truly not known the camera was there. Roberson’s image asserted as undeniably Roberson enacts an ambiguous kind of self-­ownership that—­passing through the visual registers of silhouette and composite portraits—­might extend for whitened people “beyond” the markers of “labor” and “work” implied by the understandings of property that could be violated through “takings” or enacted through “work” as in someone else’s “labor.” Although Roberson’s image was not seen as an act of her labor, it might have been read as an act of her “effort” in a commercial context and evolving marketplace of information where reputations could exceed local contexts. 183

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Other Comfortable Attitudes

The “Folding Box case,” as Roberson is known, is secure in syllabi as one of two divergent precedents in early privacy cases, alongside Pavesich v. New England Life Insurance Co. (1905), a case I take up in the next chapter.86 Yet the final ruling against Roberson in the New York Court of Appeals caused immediate public outcry. So prevalent was the public’s dissatisfaction that one of the justices, Denis O’Brien, published an editorial in the Columbia Law Review justifying the court’s decision.87 The New York Times, which had been following the case and publishing letters to the editor throughout the proceedings, responded to O’Brien’s editorial. Elbridge Adams, the lawyer who represented the Rochester Folding Box Company, also published several articles in the aftermath about the legislative limits the court had faced, which were likewise quoted extensively in the press. The New York state legislature responded to the turmoil by passing sections 50 and 51 of the 1903 New York Civil Rights Act, “the nation’s first privacy tort statute,” prohibiting any party from using a person’s name, portrait, or picture for trade without her consent.88 By 1911, as Barbas recounts, courts in Georgia, Indiana, Kentucky, Missouri, and New Jersey and legislatures in California, Utah, and Virginia “recognized a cause of action for ‘invasion of privacy’ in cases involving people’s likenesses used without consent in advertisements.”89 In 1903 Pennsylvania passed a law that allowed the recovery of civil damages for “negligence by non-­defamatory newspaper publications”; it was repealed four years later.90 In July 1904, Abigail Roberson reappeared in the public eye. It seems that Justice Parker objected to being harassed by photographers as part of his (unsuccessful) presidential bid against Teddy Roosevelt. Parker asserted his “right to be let alone.” In a widely circulated public letter, Roberson was only too happy to remind the judge that he had not afforded her the same just two years earlier. I include this episode not only to indulge in historical irony—­though there is amusement still to be had in Roberson’s public airing of Parker’s hypocrisy in newspapers from New York to Montgomery, Topeka, Macon, and Omaha. I end here because Parker specifically mentioned his right to put his hand in his pocket as constituting sufficient cause for his right to privacy, and because in her letter, Roberson asserted that “there is something in the attitude suggested of such a nature [‘with your hands in your pockets or in other comfortable attitudes’] such that a 184

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reproduction of it with photographic ‘exactness’ would be necessarily libelous.”91 If Parker had his way, the permanence of a public record that was photographically “exact” would be understood to produce the conditions for libel, necessitating a right to privacy.92 At least for him. The 1904 reproduction of Roberson’s turned face in the Los Angeles Record on the occasion of this literary confrontation (a rematch, if you will) between Parker and Roberson offers an intriguing visual portmanteau of the lithograph in an imagined scene (figure 4.4). Parker wags his disciplinary finger at the young Roberson. Tellingly, Roberson points at her own image on a small card. Readers of the story about Roberson’s response to Parker’s outrage would be visually turned back to Roberson’s initial objections to becoming a flour ad. For the figure confronting the judge, the shadow from her hat covers most of the top half of her face, the outline of her nose and mouth barely register in the line drawing. The recasting of her original image in the reproduction is set, again, in an oval as though a precious keepsake. The artist has added a considerable shadow and kept her barrette holding her chignon in place. I could not find anything in the historical record that suggests that Roberson objected to any version of her image in periodicals, even in this one where not only her silhouette but also her clothed body from head to toe was represented as admonished by Parker’s paternalistic pointing finger (perhaps it was a “comfortable attitude” for him). As it had with Manola, it becomes more difficult to believe that the circulation of her image alone was the trouble that caused her to become unwell, need medical care, and seek legal redress. That is, her registering the transformation of her image into a brand for Franklin Mills Flour and perceiving that repurposing as harm come into more precise relief. The apparent harm, couched in many terms by Rumsey, Parker, and Gray, is most neatly about value produced through the legal and cultural production of patriarchal whitened sentimental domesticity, to which that domesticity pertained if derived from a circulating image, and a desire to guard whiteness from potential associations with criminality. We can only guess whether the case would have ended differently had the image of Roberson been a traditional portrait, with her face in full view, whether Parker would have been less likely to pronounce Roberson’s allegations a matter of “taste.” Roberson implies that the necessity of the right to privacy would be predicated on the threat of the permanence of the public record. As I’ve been suggesting, part of the invisible cultural reasoning here is 185

Figure 4.4. Reproduction and embellishment of Franklin Mills Flour Company lithograph of Abigail Roberson. “Young Woman Who Got Back at Judge A. B. Parker,” Los Angeles Record, August 8, 1904.

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not exactly about photographs themselves—­though the terms are set by the questions photographic aesthetics ask—­but about being able to control interpretations, even of accidental movements because they might be “caught.” The accidental or incidental, the involuntary or unintentional become differently in play given photography’s “spark of contingency.” And at the same time, the implicit claim that whitened people should be able to determine how they are interpreted is about much more than a photograph itself. I want to emphasize that this understanding is different from historical narratives that think about state surveillance and spectatorship, and different from many readings of photographic archives. The threat here is not the state. It is other people in the sense that other people could create and spread interpretations Roberson (and Parker) may not have liked and to which they had not consented. Scholars have told these histories as about protecting inviolable personhoods, in terms of a transhistorical value of autonomy, “sacred” selves, an abstract interest in profiting from one’s image (in the emerging market of publicity), or a neutral idea of “reputation.” But, as I’ve been arguing, as in many other cases at the time, including Pavesich, a central source of the future value being protected is whitened reputation as a component of a market in intangible assets of whiteness. Catching a whitened person unawares by camerawork is posed as a violation because it allows excess, mistakes, and the meaninglessness constitutive of “a particular bundle of fluids and tissues” becoming linked with someone when they might not want to be so linked.93 That is, again, here is a desire to control the interpretive field. As we’ve seen, the right to privacy presupposed a racialized logic from within the circulation of images in newly expansive markets in information. In the context of personalities that secured private credit, whiteness was protected through an aesthetic code guarding whitened people against becoming fungible in the marketplace. As Cheryl Harris articulated, “It was the interaction between conceptions of race and property that played a critical role in establishing and maintaining racial and economic subordination.”94 In the court of public opinion, the threat at the root of Roberson was about the source of commercial value and about not having control over others’ interpretations. This last claim bespeaks not a neutral or abstract sense of “autonomy,” but rather an effort to uphold the conditions of domination, including protecting against harms envisioned but unnamed, like future threats to whiteness by the many readers not beholden to its terms. 187

Figure 5.1. Frederick Douglass, c. 1841. Unknown photographer. Sixth-­plate daguerreotype. Collection of Greg French. In John Stauffer, Zoe Trodd, and Celeste-­Marie Bernier, Picturing Frederick Douglass: An Illustrated Biography of the Nineteenth Century’s Most Photographed American (New York: Liveright, 2015).

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The age of the image announces itself even if a viewer doesn’t know that this is a reproduction of a daguerreotype. Wear and tear speckles its surface. What looks like a faded crease bisects his right shoulder. Both on the left and on the right, faded patches frame his posed, poised body. And while the image we’re looking at is iterations removed from the plate, even here, in this early rendering, he is the Frederick Douglass we recognize: smart-­looking suit, crisp, creased collar, meticulously tied tie. And though he is young-­looking, this is also, undeniably, the face and expression we might by now expect from his portraits: mouth pulled (relaxed?) into a straight line, gaze steady (fixed?), forehead smooth (released? held?) and uncreased. A reproduction of a daguerreotype from 1841 (figure 5.1.), it’s the earliest known portrait of Frederick Douglass, taken three years after his escape from slavery, four years before he writes Narrative of the Life of Frederick Douglass, and more than a decade before he asks, “What to the Slave Is the Fourth of July?” He would have been about twenty-­three. More than in any of his other portraits, except perhaps figure 5.2, from 1850 (which is a copy of a lost daguerreotype from 1847), in this first daguerreotype, because of its reproductions, the image most viewers will see—­those who do not have access to the original daguerreotype—­ Douglass is on the verge of merging with the darkened background. Were we looking at the plate, the effect would be (famously) distinct: a play of light between our face reflected into the plate and the imprinting of his.1 Absent is the starker contrast in later portraits between Douglass, his dark suit, and the studio’s set scene. He appears as if floating in darkness he might not have foreseen, though scholars have found that he often dictated much about how he was depicted. Here, he is emerging from or fading into a background; it threatens to take over his suit and swallow his hair. It’s not a matter of fault and even less a trite (and false) analogue about color, though it is the case that practitioners then (as now) were not often trained to calibrate lighting and exposure time for a wide spectrum of skin 189

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tones. Later in the century, a dark background would become common for so-­called trick photography, those that were “experiments,” and those of enticing horrors like “decapitations,” a few of which were published by Scientific American as “Freak Pictures with a Black Background.”2 A presage of trick photography through a potential miscalibration of lighting and/ or the visual aftermath of inexact reproductions renders this a likeness that wavers on disappearing each time it appears in a classroom, on a page, or through a screen. If we place the image in Noam M. Elcott’s “genealogy of cinema in terms of artificial darkness,” is the image, by chance, even cinematic?3 In this reproduction of his earliest image, Douglass is transformed into a magician, or maybe, into an artist. What’s intensified in the reproduction is the possibility that the dark background could steal (into) his face, his neck, his shoulders. In that way, the image—­an accumulation of techniques and the passing of time—­ gestures at the archival instabilities studies of enslavement and its aftermath have theorized. Another register is the ongoing resonance of disappearance, death, and mourning in critical engagements with the temporal textures available in a photographic image. For Wexler, the revenant of a photograph is the one who returns from the dead by way of the image; she develops the idea of a “revenant,” after all, with Douglass in mind. Like the belatedly produced blur between ground and figure through artificial darkness here, the presence of a revenant invites a series of questions. A revenant both accepts and unsettles whether a life ends when a person dies, and whether the configuration of a body in the plate has just been, like the configuration of the imprinted plate, an ephemeral gathering ground for what continues otherwise than through breathing in one body. If the term “revenant” is to work, the effect, including the effect of the blur, would need viewers to see Douglass and work to realize that they’ve been waiting—­in the tangle of temporalities to which photographs deliver viewers—­all along. My interest in this image of Douglass is not because of its “firstness,” but rather on account of Douglass’s ubiquity in our classrooms. By now, Douglass is recognized as the most photographed American of the nineteenth century; historian David Blight adds that he was one of the most, if not “the most widely traveled American public figure of his century.”4 Douglass’s case is, in that way, particular. But his “case” in this chapter is neither a court case nor a set of legal twists to allocate profit. I reengage 190

Figure 5.2. Frederick Douglass, c. 1850. Unknown photographer. Sixth-­plate daguerreotype. Courtesy of National Portrait Gallery, Smithsonian Institution.

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Douglass’s portraits here because the juridical issues I’ve analyzed resonate with critical habits that cluster around Douglass’s photographic portraits. My goal to unsettle critical habits for reading Douglass’s portraits is inspired, first, by Lisa Lowe’s writing about Olaudah Equiano’s autobiography. Lowe calls critical reading practices for his autobiography “evidence of the resilience of desire for the representative individual story of the achievement of freedom.”5 Douglass’s considerable photographic archive is read just this way. But even these habits of critical looking for “the achievement of freedom” replay modes of surveilling with “aims for sovereignty over the field of vision from which the photograph is produced.”6 That is, key to ascribing sovereignty to a field of vision is the critical habit of detecting intentionality or its absence. Intention-­detection structures even his photograph’s most liberatory readings. This critical posture presumes sovereignty as the central aspiration of a given subject. But if photography offers, per Azoulay, a “non-­sovereign” mode of looking, instead of culminating what has come before, with Samantha Pinto, let’s “embrace a state of risk that refuses critique as (only) a mode of shoring up, of certainty,” and with Eduardo Cadava, toward “opening the possibility of our being in time” in a shared “critical comportment” that Stephen Best predicates on “the idea that art thinks,” while also making out of our differently and distinctly conjoined spacetimes something else.7 I wrote the previous chapters in the more familiar voice of an academic monograph. I tried to write this chapter more explicitly from the position of a co-­worker (though, of course, I was your co-­worker when I was writing the rest of the book, too). I am imagining that you and I are sitting with his portraits and willing to stay uncomfortable with them, maybe especially because they are so familiar. My aims here are more squarely about the pedagogical stakes of looking at Douglass’s portraits while unhooking, for one, periodicity and intentionality’s demands. The critical practices we refine with each other become the basis of pedagogy, and pedagogy about reading Douglass’s images has effects on how we teach with other portraits, too. I try to heed Denise Ferreira da Silva’s proposition to continue to push our reading practices further than to reproduce the “transparency” of Western conceptions of Man, by which she means “the ontoepistemological accounts that institute ‘being and meaning’ as effects of interiority and temporality.”8 Reencountering Douglass’s portraits while unhooking, bit by bit, from looking for interiority or presuming a singular relation to 192

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temporality could register an otherwise of being in study with Douglass, and with one another and our students. We know that studying on our own is often the brief pause from being engaged in ongoing collaborative learning how to undo the colonial legacies imbricated in our critical habits of sight and reading, overly attuned to intention as a matter of visibility that an image renders into a facet of visuality. On the way to reconsidering Douglass’s portraits, I’ll build a bridge for us from the previous chapters through Pavesich v. New England Life Insurance Company (1905). I bring to bear previously unremarked details of the plaintiff’s life to show how an aesthetics of whiteness continues to shed light on the delimitation of privacy protections. Pavesich is a particularly important case to understand, because it was the strongest endorsement of a right to privacy from among the “circulating portrait” cases in the late nineteenth and early twentieth centuries. Using aspects of this Georgia case as a springboard, I move to Douglass’s own thinking about expressions, returning to key terms—­likeness, privacy, arrangement, and light—­ and working my way backwards through the book’s concepts. Our differentiated experiences of Douglass’s portraits can only be mediated by the history of racial capitalism; those histories bring me here to writing, you to where you are, Douglass into so many photography studios, and those portraits into our classrooms. But could it be a beginning to encounter Douglass’s portraits each time like Rosa’s, in a “suspension” of the imperative of parceling chronological time through intention-­detection as the way to be with photographs? A mode of being that allows times and archives to cross paths and to set aside the dictums of racial capitalism for time and being, as though being, time, and bodies are organisms separable from relations through which they briefly appear, are experienced, and into which they pass on? Our first speculative leap together is to sit with Douglass cloaked in artificial darkness as though sitting with art. I’ve written elsewhere about Best’s proposal to “think like a work of art” as one way to “come undone,” in Hartman’s poetics, encountering print culture’s archives.9 Might we work with these approaches in what Autumn Womack names “apocalyptic ambivalence”? Womack theorizes apocalyptic ambivalence as “training attention to the quotidian and mundane practices that might reconstruct social arrangements and reveal an otherwise unimaginable world.”10 Her attention is fixed just then on Du Bois’s Black Reconstruction, but might she also be illuminat193

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ing the work we can do in the best case when we study together? These profound insights, even as they emerge from distinct objects of inquiry, expand our field of inquiry while we sit with Douglass’s portraits anew.11 Let’s pause, then, with his portraits, not nearly because they are the most important, but on our way to finding more (and more) pedagogical praxes to sidestep the aesthetics of whiteness that joined property allocation, whiteness, and patriarchy. A pause to contribute, again in Hartman’s poetics, to an “undoing of the plot [that] begins with her drifting from the course, with an errant path, with getting lost to the world”?12 Could there be another kind of value, another kind of grace in being with portraits of the most photographed nineteenth-­century American, from within a tangle of critical and historical temporalities—­what I’ll elaborate as “when-­time”—­breaking from the confines of periodicity and intentionality alike, and, for at least as long as it takes to look at a picture, practicing with one another and our students “mundane practices” of “getting lost to the world”? This Could Be You

Just a few years after Abigail Roberson turned her face from a camera in Rochester, mural artist Paolo Pavesich brought a similar action as Roberson’s against New England Mutual Life Insurance Company, its general agent, Thomas B. Lumpkin, and the photographer, J. Q. Adams. Adams had sold a negative of Pavesich’s portrait to the company without his knowledge. New England Mutual ran an advertisement in the Atlanta Constitution that made his portrait part of a diptych inviting people to imagine the wonderful life they could have if only they bought life insurance for when they died (figure 5.3). Like the folding box company in Roberson, the company added text: “Do it now. The man who did.” Under his image, it read “In my healthy and productive period of life I bought insurance in the New England Mutual Life Insurance Co., of Boston, Mass., and today my family is protected and I am drawing an annual dividend on my paid­up policies.”13 The intended effect was to signal that Pavesich was having a good life because of his life insurance policy. The accompanying image was of a less prosperous-­looking man, where the caption read, “Do it while you can. The man who didn’t.” The advertisement insisted, “These two pictures tell their own story.” A crucial difference between Roberson’s suit and Pavesich’s was that Pavesich eventually won. 194

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Figure 5.3. New England Mutual Life Insurance advertisement, Atlanta Constitution, November 15, 1903, 9.

Pavesich reached the Georgia Supreme Court in 1905 on appeal. The lower court’s Judge H. M. Russ had dismissed the case finding no cause. But Justice Cobb ultimately rejected Roberson, and affirmed the existence of a right to privacy. The Georgia court was the first to recognize a right to privacy in relation to a circulating image and disconnected from other protections.14 Cobb, who wrote the majority opinion, began his reasoning by way of equity: “equity has interfered to restrain the publication of letters, writings, papers,” these had “been based either upon the recognition of a right of property or upon the fact that the publication would be a breach of contract, confidence, or trust.”15 Cobb followed Brandeis and Warren in claiming that a right to privacy existed. He added that a violation of privacy by a “circulating portrait” was a different instance and not a dif195

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ferent principle of harm. He cited many of the cases we’ve already worked through, including Manola’s and Roberson’s, and leaned enthusiastically on Gray’s dissent in Roberson, quoting over one thousand of its words.16 After his respectful but decisive rejection of Roberson, Cobb distinguished between being part of society and agreeing to visual representation: “the form and features of the plaintiff are his own.”17 Given what’s come before, it’s not clear to me that either privacy or publicity rights protected “uniqueness,” “identity,” “spiritual natures,” “autonomy,” “liberty,” or “independence,” but instead the interest of controlling a whitened person’s relation to economies built from the circulation and commodification of information, because whiteness as an aesthetics of power was contingent on controlling reputations, not only their content, but also access and benefits from whiteness as an intangible asset. For example, Oliver Wendell Holmes Jr. explained that “no falsehood is thought about or even known by all the world. No conduct is hated by all. That it will be known by a large number and will lead an appreciable fraction of that number to regard the plaintiff with contempt is enough to do her practical harm,” speaking of the harm Duffy’s Pure Malt Whisky caused Elizabeth Peck in printing her image in its ad and thus making her appear to have endorsed whiskey.18 Becoming available for interpretation, as I’ve been arguing, is about a more subtle notion of control than an abstract sense of autonomy. As an intangible asset, whiteness required control over what circulated in markets in information that could affect its value in terms of both social standing and economic power. The new markets in information that were, in part, financially dependent on the colonizing infrastructure of railroads, were experienced as destabilizing to whitened people, not only because of any “secrets” they wanted to guard, but precisely because markets in information required a recalibration of power over the availability and circulation of interpretations for which this right to privacy tried to correct. Born in Athens, Georgia, Cobb sat on the Georgia Supreme Court after a career made possible in every sense by the “obscene abstractions at the heart of the slave trade” with which this book began.19 Legal scholar Anita Allen has done important work to show that the Cobb family was “one of the most prominent, politically engaged families of the antebellum and Civil War era South.”20 They were slaveholders and proud Confederates; his uncles and father owned as many as one thousand enslaved people. They fought with renown for the Confederacy. Cobb’s father “was a lawyer 196

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who served as a member of Congress, Governor of Georgia, and Treasury Secretary under President James Buchanan,” then later “acted as President of the Provisional Confederate Congress and administered the oath of office to Jefferson Davis as the first Confederate President.”21 His uncle “Thomas was principal author of the Constitution of the Confederacy.”22 Allen fairly conjectures that as a baby and young person, Cobb would have been cared for by enslaved Black people, before becoming “the most cited judge in the state.”23 Cobb’s biography helps situate an aesthetics of whiteness to protect whitened people, regardless of the fact that, as Allen argues, Cobb might have gone on to write opinions we could identify from within a spectrum of progressiveness. One curious element of Cobb’s argument that has not received critical attention bears out the aesthetics of whiteness with which we’ve been thinking. The court had to settle whether Pavesich was a non-­public figure before New England Mutual circulated his portrait. Even though Pavesich was a well-­known artist, Cobb’s affirmation of a right to privacy depended on this distinction. Had Cobb and the court recognized him as a public figure, his claim to privacy would have dissolved, as it had in Corliss v. Walker (1894). While the court did not recognize Pavesich as a public figure, he was a much sought-­after mural artist. His and his son’s trajectories illustrate with fine-­grained detail how the intangible assets in whiteness play out and accrue over time. Pavesich’s business had grown alongside his reputation for painting frescoes that wealthy men wanted to embellish their homes. It would not be an exaggeration to say that his business depended on his reputation. His reputation was how he obtained commissions; his success allowed him to grow a business where he traveled with a team of assistant painters, creating a network such that his son married a socialite, attended university, became a lieutenant, and later the first head of the G. I. Bill’s home loan program for veterans after World War II. Pavesich originally hailed from Trieste, then still a colonial Austrian port. Paolo’s people were likely both Italian and Slovenian, a fairly typical background for someone from mid-­nineteenth-­century Trieste.24 The name Pavesich is a Balkanized version of the Italian name Pavesi, meaning “people from Pavia,” one of the oldest university towns in Europe, near Milan. That a family from the Pavia province of Lombardy would become known as Pavesich in Trieste makes sense given that when the Republic of Venice was dissolved in 1797, Venetian Slovenia (of which Trieste was 197

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a strategic port) passed under control of the Austrian Empire. Pavesich studied painting and sculpture in Florence and Milan, helped decorate the Sultan’s palace at Constantinople, and was part of a group of artists who painted the tsar’s palace in St. Petersburg before making his way to the United States in 1878.25 Once in the United States, Pavesich established his offices on Wabash Avenue in Chicago, and then, at the behest of one of his clients, he established another office in St. Joseph, Missouri, about fifty miles north of St. Louis. This was before he moved his base of operations to Athens, just outside Atlanta, Georgia, precisely where Justice Cobb’s family had controlled its plantations. When Pavesich had a base of operations in St. Joseph, he paid a local paper to print daily advertisements for his services as an artist. He specialized, it was said, in the styles of Louis XIV and “the renaissance,” with “tropical touches.” Wealthy families who could own homes believably referred to as “palaces” recommended Pavesich to each other in St. Joseph, Tampa, Florida, and Atlanta in the rituals of establishing social positions vis-­à-­vis one another. In addition to parlaying his artistic talents for the conspicuous consumption and display of wealthy patrons like Tampa’s Colonel J. B. Anderson, Pavesich and his crew of assistants worked on major public and private projects, including a hotel in Excelsior Springs, Missouri; the Michigan state capitol in Lansing; the Lincoln, Nebraska, courthouse; the Academy of Music in Charlotte, North Carolina; the Grand Theater in Atlanta; and opera houses in Omaha, Nebraska, and Kansas City, Missouri.26 His contracts for various arts and municipal buildings across the United States lead me to wonder whether, when Pavesich was based in Athens and the suit against New England Mutual was making its way through the Georgia courts, Cobb and Pavesich might have shared social circles. After all, Pavesich painted “renaissance style” frescoes with “tropical touches” for the kind of people Cobb was born into, raised among, and socialized with. The additional trajectory of one of his sons keeps open the question of how much Pavesich was a “public figure” and illustrates the more familiar wages of whiteness bestowed differentially across peoples with pale and pale-­enough skin. When Lieutenant Francis X. Pavesich, a test pilot in the army air corps during World War I, married Miss Virginia R. Henderson, whose parents had a country home, “Bantyre,” at Bridgerton in 1919, his parents were reported as “Mr. and Mrs. Paul Pavesich of Atlanta, Georgia.” 198

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I did not find any other mentions of Pavesich being referred to as “Paul,” but in newspapers he was variously identified with Chicago, Atlanta, Vienna, and Trieste. His son, the young lieutenant, graduated from the University of Georgia and Columbia University. When he and Virginia relocated to St. Louis after first living in New York City, she became affiliated with and hosted gatherings for the United Daughters of the Confederacy.27 Before marrying Miss Virginia, Francis “was an investment banker,” and eventually the “first director of the loan guarantee division of the Veterans Administration,” helping to implement the G.I. Bill’s home loan program for veterans through the Federal Housing Administration after World War II. He would quit this post by 1946 after publicly objecting to veterans’ being overcharged for shoddily constructed homes.28 The lieutenant’s trajectory resonates with canonical historical studies by Matthew Frye Jacobson, Nell Painter, and David Roediger, to name only a few, in tracing how a passage into whitened identity morphed around different migrant groups at different moments—­as in the depictions in chapter 2 of Wilde and Sarony that marshalled antiblackness, xenophobia, homophobia, and antisemitism. Pavesich’s trajectory bears out how intangible assets held in whiteness compound over time, in his career as an artist and then in his son’s career, and in his wife’s involvement with the Daughters of the Confederacy. These biographical trajectories help situate more clearly some of the contours of Cobb’s argument in the case. Cobb’s characterization of the harms of “circulating portraits” is more expansive than those of Brandeis and Warren, Rumsey, or Gray, in terms of liberty and freedom. He makes this choice even when, in a more straightforward way than with Roberson, Pavesich’s livelihood depended on his reputation: injury to it would have directly and assuredly affected his business prospects. But Cobb asserts that using a person’s name or image for a commercial purpose without their consent constituted an assault that effectively “enslaved” them, bearing out Best’s insight that jurists used metaphors of slavery to stake their claim to properties in images.29 Cobb’s reasoning was that “the right of one to exhibit himself to the public at all proper times, in all proper places, and in a proper manner is embraced within the right of personal liberty.”30 This is a sweeping account of “liberty” and amounts to controlling not only the available information but also the interpretive field for that information. What Cobb describes as “per199

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sonal liberty” could just as easily (and more believably) be called a condition for domination: The knowledge that one’s features and form are being used for such a purpose and displayed in such places as such advertisements are often liable to be found brings not only the person of an extremely sensitive nature, but even the individual of ordinary sensibility, to a realization that his liberty has been taken away from him, and, as long as the advertiser uses him for these purposes, he can not be otherwise than conscious of the fact that he is, for the time being, under the control of another, that he is no longer free, and that he is in reality a slave without hope of freedom, held to service by a merciless master.31

Cobb’s language comparing portraits circulating without the subject’s consent as tantamount to enslavement was, per Allen, far from a rhetorical flourish or “exaggeration.” According to Allen, Cobb, of all people, would have been familiar with the natural law arguments made in favor of holding property in people. But immersing Cobb firmly in the trajectories of racial capitalism, instead, demarcates not only a question of exclusion but a structural limitation to privacy’s imagination in its investments in an aesthetics of whiteness. In this case and in those that have come before, the deployment of an aesthetics of whiteness sought to shield whitened people from the fungibility other lives were subject to through surveilled dispossessions that took multiple, overlapping shapes—­ethnographic studies, compulsory schooling measures that policed Native parents while taking children out of their homes, the adjudication of white, heterosexual marriage, and visual associations with criminality. Even as Pavesich was met with enthusiastic approval by the public, nonetheless, Roberson proved the more typical judgment for the first half of the twentieth century about privacy but not necessarily about commercial use. In Edison v. Edison Polyform Mfg. Co. (1907), the New Jersey court evaluated both Roberson and Pavesich and found Cobb’s to be the better decision in enjoining the commercial use of Thomas Edison’s name and picture for profit.32 Yet more often, appellate courts balanced freedom of the press with claims to an individual’s privacy.33 Holding property in one’s image became increasingly accepted in the twentieth century, especially but not only for celebrities and public figures and those who survived them and managed 200

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their estates.34 But not every court thought so. In Liebig’s Extract of Meat Co. v. Liebig Extract Co. (1910), for example, the Second Circuit Court of Appeals decided a right of publicity did not exist.35 The law would have to rearrange itself to protect the speculative ability to control the uncontrollable at the center of the aesthetics of whiteness I’ve been tracking—­the idea that someone should control and so have a property right over what they neither expressed, made, nor produced, at the expense of other modes of conceiving relations and expressions outside logics of private property. Likeness

The conventions of Anglo-­Atlantic portraiture rely on presuming a liberal notion of self-­possession as a visible and visual condition. As in Lowe’s account of autobiography and novels, portraiture did “important work of mediating and resolving liberalism’s contradictions.”36 In portraiture, the “demand that the viewer grant a subject-­reality to the image made visible on the canvas” and the presumption of self-­possession for the subject persist even as portraits are the act of another (the painter), outside a subject’s grasp, and even as a portrait might not belong to you, that is, might become your property only if you buy it.37 The artist’s expression coincides with her ability to capture her subject’s character, nature, even soul. This life-­giving aspect of a portraitist’s work was seen as additive: it gave more expression to expression, was more like life, sometimes, than life. Reading Douglass’s photographic portraits rests on an ill-­fit between portraiture’s painterly conventions, the history of enslavement, the ongoing disenfranchisement and precarity of racialized peoples, and property rights in images, which were structured at key moments by an aesthetics of whiteness. It has become a critical commonplace that Douglass was committed to photography because he believed in the democratic possibilities of the camera. It’s most often said that he valued the camera’s gathering of a truth-­value over and against the visual imperialisms that shared graphic vocabularies with the Currier & Ives lithograph, The Aesthetic Craze.38 His photographic appearances are then understood in terms of self-­fashioning connected to a political vision.39 As many of us have been teaching students to understand, perhaps using Douglass’s speeches about photography, for Douglass, the machinery of a camera seemed as though it could be released from human-­made antiblack vocabularies. 201

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Critics and historians keep looking at his portraits wanting to see, first, that it was possible for Douglass to be free—­and more, that it was possible to have made yourself be free. Drawing on Lugo-­Ortiz and Rosenthal’s work on portraits of enslaved peoples, Celeste-­Marie Bernier argues for understanding Douglass’s as part of a tradition of “fugitive slave portraits.”40 For Bernier, the steady repetition of his stern expressions becomes an insistence on the political goal of self-­ownership as well as the assertion of an ontological possibility. Similarly pairing politics with aesthetics, Henry Louis Gates Jr. sees “his first and most subtle intention” in photographs to show “the inextricable social and biological connection between the slave and his master, between bondsman and lord, between black and white.”41 He writes that Douglass “repeatedly [used] that technology to fashion and refashion an image of a physical self, elegantly clothed in his own unique genetic embodiment of that sui generis American ethnic self linked, inextricably and inevitably connected, to both black and white: ‘the mulatto.’”42 Or, in a slightly different account, but landing on the same conceptual grounds, Marcy Dinius reads the subtle changes in Douglass’s portraits over time as the articulation of his self-­possession, the ability to possess a self that can also evolve.43 In another example, the stakes for discerning a “visual voice” that can adjust to political circumstance become tied to the viability of his political vision.44 The need to determine that he could manipulate his image is meant to demonstrate that he was in control not only of what would become his photographic expression, but also of its interpretation in the public sphere. These critical accounts become evidence of his political goals. But, in ways I hope are clear by now, these accounts also replay the aesthetics of whiteness that have come before by accepting the terms of expression to be determined through visuality, mechanical or otherwise, as though either could ever register the fullness of beings. With so much important work done in this vein, it is remarkably difficult to un-­see Douglass’s portraits as likenesses that assert self-­possession through self-­fashioning, to un-­see his fixed visage as proof that here was a man insistent on the necessity of more than juridical emancipation. Yet his portraits are encountered in criticism in such a way where his figure must keep proving the possibility of his freedom. The reading practice that enacts this desire to see freedom’s possibility implies the structural relation of propertied sovereignty between a photographic image, the viewer, and the subject of the camera.45 Even as critics look at his portraits as proof of Douglass’s ability to 202

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circumvent the logics of property that built and reproduced multiple forms of unfreedom, critics nonetheless ask the portraits to depict an expanded domain of those same logics: that he owned himself. That is, there is an abiding commitment in these reading practices to logics of self-­ownership, and to a liberal version of self-­sovereignty as the singular aim of liberation. The chapters before this one have implied the limits in reading images of Douglass where self-­possession is a capacity that can be visually expressed (or not). The racism encoded in the ability to delimit involuntarity is the flipside of the insistence that no movements are involuntary whenever a deputized surveiller deems it so. Said another way, the overdetermination of racial seeing limits the capacity of being seen to move meaninglessly or idiosyncratically, and yet the idea of the fullness of an expression has relied on the same for an expression to be intelligible, and then for expressions conveyed by a photograph to become owned. His first portrait, the one with which I started this chapter, articulates a challenge for reading all the portraits anew. Zakiyyah Iman Jackson’s analysis of Douglass helps us sit differently with his photographic archive to open the possibility for unthinking Man’s transparency and what she calls “the fraught rhetorical inheritance that occasioned Douglass’s textual performance.”46 Jackson sees Douglass as “critically wrestling with (but still very much conscripted by) slavery’s hierarchies of being and feeling—­ even extending the institution’s palliative logic of ‘humane’ reform.”47 What if we take Douglass’s theorizing of the constraints of expression’s “arrangement” along with his insistence to appear before the camera not as an aspiration to logics of inclusion that, per Ferreira da Silva, reify their “transparency” as part of their exclusionary work? What if in his portraits there is, instead, a quiet insistence on confronting cameras in a mode of alterity—­in alignment with Jackson’s reading of Douglass? What if Douglass’s confrontations with cameras “pointed to innovative futures in theorizing race if decoupled with the search for self-­authorship and agency as the ultimate ends of political imagination”?48 What if instead of detecting intention, the expressionlessness (which is non-­equal to absence, emptiness, or inertness) were allowed to dislocate the neutrality of expression as part of a biopolitical formation dependent on antiblackness? Even if it can only flicker. What if we looked at Douglass’s photographic portraits without assuming that there is a singular horizon of politics in abstract freedom, and rather look for a more fragile arrangement? 203

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Arrangement

When Douglass’s portraits are read alongside his autobiographies, a tension emerges between critical habits that seek out intention and Douglass’s discussions there of expressions. Well before the cases I’ve been discussing, Douglass anticipated the limits of an aesthetics of whiteness that hinged on speculating intention in order to control the interpretive field in his critique of the politics of exposé. A way we might begin our classes is by explaining to our students that exposé was one of abolitionism’s primary political tools. Douglass self-­ consciously used the market in images—­which he understood as linked not only to antiblack imagery more generally, but also to the market in which he had been trafficked. The structure of racial sight meant that Douglass’s lecturing, newspaper, and autobiographies, within a paradigm of exposé, also subjected him to surveilling.49 His critique coincides with what Sarah Lewis has called the “changing symbolism of the insistently revealed enslaved.”50 By 1855, when Douglass published My Bondage and My Freedom, he had perhaps grown weary of exposé’s truisms: the supposition that the more northern, whitened publics knew about slavery, the more they might favor, at least, gradual emancipation. Douglass’s early views accepted the theory of sinful political contamination: that liberalism carried with it moral infection. In Garrisonianism, the Constitution was mired in slavery’s sin; both the nation and its founding documents were infected, and the slavery question was one between damnation and salvation. The possibility of redemption was a potential solution for what was understood as the nation’s founding sin. Just before returning to the United States from his first tour of England, in the spring of 1847, Douglass gave a speech at the London Tavern in which he charged that the constitutional language of liberalism facilitated slavery: “In no less than three clauses of their [American] constitution may be found a spirit of the most deadly hostility to the liberty of the black man in that country and yet clothed in such language as no Englishman, to whom its meaning was unknown, could take offence at.”51 While politics radicalized in the 1850s after the passage of the Fugitive Slave Act and the Missouri Compromise, Douglass increasingly questioned the assumptions of the political culture to which he was contributing.52 At the center of his political critique’s transformation was a reevaluation of the 204

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Constitution. In a speech in Chicago in 1854, he affirmed, “If I am a citizen, I am clothed all over with the star-­spangled banner and defended by the American Constitution, in every State of the American Union. That constitution knows no man by the color of his skin. The men who made it were too noble for any such limitation of humanity and human rights.”53 The language and logic of contagion (of sin, wickedness, “hostility to liberty”) no longer appear. Douglass appropriates the flag as clothing and the vision of the Founding Fathers as “too noble” to limit citizenship. His pronouncements of citizenship—­clothed all over, defended, unseen by skin color—­ undo his former characterization of the Constitution’s political, spiritual, and moral contagion, but only conditionally: “If I am a citizen . . .” My Bondage signals another moment worth considering in light of the work of interpretation. At the outset of chapter 9, Douglass writes, “When very hungry, I would go into the back yard and play under Miss Lucretia’s window. When pretty severely pinched by hunger, I had a habit of singing, which the good lady very soon came to understand as a petition for a piece of bread. When I sung under Miss Lucretia’s window, I was very apt to get well paid for my music.”54 The specter of violence is everywhere: He sings to distract himself from hunger, he sings in case he might be fed, he sings to learn whether this could be effectual, he sings to not get beaten, to recover from beatings, to imagine a world where he will not be beaten when he is hungry, where he will be fed without having to sing. Though they do not appear in this scene, the terrifying quotidian encounters Douglass recounts in Narrative and My Bondage can only frame this scene. Time and again, in Douglass’s account, overseers describe imaginary offenses for which they punish people. These structures of “seeing” did not exist as separable from but rather “on a continuum, at least in visual terms” with abolitionist logics of exposé.55 The facility with which enslaved people could be punished was one layer of the brutality to which they were subject. More, any legal protections presumed the ongoingness of every brutality. For example, Colin Dayan has studied the language of Georgia’s 1851 penal code, which would have been familiar to Justice Cobb’s family, to demonstrate how in the very act of curbing gratuitous and extreme cruelty, the meaning of “human” is held in suspension for the slave for whom the use of whips, cudgels, and dogs was not only possible but expected. This commitment to pro205

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tection thus became a guarantee of tyranny, and the attempt to set limits to brutality, to curb tortures, not only allowed masters to hide behind the law but also ensure that the guise of care would remain a “humane” fiction.56

A series of compounding violences in every register reinforce and remake racial capitalism’s functions through functionaries like overseers and their descendants. But the legal codes that naturalized the expectation of violence for the enslaved is not the precise issue at hand here. What I want to focus on is how Douglass describes the overseer’s act of “interpreting” expressions. Both threats of force and the force itself were the law of slavery. Douglass describes the insurrection that Mr. Gore—­whom Douglass describes as “proud, ambitious, and persevering, . . . artful, cruel, and obdurate”—­ claimed that he could “see” in any enslaved person: “He was one of those who could torture the slightest look, word, or gesture, on the part of the slave, into impudence, and would treat it accordingly.”57 Douglass characterizes the overseer’s interpretation as violence. Torture, its Latin root torquere, “to twist,” here refers to the turns of interpretation and misinterpretation of the enslaved. Douglass’s use of the word torture to account for cruel misinterpretation registers Jackson’s distillation of the “demand that the slave be all dimensions at once.”58 The foundational demand that people be subject to an overseer’s interpretive twists as a matter of law is a systemic demand, and that systemic demand satisfied different systems at once. These forms of violence and misinterpretation performed the law of enslavement at the same time that they were a “metric of production” and a logic for extraction. Interpretive precarity was both a legal condition of subjection and a series of economic protocols. Douglass writes, “It would astonish one, unaccustomed to a slaveholding life, to see with what wonderful ease a slaveholder can find things, of which to make occasion to whip a slave. A mere look, word, or motion,—­a mistake, accident, or want of power,—­are all matters for which a slave may be whipped at any time.”59 Looks, mistakes, the simple acknowledgment or continuation of the power imbalance could garner punishment. Expressions or even the impression of expression became intentions, which became justifications for violence in the interpretation of “plastic fleshy being.”60 A raised hand. Any gesture or tone deemed “saucy.” The torture of a slaveholder or overseer’s gaze is given “sense” by way of being able to ascribe an expression, and that would always justify punishment, because 206

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enslavement as a legal condition was made possible and real by the torture of misinterpretation and the torture of punishment. Given the stakes of being misinterpreted in an act of torture, the scene under Miss Lucretia’s window, and its sentimental shape, might best be read non-­triumphantly.61 Read this way, the scene of “instruction” becomes an accusation rather than a revelation. The text’s temporal markers signal it as such: each of the three sentences that narrate this scene begin with “when”: “When very hungry,” “When pretty severely pinched,” “When I sung.” The part of speech “when” fulfills, whether adverb, conjunction, pronoun, or noun, depends on what it modifies; “when” transforms whenever it appears in different contexts and placements. Put another way, “when” depends on its arrangement. The arrangement of “whens” stresses the unfixed nature of the word “when,” even as it’s meant to spark a specific moment in a sequence, and creates anticipation through repetition. These narrative delays—­which, if read unquestioningly would mark specificity—­accentuate not just an abstract notion of timing, but a sense of timing that works like an arrangement contingent on context. “When” refers to a particular time only through finding its proper grammatical location with each rereading. So that “when” is a word—­like a photograph—­that is question, placeholder, and pivot at once. When-­timing is grammatical. When is always when? until it is arranged and can become another kind of marker. With when-­timing in mind, Campt’s formulation of a Black gaze’s redistributed labor shifts how to read the episode under Miss Lucretia’s window. And thinking with Campt can help continue undoing the arrangements that have clung to Douglass’s portraits. Campt is thinking with contemporary Black artists when she describes a Black gaze this way: Neither a gaze of identity or empathy, it is a gaze that focuses on distinctive frequencies of Black filiation. The discomforting labor . . . in their capacity to position white spectators as neither subject nor recipient of their gaze. It is a gaze that centers the Black subject, and whiteness is fully outside of the frame. . . . [It] reconfigures the dominant gaze by exploiting white exclusion from and vulnerability to the opacity of blackness.62

A Black gaze differently redistributes labor onto viewers by making looking into “discomforting labor.” A Black gaze happens, perhaps, in when-­time with “whiteness fully outside of the frame,” a more fluid, but 207

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not free-­flowing, temporality whose arrangement demands that viewers work to unhinge from temporal preconceptions that hide in established practices of looking. The contingent temporal markers in the scene under Miss Lucretia’s window accentuate the spectator/reader’s role. The repetition of “when” dislocates and rearticulates temporality: as sequence, as chronological time, as a vague sense, as its embodiment, as an intensity. In this dislocated but pressurized sense of sequentiality the text prioritizes Miss Lucretia’s learning, not as a triumph: “the good lady very soon came to understand.”63 The understanding was not immediate. There was no assurance it would last. But the capacity to bend with timing exists in the grammatical loosening and insistence of when-­time. The pending lesson can be thought of as attending to arrangements without reifying a propertied regime, a lesson that might play and replay in when-­time. Privacy

The central narrative refusal in both Narrative and My Bondage holds a similar ambivalence about literary (and portraiture) performances. Hartman delineates the problem: “The significance of the performative lies not in the ability to overcome this condition or provide remedy but in creating a context for the collective enunciation of this pain, transforming need into politics and cultivating pleasure as a limited response to need and a desperately insufficient form of redress.”64 Political action here begins with “enunciation,” making injustices empirically available, even as a “desperately insufficient form of redress.” As we’ve seen, Douglass was familiar with the barbs of performance. Any years spent proving your and others’ worth are too many. My Bondage famously offers its most stringent critique of abolitionist cultures of exposé in the final chapter of part 1. The chapter, “My Escape from Slavery,” names precisely the event it will not narrate. Before, however, proceeding with this narration, it is, perhaps, proper that I should frankly state, in advance, my intention to withhold a part of the fact connected with my escape from slavery. There are reasons for this suppression, which I trust the reader will deem altogether valid. It may be easily conceived, that a full and complete statement of all facts pertaining to the flight of a bondman, might implicate and embarrass some who may have, 208

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wittingly or unwittingly, assisted him; and no one can wish me to involve any man or woman who has befriended me, even in the liability of embarrassment or trouble.65

In Narrative, the explanation is much briefer and focuses on the political exigencies of not detailing the escape. Readers might have thought that the passage of time would persuade Douglass that it was now safe to reveal the details. One wonders how many times he’d been asked the question in the ten years between the two autobiographies, how many times he refused to answer, how many times he needed to explain the choice. The refusal was not tantamount to either singing for bread or speaking in front of an audience. Douglass would have been too familiar with performing to think all performances equal. Instead, Douglass’s withholding here seems to be especially about reconstituting a notion of privacy in a critique of publicity. Douglass criticizes the very public Henry Box Brown and the very public participation of those involved with the “underground railroad.” I quote Douglass at length because he carefully explains a relationship between print media, rumor, activism, and pragmatism. In doing so, he resituates the grounds for abolitionist tactics. I honor those good men and women [of the underground railroad] for their noble daring, in willingly subjecting themselves to persecution, by openly avowing their participation in the escape of slaves; nevertheless, the good resulting from such avowals, is of a very questionable character. It may kindle an enthusiasm, very pleasant to inhale; but that is of no practical benefit to themselves, nor to the slaves escaping. Nothing is more evident, than that such disclosures are a positive evil to the slaves remaining, and seeking to escape. In publishing such accounts, the anti-­slavery man addresses the slaveholder, not the slave; he stimulates the former to greater watchfulness, and adds to his facilities for capturing his slave. We owe something to the slaves, south of Mason and Dixon’s line, as well as to those north of it; and, in discharging the duty of aiding the latter, on their way to freedom, we should be careful to do nothing which would be likely to hinder the former, in making their escape from slavery. Such is my detestation of slavery, that I would keep the merciless slaveholder profoundly ignorant of the means of flight adopted by the slave. He should be left to imagine himself surrounded by myriads of invisible tormentors, ever ready to snatch, from his infernal grasp, his trem209

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bling prey. In pursuing his victim, let him be left to feel his way in the dark; let shades of darkness, commensurate with his crime, shut every ray of light from his pathway; and let him be made to feel, that, at every step he takes, with the hellish purpose of reducing a brother man to slavery, he is running the frightful risk of having his hot brains dashed out by an invisible hand.66

Douglass not only explains why he does not detail his escape, but he resituates the aims of abolitionism from providing northerners with information to persuade them to withholding information as a way of punishing slaveholders. By denying his readers the opportunity to gratify their curiosity, Douglass reframes his text and the aims of publicity vis-­à-­vis privacy more generally. Readerly engagement would have to suspend “enjoyment,” which as Hartman reminds was already a wildly insufficient political response, and instead be satisfied with knowing that their ignorance was connected to making slaveholders anxious. According to Douglass, tactics needed to be rethought toward what could benefit potential fugitives and punish slaveholders, no longer in terms of proving slavery a moral outrage. The time for appeals to increase support via an exposé of slavery’s evils was over. Defeating slavery needed to be more important than the kind of abolitionism that sought supporters through sentiment and curiosity. There was an element of monopoly in the aesthetics of nineteenth-­century white abolitionism, the kind, for example, that occasioned Rosa’s snub. In this critique, Douglass reorients from market-­conscious harms to reputation via privacy’s violation to withholding details from publication in light of lived precarity and a distinct relation between what’s publicized and understood as politics. The first time Douglass planned his escape, those who had planned to escape with him agreed among themselves to deny everything if caught. Just as Douglass and his crew of co-­conspirators are being accused of plotting to escape—­which is true—­Douglass describes how their failure to respond was their primary protection: “They would impudently ask us if we would not like to have them for our masters. We would make them no answer, and leave them to find out as best they could. Then they would curse and swear at us, telling us that they could take the devil out of us in a very little while, if we were only in their hands.”67 Beyond non-­confession, a recurring trope of My Bondage is active suppression: “We tried to conceal our feelings as much as possible; and I think we succeeded very well.”68 Rethinking privacy with Douglass could delink its parameters from an 210

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individual, offering a trajectory distinct from that concerned with reputation, information sharing, and a differently oriented concern with the interpretive field that is not about shoring up the conditions for domination. Privacy, in the terms Douglass is theorizing here, could instead seek to secure a measure of well-­being and safety for those most at risk, while offering grounds for restitution other than by way of a relation to property. Douglass challenged the northern whitened public’s voyeuristic consumption of slave narratives and, thereby, the operating logic of an abolitionist politics that relied on predetermining performances by Black subjects. This aspect of Douglass’s withholding emerges in line with Yao’s theorization of disaffection.69 If Douglass grew weary and politically suspicious of performance and exposé, if Douglass forged a critique of misinterpretation by way of narrative withholding and expressionlessness as a tactic, why continue to take his portraits at “face value”? Reading them that way continues to reinvest in the logics of the face as an emblem of transparent subjectivity whose affectability and impressibility reaffirm the juridical-­political structures produced to ensure a version of Man suffused with antiblackness. If there has been something “elusive” about Douglass in his portraits, then perhaps this elusiveness, maybe even expressionlessness, can be an invitation to hold still the learned desire to detect intentions from looks and looking, to slow down and per Best, to “avow our ability to say nothing,” but not because there is nothing to say.70 Perhaps it would be possible, instead, to think with Campt’s distillation of a Black gaze as “refusing to grant mastery or pleasure to a viewer at the expense of another.”71 What would it mean to look without seeking to take? What if Douglass’s images were imagined in when-­time through a “description that allows one to inhabit,” in Best’s terms, the spacetime alongside the portraits in a reanimation of their spacetime? Helpful to stilling critical impulses that reproduce sovereign modes of looking, Tiffany Lethabo King, writing from within a Black feminist poetic genealogy of flesh, has “read Spillers’s flesh as a not-­yet form of Black freedom that exists in the immanence of slavery (and anti-­Black violence) and not only in the transcendence of/or before slavery and its afterlife. The flesh is a form of (Spillerian) Black life that finds liberation in the freedom of having ‘nothing to prove.’”72 The work we do together in our classrooms could look like filtering imposed frames and uneasy captions until Douglass would have “nothing to prove,” rather than fitting every portrait into terms for 211

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the expression of a liberal freedom that were then as now not enough.73 Thinking with the portraits not as heroic instantiations but within a radical genealogy of “nothing to prove,” working at how to say nothing, in order to rearticulate another photographic promise: being with and amid—­as opposed to conquering or harnessing—­any light. When we “avow our ability to say nothing,” would Douglass have nothing to prove? Light

Photography seemed to lend itself to portraiture because the process of making a daguerreotype, talbotype, calotype, tintype could mimic practices of “sitting” for your painted portrait, even if the physical setups were often much more elaborate for photographs, involving stages, sometimes skylights, props, and apparatuses. The oft-­recognized fact of extended exposure times and practices of social performances like parlor games of statue posing complemented one another. Rethinking the axis of artistic intention and political possibility for which this version of portraiture became emblematic, Ferreira da Silva thinks beyond the aesthetics of whiteness that have ordered the pages before this one. She ventures away from that “historicity (temporality/interiority), [which,] framed by the tools of universal reason, cannot but yield violence.”74 She asks a question that Douglass’s images also continue to ask: Would the poet’s intention emancipate the Category of Blackness from the scientific and historical ways of knowing that produced it in the first place . . . ? Would Blackness emancipated from science and history wonder about another praxis and wander in the World, with the ethical mandate of opening up other ways of knowing and doing?75

In this essay, Ferreira da Silva seeks a Black feminist “poethics” that might “address simultaneously all three dimensions of the political—­namely the juridical, the economic, and the symbolic” and that, “instead of the betterment of the World as we know it aims at its end.”76 With Ferreira da Silva’s desire for a simultaneous address as a guide, we might read Douglass’s critique of performance and narrative withholdings—­which refigure arrangement and privacy—­with Campt’s parsing of a Black gaze’s redistributed looking labor and Autumn Womack’s theorization of “a photography 212

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of survival,” as another orientation toward light.77 This orientation would not be overdetermined by an aesthetics of whiteness that figures looking, reading, and understanding as the compulsion to surveil and delimit a boundary. This orientation would not presume that looking and light together produce a singular structure. The reasons for thinking through light differently could also be material. With the history of miscalibrations between color in a print, a person’s skin tone, and the technologies created with pale skin as the referent, Grigsby asserts that what was seen as “a true picture is a picture of white people who appear white, not dusky, and who do not ambiguously disappear into the ground.”78 She insists that in the history of photography, “racial difference was an effect photographers had to work to achieve.”79 Whiteness in an image had to be produced, even as its production was also one of the operating logics of the medium, even as its aesthetics manifested in the way courts imagined and reshaped the bounds of copyright, privacy, and publicity.80 Seen one way, these calculations can be subtle, particular, deft. Seen from another angle, they work according to a rudimentary binary logic, and not from a holistic understanding of how lighting and cameras can respond to differing levels of eumelanin in skin.81 How would a photography-­to-­be work if it instantiated another sense of Wexler’s revenant, in trying to be with light differently? A revenant from the alterity of encountering light outside an aesthetics of whiteness that affixed an image. It is possible to imagine the imperfectly calibrated light caught in that first daguerreotype in nonequivalence to that which Douglass absorbed while he sat, to the varied sources in our classrooms, screens, galleries. Thinking through light as moving waves outside a special relation to whiteness aligned with a proprietary logic and without the impulse to detect intentions is one way to think of photographs as disruptions that only a viewer can activate, but a viewer who is willing to work to unthink the “common sense” of looking. Thinking through alternate relations to light’s multiple dynamics might be one way to carry out the affective labor Campt describes as one aspect of a Black gaze. Campt writes, “It is a Black gaze that does not allow its viewers to be either passive to its labor or impassive to its affects. It is a gaze that demands the affective labor of juxtaposition.”82 The “affective labor of juxtaposition” might reorient us toward light as both working out of and a working into. As Rizvana Bradley has suggested while thinking with 213

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contemporary film, is it possible for us as students to “consider black corporeality . . . as an open-­ended challenge to the general grammar of human sentience under which the constellation of the forms of human expression we commonly refer to as gesture, fall”?83 Bradley proposes a theory of gesture as “antichoreographic,” where, nonetheless, “black quotidian gestures are irreducibly felt.”84 Thinking with Campt and Bradley, after Ferreira da Silva’s proposition, in King’s revisitation of Spillers’s poetics of flesh, along with Jackson’s and Womack’s insights, can we ask what other relations there can be to the materiality of light and its actions, absorption, and reflection, when involuntarity is no longer a critical limit point for legibility, “the grammar of human sentience” presumed to qualify as an expression? Do the terms of what’s possible to sense (rather than to see) morph? Sitting with these theorists and with the constitutive indeterminacy of images is an opportunity to reengage epistemological presumptions and projections with every viewing. In his portraits, Douglass’s expression, read as expressionless, could be an invitation to “avow our ability to say nothing,” but not because there is nothing to say.85 Expressionlessness as in waiting, as in a snub that keeps unfolding, which doesn’t mean arriving, but keeps unfolding, waiting to be held rather than read, as an emblem of waiting, forestalling, insisting without a singular direction. Perhaps a modality like expressionlessness in his portraits could be a marker (that is not a certain sign) of solidarity with the millions whose expressions were then and are yet constrained by violent threat and force of law. A revenant depending on who is “we,” reading now, reading in our classrooms, and depending on when and when and when. In sitting with and repracticing a photographic encounter not as a stage from which to discern expressions like police detectives that believe in and replay an aesthetics of whiteness, but rather as a mode of unraveling scripts toward “nothing to prove”? Light is an interaction that makes luminous its effects even without appearance, resemblance, vision, or a singular expression. Is there yet room in working with images of Douglass and others, to make more space in which to struggle with what is shared and not shared inside a distance, through spacetime moving with the multiple activities of light that transform more than transparently reveal? Contending with the layered dispossessions on which racial capitalism relies in when-­time, which is the verge of a question and the edge of another mode, where and when the burdens to prove and express have been recalibrated. 214

CODA Relations beyond Property

Inextricable from its disciplining and dispossessions, power has an aesthetic life. No matter the intended ends, power’s aesthetics are ever exceeded by liveliness, and the same aesthetics can also exceed power’s use. Thinking with questions that studies of racial capitalism raise, I explored the narrated and experienced horizons of intention as central to how jurists defended holding property in images and debated the existence of a right to privacy in changing media environments and growing markets in information. In these stories, law-­making worked through a series of speculations that became legal pronouncements. These legal propositions, while not determinative of living, set up parameters for archives, both those that accumulated as images and the critical genealogies scholars have used to read them. American courts not only adjudicated a changed ecosystem of visuality but, in presuming whitened legal subjects, produced the forms for property rights in images through which whitened people could be subjects of racialized capital without becoming subsumed by it. Whitened reputations would not be made fungible through mechanically reproducible images for another’s profit. They would be protected through a privacy right overdetermined as exclusionary by governmental investments in racial imperial surveilling projects and logics of criminality.1 What has mattered to this book is how that legal work functioned through an aesthetics of whiteness that relied on specific understandings of expression, even as that term was in motion in relation to photography and circumscribed by the impulse to profit. The aspect of whiteness I’ve elaborated—­a “culturally specific” aesthetic code dependent upon the speculative assertion of control over one’s unintended aspects while also presuming “transcultural” control over their possibilities for signifying—­ joined here with the future orientation of capitalist logics of making prop215

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erty relations where there were none before.2 I’ve given close attention to the overlapping colonial intimacies in three local legal scenes. In these, to use Edelman’s formulation, photography “surprises the law in the quietude of its categories.”3 What mattered to my reading practice was showing how an aesthetics of whiteness traveled and morphed through the legal scripts with which it came into contact. I mobilized these readings as instances of racial capitalism’s reproduction in the allotment of property rights through that aesthetic code, even as the subjects in the cases had varying claims to whiteness as an identity by way of birthplace, nationality, class, gender, or sexuality. That property rights in images intertwined with privacy rights in terms of an aesthetics of whiteness transformed privacy into an iteration of a property protection that whitened people could collect on. Anne Cheng has explained, “In the nineteenth-­century courtroom, ‘race’ turns out to be a drama of re-­codable surfaces and metaphoric displacements.”4 If the people who are displaced through the commodification of homelands as property, the people who migrate and are racialized into versions of disposable life, and the people formerly held as racialized property were going to participate as wage-­earners, markets would need mechanisms through which to ensure that whitened people would continue to amass wealth and well-­being disproportionately. The making of photography into a protected form of property would go on to shape the access image-­worlds had to some and not others, the access to profit from those image-­worlds to some and not others, and the access to protection from errant image-­ worlds encroaching on the capacity to enjoy a private life whose parameters only some could choose. This does not mean, of course, that there were not other imaginings all along, even if in this particular book those potentialities could only glimmer. Those who were newly whitened and subject to markets constituted through information and reproduced images needed multiple forms of insurance against them. More, because whiteness became financialized through markets in commercial credit, its protection in courts through the protection of reputations in whiteness guarded whiteness not just as a property interest, but as an intangible asset. I have tried to encounter these archives toward answering how that insurance and abetting took place.5

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To capture the multiple registers and scales of the material and symbolic in these cases, this book has been interdisciplinary not as a method in and of itself, but as a matter of course, out of twinned allegiances to archives and our contemporary moment, in a shared and troubled profession (rather than a particular field). My work animated the dynamic interstices of visual studies, literarily inflected approaches to photography, law and humanities, and studies of race through a series of linked mise-­en-­scènes, rather than delimiting the scope of any field and proposing the service of any one to the other. That is, this book has tried to make available for thought what the conscription of fields might not. If I have arrived at the end of this book successfully, I have shown some of the subtle aspects of surveillance racial capitalism as we now experience their aftermath in the metrics of privacy, publicity, and copyright. * By way of concluding, I bring my attention to Harvard’s potential return of a daguerreotype from its collections. As I see it, the work in this book helps contribute to the case for that return by showing how an aesthetics of whiteness was central to the legal imaginations that articulated privacy and property rights in images. In the best case, when you’re reading this, the daguerreotypes of Renty and Delia will be at home. One beginning to the story zooms in on markets in kidnapped people and the patchwork of laws, systemic violence, and abstracted logics of value that kept kidnapped people and their generations enslaved and profitable. Another potential beginning is Louis Agassiz looking for subjects to prove what he’d already pronounced in Boston: that “kinds” of people evolved from different ancestors in deep time.6 Yet another is any of the nights Mattye Pearl Thompson would tell her daughter Tamara and her granddaughter Shonrael P. G. Lanier bedtime stories about “Papa Renty.”7 Another is how a group of enslaved people came to find themselves in front of Joseph T. Zealy’s camera in his Columbia, South Carolina, studio.8 A fifth is the more than a century that passed between that day in the photographer’s studio and the day in 1976 when the plates were rediscovered.9 Or one could start with Dr. Robert Gibbes, “a locally prominent physician, paleontologist, and mesmerist,” labeling the fifteen daguerreotypes for Agassiz, including the “details” that Delia was Renty’s daughter and

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Drana was Jack’s.10 Still another is Tamara Lanier working with genealogists and plantation logs, coming to figure out that the “Papa Renty” of her family’s stories is the man labeled Renty in one of the daguerreotypes, and the decade she’s been fighting with Harvard to get it back. Or the episode where Harvard sues Carrie Mae Weems for reimagining the daguerreotypes in the series From Here I Saw What Happened and I Cried. You might open with any of Sasha Huber’s “reparative interventions,” like renaming a summit in the Swiss Alps Rentyhorn. Or you might also start with quotation marks signifying the duplication of phrases like “appraised at” in inventories of enslaved people. There are still other beginnings to choose. The one I choose echoes the stories in this study of how an aesthetics of whiteness joined the right to privacy to property rights in images. A crucial aspect of Tamara Lanier’s suit against Harvard is that the well-­ known daguerreotypes and their reproductions have been used by scholars and artists to reencounter the history of enslavement and its afterlives—­as illustrations, critical entry points toward other imaginings, sometimes with care, sometimes not. Lanier has been represented most recently by Josh Koskoff, and previously by Benjamin Crump, who has worked with the families of some of the too many Black and Brown people killed by police. In the summer of 2022, the Massachusetts Supreme Judicial Court dismissed Lanier’s property claims but upheld those of emotional distress. This follows Justice Camille F. Sarrouf ’s finding the previous year, that because Renty and Delia did not own their image when it was taken, Lanier did not have a property claim. I wonder whether there are grounds other than property on which Harvard might return the daguerreotypes to Lanier and her family. Given the unequal histories mapped out in this book from which a right to privacy arose, and the way Native scholars and advocates are refiguring privacy to claim ancestral objects held by Harvard and institutions like Harvard, might there, instead, be a form of repair for ancestral and ongoing violations of the family’s privacy? Harvard justifies its continued retention of the images, in part, through the idea that their availability to scholarly inquiry in perpetuity is a moral good. But this presumption of moral good has been flagrantly challenged by the discovery of human remains of African-­descended people in the Peabody Museum’s collections.11 Here is where important work by Native scholars and advocates to reclaim ancestral objects and images offers a framework for a more expansive understanding of privacy’s violation (in 218

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addition to the important Native American Graves Protection and Repatriation Act). Legal scholar Trevor Reed (Hopi) suggests that “some forms of culture must necessarily be forgotten for a community to fully live. The right to collectively forget is vital in our data-­saturated world, and all the more so for colonized communities whose ancestors’ voices and likenesses continue to be held by settler institutions.”12 In a context where remembrance and archival uncoverings have been crucial to strivings for social justice, this might seem counterintuitive. Reed positions “the right to collectively forget” against and from inside histories of settler institutions taking objects for “study” and “documentation.” He contrasts this history with the more stringent European protections of privacy in the “right to be forgotten.” Reed describes specific conditions in which it’s been the choice of some “Indigenous authorities . . . to let some of our culture die.”13 In addition to an unquestioned sense of availability for scholarly inquiry as a moral good, Harvard’s language justifying holding the daguerreotypes has been about specialized “care” because they are incredibly fragile.14 The small cases are kept in cool, temperature-­controlled rooms and they are brought out sparingly, with stringent protocols for how often and how much time between viewings and prolonged exhibitions they will be shown.15 They are as sensitive to light as they are to temperature. Given just these conditions, it is a fiction that keeping the daguerreotypes at Harvard means that they are universally available. They are not. The point is that when Harvard continues to own the images, the institution sets the terms for their availability while also claiming that they are more available stored at the private institution in Cambridge. In parsing these modes of specialized preservation, Reed looks to Lisa Stevenson’s work for how she “explores the disjuncture between Inuit modes of care and the serialized, ‘anonymous’ way of caring espoused by the Canadian bureaucracy.”16 Institutional propositions of specialized care presume that no care would be offered were objects returned. Institutional preservation assumes that preservation away from intimate relations and for scholarship is a higher good. The point to emphasize is Reed’s recounting of the choice to “let parts of culture die.” That choice, Reed carefully explains, happens only in thick relation and opposition to how institutional preservation began and continues “outside modes of Indigenous care.”17 Reed offers an alternative to institutional orientations wedded to 219

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notions of permanence by way of accumulation through dispossession, and an alternative understanding of connection and learning in relation to precious, fragile objects. He reimagines a right to privacy as a kind of “forgetting,” where the ability to forget is a potentiality rather than only absence or loss, even if that potentiality is also melancholic. He moves through one example from the Hopi community where he is a member, where certain ceremonies and rituals are forgotten and become new through their absence, and become references in newer cultural expressions, which, through collective remembering, acquire profound meanings as they lose their particular temporalities and yet retain their effects. Indeed, though our present generation may lose direct access to the entirety of forgotten ceremonies and their associated songs, the voices that sing them continue on in other times and places. In this way, forgotten knowledge remains whole, resisting distortion or alteration outside of the necessary authorities.18

Reed reminds that “the balance between Indigenous dignity and American free speech must account for duties the United States owes to Indigenous peoples as a result of American colonization.”19 The point here is not to mark an equation between the instances of forgetting Reed describes and the potential return of the daguerreotypes to Lanier. Instead, Reed’s theorizations of privacy as a right to forget help surface a more expansive ground for a right to privacy: a “legal unconscious” far beyond, for one, Holmes’s imagination. This expanded sense of a privacy right could allow that Renty is a live relation for his family. As Azoulay writes in her amicus curiae brief (one of many submitted in the case), “The court’s initial decision assumes that all that is left of Renty and Delia, and all that the daguerreotypes ever took, is their image on a metal plate.” She continues, “This history of object restitution should be seen as a form of historical accountability and the photograph perceived as a social document, not an object to be possessed. . . . The daguerreotypes are not property that can be owned but ancestors who need caretaking.”20 The brief has been endorsed by twelve scholars, among them Kimberly Juanita Brown, Eduardo Cadava, Carlos Guerra, Saidiya Hartman, Marianne Hirsch, Fred Moten, Christopher Pinney, Brian Wallis, and Laura Wexler. 220

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Rethinking a right to privacy alongside Reed’s articulation of a Native right to choose what might be forgotten and the account offered in this amicus brief offers a potential opening for restitution for Lanier and her family, including the daguerreotypes.21 I wonder whether a reimagined right to privacy might emerge, where privacy is not ahistorically presumed as a neutral account of autonomy or control over information, and not linked to an individual lifetime, as it was so often in those late nineteenthand early twentieth-­century cases. Both autonomy and privacy were imagined in law from within conditions of domination in order to more effectively distinguish between those who could be surveilled and those whose intimacies would be spared the state’s vigilance. Instead, Renty and his relations might be afforded some small visual rest, some incomplete peace in the belated recognition granted by a reinvigorated right to privacy, a right to remain unpublicized and unstudied by eyes seeking to claim. Recognizing a reimagined right to privacy for Renty and his family could open relations beyond property to some otherwise than extractive value, a mode of relation closer to care than through understanding meaning in images as dependent on extraction, too. Privacy not in order to control others’ capacity to interpret one’s life, but rather a right to privacy that recognizes how it was first forged at the precarious edge of an inequitable world where multiple registers of images and their ownership have helped make and maintain it just so. With its self-­image as an intellectual leader in mind, Harvard could broaden its own frame of reference for justice beyond those circumscribed in jurisprudence about images, shaped by the workings of racial capitalism that would have denied Renty and Delia claims to freedom, well-­being, property, or privacy, as Azoulay’s amicus curiae brief also notes. Could Harvard find an imagining that these daguerreotypes are owed the respite of residing with the relations to which their earthly lives gave life, more than at the service of an institution that authorized their being taken under compulsion and as part of perpetual servitude in the first place? Harvard could choose a reparative gesture, however belated, however insufficient. Even a piecemeal and impossible privacy expands what a claim to privacy in the present might offer. On holding the images for the social good of scholarly inquiry: there is no conflict with returning them. There are innumerable reproductions of the daguerreotypes that scholars can use, in addition to their reimagin221

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ings by contemporary artists. Yes, these are not the same. But were these daguerreotypes to be returned, that new intimate archive would be yet another opportunity to reencounter questions about the afterlife of slavery and the images that touched those histories and kept remnants of the effect of nineteenth-­century light. Better relations for scholars might emerge if Harvard passes on the daguerreotypes to the Lanier family, further enabling scholars to reimagine our encounters with what we study. Scholarly praxis could be reinvigorated if the daguerreotypes were offered this incomplete, never-­enough, and too-­late measure of privacy. It’s imperfect. But in this instance, the choice is available for Harvard to imagine abiding relations beyond property, to model some other path of the law, and some other calculation for learning, non-­equivalent to the dispossessive imperative of compounding wealth. Philadelphia October 2022

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Ack now ledgments

It can take time to figure out what to live into, and which parts to try to write otherwise than. What else but to keep learning? For me, nothing is obvious, even about how to acknowledge the precious relations who made work possible and enjoyable, and the twists of fate that meant I could write. They have my gratitude in every register and realm. In a basic way, this work would not have happened without institutional and financial support, more of which should be available in much more equitable ways for the slow and steady work of making thinking in every form. I’m grateful for the Mellon Mays Undergraduate Fellowship, the David Rockefeller Center for Latin American Studies at Harvard University, Princeton University’s History Department, the Técnologico de Estudios Superiores de Monterrey en Guadalajara, the English Department at the University of California at Berkeley, Mellon-­SSRC Graduate Initiatives, the Mellon Foundation University Fellows Travel and Research Grant program, the Ford Foundation, the National Hispanic Center, the Center for Southwest Research, the New York Public Library Short-­ Term Fellowship Program, the Wallach Prints and Photographs Division at the New York Public Library, the Graduate Division at the University of California at Berkeley, the Association for the Study of Law, Culture, and Humanities, the Dartmouth College Futures of American Studies Institute, C19: The Society of Nineteenth-­Century Americanists, the American Studies Association, the Law and Humanities Junior Scholars Workshop, the Mellon Mays programs at the University of California at Berkeley, Stanford University, Columbia University, and Barnard College (without the Columbia and Barnard MMUF Monthly Writing Retreat Series in particular, writing would have gone much more slowly and with less joy), the Provost’s Postdoctoral Fellowship at Duke, and the Princeton Society of Fellows in the Liberal Arts. Several grants from the Princeton University Committee on Research in the Humanities and Social Sciences were crucial for the last bits of archival work. With additional thanks to 223

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Princeton’s Dean of Faculty, the Princeton Council in the Humanities, the Lewis Center for the Arts at Princeton, the Princeton Center for Human Values, the Barr Ferre Foundation Publication Fund through Princeton’s Department of Art and Archaeology, and the Princeton Art Museum for supporting my work in countless ways. The staff of Firestone Library were heroes many times. Huge thanks to Mellon Mays fellows Sasha, Marti, Jarvis, Sa’ed, Wes, Mariel, George, Michael, Angel, and many others. Ford fellows who shared wisdom (Kimberly, Ula, Koritha, Rashawn, and many others): thank you. I have thankfully found incredible mentors and supporters: Elisa, Stephen, Priscilla, Dirk, Leigh, Liz L., Anna S., Diana, Bill, Eduardo, Mary, Simon G., Simon S., Susan S., Tamsen, Anne C., Aisha, Beth, Judith H., Judith W., Rachael, Reg, Rosina, Zahid, Gayle, Julie, Eric, Jen M., Gabe, Ranji. At several important moments, Bedour Alagraa, Liz Ault, Carolyn N. Biltoft, Eduardo Cadava, Anne Cheng, Andrew Cole, Nijah Cunningham, Rachael DeLue, Ashley Farmer, Diana Fuss, Bill Gleason, Judith Hamera, Dirk Hartog, Josh Kotin, Maya Kronfeld, Russ Leo, Beth Lew-­Williams, Dana Luciano, Liz Lunbeck, Paul Saint-­Amour, Simon Stern, Elisa Tamarkin, Kyla Wazana Tompkins, Priscilla Wald, Autumn Womack, and Eric Zinner offered critical insights. Specific questions Leigh Raiford and Jecca Namakkal asked shaped this book for the better. And extra shouts to B. T. Hayes’s proofreading work. My thanks for the intellectual generosity of so many extend beyond this book and could be its own book. The team at New York University Press, especially amazing series editors David, Elizabeth, and Priscilla, and Eric and Furqan: thank you for lending my work your brilliance. And Eric especially, thank you for being in this project’s corner. I am also wildly thankful for all the chosen families and beloved friends I’ve found in each place: Team Fam (Johanna, Okwui, Jessica, Kamala, Frances, Tom, Sheldon, Danielle, Jason, Jason, Jason, Kyle, Lindsay, Maleka, Melanie, Michaela, Padmini, Savannah, Ashley, and so many more hearts) and Extended Team (Barrington, David, Jessica, Marvin, Matt, Najam, Scott, Wayne); Lady Wolf Pack (Chondita, Deena, Alexis, Jen, Sarah, Ana, Alex); Carolyn; my Bay Area Fam (Irene, Nico, Lili, Pequod, Pepita, Sasha, Summer, Sarah, Swinton, Jiro, Jerry, Nancy, Aaron, Megan, Gillian, Rebecca, Gina, Bharat, Jen, Micha, Yomaira, Tacuma), most of 224

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whom have long left the Bay; the MVPs of SOF (Ale, Ava, Corey, Rumi, Kasra, Bernadette, Issa, Nico, Rudy, Justin, Maria Paula, Nijah, Stefan); Jersey buddies (Anna A-­K, Autumn, Larry, Christina, Cosmo, Irene, Paul, Goji, Dan-­el, Missy, Lu, Robbie, Russ, Lucy, Andrew, Dora, The Lion, Josh, Konstantin); dear friends I made in Durham, Ashley (the best writing buddy), Liz, Jecca, Marisol, Delancey, Essex, China. Kyla, thank you. Tiffany, thank you. Special thanks to Horror Movie Club, Music League, Medicare for All trivia team, and the Cat News thread. Abue, cuando te busco, sé que me dejas encontrarte. Love you, Ma and Dave. The rest of my playful, faraway families confirm that love exists outside time and geography. An extra note of thanks to Cat and Luna. And, finally, thank you for reading what you decide to read. I hope that what I offer might open space for questions you’d like to be dedicated to, no matter how you get there or how long it takes. In the best case, this book will have been for you. We don’t usually write these kinds of books as love letters, but what if, much more often, we did?

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Notes

Preface

1 This image is one in a collection of various series. I first encountered this image and those series at the Cartes-­de-­Visite Collection in the Prints and Photographs Division at the Schomburg Center for Research in Black Culture. 2 “Malleable and promiscuous” is the precise phrasing of Tapji Garba and Sara-­Maria Sorentino. Garba and Sorentino, “Slavery Is a Metaphor,” 769. Their article is a response to Tuck and Yang, “Decolonization Is Not a Metaphor.” Robert Nichols distills various genealogies of the term “dispossession” in Theft Is Property! Tiffany Lethabo King has proposed the “shoal” as an analytic “offshore” between land and sea, to “put Black studies into productive friction with settler colonial studies.” King, Black Shoals, 19; Karuka, Empire’s Tracks, 157. 3 Johnson, Wicked Flesh; Jennifer L. Morgan, Laboring Women; Jennifer L. Morgan, Reckoning with Slavery; Davis, “Reflections on the Black Woman’s Role”; White, Ar’n’t I a Woman? 4 Historian Mary Niall Mitchell has done important archival work about this group. Mitchell, Raising Freedom’s Child. See also Hills, “Painting Race.” 5 Leigh, “White and Colored Slaves.” 6 Two examples of these narratives include Hiram Powers’s statue The Greek Slave (after original of 1844) and Erasmus Dow Palmer’s The White Captive (1858). Darcy Grigsby notes the differences between images of these children and Sojourner Truth’s. Grigsby, Enduring Truths, 30–­32. The carte I discuss could be read productively through Brigitte Fielder’s theory of race in which she “turn[s] to queer theorizations of time in order to describe the non-­heteronormative, nonbiological models by which genealogies of interracial kinship (re)construct race.” Fielder, Relative Races, 3. An important counter-­a rchive to these images is that of African American photographers and African Americans’ alternative uses of photography. The influence of Deborah Willis’s 2000 exhibition Reflections in Black on studies of these archives cannot be overstated. See Dinius, Camera and the Press; Fox-­A mato, Exposing Slavery; Willis and Krauthamer, Envisioning Emancipation; and Gonzalez, Visualizing Equality. 7 Mary Niall Mitchell, Raising Freedom’s Child 69–­72; Wexler, Tender Violence, 101; Daphne Brooks, Bodies in Dissent, chap. 1; Jo-­Ann Morgan, “Uncle Tom’s Cabin” as Visual Culture; Bernstein, Racial Innocence.

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Notes

8 For an account of New Orleans Afro-­Creole campaigns for public schooling, see Mary Niall Mitchell, Raising Freedom’s Child, chap. 5. 9 Daphne Brooks, Bodies in Dissent, 40, 41. 10 Browne, Dark Matters, 102. 11 I use cognates of the phrase “people who think they are white” from James Baldwin and “whitened people” from Zakiyyah Iman Jackson interchangeably. Both emphasize the category’s constructedness as distinct from other categories of identity. See Baldwin, “On Being ‘White’”; and Jackson, Becoming Human. 12 For an important study of Black soldiers’ experiences in the Civil War through photography’s archives, see Willis, Black Civil War Soldier. For an account of Black image-­makers during the Civil War, see Gonzalez, Visualizing Equality, chap. 6. 13 Grigsby productively reads the copyright declarations on the back of this card in terms of a “jostling for possession.” Grigsby, Enduring Truths, 136–­37. 14 So notes Grigsby: “The Northern abolitionist rhetoric here pretends to turn slaves, once property within a slave economy, into students who are fully assimilated into a democratic (and literate) civil society.” Grigsby, Enduring Truths, 137. 15 Jennifer L. Morgan, Laboring Women, 10. 16 Hartman, Scenes of Subjection, 125. 17 Jennifer L. Morgan, Reckoning with Slavery, 17. These were the initials of Valson Bozonier Marmillion, per Browne, whose work “question[s] how the intimate relation between branding and the black body—­our biometric past—­can allow us to think critically about our biometric present.” Browne writes of a different carte-­de-­ visite of Chinn taken by Myron H. Kimball, “an official photographer for the Freedman’s Bureau.” Browne, Dark Matters, 90, 92, 93. 18 Grigsby, Enduring Truths, 138. 19 Building on Spillers and Hartman, Lauren Heintz explains of girls with similar histories that a girl was “worth most” when she was “still a girl—­because her maturity as a value coincides not with physical maturity but with adolescence—­she more closely resembles a speculative asset, monetized in terms of a prospective yield and ‘securitized’ against risk.” Heintz, “Fugitive Performance,” 706. See also Jennifer L. Morgan, Laboring Women; and Painter, “Of Lily, Linda Brent, and Freud.” On New Orleans in particular, see Baptist, “Cuffy, Fancy Maids, and One-­Eyed Men”; and Johnson, Wicked Flesh. 20 Leigh, “White and Colored Slaves.” 21 Mary Niall Mitchell analyzes images of these children in these terms in Raising Freedom’s Child. 22 Heidi Morse writes, “instead of privileging the highly trained teacher or the exemplary orator, freedpeople used established routes of oral transmission to share lessons with friends and family.” Morse, “Beyond Reading, ’Ritin, and ’Rithmetic,” 288. 23 Campt, Listening to Images. 24 Hartman, Wayward Lives, Beautiful Experiments, xiv. 228

Notes

25 Best, None Like Us, 20. 26 Mary Niall Mitchell, Raising Freedom’s Child. 27 Womack, Matter of Black Living, 145. 28 In her study of snapshot photography, Catherine Zuromskis has argued that “the personal narrative behind the snapshot” has seemed to “limit the substance of the scholarship precisely because it is too personal.” Rosa here also offers an alternate vantage on the periodization of photography. Zuromskis, Snapshot Photography, 40. 29 “Where the future is nesting” is one of Walter Benjamin’s famous formulations for “the tiny spark of accident” a viewer might seek in photography’s “most exact technique.” I clarify the relationship of this book and my reading practice to that formulation in the introduction. Benjamin, “Short History of Photography.” 30 Hartman, Wayward Lives, Beautiful Experiments. 31 Hartman, “Plot of Her Undoing.” 32 Spillers, “Mama’s Baby, Papa’s Maybe.” 33 My reading has attempted what Hartman called “narrative restraint,” a “refusal to fill in the gaps and provide closure” while deferring to what’s “in excess of legibility and of the law and which hint at and embody aspirations that are wildly utopian, derelict to capitalism, and antithetical to its attendant discourse of Man.” Hartman, “Venus in Two Acts,” 12. Introduction

1 I use the term racial capitalism understanding that its use and meaning are in ongoing revision—­for example, whether the term describes a history, an analytic framework, or both, and how much Cedric Robinson’s limited genealogy of a Black Radical Tradition that excludes women blunts the usefulness of the term itself. Robinson is one prominent originary point for the term, though not of the idea that racism’s and capitalism’s histories are intertwined. The term is primarily used among scholars who work in what Manu Karuka calls the “countersovereign” United States and who study capitalism’s history and forms concentrated in or with ties to the same. That concentration of scholarly inquiry of a phenomenon understood to be global is a question in and of itself. Answering that question or quelling how and when the term might be useful are not my aims in this book. To me, it has been productive to think in terms of racial capitalism to make visible the production/extraction of value in photography at a certain moment in its history—­a s medium, cultural practice, and industry connected to other industries—­f rom within unequal, racialized relations through a legal infrastructure of allocating property rights through terms like expression and arrangement that purport to be neutral standards. At the same time, the term racial capitalism signals the literatures that this book builds on, even as the trajectories of the history of intellectual property, photography criticism, and studies of racial capitalism have not often been so conjoined. Karuka, Empire’s Tracks, chap. 1. 229

Notes

2 For an account of how critics’ focus on the camera’s ideological work left open other modes of encountering photography, including turning toward the affective, see Brown and Phu, Feeling Photography, introduction. The literatures here are vast, but for some examples, see Abel, “Skin, Flesh and the Affective Wrinkles”; Abel, Signs of the Times; Batchen, Burning with Desire; Elspeth H. Brown, Corporate Eye; Campt, Image Matters; Campt, Listening to Images; Chéroux, Since 1839; Chaudhary, Afterimage of Empire; Lily Cho, “Anticipating Citizenship”; Crary, Techniques of the Observer; Kelsey, Photography and the Art of Chance; McCauley, Industrial Madness; Mirzoeff, Right to Look; Pegler-­Gordon, In Sight of America; Pinney, “Sepia Mutiny”; Prodger, Darwin’s Camera; Sheehan, Doctored; Sheehan and Zervigón, Photography and Its Origins; Smith and Sliwinski, Photography and the Optical Unconscious; Taft, Photography and the American Scene; and Thompson, Shine. 3 For a world-­systems account of the Americas in terms of (1) coloniality, (2) ethnicity, (3) racism, and (4) newness, see Quijano and Wallerstein, “Americanity as a Concept.” Where Cedric Robinson’s Black Marxism reaches into medieval Europe, Brenna Bhandar’s Colonial Lives of Property digs in at the formation of settler colonial property regimes to show how forms of abstraction legitimate property (which itself is a transformation of environments into units of fungible land) at the same time that those legitimating abstractions are evidence of the “coproduction of racial value and property ownership.” Bhandar, Colonial Lives of Property, 102. While many scholars build on Robinson’s work, Robinson has not been without critique. For one critique of Robinson in relation to Orlando Patterson’s work, see Ralph and Singhal, “Racial Capitalism.” 4 For some of the crucial work by Black critics about photography, see Best, “Neither Lost nor Found”; Kimberly Juanita Brown, “Regarding the Pain of the Other”; Kimberly Juanita Brown, Repeating Body; Campt, Image Matters, Campt, Listening to Images; Campt, Black Gaze; Cobb, Picture Freedom; Fleetwood, Troubling Vision; Hartman, Wayward Lives, Beautiful Experiments; Moten, In the Break; Raiford, Imprisoned in a Luminous Glare; Sharpe, Monstrous Intimacies; Sharpe, In the Wake; Thompson, Shine; Wallace and Smith, Pictures and Progress; and Womack, Matter of Black Living. 5 At a key moment, Leigh Raiford asked me a question that prompted another kind of looking. This introduction and project are indebted to her intervention. 6 Hartman, Scenes of Subjection, 6. 7 Paul Lawrie describes how in Muybridge’s work, the “anthropometrical grid—­the statistical mapping of the human form—­made its first appearance in American photography.” Lawrie goes on, “The grid emerged from the mid-­nineteenth-­century nexus of photography, ethnography, physical anthropology, and colonialism as a powerful tool of racial-­knowledge production used to demarcate the contours of the ‘civilized,’ white, Western body versus the ostensibly savage body of color.” Lawrie, Forging a Laboring Race, 2. For a history of Kodak’s marketing of nostalgia, see West, Kodak and the Lens of Nostalgia. 8 Barthes, Camera Lucida, 12. 230

Notes

9 Barthes, Camera Lucida, 12, 13, 6. 10 Shawn Michelle Smith has an important critique of Barthes in At the Edge of Sight. For an account of the “optical unconscious” of Camera Lucida, see Wexler, “Purloined Image.” 11 Barthes, Camera Lucida, 13. 12 Barthes, Camera Lucida, 6. 13 Brian Tamanaha argues that a distinction between realist and formalist modes of legal thought is not borne out by history. Tamanaha, Beyond the Formalist-­Realist Divide; Leiter, “Legal Formalism and Legal Realism”; on generic relations between legal realism and fictional realism, see Stern, “Detecting Doctrines.” 14 For the most part, the nineteenth-­century history of American lawyers has yet to be written. One of the most comprehensive accounts is in Friedman, History of American Law, esp. chap. 8, “The Bar and Its Works”; chap. 11, “The Legal Profession: The Training and Literature of Law”; and chap. 12, “The Legal Profession: At Work.” 15 Holmes, “Path of the Law,” 457–­58. 16 Alain Pottage begins his analysis of biotechnology law with a discussion of “legal rhetoric as a techne; that is, as an art, technique, craft or strategy.” Pottage, “Unitas Personae,” 275. 17 Holmes, “Path of the Law,” 462. 18 Ambrosio, “Composite Photographs,” 557. Reaching toward Galton may seem far afield, except that Holmes would later deliver the opinion in Buck v. Bell (1927), in which the Court found for the superintendent of the State Colony for Epileptics and Feeble Minded in carrying out a salpingectomy on Carrie Buck, effectively sterilizing her. 19 Holmes, “Path of the Law,” 467. 20 Holmes inherited the lessons of pragmatists like William James in asserting that “logical method and form” flattered the “longing for certainty and for repose which is in every human mind.” James called belief in “the absolute” a “moral holiday.” James, Meaning of Truth, viii; Menand, Metaphysical Club; Kloppenberg, Uncertain Victory. 21 Phu offers a synthesis of twentieth-­c entury criticism’s suspicion toward photography through Berger, Barthes, Debord, Sekula, Sontag, and Tagg, for whom the medium “masked” ideology “rather than unveiling.” Phu, “Vietnamese Photography,” 288–­89. Miriam Hansen has argued that Benjamin’s notion of the optical unconscious was linked to his conception of the “auratic.” Hansen, “Benjamin’s Aura.” For an account of iterations of Benjamin’s “optical unconscious,” see Smith and Sliwinski, Photography and the Optical Unconscious, introduction. 22 Jameson, Political Unconscious, 19, 21. 23 With appreciation to Kyla Tompkins for pointing me to Sylvia Wynter. I learned much about thinking aesthetics across disciplinary formations from her work leading up to Deviant Matter. Wynter, “Rethinking ‘Aesthetics,’” 242–­43. 231

Notes

24 Spillers, “Peter’s Pan,” 35. 25 My thinking here is also indebted to Chanda Prescod-­Weinstein’s theorization of “white empiricism.” Prescod-­Weinstein, “Making Black Women Scientists.” 26 Angela P. Harris, “Foreword,” vii. 27 For an account of how Marxist and materialist critics shift away from thinking photography with feelings, see Brown and Phu, Feeling Photography, introduction. 28 Many before and after Benjamin have theorized photography’s “spark of contingency,” as in Cartier-­Bresson’s “decisive moment” and Barthes’s “punctum.” Benjamin, “Short History of Photography”; Barthes, Camera Lucida; Cartier-­Bresson, Decisive Moment; Kracauer, Mass Ornament. 29 Buck-­Morss, “Envisioning Capital,” 449–­50. 30 Byrd et al., “Predatory Value,” 1–­2. 31 I learned much about writing with questions from studies of racial capitalism from Bernadette Pérez’s history of migrant workers in Colorado’s sugar beet fields and Tala Khanmalek’s study of “counter-­discourses to biopolitical subjection” at migration checkpoints. Khanmalek, “‘Wild Tongues Can’t Be Tamed’”; Pérez, “Before the Sun Rises.” 32 Lowe, Intimacies of Four Continents, 7. 33 Karuka, Empire’s Tracks, xii. 34 Destin Jenkins, “Ghosts of the Past.” 35 Shamir, Inexpressible Privacy. 36 Hartman, Scenes of Subjection, 26. 37 Hartman, Scenes of Subjection, 10. 38 Azoulay, Potential History. 39 Constance Classon argues that the emerging idea of sensibility that Newtonian understandings of nerves gave rise to was related to class. Working-­class or peasant bodies were “seen as harder and coarser than middle-­and upper-­class bodies.” She argues that photography and other visual technologies heightened the place of the visible body over and against consciousness of the felt body. Classon, Deepest Sense, 173, 183. 40 Ferreira da Silva, Toward a Global Idea of Race. 41 Wynter, “Unsettling the Coloniality of Being”; Spillers, “Mama’s Baby, Papa’s Maybe”; Hartman, Scenes of Subjection; Ferreira da Silva, Toward a Global Theory of Race; Jackson, Becoming Human. 42 Phillip Prodger has called Le Brun’s account “essentially physiological” even as it “contained mystical elements.” Regarding Le Brun’s speech, historian Jennifer Montagu has suggested that it is not clear whether or when these lectures were given, or merely recorded. Hartley’s work was particularly important to my thinking here. Prodger, Darwin’s Camera; Montagu, Expression of the Passions; Hartley, Physiognomy and the Meaning of Expression, 19. 43 Clinton, “Mechanical Reproduction.” 44 This sense of mechanistic excess is present in many nineteenth-century texts about early photographing, including Talbot’s The Pencil of Nature and Oliver Wendell Holmes Sr.’s essays, which I discuss further on. 45 Saltz, “Natural/Mechanical.” 232

Notes

46 Snyder, “Res Ipsa Loquitur.” 47 Poe, “Daguerreotype.” 48 Holmes, “Stereoscope and the Stereograph.” 49 Cadava, Paper Graveyards, 71. 50 Daguerre, “Daguerreotype.” 51 Brunet, “‘American Sun,’” 136; Arago, “Report.” 52 Brunet, “‘American Sun,’” 136. 53 Steve Edwards has reconstructed the patent history of daguerreotyping in England. See the following three works by Edwards: “‘Beard Patentee’”; “Daguerreotype Patent”; and “Why Pictures?” 54 Jonathan Crary argued that earlier interrogations of vision, especially the stereoscope, signaled the transformation of vision from contemplation to self-­ consciousness. Crary, Techniques of the Observer. 55 Andrea Henderson, “Magic Mirrors,” 121. 56 Andrea Henderson, “Magic Mirrors,” 121. 57 Chinn, Technology and the Logic of American Racism, 5. 58 Batchen, Burning with Desire, 62. 59 Novak, “Model Jew,” 60. 60 Galton, “Composite Portraits,” 97. 61 Buck-­Morss, “Envisioning Capital.” 62 Cadava and Cortés-­Rocca, “Notes on Love and Photography,” 8. 63 Henry James, Private Life. 64 Sarah Blackwood connects nineteenth-­century literary experiments through portraiture to explore the mind-­body problem. Blackwood, Portrait’s Subject. 65 Nancy Armstrong, Fiction in the Age of Photography; Blackwood, Portrait’s Subject; Brunet, Photography and Literature; Gallagher, “Formalism and Time”; Novak, Realism, Photography and Nineteenth-­Century Fiction; Orvell, Real Thing. 66 Mirzoeff, Right to Look, 5. 67 For examples of how critics are refiguring the study of realism, see Blackwood, Portrait’s Subject; Maciak, Disappearing Christ; Reckson, Realist Ecstasy; Thrailkill, Affecting Fictions; and Womack, Matter of Black Living. 68 Kelsey, Photography and the Art of Chance. 69 On modernist rhetoric and curation in the early twentieth century, see Crimp, On the Museum’s Ruins; Galassi, Before Photography; Krauss, “Photography’s Discursive Spaces”; and Phillips, “Judgment Seat of Photography.” 70 Steve Edwards, “‘Beard Patentee,’” 387. 71 Lowe, Intimacies of Four Continents, 21. 72 Wynter, “1492”; Wynter, “Unsettling the Coloniality of Being/Power/Truth/Freedom.” 73 Christina Sharpe, in particular, has proposed and practiced a “method along the lines of a sitting with, a gathering.” In a way that has been generative for so many, Sharpe proposes “thinking of this gathering, this collecting and reading toward a new analytic, as the wake and wake work, and . . . plotting, mapping, 233

Notes

and collecting the archives of the everyday of Black immanent and imminent death, and in tracking the ways we resist, rupture, and disrupt that immanence and imminence aesthetically and materially.” Sharpe, In the Wake, 13. Kimberly Juanita Brown, Repeating Body; Campt, Black Gaze; Cobb, Picture Freedom; King, Black Shoals; Raiford, Imprisoned in a Luminous Glare; Womack, Matter of Black Living. 74 In part because of their migration routes, my family did not call themselves or us “Chicanxs.” The affiliation was one I learned later. 75 Fanon, Black Skin, White Masks, xvii. 76 Spillers makes this clarifying point in “Peter’s Pan,” 21, but “hieroglyphics of the flesh” originates in her canonical “Mama’s Baby, Papa’s Maybe.” 77 Autumn Womack’s important book is an important counterpoint to these trajectories. Womack, Matter of Black Living. 78 Lindsay Reckson’s Realist Ecstasy is excellent on this point. 79 Anna Arabindan-­Kesson’s study of “the economic equivalency, established through slavery, between Black people and white cotton . . . to relegate Black lives to raw material” is a brilliant art historical study that carefully thinks through these questions. Arabindan-­Kesson, Black Bodies, White Gold, 18. See also Garba and Sorentino, “Slavery Is a Metaphor.” 80 Jennifer L. Morgan, Reckoning with Slavery, 8. 81 Kracauer, “Photography,” 434. 82 Grigsby, Enduring Truths. 83 Lake, Face That Launched a Thousand Lawsuits, 27. 84 Mensel, “‘Kodakers Lying in Wait.’” 85 Zuromskis, Snapshot Photography, 19. 86 Chéroux, Since 1839, 62–­71. 87 Womack, Matter of Black Living, 121. 88 Chéroux, Since 1839, 30. 89 Eduardo Cadava writes, “There is no artwork or photograph that does not bear the traces of innumerable processes of citation and transformation.” Cadava, Paper Graveyards, 34. 90 Lake, Face That Launched a Thousand Lawsuits, 7. 91 Rebecca Wanzo offers us the term “visual imperialism” in her study of antiblack caricature. It is essential to my argument in chapter 2. Wanzo, Content of Our Caricature. 92 My aims align with Batchen’s suggestion to “trace a history for photography that makes the activity of reproduction its central narrative.” Batchen, “Origins without End,” 75. 93 Jenkins and Leroy, Histories of Racial Capitalism, 10. 94 Garba and Sorentino, “Slavery Is a Metaphor.” 95 Peters, “Legal Performance Good and Bad,” 189–­90. 96 Riles, “New Agenda for the Cultural Study of Law,” 976; as quoted in DeLombard, “The Claims of the Humanitarian, Legally Considered,” 18. 234

Notes

97 See the articles by Steve Edwards: “‘Beard Patentee’”; “Daguerreotype Patent”; and “Why Pictures?”; also Grigsby, Enduring Truths; and McCauley, “Merely Mechanical.” 98 Cheryl I. Harris, “Whiteness as Property,” 1714. 99 Veblen, “On the Nature of Capital.” 100 Allen, “Natural Law, Slavery, and the Right to Privacy Tort.” 101 I came to these literatures under the guidance of Colin A. Palmer, who as much as Stephen Best, influenced my understanding of the conjoined histories of enslavement and capitalism. Baucom, Specters of the Atlantic; Curtin, Atlantic Slave Trade; Jennifer L. Morgan, Reckoning with Slavery; Jennifer L. Morgan, Laboring Women; Palmié, Wizards and Scientists; Robinson, Black Marxism; Williams, Capitalism and Slavery; Wynter, “Black Metamorphosis.” 102 Best, Fugitive’s Properties. 103 Banner, American Property. 104 Carter, “Excremental Sacred,” 153. In forthcoming work that has early articulations in “An Unlikely Convergence,” Carter expands his thinking about the “theological architecture” of the “concept and practice of property as earth destruction.” See Carter’s forthcoming books Anarchy of Black Religion; Religion of Whiteness; and Black Rapture. 105 On the metaphysical presuppositions of law, see Dayan, Law Is a White Dog. 106 Edelman, Ownership of the Image, 25. 107 Barbas, Laws of Image; Igo, Known Citizen; Lake, Face That Launched a Thousand Lawsuits. 108 Miller, Copyright and the Value of Performance, 5. 109 Miller, Copyright and the Value of Performance, 23. 110 Mnookin, “Image of Truth”; Snyder, “Res Ipsa Loquitur.” 111 Abel, Signs of the Times. 112 Gilmore, Golden Gulag. 113 Cheryl I. Harris, “Whiteness as Property.” 114 Jay, “Magical Nominalism.” 115 Azoulay, Civil Contract of Photography. 116 Hartman, “Venus in Two Acts”; Best, “Neither Lost nor Found”; Best, “On Failing to Make the Past Present.” 117 Mirzoeff, Right to Look; Browne, Dark Matters. 118 Daphne Brooks, Bodies in Dissent; Browne, Dark Matters; Campt, Listening to Images and Black Gaze; Cheng, Second Skin; Cobb, Picture Freedom; Fleetwood, Troubling Vision; Hartman, Scenes of Subjection; Raiford, Imprisoned in a Luminous Glare; Sharpe, In the Wake; Tucker, Moment of Racial Sight. 119 Du Bois, Black Reconstruction, 700. 120 Social histories of whiteness include Dyer, White; Erickson, “Seeing White”; Erickson, “‘God for Harry, England, and Saint George’”; Jacobson, Whiteness of a Different Color; Roediger, Wages of Whiteness; and Painter, History of White People. 121 Vogel, Rewriting White. 235

Notes

22 Bernardi, “Voice of Whiteness.” 1 123 Robinson, Forgeries of Memory and Meaning, xii. 124 I’m thinking of Ian Haney López’s canonical White by Law and important scholars like Beth Lew-­Williams, Sherally Munshi, Natalia Molina, and Mae Ngai’s comparatist approaches, which examine how the law produces “racial scripts” for identities: “alien,” white, and nonwhite alike. Haney López, White by Law; Lew-­Williams, Chinese Must Go; Molina, How Race Is Made; Munshi, “White Slavery”; Munshi, “You Will See My Family Became So American”; Ngai, Impossible Subjects. 125 Holloway, Legal Fictions, 4–­5; Toni Morrison, Playing in the Dark. 126 Morrison writes, “the readers of virtually all of American fiction have been positioned as white. I am interested to know what that assumption has meant to the literary imagination.” Toni Morrison, Playing in the Dark, v–­vi. 127 Cheryl I. Harris, “Whiteness as Property.” 128 Vats, Color of Creatorship, 2. For a synthesis of the conscription of citizenship and personhood, see Welke, Law and the Borders of Belonging. 129 Vats, Color of Creatorship, 3. 130 Bhandar, Colonial Lives of Property, 9. 131 Park, “Race, Innovation, and Financial Growth,” 4. 132 Park, “Race, Innovation, and Financial Growth”; see also Park, “Money, Mortgages, and the Conquest of America.” 133 Part of what critics consistently value is photography’s apophasis in concert with performance as ephemeral, as in Peggy Phelan’s foundational elaboration of this aspect of performance at its intersection with studies of visuality. Critics have made important contributions exploring the intersections of labor and markets among theater and photography circles. The photographic studio was, after all, patterned on the theater, “a reduced model of the proscenium stage. . . . Backed by a painted canvas as in the theater, the studio’s confined space was akin to that of neoclassical drama.” Credited with introducing painted backgrounds into theaters, L. W. Sealy was also responsible for introducing accessories to portraiture practices. In addition to the social-­historical connections between studio and stage, other critics have explored similarities among theater and photography’s aesthetics. For Barthes, “Photography is a kind of primitive theater, a kind of Tableau Vivant, a figuration of the motionless.” Still other critics posit photography not as a kind of theater, but rather “theater as a kind of photography (a kind of image-­making), one that is at times more accurate, more ‘photographic,’ more realistic, and more permanent than mechanical photography.” Barbara Lesák asserts that photography was an aesthetic challenge to which Victorian theater responded and Jim Carmody imagines theatergoers as having photographic expectations of performance. Others see resonances between Pictorialist aesthetics and a reconfiguration of dancerly bodies. Phelan, Unmarked; Senelick, “Eroticism in Early Theatrical Photography”; Barthes, Camera Lucida, 31; Novak, “Caught in the Act,” 36. Lesák, “Photography, Cinematography, and the Theatre”; Carmody, “Reading Scenic Writing”; Vedel, “Performance of Pictorialist Dance Photography,” 142.

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Chapter 1. Expression

1 “Chinese at the Photographer’s.” Portions from the San Francisco Chronicle reprinted in “Chinese and Their Photographs,” 2. 2 Kenneth H. Marcus and Yong Chen write, “San Francisco County’s Chinese population in 1890 was 25,833, most of whom lived in Chinatown.” Marcus and Chen, “Inside and Outside Chinatown.” 3 Pegler-­Gordon notes, “It was not until the passage of the McCreary Amendment in 1893 that photographic documentation became a consistent feature of immigration regulation.” Pegler-­Gordon, In Sight of America, 34; Peffer, “Forbidden Families”; Luibhéid, Entry Denied. 4 With appreciation to Beth Lew-­Williams for pointing this out. Anne Cheng discusses Chy Lung v. Freeman (1875), in which Chinese women were understood to be “lewd” upon arrival; the case predated the passage of the Page Act. Cheng, Ornamentalism, chap. 1. On “yellow slavery” see Yu-­Fang Cho, Uncoupling American Empire, chap. 3. 5 Pegler-­Gordon, In Sight of America, 24. 6 Pegler-­Gordon, In Sight of America, 13. 7 Day, Alien Capital, 7–­8. 8 Pegler-­Gordon, In Sight of America, 25. 9 Cheng, Ornamentalism, 3. 10 “Chinese at the Photographer’s.” 11 Kwon, “Evasive Bodies of May’s Photo Studio.” 12 Kwon, “Evasive Bodies of May’s Photo Studio.” 13 Pegler-­Gordon, In Sight of America, 11. 14 Yao, Disaffected, 177. 15 Yao, Disaffected, 177. 16 “Between 1854 and 1859, the department contracted with a commercial photographer to make daguerreotypes of all people arrested in the city. In 1861, the department opened its own photographic studio.” Pegler-­Gordon, In Sight of America, 38. 17 Lowe, Intimacies of Four Continents, 8. 18 Bourdieu, “Making the Economic Habitus,” 27. 19 Taylor and Wald, “Xenopolitics,” 900. 20 Veblen, “On the Nature of Capital.” 21 Veblen, “On the Nature of Capital,” 105. 22 Karuka, Empire’s Tracks, 159. 23 Gates, “Frederick Douglass’s Camera Obscura.” 24 Schuller, Biopolitics of Feeling. 25 Reckson, Realist Ecstasy, 71. 26 Fried, Absorption and Theatricality. 27 Peters, “Penitentiary Performances,” 39. 28 Du Bois, “Souls of White Folk,” 931.

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29 See, for example, Ambrosio, “Composite Photographs”; Azoulay, Potential History; Barbash, Rogers, and Willis, To Make Their Own Way; Cheng, Ornamentalism, chap. 1; Fleetwood, Troubling Vision; Khanmalek, “‘Wild Tongues Can’t Be Tamed’”; Mirzoeff, Right to Look; Peffer, “Forbidden Families”; Luibhéid, Entry Denied; Novak, “Model Jew”; Pegler-­Gordon, In Sight of America; Phu, Picturing Model Citizens, chap. 1; Reckson, Realist Ecstasy, chap. 3; Sheehan, Doctored; Vizenor, Fugitive Poses; and Wallis, “Black Bodies, White Science.” 30 Mirzoeff, Right to Look. 31 Fretwell, Sensory Experiments; Maciak, Disappearing Christ; Reckson, Realist Ecstasy; Schuller, Biopolitics of Feeling; Thrailkill, Affecting Fictions. 32 Daphne Brooks, Bodies in Dissent, 23. 33 Maciak, Disappearing Christ, 20. 34 Reckson, Realist Ecstasy, 67. 35 Veblen, “On the Nature of Capital,” 105. 36 Douglas, “Most Valuable Sort of Property.” 37 Salazar, Bodies of Reform, 17. 38 The soprano “court singer to the King of Hanover” was Delsarte’s student. “Concert of the Philharmonic Society,” 7; “Paris Theatrical Inklings,” 3; “François Delsarte,” 2. 39 Roach, Player’s Passion, chap. 5. 40 Salazar, Bodies of Reform, 122. For Delsartian gestures in silent film acting, see Pearson, Eloquent Gestures, 18–­37. In this period, H’Doubler founded the first dance instruction program in the United States at the University of Michigan. Instead of teaching dance through an “awareness of the relationship between bodily structure and horizontal and vertical grids, H’Doubler’s approach traced the connection between impulse and its kinesiological realization.” H’Doubler, Dance and Its Place in Education, 11; as quoted in Foster, Choreographing Empathy, 45. 41 Daphne Brooks, Bodies in Dissent, 37. 42 Daphne Brooks, Bodies in Dissent, 21. 43 Daphne Brooks, Bodies in Dissent; Hartman, Scenes of Subjection; Lott, Love and Theft. 44 Fischer, “Role of Séméiotique,” 130. 45 The Sterling Daily Gazette of Sterling, Illinois, printed an article entitled “How to Walk,” quoting Stebbins’s Society Gymnastics with detailed instruction: “In walking the forward motion should be made from the hip joint, not from the knee. Disregarding this direction most women, and men, too, move only the knee joint, and simply wabble, instead of walk. It is this false motion, walking from the knee instead of from the hip joint, that makes men’s trousers baggy and wrinkled at the knees.” “How to Walk,” 2. 46 Foster writes, “Men involved in teaching the system focused primarily on its use in oratory whereas women cultivated its application to pantomimes and presentations of posing.” Foster, Choreographing Empathy, 105; Ruyter, Reformers and Visionaries.

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47 Banaji, “Women’s Compilations”; Donawerth, Conversational Rhetoric; Veder, “Expressive Efficiencies.” 48 Donawerth, Conversational Rhetoric, 105. 49 Morse, “Beyond Reading, ’Riting, and ’Rithmetic,” 282. With thanks to Judith Hamera for asking important questions about this archive and pointing me in the direction of Conquergood’s work. Conquergood, “Rethinking Elocution,” 328. 50 This could make sense given Heidi Morse’s assertion that “for students of Webster’s speller, as for Quintilian’s young orators-­in-­training, learning to read is synonymous with learning to speak.” Morse, “Beyond Reading, ’Riting, and ’Rithmetic,” 291. 51 Conquergood, “Rethinking Elocution,” 331; Morse, “Beyond Reading, ’Riting, and ’Rithmetic,” 296. 52 Halttunen, Confidence Men and Painted Women, 96. 53 Lauer, Creditworthy, 16. 54 Lynch, Economy of Character; Poovey, “Writing about Finance”; McClanahan, “Bad Credit.” 55 McClanahan, “Bad Credit,” 33. 56 Lauer, Creditworthy, 6, 5. 57 Lauer, Creditworthy, 9. 58 Lauer, Creditworthy, 6. 59 Lauer, Creditworthy, 20. 60 Lauer, Creditworthy, 50. Historians Marc Flandreau and Gabriel Geisler Mesevage argue that there was something particular about what were called “mercantile agencies” in the United States. Unlike similar agencies that developed elsewhere, “mercantile agencies achieved (‘invented?’) . . . a form of the separation of information and lending—­a ‘commoditisation of credit information.’ . . . Nothing like the successful American mercantile agencies of the nineteenth century ever grew in Britain.” These mercantile agencies “centralised monitoring of borrowers and defaulters, the ability to track commercial reputation.” Flandreau and Mesevage, “Separation of Information,” 214, 215. 61 Salazar, Bodies of Reform, 21. 62 Browne, Dark Matters, 16; Salazar, Bodies of Reform, 16. 63 Mirzoeff, “Artificial Vision,” 1295. 64 Foster, Choreographing Empathy, 105. 65 For connections between body cultures and Delsarte, see Veder, “Expressive Efficiencies.” 66 Ruyter, “Spread of the Delsarte System,” 186; as quoted in Bordelon, “Embodied Ethos,” 108. 67 For more on the Wild West shows in Germany, see Vizenor, Native Provenance, chap. 4. 68 Hillel Schwartz, “Torque,” 72. 69 Timothy Mitchell, Colonising Egypt; Rydell, All the World’s a Fair. 70 “Miriam, Sweet and Fair,” 7.

239

Notes

71 Ruyter, “Intellectual World of Genevieve Stebbins,” 381. 72 In the last year of their matinees, they founded the New York School of Expression; until Stebbins retired in 1907, she served as director. Bordelon, “Embodied Ethos,” 116. The Vicksburg Herald advertised that the New York School of Expression offered over two hundred lectures and “entertainments.” “New York School of Expression!,” 7. 73 “Wild over Delsarte,” 30. 74 “Wild over Delsarte,” 30. 75 Chaudhary, Afterimage of Empire, 97–­98. 76 Daniher, “Looking at Pauline Johnson,” 10. 77 For example, historian Lisa Suter argues that the “neoclassical toga,” which was often worn during these forms of entertainment, “served as a form of semiotic shorthand signifying a multitude of things, ranging from material evidence of the women’s oratorical training (thus evincing bodily their right to speak and be heard) to the nascent desire of some members of the movement to be recognized as full citizens of the state, complete with voting privileges.” Suter, “Arguments They Wore,” 136; Veder, “Expressive Efficiencies.” 78 “Dramatic Pantomime,” 5. 79 “Classic Statue Impersonations,” 10. 80 In 2018 Dan-­El Padilla Peralta and Sasha-­Mae Eccleston convened the “Racing the Classics” symposium at Princeton University, where I became acquainted with Heidi Morse’s work. For Lewis’s engagement with Egyptian antiquity during her time in Rome along with Carrie Mae Weems’s work, see Morse, “Roman Studios.” For an account of Lewis’s work in the context of “fugitive science” practices, see Rusert, Fugitive Science, 107–­11. For an account of the important work Eccleston, Padilla Peralta, and others are doing, see Eccleston and Padilla Peralta, “Racing the Classics.” 81 Bordelon, “Embodied Ethos,” 105. 82 Ruyter, “Intellectual World of Genevieve Stebbins, 387. 83 Ruyter, “Intellectual World of Genevieve Stebbins, 387. 84 Novak, “Caught in the Act,” 44. 85 Biltoft, Violent Peace, 23. 86 Mirzoeff, “Artificial Vision,” 1295. 87 Lauer, Creditworthy, 16. 88 Cavenaugh, “Corresponding with Delsarte,” 134. 89 Cavenaugh, “Corresponding with Delsarte,” 132. 90 Fischer, “Theatre at the Birth of Semiotics.” 91 The Inter Ocean reported that she left Topeka for a “reading tour in the West.” “Theatrical Gossip,” 13. 92 “Why Women Are Beautiful,” 15. 93 Cavenaugh, “Corresponding with Delsarte.” 94 Anna Morgan, Hour with Delsarte, 52. 95 Cavenaugh, “Corresponding with Delsarte,” 139. 240

Notes

96 Cavenaugh, “Corresponding with Delsarte,” 141. 97 Cavenaugh, “Corresponding with Delsarte,” 142. 98 Cavenaugh, “Corresponding with Delsarte,” 140; Stebbins, Delsarte’s System, 466. 99 Maciak, Disappearing Christ, 25–­26. 100 Maciak, Disappearing Christ, 21. 101 Wilder, “Note on the Science of Photography,” 212. 102 Wilder, “Note on the Science of Photography,” 217, 209. 103 Wilder, “Note on the Science of Photography,” 210. 104 Wilder, “Note on the Science of Photography,” 214. 105 Saltz, “Natural/Mechanical,” 204; Daston and Galison, “Image of Objectivity.” 106 Daston and Galison, “Image of Objectivity,” 82. 107 Carol Armstrong, “Cameraless,” 93. 108 Foster, Choreographing Empathy, 105. 109 Foster, Choreographing Empathy, 105. 110 The publication of An Hour with Delsarte was anticipated and/or celebrated in at least the following: “New Books at the Mechanics Library,” Altoona Times, March 28, 1889, 4; “Literary Notes,” Boston Globe, March 18, 1889, 6; “Book Notes,” Boston Post, July 5, 1889, 4; “Literary, News, Gossip and Announcements about Books, Authors and Publishers,” Buffalo Commercial, January 21, 1889, 4; “Delsarte and His Method,” Burlington Independent, January 25, 1889, 4; “New Publications,” Harrisburg Telegraph, April 25, 1889, 2; “New Publications,” Indianapolis Journal, April 8, 1889, 3; “Raiment for the Season,” Indianapolis Journal, November 3, 1889, 9; “An Hour with Delsarte,” Inter Ocean, March 30, 1889, 10; “Belles Taught to Walk, Hundreds of Society Girls Taking Lessons in the Art,” Saint Paul Globe, November 3, 1889, 13; “Leaves and Lessons,” Topeka Daily Capital, February 17, 1889, 6. 111 Anna Morgan, Hour with Delsarte, 52. 112 Anna Morgan, Hour with Delsarte, 56. 113 Anna Morgan, Hour with Delsarte, 53. 114 Daston and Galison, “Image of Objectivity,” 83. 115 “About Women’s Arms,” 14. 116 Foster, Choreographing Empathy, 113. 117 The idea of training muscles would also be important to other branches of self-­ improvement regimes, as Salazar explains: “Organizations such as the YMCA and YWCA and the ‘muscular Christianity’ movement more broadly focused their attention on rehabilitating the character of the nation’s youth through the development of physical strength and the ‘hardening’ of their bodies.” Salazar, Bodies of Reform, 15. 118 Preston, Modernism’s Mythic Pose; Hillel Schwartz, “Torque.” 119 Foster, Choreographing Empathy, 7. 120 Hillel Schwartz, “Torque,” 104. 121 Foster, Choreographing Empathy, 7. 122 Foster, Choreographing Empathy, 7. 241

Notes

23 Foster, Choreographing Empathy, 110. 1 124 Sanburn, Delsartean Scrap-­book, 3. 125 Yao, Disaffected, 184. For an alternative reading of the seeming lack of affect in Chinese head tax photographs, see Lily Cho, “Anticipating Citizenship.” 126 Sharpe, Monstrous Intimacies, 15. 127 Fischer, “Theatre at the Birth of Semiotics,” 381. 128 Sokalski, Pictorial Illusionism, 24; as quoted in Fischer, “Theatre at the Birth of Semiotics,” 381. 129 Sommers, “Modernism at the University.” 130 Stebbins, Delsarte’s System, 11. 131 Ruyter, “Intellectual World of Genevieve Stebbins,” 383. 132 Stebbins, Delsarte’s System, 11. 133 Anna Morgan, Hour with Delsarte, 16. 134 Anna Morgan, Hour with Delsarte, 16. 135 Morgan points to Bacon’s Manual of Gestures, which simplifies Austin’s Chironomia. 136 Anna Morgan, Hour with Delsarte, 74. 137 Anna Morgan, Hour with Delsarte, 17. 138 Anna Morgan, Hour with Delsarte, 62. 139 Anna Morgan, Hour with Delsarte, 43. 140 Anna Morgan, Hour with Delsarte, 17. 141 Anna Morgan, Hour with Delsarte, 8. 142 Anna Morgan, Hour with Delsarte, 11. 143 Salazar, Bodies of Reform, 18–­19. 144 Anna Morgan, Hour with Delsarte, 14. 145 Stacey Margolis has argued that “the American novel treats publicness as a condition of intelligibility.” Margolis, Public Life of Privacy, 14. 146 Anna Morgan, Hour with Delsarte, 15. 147 Thrailkill, Affecting Fictions. 148 Daston and Galison, “Image of Objectivity,” 83. 149 Foster, Choreographing Empathy, 110. 150 Dyer, White, 120, 84. 151 Peter Brooks, Melodramatic Imagination, 28. 152 Fischer, “Role of Séméiotique.” 153 Anna Morgan, Hour with Delsarte. 154 Anna Morgan, Hour with Delsarte, 32. 155 Anna Morgan, Hour with Delsarte, 34. 156 Anna Morgan, Hour with Delsarte, 34. 157 Fischer, “Role of Séméiotique.” 158 Arnaud, Delaumosne, and Delsarte, Delsarte System of Oratory, 467; as quoted in Fischer, “Role of Séméiotique,” 137. 159 Preston calls Delsarte and his students’ work a “semiology of gesture.” Preston, “Posing Modernism,” 219. 242

Notes

60 Foster, Choreographing Empathy, 112. 1 161 Anna Morgan, Hour with Delsarte, 112. 162 Anna Morgan, Hour with Delsarte, 45. 163 Anna Morgan, Hour with Delsarte, 45–­46. 164 “With the Anglo-­Saxon races . . . where a greater evenness of temperament prevails, the gestures are an equable blending of the other two; and all the many classes of men, with their infinite diversity of characteristic movements, are but variations of these fundamental types.” Anna Morgan, Hour with Delsarte, 59. 165 Anna Morgan, Hour with Delsarte, 8. 166 Anna Morgan, Hour with Delsarte, 110, 43. 167 Karuka, Empire’s Tracks, 159. 168 Daniher, “Looking at Pauline Johnson,” 3–­4. 169 For analysis of Johnson’s critique of the fictional trope of Indian women’s “suicidal love” for whitened men and the 1876 Indian Act in Canada, see Piatote, Domestic Subjects, chap. 1. 170 “All Had Their Say,” 7. 171 Eccleston reads a relation between a “futurity of white supremacy” and the way Suzan-­Lori Parks mobilizes financialization’s history. Eccleston, “Medals and Metals,” 25–­26. 172 Gilroy, “Scales and Eyes,” 195. 173 Sarat, Douglas, and Umphrey, Law and Performance; see also the following by Peters: Theatre of the Book; “Law, Literature, and the Vanishing Real”; “Legal Performance Good and Bad”; and “Penitentiary Performances.” 174 Bernstein, Racial Innocence, introduction; Molina, How Race Is Made, 6–­7. 175 Bernstein, Racial Innocence, 12. 176 See by Steve Edwards: “‘Beard Patentee’”; “Daguerreotype Patent”; and “Why Pictures?”; and Batchen, “Double Displacement.” Chapter 2. Property’s Proscenium

1 Anne McCauley writes, “Cursive writing, as a mark of an individual’s hand, had achieved legal prestige as a testament of authenticity in the era after the invention of moveable type . . . . The cursive signature denoted a more personal, chirographic type of authorship in which the body of the maker was invested in the product; its uniqueness and authenticity were functions of its status as a material trace of the distinctive gestures of an equally unique and coherent personality.” McCauley, “Merely Mechanical,” 63. 2 North, “Picture of Oscar Wilde,” 185. 3 Lewis and Smith, Oscar Wilde Discovers America, 39; as quoted in Dumortier, “Oscar Wilde’s Multitudes,” 151; Dumortier, “Oscar Wilde’s Multitudes,” 151–­52. 4 Molloy, “Politics of Posing,” 146. Javier Guerrero has argued that it’s unlikely Martí saw Wilde in person given certain repetitions in his accounts. Guerrero, “Politics of Citing.” For an account of Haverly’s business, including the use of newspapers, agents, and larger companies, see Steiner, “‘Amusement Economist.’” 243

Notes

5 Molloy, “Politics of Posing,” 145. 6 Cadava, Paper Graveyards, 77. 7 Dumortier, “Oscar Wilde’s Multitudes,” 150. 8 Hartman, Scenes of Subjection, 116. 9 Bhandar, Colonial Lives of Property, 3. 10 Mendelssohn, Making Oscar Wilde, 68. 11 Just a few years before this episode, Sarony had paid “Madame Patti” the hefty sum of $1,000 “for the privilege of being the only one in America to take and sell her pictures.” “Late Reports,” 2; also reprinted in “Mr. Napoleon Sarony,” 2. 12 “Copyrighting Photographs,” 1. 13 Krista Thompson’s Shine, although with different archives and aims than mine, shaped my approach to photographic practices. Thompson, Shine. 14 Gaines, Contested Culture; Mnookin, “Image of Truth”; Decherney, Hollywood’s Copyright Wars. 15 This list is by no means exhaustive, but these are some of the earliest cases I found in which photographs were used as evidence to prove the following: (1) the validity of a signature: Luco v. United States, 64 U.S. 515 (1859); Bacon v. Williams, 79 Mass. 525 (1859)—­the witness, Mr. Southwarth, was a photographer and a teacher of handwriting, but did not have time to take a photograph in the time granted; (2) validity or invalidity of a seal on a land grant: Luco v. United States, 64 U.S. 515, 16 L. Ed. 545 (1859); Fuentes v. United States, 63 U.S. 443, 16 L. Ed. 376 (1859); (3) photograph found to be a kind of copy: Butler v. Lee, W.L. 7498 (N.Y. Gen. Term. 1860); (4) identity: the Howland Will case, in which a photograph was deemed insufficient evidence of identity; see “Howland Will Case.” Farley, “Lingering Effects of Copyright’s Response”; Snyder, “Res Ipsa Loquitor.” 16 Grigsby, Enduring Truths, 135. 17 Saint-­Amour, Copywrights. 18 Miller, Copyright and the Value of Performance, 12. 19 Miller, Copyright and the Value of Performance, 5, 4, 9. 20 Bhandar, Colonial Lives of Property, 4. 21 Bhandar, Colonial Lives of Property, 5; Poovey, “Writing about Finance”; Biltoft, “Sundry Worlds within the World.” 22 Miller’s decision did not aim to resolve the question of photographic copyright, but in effect it did. As late as 1991, the Court in Feist cited Burrow-­Giles while deciding that there could be no authorship without creative choices: “Facts do not owe their origin to an act of authorship. The distinction is one between creation and discovery: The first person to find and report a particular fact has not created the fact; he or she has merely discovered its existence. To borrow from Burrow-­Giles, one who discovers a fact is not its ‘maker’ or ‘originator.’” Feist Publications, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991). 23 Dayan, “Legal Terrors,” 42–­43. 24 Chaudhary, Afterimage of Empire, 4. 25 Sheehan, Doctored. 244

Notes

26 Sandweiss, Print the Legend. 27 On nineteenth-­century Indian landscape photographers’ picturesque aesthetics, see Chaudhury, Afterimage of Empire, chap. 3. 28 Daphne Brooks, Bodies in Dissent, 47. 29 Krauss, “Photography’s Discursive Spaces.” 30 Gonzalez, Visualizing Equality, chap. 4. 31 Joshua Brown, Beyond the Lines. 32 Tagg’s account of photography’s legal history focuses on France, where photographers could claim the category of “creative person.” Tagg, Burden of Representation. For how literary copyright diverged from Britain in the United States, see Grigsby, Enduring Truths, 126–­30. 33 For a synthetic account of film as legal evidence, see Louis-­Georges Schwartz, Mechanical Witness. 34 Sherwin, Visualizing the Law. 35 Grigsby, Enduring Truths, 127. 36 Published after Newhall’s History of Photography, Robert Taft’s “social history” synthesis, Photography and the American Scene, is not without its limitations. Taft helpfully distinguishes between copyright and patent struggles. For a discussion of American exceptionalism in Taft’s text, see Brunet, “‘American Sun.’” 37 J. A. J., “Legal Relations of Photographs,” 4. 38 J. A. J., “Legal Relations of Photographs,” 5. 39 J. A. J., “Legal Relations of Photographs,” 6. 40 J. A. J., “Legal Relations of Photographs,” 6–­7. 41 Snyder, “Res Ipsa Loquitur”; Lake, Face That Launched a Thousand Lawsuits, 21–­ 22. 42 Lavoie, “Displaying Forensic Pictures,” 78; Snyder, “Res Ipsa Loquitur”; Louis-­ Georges Schwartz, Mechanical Witness; Murray, Digital Baroque; Goodrich, Legal Emblems. 43 Wigmore, Treatise on the Anglo-­American System of Evidence. 44 Greenleaf, Treatise on the Law of Evidence. 45 Mnookin, “Image of Truth.” 46 Lavoie, “Displaying Forensic Pictures,” 79. 47 Maciack, Disappearing Christ; Smith, At the Edge of Sight. 48 Batchen’s Burning with Desire shows how neither post-­structuralist nor modernist accounts of photography’s history exhaust its “origin stories.” 49 Edelman, Ownership of the Image, 37. 50 Edelman, Ownership of the Image, 38. 51 Hirst in his introduction to Ownership of the Image and art historian Steve Edwards make use of the influence of Pashukanis and Althusser on Edelman’s thinking. Steve Edwards, “‘Beard Patentee,’” 372–­73. 52 Edelman, Ownership of the Image, 38. 53 Edelman, Ownership of the Image, 38. 54 Sontag, Regarding the Pain of Others, 81. 245

Notes

55 Grigsby, Enduring Truths, 126. 56 Edelman, Ownership of the Image, 38. 57 Kracauer, Mass Ornament, 53. 58 Proudhon, What Is Property? Proudhon, as Anne McCauley argues, understood “the social underpinnings of copyright legislation, . . . that all human products are expressions of ideas and the displacement of matter. . . . He attacked the idea of art as property.” McCauley, “Merely Mechanical,” 78 fn. 64. 59 Piyel Haldar argues that photographic evidence in Britain had to “destroy” the photograph, becoming merely “details.” Haldar, “Law and the Evidential Image.” 60 Morris, Declaring His Genius, 1–­2. 61 Peacock (Spirit Lake Dakota), “Account of the Dakota-­US War of 1862.” 62 Mendelssohn, Making Oscar Wilde, 58. 63 Mendelssohn, Making Oscar Wilde, chap. 5. 64 Novak, “Performing the ‘Wilde West.’” 65 For more on Wilde’s use of publicity, see Saint-­Amour, Copywrights, chap. 3. 66 Mendelssohn, Making Oscar Wilde, esp. chaps. 5–­15. 67 The term allows us to “see different racial projects operating at the same time, affecting different groups simultaneously.” Molina, How Race Is Made, 6–­7. 68 Morrison cautions that “the idea that [these scripts] are singularly or ‘authentically’ black limits an understanding of how these sounds came to be formed, both sonically and politically.” Matthew D. Morrison, “Sound(s) of Subjection,” 17. 69 Wanzo, Content of Our Caricature, 2, 4. 70 Mendelssohn, Making Oscar Wilde, 94. 71 Rhea Lynn Barnes has done extensive archival work of amateur blackface minstrelsy for her forthcoming book, Darkology: When the American Dream Wore Blackface. Barnes, “Blackface Hardly New.” 72 Daphne Brooks, Bodies in Dissent, 26. 73 The novel was Francis Hopkinson Smith’s The Fortunes of Oliver Horn. The character Julius Bianchi was based on Sarony. Taft, Photography and the American Scene, chap. 3. 74 Guerrero, “Politics of Citing,” 434. 75 Taft, Photography and the American Scene, chap. 3; McCauley, “Merely Mechanical,” 61. 76 “Napoleon Sarony Dead,” 6. 77 “Talks about Sarony,” 30. 78 Napoleon Sarony, “Nude in Art,” 91; “Our New York Letter,” 8. 79 “Our New York Letter,” 8. 80 “Our New York Letter,” 8. 81 Mendelssohn, Making Oscar Wilde, 68; “Talks about Sarony,” 30. 82 Napoleon Sarony, “Nude in Art,” 91. 83 For the original patent descriptions and drawings, see Oliver Sarony, “Photographic HeadRest”; and Napoleon Sarony, “Improvement in Photographic Rests.” 84 Pauwels, “Resetting the Camera’s Clock,” 488. 246

Notes

85 “Appareil de pose,” 288–­91, and Wilson, “Hour with Mr. Sarony,” 82–­84; as quoted in Pauwels, “Resetting the Camera’s Clock,” 487. 86 Pauwels, “Resetting the Camera’s Clock,” 486. 87 “Photography in the Great Exhibition,” 184; as quoted in Pauwels, “Resetting the Camera’s Clock,” 484. 88 Taft, Photography and the American Scene, 345. 89 “Our New York Letter,” 8. 90 The New York Metropolitan Museum has this advertisement dated in its catalogue as from the 1880s, but the image bears the date 1866. 91 Marvin, When Old Technologies Were New. 92 Napoleon Sarony, “Nude in Art,” 92. 93 Napoleon Sarony, “Nude in Art,” 91. 94 North, “Picture of Oscar Wilde,” 186. 95 Cadava, Paper Graveyards, 92. 96 Burrow-­Giles Litho. Co. v. Sarony, 111 U.S. 55 (1884). 97 Burrow-­Giles Litho. Co. v. Sarony, 111 U.S. 56 (1884). 98 Burrow-­Giles Litho. Co. v. Sarony, 111 U.S. 56 (1884). 99 Trademark Cases, 100 U.S. 82 (1879). 100 Trademark Cases, 100 U.S. 82, 94 (1879). 101 Burrow-­Giles Litho. Co. v. Sarony, 111 U.S. 56 (1884). 102 U.S. Const. art. I, § 8, cl. 8; Burrow-­Giles Litho. Co. v. Sarony, 111 U.S. 58 (1884). 103 Rose and Woodmansee have forged powerful critiques of copyright theory of literary works, arguing that copyright resolved intention and creative labor with “originality.” Rose, Authors and Owners; Woodmansee, “On the Author Effect.” 104 Gaines, Contested Culture, 58. 105 Mirzoeff, Right to Look, 156–­57; Banner, American Property. 106 Grigsby, Enduring Truths, 127–­28. 107 Gaines, Contested Culture, 86. 108 Hirst and Kingdom, “On Edelman’s Ownership of the Image,” 138; as quoted in Gaines, Contested Culture, 82. 109 N.Y. Sess. Laws 1903, ch. 132, secs. 1–­2. Amended in 1921, N.Y. Civ. Rights Law, SS 50–­5. 110 “Copyrighting Photographs,” 1; reprinted in “Oscar Wilde’s Picture,” Eaton Democrat, December 20, 1883, 1. 111 “Politics and Society,” 4. 112 Hargrave, Argument in Defence of Literary Property, 7. 113 Hargrave, Argument in Defence of Literary Property, 7. 114 Russett, Fictions and Fakes, 77. 115 Jefferys v. Boosey; as quoted in Russett, Fictions and Fakes, 79. 116 With thanks to Simon Stern for asking important questions of this section. 117 Nottage v. Jackson, 11 Q.B. 627 (Eng. C.A. 1883); Jaszi, “On the Author Effect”; Jaszi, “Toward a Theory of Copyright”; Rose, Authors and Owners; Saint-­Amour, Copywrights; Woodmansee, “On the Author Effect.” 247

Notes

118 In line with Rose, Farley suggests that an unhistoricized sense of a “Romantic author” remains embedded in copyright decisions. Farley, “Lingering Effects of Copyright’s Response.” 119 Saint-­Amour, Copywrights, 3. 120 Hargrave, Argument in Defence of Literary Property, 7. 121 Drone, Treatise on the Law of Property, 451–­52. 122 In Millar v. Taylor (1769) the House of Lords disputes the Statute of Anne and holds that common law grants perpetual copyright, where the Statute of Anne had placed a limit of fourteen years on copyright. Justice Joseph Yates in his dissent asserted that it was difficult to hold property in an idea the way Drone advocates. For Yates, literature was the ideas. Rose explains that this was because a work of literature was understood to be any written work. What a work of literature was depended on psychology as an association of words and images. The proponents of a common law right to authorship had to prove that a literary work was different from a mechanical invention. Rose, “Author as Proprietor”; Millar v. Taylor, 4 Burr. 2303 (1769). Anne McCauley describes what came to be known as “Hogarth’s Act” “to protect against piracy ‘every person who shall invent and design, engrave, etch, or work, in mezzotinto or chiaro oscuro, or from his own works and invention shall cause to be designed and engraved, etched, or worked, in mezzotinto or chiaro oscuro, any historical or other print or prints’ for fourteen years.” McCauley, “Merely Mechanical,” 60. 123 With thanks to Simon Stern for this observation. 124 Azoulay, Civil Contract of Photography. 125 Drone, Treatise on the Law of Property, 451. 126 Farley, “Lingering Effects of Copyright’s Response.” 127 A few years earlier, Pagano had testified in a different case, where two of his photographs were admitted as evidence to prove the level of congestion at the Southern Pacific Railroad pier, No. 25 North River. It seems likely, then, that Pagano would have been able to hold both a sense of his “timing” as producing an evidentiary photograph and as a creative one, as in the later case. “Commerce Hearing,” 11. 128 Pagano v. Charles Beseler Co., 234 F. 963, 964 (U.S. Dist. 1916). 129 Justice Louis Brandeis’s dissent in International News Service v. The Associated Press (1918) replayed the conflict in Burrow-­Giles, and described what wasn’t a photograph that qualified for copyright as the “mere record of isolated happenings, whether in words or by photographs not involving artistic skill.” Int’l News Serv. v. AP, 248 U.S. 215, 254 (1918), 39 S. Ct. 68, 63 L. Ed. 211 (U.S. 1918). 130 A Georgia court similarly emphasized the “pre-­shutter” activity to prove the “originality” that made a photographer an “author.” Franklin v. State, 69 Ga. 36, 43 (1882 Ga.). 131 Farley notes that Falk was most often represented by his brother, Isaac N. Falk. Farley, “Lingering Effects of Copyright’s Response,” 439.

248

Notes

132 MacDonald, “Talk on Copyright and Fraternity”; Falk, “Photography and Art” and “Protection for Photographers.” 133 Falk v. Schumacher, 48 F. 222, 222–­23 (C.C.S.D.N.Y. 1891). 134 Falk v. Gast Litho. & Engraving Co., 48 F. 262 (C.C.S.D.N.Y. 1891); Falk v. Brett Litho. Co., 48 F. 678 (C.C.S.D.N.Y. 1891); Falk v. Donaldson, 57 F. 32 (C.C.S.D.N.Y. 1893); Falk v. Heffron, 56 F. 299 (C.C.E.D.N.Y. 1893); Falk v. City Item Printing Co., 79 F. 321 (C.C.E.D. La. 1897); Falk v. Curtis Pub. Co., 98 F. 989, 991 (C.C.E.D. Pa. 1900). 135 Grigsby, Enduring Truths, 133. 136 Grigsby, Enduring Truths, 133. 137 Lake, Face That Launched a Thousand Lawsuits, 88. 138 Batchen, “Double Displacement,” 70. 139 Farley, “Lingering Effects of Copyright’s Response,” 440. 140 “Did Sarony Invent Oscar Wilde?”; “Creator of Oscar Wilde,” 1. 141 Gaines, Contested Culture, 206. 142 Punch depicted a caricature of Wilde captioned with lyrics from this song, and with Wilde’s caricatured face drawn into a sunflower’s petals. Mendelssohn notes that the Punch caricature appeared in response to the publication of Wilde’s first book of poetry in 1881. Mendelssohn, Making Oscar Wilde. 143 Jackson, Becoming Human, 35. 144 Jackson, Becoming Human, 11. 145 Jackson, Becoming Human, 10. 146 Burrow-­Giles Litho. Co. v. Sarony, 111 U.S. 54, 55 (1884). 147 Mendelssohn, Making Oscar Wilde, 208–­10. 148 Benjamin, “Work of Art,” 32. 149 Benjamin, “Work of Art,” 32. 150 Kaplan, Strange Case of William Mumler. 151 Banner, American Property, 132–­33. 152 Banner, American Property, 133. 153 This consecration of a property right circumscribed the nature of a photograph in ways that prefigure Azoulay’s articulation of photography’s threat to regimes of property. Azoulay, Civil Contract of Photography. 154 By 1901 Congress extended copyright to “any photograph.” Some of Edison’s earliest cases, such as Edison v. Lubin (1903) (copyright infringement), which was about three hundred feet of celluloid film taken of the christening of Kaiser Wilhelm’s yacht, came up under the inclusion of “any photograph” to the Copyright Act. Not until 1912 were motion pictures considered a separate category of copyrightable work. Decherney, “Copyright Dupes”; Doane, “Facing a Universal Language.” 155 “Oscar Wilde’s Legs Copyrighted,” 1. 156 Napoleon Sarony, “Nude in Art,” 93. 157 Bleistein v. Donaldson Litho. Co., 188 U.S. 239, 251–­52 (1903).

249

Notes

158 American Mutoscope & Biograph Co. v. Edison Manufacturing Co., 137 F. 262 (D. N.J. 1905). 159 Gross v. Seligman, 212 F. 930 (U.S. App. 1914). 160 Jewelers’ Circular Pub. Co. v. Keystone Pub. Co., 274 F. 932 (S.D.N.Y. 1921). 161 Vats, Color of Creatorship, 29. 162 Edelman, Ownership of the Image, 53. 163 Haley, No Mercy Here. 164 Best, Fugitive’s Properties; Hartman, Scenes of Subjection, 7. Chapter 3. Property’s Horizon

1 “Manola’s Tight Trust,” 12. 2 Lake suggests that the omission of the 1888 Bill to Protect Ladies, introduced to the House of Representatives by Congressman John Robert Thomas of Illinois, is a strange one. She goes on to relay that Thomas wrote the bill because the image of President Cleveland’s wife, Frances Folsom, had been widely used in advertisements; Warren’s wife, Mabel, was a friend of the first lady. The bill lost traction in the Judiciary Committee and was not voted on. Lake, Face That Launched a Thousand Lawsuits, 5, 45–­49. 3 Walter Benn Michaels includes facial expressions as one form of “new property” that privacy rights created. Michaels, “Contracted Heart,” 503. 4 In the twentieth century, the rule for privacy crystalized around the slippery ground of its expectation. Sprague, “Orwell Was an Optimist.” 5 Prosser, “Privacy,” 392. 6 With appropriation, one could be liable for using another person’s name or identity in the attempt to gain “some advantage of [your] own.” The core issue was lying/misrepresenting yourself, not the taking itself, which became secondary. Incidental appearances, as in Merle v. Sociological Research Film Corp. (1915) and Damron v. Doubleday, Doran & Co. (1928), were not actionable. Prosser, “Privacy,” 389; Merle v. Sociological Research Film Corp., 166 A.D. 376, 152 N.Y.S. 829 (N.Y. App. Div. 1915); Damron v. Doubleday, Doran & Co., 133 Misc. 302, 231 N.Y.S. 444 (Sup. 1928). 7 Osucha, “Whiteness of Privacy,” 82–­83. 8 Hartman, Scenes of Subjection, 94. 9 Manola sang in British productions before performing in the United States in a production of Erminie at the New York Casino in 1886. The Boston Globe initially did not care for her performance, describing her as one “who sings out of tune and has no idea of action.” At that point, she was still married to Mr. Mould, whom she’d met in Cleveland; she was born in New York. “Musical and Dramatic,” 6; “‘Erminie’ a Success,” 4; “Minor Mention,” 5. 10 “He Published the Morey Letter,” 1; “Green Room Gossip,” 11; “Drama in America,” 10; “Castles in the Air,” Boston Globe, September 16, 1890, 2; Byrne obituary. 11 “Gotham Gossip,” 9. 12 This description of the production was published after Manola left the company. Anna O’Keefe had taken over in the role of Bul-­Bul. “Amusements,” 7. 250

Notes

13 “Latest Gossip Concerning Music,” 11. 14 For a layered history of racial hierarchies in Martinique, see Schloss, Sweet Liberty. Schloss analyzes the disidentifications among Martinique’s petits blancs, Creoles, and colonial administrators. For an older, but useful structural-­Marxist account of the slave economy in Martinique, see Munford, “Slavery in the French Caribbean.” For an exploration of slave poisoning, see Savage, “‘Black Magic’ and White Terror.” For the Mackau Laws’ introduction through legalized slave savings and compulsory slave purchase at the end of the July Monarchy, see Heath, “Self-­Purchase.” 15 Beckles, “Kalinago (Carib) Resistance,” 79. 16 Schloss, Sweet Liberty, 1. 17 Schloss, Sweet Liberty, 4. 18 Schloss, Sweet Liberty, 17. 19 Schloss, Sweet Liberty, 7. 20 Wynter, “1492,” 45. 21 Du Bois, “Souls of White Folk,” 933–­34. 22 [Cervantes], “Los Dos Habladores.” 23 “Pleasant Dramatic Chat,” 4. 24 According to Jones, “Black minstrels [had begun] the work of disrupting such links [between minstrelsy and forms of racial violence] as early as the 1870s.” Jones, “‘Black Below,’” 147, 136. In “The Black Below,” Jones builds on and diverges from Lott, Love and Theft. 25 Manola had had contractual disagreements the previous year, when Stevens was the manager of the McCaull Company. Simpson, Alice May, 151; W. J. Henderson, “Decline of Comic Opera,” 296–­97; “Marion Manola Pouting.” 26 The writer reports having seen “one of her photographs taken three years ago in which a great deal of her was displayed in tights, and these pictures were made and sold with her entire consent.” “Life in New York City,” 8. 27 Peters describes how the new vogue for home theatricals was created through “personal identification with actors (their intimate lives brought home by the newspress), the images of the glamour of the stage reproduced in countless prints.” Peters, Theatre of the Book, 69. 28 “Achievements and Aspirations of Actors,” 10. 29 Glancy, “Privacy and the Other Miss M.” 30 The Oakland Tribune reported that Manola was “easily the most valuable member of the troupe.” Oakland Tribune, February 1, 1890, 11. 31 “Marion Manola’s Sad Fate.” 32 Dramatic Mirror, June 29, 1889, 14. 33 New York Times, September 3, 1894. 34 Humiston v. Universal Film Mfg. Co., 189 A.D. 467, 178 N.Y.S. 752 (N.Y. App. Div. 1919). 35 Lake, Face That Launched a Thousand Lawsuits, 91. 36 Taft, Photography and the American Scene, 149. 251

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37 Glancy, “Privacy and the Other Miss M,” 401. 38 Manola’s voice became injured, her second husband fell into severe debt, and the couple grew increasingly picky about their roles. In the meantime, rumors of an opium habit spread. Manola denied them, even though they were verified by Manola’s “best friends.” It is unclear whether Manola had a drinking or opium habit, or both, or neither. Doctors later credited stress with her final breakdown, rather than the daily injections of morphine. “Marion Manola’s Sad Fate”; “Marion Manola Is Insane.” 39 In Atkinson v. John E. Doherty & Co. (1899) and Roberson v. Rochester Folding Box Co. (1902), courts rejected Brandeis and Warren’s argument. In Atkinson, the Supreme Court of Michigan denied an injunction to stop the defendant from naming a cigar for the plaintiff or placing his likeness on the cigar label, because these were not properly property. Atkinson v. John E. Doherty & Co., 121 Mich. 372, 80 N.W. 285 (Mich. 1899); Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 68 A.D. 528, 64 A.D. 624 (N.Y. 1902). 40 Bratman, “Brandeis and Warren’s The Right to Privacy,” 623. 41 Warren and Brandeis, “Right to Privacy,” 196. 42 Osucha claims that the legal right to privacy was a way to protect whitened womanhood from the commodification to which African American women were subject. In tension with this claim and Lake’s argument, Lawrence Friedman demonstrates that most defamation cases—­t he most common kind of privacy case—­involved men, not women. Friedman writes, “Out of 130 reported defamation cases published between 1897 and 1906, only forty-­t hree were brought by women.” One could imagine that more women brought cases to trial, but dropped them when they lost. The risk of embarrassment for women was greater, at the same time that their resources were likely fewer. Osucha, “Whiteness of Privacy”; Lake, Face That Launched a Thousand Lawsuits; Friedman, Guarding Life’s Dark Secrets, 49. 43 Horwitz dates the transition later than Manola’s case and the publication of “The Right to Privacy.” For Horwitz, Lochner v. New York and Roscoe Pound’s response to Lochner in “Liberty of Contract” (1909) signal the beginning of “progressive” legal thought. Horwitz, Transformation of American Law; Pound, “Liberty of Contract”; Lochner v. New York, 198 U.S. 45 (1905). 44 Horwitz, Transformation of American Law, 4, 6. 45 Huerta, “Geometry and Mechanism.” 46 Warren and Brandeis, “Right to Privacy,” 195 n. 7. 47 Hochman, “Disappearing Authors,” 182; Blair, “Private Parts”; Carlson, “Impositions of Form,” 160–­63. 48 Hochman, “Disappearing Authors,” 182. 49 Osucha, “Whiteness of Privacy.” 50 Lake, Face That Launched a Thousand Lawsuits, 94. 51 Friedman clusters “The Right to Privacy” with what he calls the “Victorian compromise,” to evoke the ways legislators, reformers, and jurists created a public sense 252

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of “decency” through legal measures that also allowed for “questionable” pastimes. Friedman, Guarding Life’s Dark Secrets. 52 Warren and Brandeis, “Right to Privacy,” 196. 53 Barbas, Laws of Image, 26. 54 Habermas, Structural Transformation. 55 Joshua Brown, Beyond the Lines. 56 Sontag, On Photography, 22. 57 Azoulay, Potential History, 21. 58 Reckson, Realist Ecstasy, 179. 59 Stanley, From Bondage to Contract; Witt, Accidental Republic. 60 Warren and Brandeis, “Right to Privacy,” 211. 61 Prince Albert v. Strange, 1 Mc.N. & G. 25 (1849); Tuck v. Priester, 19 Q.B.D. 629 (1887); Pollard v. Photographic Co., L.R. [40 Ch. Div.] 345 (1888). 62 Warren and Brandeis, “Right to Privacy,” 211. 63 Lake, Face That Launched a Thousand Lawsuits, 7. 64 Bergstrom, Courting Danger, 20; as quoted in Barbas, Laws of Image, 15. 65 Barbas, Laws of Image, 18. 66 Chéroux, Since 1839, 62. 67 Chéroux, Since 1839, 71. 68 Camera Club of New York Records, 1889–­1983; Strathman, Through a Native Lens, 36. 69 Mensel, “‘Kodakers Lying in Wait,’” 28. 70 Chéroux, Since 1839, 75, 76. 71 Reese V. Jenkins, “Technology and the Market”; Mensel, “‘Kodakers Lying in Wait,’” 28–­30. 72 For instances of how different Native peoples responded to the encroachment by amateur photographers, see Strathman, Through a Native Lens, chap. 2. 73 For work on commercial photographers, see Elspeth H. Brown, Corporate Eye; McCauley, Industrial Madness; Smith, American Archives; and Volpe, “Cartes de visite.” 74 Even with an instruction manual, it was not entirely obvious to everyone how to proceed. The Boston Evening Transcript relays an anecdote of a man who forgot to take off the camera’s lens. “The Listener,” 4. 75 Part of the reason for the time lag in the popularity of dry plates was the photographer’s expenses associated with getting set up. For example, each operator had to buy the finished dry plate, each of which could be used only once. More, these more sensitive plates made mistakes likelier; a photographer learning the new process would need to make a substantial investment. Taft, Photography and the American Scene. 76 Taft, Photography and the American Scene. 77 Advertisement, Scientific American, October 20, 1888. 78 Stieglitz pronounced this kind of photography a “fad,” “well-­nigh on its last legs, thanks principally to the bicycle craze.” He differentiated between “champions of the 253

Notes

tripod,” who aimed “to do serious work” and looked down on the hand-­camera, and “Button Pushers,” who with “unknowing” hands used the camera as a “mere toy . . . for the purposes of the globe-­trotter, who wished to jot down photographic notes as he passed along his journey.” Stieglitz, “Hand-­Camera.” There are many accounts of “kodakers” in local papers, from the Morning Democrat in Davenport, Iowa, to the Memphis Commercial, to the Winnipeg Tribune. These mentions become frequent after 1890. 79 Zuromskis, Snapshot Photography, 20. 80 In at least one report, it took up to six weeks to get pictures developed, so backed up were printers with amateur photographers clamoring for the service. “The Listener,” 4. 81 Barbas, Laws of Image, 10. 82 Lake’s Face That Launched a Thousand Lawsuits pointed me in this article’s direction. “‘Kodak’ Manners,” 16. 83 “‘Kodak’ Manners,” 16. 84 Stieglitz, “Hand-­Camera.” 85 Mensel, “‘Kodakers Lying in Wait,’” 25. 86 Kracauer, “Photography,” 432. 87 Kracauer, “Photography,” 432. 88 Igo, Known Citizen, 32; Barbas, Laws of Image, 10. 89 Doane, Emergence of Cinematic Time, 33. 90 “Miss Manola’s Tights,” 4. 91 Buck-­Morss, “Envisioning Capital,” 437. 92 Millar v. Taylor, 4 Burr. 2303 (1769); Rose, Authors and Owners; Saint-­Amour, Copywrights, chap. 1. 93 According to Rose, there were three main currents in late eighteenth-­century debates about literary property. First, proponents of a perpetual copyright in common law asserted that an author had a natural right to property in his creation. Opponents responded that ideas could not be treated like property and that copyright could only be regarded as a limited personal right, like a patent, in the interest of a robust public domain. Proponents also claimed that the property being claimed was neither the physical book nor the ideas, but something else, “something consisting of style and sentiment combined.” Both in courtrooms and in literary discourse, literariness became “no longer simply a mirror held up to nature; a work was now above all the objectification of a personality.” Rose, “Author as Proprietor,” 75, 71. 94 Warren and Brandeis, “Right to Privacy,” 198. 95 In perhaps the most famous nineteenth-­century “failure” of protection, Stowe sued the publishers of a German translation of Uncle Tom’s Cabin for copyright infringement. The court found for the defendants; translations were not considered “copies” of the work and did not qualify as infringing on Stowe’s copyright. Later in the century, translations would be covered by a new legal concept, “derivative works.” Best, Fugitive’s Properties. 254

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96 Warren and Brandeis, “Right to Privacy,” 199. 97 The 1909 Copyright Act established eleven different categories. In 1912 the Copyright Act expanded to cover moving pictures. It took sixty more years for “sound recordings” to be added as “copyrightable work.” 98 Banner writes, “The original copyright act applied just to books, maps, and charts, but coverage expanded to include prints in 1802, musical compositions in 1831, plays in 1856, photographs in 1865, and paintings, drawings, and sculpture in 1870.” Banner, American Property, 27. 99 Warren and Brandeis, “Right to Privacy,” 199. 100 Warren and Brandeis, “Right to Privacy,” 199. 101 In another section they assert that the right to privacy “is not [a] principle of private property, but that of an inviolate personality.” Warren and Brandeis, “Right to Privacy,” 199. 102 Edelman, Ownership of the Image. 103 Poovey, “Writing about Finance”; Flandreau and Mesevage, “Separation of Information and Lending.” 104 Cooley, Treatise on the Law of Torts. 105 Nedelsky, “Law, Boundaries and the Bounded Self ”; Bezanson, “Right to Privacy Revisited”; Allen and Mack, “How Privacy Got Its Gender”; Kahn, “Privacy as a Legal Principle”; Sprague, “Orwell Was an Optimist.” 106 Warren and Brandeis, “Right to Privacy,” 195. 107 Warren and Brandeis, “Right to Privacy,” 195. 108 They refer broadly to each medium as though each were an “expansion of the right to life.” 109 Warren and Brandeis, “Right to Privacy,” 195. 110 Mensel, “‘Kodakers Lying in Wait,’” 31. 111 Warren and Brandeis, “Right to Privacy,” 195–­96. 112 Rose, “Author as Proprietor,” 62. 113 Dewey, “Psychology of Effort.” 114 Doane, Emergence of Cinematic Time, 89. 115 Warren and Brandeis, “Right to Privacy,” 196. 116 Vizenor, Fugitive Poses, 146. 117 Igo, Known Citizen, 45. 118 Cheng, Ornamentalism, chap. 1; Phu, Picturing Model Citizens, chap. 1. 119 Coyle, “E. L. Godkin’s Criticism,” 263. 120 Villard had been born in Cologne, Prussia, as Heinrich Hilgard. His father, who objected to his migration to Belleville, Illinois, where his great-­uncle had been anchoring a familial migration, “was in the judicial service of the Bavarian government and became judge of the Supreme Court at Munich.” Villard first worked as a journalist, married to the daughter of William Lloyd Garrison, until he obtained financing from “Frankfurt and Berlin bankers” to buy the Oregon & California Railroad Company and the Oregon Steamship Company on behalf of German bondholders. He served as the company’s president, and although his multimillion-­dollar fortunes 255

Notes

fluctuated with economic crashes, railways were the source of his wealth. “Henry Villard’s Career,” 42. 121 “E. L. Godkin Dead,” 1. 122 Godkin, “Real Problems of Democracy”; “Cluster of New Books,” 3. 123 Upon the publication of William Armstrong’s biography of Godkin in 1978, a review in Reviews of American History insisted that Armstrong’s mission had been to “denigrate” Godkin. Hoogenboom and Hoogenboom, “Denigrating E. L. Godkin”; “Godkin Letter,” 4. 124 Igo writes, “Godkin’s code of honor and reputation was coming up hard against the desire for notoriety.” Barbas, like Igo, uses Brandeis and Warren’s citation of Godkin to prove “privacy as an inherent right of personhood.” Igo, Known Citizen, 34; Barbas, Laws of Image, 36. 125 Godkin, “Rights of the Citizen,” 65. 126 Reckson, Realist Ecstasy, chap. 3. For contemporary efforts around Native data privacy, especially around genetic data, see Hudson et al., “Rights, Interests and Expectations”; and Reed, “Indigenous Dignity.” 127 Vizenor, Native Provenance, 54. 128 Strathman, Through a Native Lens, 38. 129 Zamir, “Native Agency,” 615. 130 Piatote, Domestic Subjects, 54. 131 Piatote, Domestic Subjects, 5, 2, 9–­10; Wexler, Tender Violence. 132 Vizenor, Fugitive Poses, 25. 133 Igo, Known Citizen, 25. 134 Godkin, “Rights of the Citizen,” 66. 135 Godkin, “Rights of the Citizen,” 66. 136 Godkin, “Rights of the Citizen,” 66. 137 Lowe, Intimacies of Four Continents, 3. 138 Godkin, “Rights of the Citizen,” 66. 139 Cheryl I. Harris, “Whiteness as Property,” 1715. 140 Byrd et al., “Predatory Value,” 1–­2. 141 In Screening the Body, Lisa Cartwright writes about this case at some length. Banks v. King Features Syndicate (1939) involved similar circumstances. Feeney v. Van Doren Young, 191 A.D. 501 (N.Y. App. Div. 1920); Banks v. King Features Syndicate, Inc., 30 F. Supp. 352 (U.S. Dist. 1939). 142 By “racializing surveillance,” Browne means to “signal those moments when enactments of surveillance reify boundaries, borders, and bodies along racial lines, and where the outcome is often discriminatory treatment of those who are negatively racialized by such surveillance.” Browne, Dark Matters, 16; Cheryl I. Harris, “Whiteness as Property”; Byrd et al., “Predatory Value.” 143 Garba and Sorentino, “Slavery Is a Metaphor,” 775–­76; King, Black Shoals, 19. 144 Nedelsky writes, “What is essential to the development of autonomy is not protection against intrusion but constructive relationship. The central question for inquiries into autonomy (legal or otherwise) is then how to structure relationships so that 256

Notes

they foster rather than undermine autonomy.” Nedelsky, “Law, Boundaries and the Bounded Self,” 169. 145 Post, “Social Foundations of Privacy,” 971–­72. Chapter 4. Property’s Edge

1 “Fate of the Roberson Case,” 6. 2 “Girl Does Not Want Her Picture on Flour Bags,” 3. 3 Lake notes that in California, the right to privacy was “more about the right of individuals to pursue and obtain happiness.” Lake, Face That Launched a Thousand Lawsuits, 185. 4 Mensel, “‘Kodakers Lying in Wait,’” 37. 5 Barbas, Laws of Image, chap. 3. 6 Barbas, Laws of Image, 48, 50. 7 Sekula, “Body and the Archive,” 6. 8 Sekula, “Body and the Archive,” 7. 9 Piatote, Domestic Subjects, 54. 10 Judge Davy looked to some of the same cases as Justices Rumsey and Parker, Pollard v. Photographic Co. (1888) and Corliss v. Walker (1894). In both of these cases, a contract was read into a photographic transaction to secure one form of property (the negative) against another (the print) that the photographic process itself otherwise set into motion and into potentially distinct trajectories of circulation. In Corliss, on the other hand, a Massachusetts federal judge refused to suppress publication of an illustrated biography of inventor George Corliss, so long as the book was not defamatory. Echoing Warren and Brandeis’s “Right to Privacy,” the price of fame, according to Corliss, was precisely the loss of control over one’s image. Prince Albert v. Strange, 1 Mc.N. & G. 25 (1849); Pollard v. Photographic Co., L.R. [40 Ch. Div.] 345 (1888); Corliss v. E. W. Walker Co., 64 F. 280, 57 F. 434 (U.S. App. 1894). 11 Sekula, “Body and the Archive,” 7. 12 Chaudhary, Afterimage of Empire, 10. 13 DeLombard, “Dehumanizing Slave Personhood,” 495. 14 “Whiteness is a reactionary formation, an inheritance of countersovereignty.” Karuka, Empire’s Tracks, 159. 15 Karuka, Empire’s Tracks, 20. 16 Anita Allen and Erin Mack argue similarly to Osucha and Lake in “How Privacy Got Its Gender.” 17 Perry, Vexy Thing. 18 Adams, “Law of Privacy,” 363. 19 Franklin, “New Conception,” 474–­75. 20 Lake, Face That Launched a Thousand Lawsuits, 58–­60. 21 “Judge Milton E. Gibbs, Jurist”; as quoted in Lake, Face That Launched a Thousand Lawsuits, 60. 22 For an important account of how women’s suffrage was posed as an invasion of a man’s privacy, see Siegel, “She the People.” 257

Notes

23 Roberson v. Rochester Folding Box Co., 64 A.D. 30, 32 (N.Y. App. Div. 1901). 24 Roberson v. Rochester Folding Box Co., 171 N.Y.S. 538, 545 (N.Y. 1902). 25 Barbas, Laws of Image, 49. 26 At the time, the reference on equity was Supreme Court Justice Joseph Story’s Commentaries on Equity Jurisprudence (1836). 27 Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 561–­62 (N.Y. 1902). 28 Parker writes, “Legal scholars thought in terms of a perpetual mismatch between temporal context and object, a mismatch having to do with the way they represented time itself.” Parker, “Context in History and Law,” 473. 29 In Barnes v. Ingalls, the court found that a person who had their picture taken was qualified to say whether it was accurate. Barnes v. Ingalls, 39 Ala. 193 (1863). 30 Gaines, Contested Culture, 90. 31 “Has Cause of Action,” 5. 32 For example, Daniel Novak contends that “rather than recording identity, photography erases it . . . in the accounts of many photographers of all levels (even street photographers), critics, and consumers.” Novak, “Labors of Likeness,” 129. 33 Phu, Picturing Model Citizens, 22. 34 Browne, Dark Matters, chap. 3; Schuller, Biopolitics of Feeling; Yao, Disaffected. 35 Knipe, “Paper Profiles.” 36 Barbas, Laws of Image. 37 Kahn, “Privacy as a Legal Principle.” 38 Roberson v. Rochester Folding Box Co., 64 A.D. 30, 33 (N.Y. App. Div. 1901). 39 Roberson v. Rochester Folding Box Co., 64 A.D. 30, 33 (N.Y. App. Div. 1901). Emphasis mine. 40 In the third edition of Cooley’s treatise, published in 1906, Cooley added a section dedicated to the right to privacy in addition to eight thousand more cases tried under tort law, bringing the total number of cases cited to twenty thousand individual cases. (The second edition was published in 1888, and the first in 1878.) 41 Roberson v. Rochester Folding Box Co., 64 A.D. 30, 33 (N.Y. App. Div. 1901). 42 Rumsey included “every act which in the slightest degree injures the reputation or the character of the person,” but Roberson did not claim an injury to her reputation. Mensel puts it this way: “The basis of [Roberson’s] claim was not injury to her character or reputation, as her failure to allege libel demonstrates. She claimed an injury to her feelings, rather than injury to her community standing.” Roberson v. Rochester Folding Box Co., 64 A.D. 30, 33 (N.Y. App. Div. 1901); Mensel, “‘Kodakers Lying in Wait,’” 37; Mnookin, “Image of Truth.” 43 Cooley, Treatise on the Law of Torts, 33–­34. On the nineteenth-­century gendered and racialized case law that transformed the notion of personal immunity, see Welke, Recasting American Liberty. 44 Cooley, Treatise on the Law of Torts, 33–­34. 45 “Fate of the Roberson Case,” 6. 46 Elizabeth Prentiss’s The Flower of the Family: A Book for Girls, 85. 258

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47 Osucha, “Whiteness of Privacy.” 48 McClintock, Imperial Leather, 5. 49 Douglas, “Most Valuable Sort of Property,” 932. 50 Yu-­Fang Cho, Uncoupling American Empire, 6; Piatote, Domestic Subjects; Hartog, Man and Wife; Kaplan, Anarchy of Empire; Tompkins, Sensational Designs; Wexler, Tender Violence. 51 Gaines, Contested Culture, 90. 52 Godkin, “Rights of the Citizen,” 64. 53 “Fate of the Roberson Case,” 6. 54 “Fate of the Roberson Case,” 6. 55 Galton, “Composite Portraits,” 97. 56 Daston and Galison, “Image of Objectivity,” 103. 57 Ambrosio, “Composite Photographs,” 553. 58 Galton, “Composite Portraits,” 97. 59 Galton, “Composite Portraits,” 97. 60 Barbas, Laws of Image, 13, fn. 27. 61 Cooley, Treatise on the Law of Torts, 316. 62 Barbas, Laws of Image, 52. 63 For more on the influence of advertising practices on Roberson, see Osucha, “Subject of Privacy.” For analysis of advertisements’ imperial work, see McClintock, Imperial Leather. 64 Karuka, Empire’s Tracks, xiii. 65 Douglas, “Most Valuable Sort of Property,” 897. 66 Douglas, “Most Valuable Sort of Property,” 897. 67 Hand, “Schuyler Against Curtis and the Right to Privacy,” 746. 68 Schuyler v. Curtis, 147 N.Y. 434, 42 N.E. 22 (N.Y. Court of Appeals 1895). 69 Marks v. Jaffa, 26 N.Y.S. 908 (1893). 70 Rumsey cites Pollard v. Photographic Co. (1888) and Woolsey v. Judd (1855), which held against the publication of private letters even though there was no value or tangible property in them except the paper they were printed on. Woolsey overturned Hoyt v. Mackenzie (1848) and Wetmore v. Scovell (1842). Both of these cases found that a property right existed only where the private letters had literary value. Pollard v. Photographic Co., L.R. [40 Ch. Div.] 345 (1888); Woolsey v. Judd, 11 How. Pr. 49 (N.Y. Misc. 1855); Hoyt v. Mackenzie, 3 Barbi. Ch. 320 (N.Y. 1848); Wetmore v. Scovell, 3 Edw. Ch. 515 (N.Y. 1842). 71 Welke investigates liberty as reshaped in cases involving mass transportation. Welke, Recasting American Liberty. 72 For example, police in Argentina, India, and Scotland used dactyloscopy and “Bertillonage—­a set of precise bodily measurements taken by calipers and rulers to create an individual record,” by the turn of the twentieth century. Igo, Known Citizen, 50. 73 Sekula, “Body and the Archive,” 7. 74 Sekula, “Body and the Archive,” 7. 259

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75 Bentham, Draught of a New Plan for the Organisation of the Judicial Establishment in France, 25–­26; as quoted in Peters, “Penitentiary Performances,” 23. 76 Peters, “Penitentiary Performances,” 23. 77 Pritchett v. Bd. of Comm’rs, 42 Ind. App. 3, 85 N.E. 32 (Ind. App. 1908). 78 Downs v. Swann, 11 Md. 53, 73 A. 653 (Md. 1909). 79 Hodgeman v. Olsen, 86 Wash. 615, 150 P. 1122 (Wash. 1915). 80 Rumsey cites British cases about rights of authorship and breach of confidence involving the publication of private correspondence. 81 Gray: “In the present case, we may not say that the plaintiff’s complaint is fanciful, or that her alleged injury is, purely, a sentimental one. Her objection to the defendants’ acts is not one born of caprice; nor is it based upon the defendants’ act being merely ‘distasteful’ to her. We are bound to assume, and I find no difficulty in doing so, that the conspicuous display of her likeness, in various public places, has so humiliated her by the notoriety and by the public comments it has provoked, as to cause her distress and suffering, in body and in mind, and to confine her to her bed with illness.” Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 560 (N.Y. 1902). 82 Roberson v. Rochester Folding Box Co., 171 N.Y. 538, 563 (N.Y. 1902). 83 Perry, Vexy Thing, 17–­20; Biltoft, Violent Peace, chap. 2. 84 Pollard v. Photographic Co., L.R. [40 Ch. Div.] 345 (1888). 85 From this limited protection of “privacy,” public figures were subsequently more able to control use of their image before Judge Jerome Frank coined the phrase “right of publicity” in Haelan Labs., Inc. v. Topps Chewing Gum (1953). Haelan involved baseball cards in packages of gum, much like Manola’s trading cards accompanying Newsboy cigars. Haelan Labs., Inc. v. Topps Chewing Gum, Inc., 112 F. Supp. 904 (U.S. Dist. 1953). 86 Pavesich v. New England Life Ins. Co., 122 Ga. 190, 50 S.E. 68 (Ga. 1905). 87 O’Brien, “Right of Privacy.” The New York Times published a response to O’Brien’s piece, “Right of Privacy,” New York Times, November 16, 1902. Yale Law Journal also issued a comment in favor of Warren and Brandeis’s article and against the decision in Roberson. Comment, “An Actionable Right of Privacy?” 88 Igo, Known Citizen, 43. A direct response to Roberson and the new New York law, in Rhodes v. Sperry & Hutchinson Co. (1908), the Court of Appeals validated the act and “rejected the argument that a person’s likeness belonged to the photographer who captured it, and that the subject surrendered all rights to it.” Rhodes v. Sperry & Hutchinson Co., 193 N.Y. 223, 85 N.E. 1097 (N.Y. 1908). 89 Barbas, Laws of Image, 61. 90 Pa. Laws 124. 91 “Parker’s Right of Privacy,” 5. 92 Several decades later, the appellate court in California would refuse a right to privacy or property in one’s life story in Melvin v. Reid (1931) to a former sex worker whose life Dorothy Davenport had made into the film The Red Kimono. The trial court had dismissed the four claims Gabrielle Darley Melvin had made, including the right to 260

Notes

privacy and property in name and person. But what the court did affirm was that the movie had interrupted Melvin’s “rehabilitation” on the grounds of “inalienable right to pursuing and obtaining happiness.” Melvin v. Reid, 112 Cal. App. 285, 297 P. 91 (Cal. App. 1931). 93 DeLombard, “Dehumanizing Slave Personhood,” 495. 94 Cheryl I. Harris, “Whiteness as Property,” 1716. Chapter 5. Expressionless

1 I’m indebted here to visual theorist and classicist Ava Shirazi in her beautiful cultural history of ancient Greek mirrors. Shirazi, “Mirror and the Senses.” 2 Elcott, Artificial Darkness, 111. 3 Elcott, Artificial Darkness, 10. 4 Blight, Frederick Douglass, xiv. 5 Lowe, Intimacies of Four Continents, 71. 6 Azoulay, “What Is a Photograph?,” 12. 7 Best, None Like Us, 33; Pinto, Infamous Bodies, 19; Cadava, Words of Light, 128. 8 Ferreira da Silva, Toward a Global Idea of Race, 4. 9 Huerta, “Hold Still”; Best, None Like Us; Hartman, “Plot of Her Undoing.” 10 Womack, “Du Bois’s Apocalyptic Ambivalence,” 251. 11 Campt, Black Gaze, 21. 12 Hartman, “Plot of Her Undoing,” 5. 13 Pavesich v. New England Life Ins. Co., 122 Ga. 190, 193, 50 S.E. 68, 69 (Ga. 1905). 14 In two similar cases, images of plaintiffs were used in advertisements for Doan’s Kidney Pills in the Kentucky case and for a jewelry store in Missouri. Both were brought forward for libel (through the false association with the product). Foster-­ Milburn Co. v. Chinn, 120 S.W. 364 (Ky. 1909); Munden v. Harris, 153 Mo. App. 652, 134 S.W. 1076 (Mo. App. 1911). 15 Pavesich v. New England Life Ins. Co., 122 Ga. 190, 107, 50 S.E. 68, 75 (Ga. 1905). 16 Other cases Cobb cited included Marks v. Jaffa (1893), Schuyler v. Curtis (1895), Corliss v. Walker (1894), and Atkinson (1899). In Corliss, Judge Colt found that outside contract, “a private individual has a right to be protected in the representation of his portrait in any form; that this is a property as well as a personal right, and that it belongs to the same class of rights which forbids the reproduction of a private manuscript or painting, or the publication of private letters, or of oral lectures delivered by a teacher to his class, or the revelation of the contents of a merchant’s books by a clerk.” Cobb spends a portion of his opinion distancing himself from Schuyler, asserting that family members should not be able to protect the memory of the dead. Judge Gray had dissented in Schuyler because he understood privacy as a form of property, as in Roberson. Corliss v. E. W. Walker Co., 64 F. 280, 57 F. 434 (U.S. App. 1894). 17 “This conservatism of the judiciary has sometimes unconsciously led judges to the conclusion that because the case was novel the right claimed did not exist. With all due respect to Chief Judge Parker and his associates who concurred 261

Notes

with him, we think the conclusion reached by them was the result of an unconscious yielding to the feeling of conservatism which naturally arises in the mind of a judge who faces a proposition which is novel. The valuable influence upon society and upon the welfare of the public of the conservatism of the lawyer, whether at the bar or upon the bench, can not be overestimated; but this conservatism should not go to the extent of refusing to recognize a right which the instincts of nature prove to exist, and which nothing in judicial decision, legal history, or writings upon the law can be called to demonstrate its non-­existence as a legal right.” Pavesich v. New England Life Ins. Co., 122 Ga. 190, 213, 50 S.E. 68, 78 (Ga. 1905). Barbas parses the threat to Pavesich this way: “Like a consumer product, Pavesich’s photograph had become a fungible commodity that could be circulated wantonly in the marketplace. . . . Such degradation caused harms to the spirit ‘which are irreparable in their nature,’ the court determined.” Barbas, Laws of Image, 61. 18 Peck v. Tribune Co., 214 U.S. 185, 190 (1909). 19 Jennifer L. Morgan, Reckoning with Slavery, 17. 20 Allen, “Natural Law, Slavery, and the Right to Privacy Tort,” 1207. 21 Allen, “Natural Law, Slavery, and the Right to Privacy Tort,” 1207. 22 Allen, “Natural Law, Slavery, and the Right to Privacy Tort,” 1207. 23 Allen, “Natural Law, Slavery, and the Right to Privacy Tort,” 1207. 24 With gratitude to the brilliant Italianist Alessandro Giammei for his help in piecing together the pre-­US trajectory of Pavesich’s life. 25 “St. Joseph Homes,” 4. Without a bit more archival digging, we can’t know for sure whether these bits of biography are part of his own marketing strategy, even as they are details repeated in various US newspapers and Italian sources. Casonato, “Indagine comparata del diritto alla riservatezza,” 28–­30. 26 “Artistic Designing and Decorating,” 3; “City in Brief,” 5; “Mr. Pavesich Will Return,” 2; “Beautiful New Theatre,” 2; “People and Things,” 7. 27 “Capt. Robert McCulloch Chapter,” 25. 28 “Announcement,” 25; “F. X. Pavesich,” 26; “Predicts 4 Million Servicemen Will Get Homes,” 1. 29 Best, Fugitive’s Properties. 30 Pavesich v. New England Life Ins. Co., 122 Ga. 190, 196, 50 S.E. 68, 70 (Ga. 1905). 31 Pavesich v. New England Life Ins. Co., 122 Ga. 190, 220, 50 S.E. 68, 80 (Ga. 1905). 32 Edison v. Edison Polyform Mfg. Co., 67 A. 392, 395 (N.J. Ch. 1907). 33 The press usually won. The next likely scenario in these early privacy cases involved a plaintiff who was a public figure, as in Corliss v. Walker (1894). The judge denied that privacy had been violated because the plaintiff was a public figure before death, and because a privacy right, were it to exist, was not transferable to the family who survived the dead. 34 Some of these cases include Foster-­Milburn Co. v. Chinn, 120 S.W. 364 (Ky. 1909); Almind v. Sea Beach Railway Co., 141 N.Y.S. 842 (App. Div. 1913); Colyer v. Richard K. Fox Pub. Co., 162 A.D. 297, 146 N.Y.S. 999 (App. Div. 1914); Humiston v. 262

Notes

Universal Film Mfg. Co., 189 A.D. 467, 178 N.Y.S. 752 (App. Div. 1919); Loftus v. Greenwich Litho. Co., 192 A.D. 251, 182 N.Y.S. 428 (App. Div. 1920); Blumenthal v. Picture Classics, Inc., 261 N.Y. 504, 185 N.E. 713 (N.Y. 1933); Sweenek v. Pathe News, Inc., 16 F. Supp. 746 (U.S. Dist. 1936); Myers v. Afro American Publishing Co., 255 A.D. 838 (App. Div. 1938); Semler v. Ultem Publications, Inc., 170 Misc. 551, 9 N.Y.S. 2d 319 (N.Y. Misc. 1938); Lane v. F. W. Woolworth Co., 171 Misc. 66, 11 N.Y.S. 2d 199 (N.Y. Misc. 1939). 35 Liebig’s Extract of Meat Co. v. Liebig Extract Co., 180 F. 688 (U.S. App. 1910). 36 Lowe, Intimacies of Four Continents, 46. 37 Lugo-­Ortiz and Rosenthal, Slave Portraiture, 5. 38 Wanzo, Content of Our Caricature. 39 Smith, Photography on the Color Line; Shaw, Portraits of a People. 40 Bernier, “Visual Call to Arms.” 41 Gates, “Frederick Douglass’s Camera Obscura,” 46. 42 Gates, “Frederick Douglass’s Camera Obscura,” 44–­45. 43 Dinius, Camera and the Press; Gates, “Frederick Douglass’s Camera Obscura”; Stauffer, Trodd, and Bernier, Picturing Frederick Douglass. 44 For the authors of Picturing Frederick Douglass, Douglass perfected his “visual voice” by shifting from fugitive slave to freedom fighter to “great American.” Stauffer, Trodd, and Bernier, Picturing Frederick Douglass. 45 Wynter, “Unsettling the Coloniality of Being/Power/Truth/Freedom.” 46 Jackson, Becoming Human, 51. 47 Jackson, Becoming Human, 51. 48 Pinto, Infamous Bodies, 13. 49 DeLombard writes, for example, “Douglass’s white contemporaries persistently trained their own gazes on his body, focusing on its ‘physical proportion and stature’ and its ‘erect form’; in this context, Douglass’s ‘glistening eye’ and even his ‘deep-­ toned voice’ become recorporealized.” DeLombard, “Eye-­Witness to the Cruelty,” 271. 50 Lewis, “Insistent Reveal,” 301. As Jeannine DeLombard describes, “The fugitive black celebrity risked being transformed into a new kind of property, this time public rather than private.” DeLombard, “Making Waves,” 196. 51 Douglass, “Farewell to the British People,” 22. 52 Sundquist identifies the turn in Douglass’s political thinking as more nationalist, while Giles stresses a transnational imaginary. Sundquist, To Wake the Nations; Giles, “Narrative Reversals.” 53 Douglass, “Slavery, Freedom, and the Kansas Nebraska Act,” 540. 54 Douglass, My Bondage, 98. 55 Bernier writes, “For Douglass, the nefarious practices endorsed by slaveholding whites, and according to which black bodies were exposed to abusive rituals of physical inspection, examination and valuation, existed on a continuum, at least in visual terms, with a white abolitionist determination to trade only in authenticated subjects and verifiable witnesses.” Bernier, “Visual Call to Arms,” 328. 263

Notes

56 Dayan, “Legal Terrors,” 49. 57 Douglass, Narrative of the Life, 29. 58 Jackson, Becoming Human, 48. 59 Douglass, My Bondage, 69. 60 Douglass, My Bondage, 205. 61 Womack, “Du Bois’s Apocalyptic Ambivalence,” 241. 62 Campt, Black Gaze, 74. 63 Douglass, My Bondage, 98. 64 Hartman, Scenes of Subjection, 51–­52. 65 Douglass, My Bondage, 233. 66 Douglass, My Bondage. 67 Douglass, My Bondage, 78. 68 Douglass, My Bondage, 75. 69 Yao is building on Black feminists Darlene Clark Hine’s analysis of dissemblance and Ann DuCille’s theorizing of passionlessness. DuCille, Coupling Convention, 30–­32; Hine, “Rape and the Inner Lives of Black Women,” 912; as quoted in Yao, Disaffected, 11–­17. 70 Best, None Like Us, 90. 71 Campt, Black Gaze, 38. 72 King, Black Shoals, 54. 73 Best, None Like Us, 37. 74 Ferreira da Silva, “Toward a Black Feminist Poethics.” 75 Ferreira da Silva, “Toward a Black Feminist Poethics,” 81. 76 Ferreira da Silva, “Toward a Black Feminist Poethics,” 81. 77 Womack, Matter of Black Living, 124. 78 Grigsby, “Negative-­Positive Truths,” 22. 79 Grigsby, “Negative-­Positive Truths,” 33; emphasis in original. 80 Grigsby, “Negative-­Positive Truths,” 22. 81 As theoretical physicist and Black feminist theorist Chanda Prescod-­Weinstein explains the “physics of melanin,” “darker skin has a broader spectrum of absorption.” Prescod-­Weinstein, Disordered Cosmos, 96, 105. 82 Campt, Black Gaze, 102. 83 Bradley, “Black Cinematic Gesture,” 28. 84 Bradley, “Black Cinematic Gesture,” 19, 15. 85 Best, None Like Us, 90. Coda

1 Lake, Face That Launched a Thousand Lawsuits, 13. 2 Beckert argues that it is “the temporal disposition of economic actors toward the future, and the capability to fill this future with counterfactual economic imaginaries, [that] is crucial to understanding both how capitalism diverges from the economic orders that preceded it and its overall dynamics.” Beckert, Imagined Futures, 2. 264

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3 Edelman, Ownership of the Image, 44. 4 Cheng, Ornamentalism, 36. 5 Best, None Like Us. 6 Rogers, “This Intricate Question,” 64. 7 McDougall and O’Brien, “Five Generations of Renty.” 8 Wallis, “Black Bodies, White Science.” 9 The essays in Barbash, Rogers, and Willis, To Make Their Own Way in the World are an invaluable contribution to the study of these daguerreotypes. 10 Gates, “Foreword,” 11; Reinhardt, “Vision’s Unseen,” 200. 11 In 2019 the Peabody Museum’s Faculty Executive Committee “was organized to assess and evaluate the museum’s stewardship practices and relationships with descendent stakeholders of their collection.” McDougall and O’Brien, “Five Generations of Renty.” 12 Reed, “Indigenous Dignity,” 1122. 13 Reed, “Indigenous Dignity,” 1125. 14 While her work uses a distinct archive and reading practice for Indigenous rituals of care for the dead in unlikely early Atlantic sources, Kimberly Takahata’s scholarship helped me imagine ending this book this way. Takahata, “Skeletal Testimony,” 1–­17 and chap. 4. 15 Barbash, “Life in the Museum,” 410–­11. 16 Reed, “Indigenous Dignity,” 1128. 17 Reed, “Indigenous Dignity,” 1126. 18 Reed, “Indigenous Dignity,” 1137. 19 Reed, “Indigenous Dignity,” 1143. 20 Lanier v. President and Fellows of Harvard College, SJC-­1318 (Mass. 2021), Azoulay, “Brief Amicus Curiae,” 10. 21 Maya McDougall and Garrett O’Brien gestured toward this mode of thinking in their article about Lanier’s case. McDougall and O’Brien, “Five Generations of Renty.”

265

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296

Inde x

Page numbers in italics indicate Figures abolitionists, x, xiii, 86, 209–­10, 228n14 absorption, 42, 169, 214, 264n81 actors, 47, 114, 125–­26, 251n27; photographers and, 119–­20, 127–­28; poses of, 37–­ 38, 68; with system of expression, 46, 50 Adams, Elbridge, 159, 160, 163, 171–­72, 184 Adams, J. Q., 194 advertisements, 78–­80, 98, 99, 261n14; Franklin Mills Flour Company lithographic, 159, 167, 168, 169, 182, 186; Kodak, 19, 21, 21–­22, 23; New England Mutual Life Insurance Company, 193–­ 94, 195. See also Roberson v. Rochester Folding Box Co. aesthetics, 7, 92, 111; of racial capitalism, 8, 24–­33; of whiteness, 2, 25, 28, 30, 42, 44, 117, 156–­59, 177, 200, 212–­13, 216 The Aesthetic Craze lithograph, 92–­93, 110–­ 11, 201 Agassiz, Louis, 217, 218 Allen, Anita, 26, 196–­97, 200 Althusser, Louis, 25, 89–­90, 103 amateur photographers, 3, 21, 89, 139, 145, 253n72, 254n80; as “camera fiends,” 22, 134–­36, 253n78; privacy rights and, 144, 152; protection of “personalities” and, 137–­38 American Law Register (journal), 87–­88 American Mutoscope & Biograph Co. v. Edison Manufacturing Co. (1905), 116 anthropometrical grid, 230n7 antiblackness, 12, 32, 93, 111, 199, 203, 211

appropriation, 90, 117, 121, 139, 141, 250n3 Arago, François, 14 An Argument in Defence of Literary Property (Hargrave), 102, 104 arrangement, 109, 115–­16, 179, 183, 207, 248n130 art, 12, 17, 101, 142–­43, 192, 193, 231n16 Atkinson v. John E. Doherty & Co. (1899), 252n39, 261n16 Atlanta Constitution (newspaper), 137, 194, 195 Atlantic Monthly (magazine), 149 At the Edge of Sight (Smith, S. M.), 231n10 authorship, 104, 116, 138, 248n118, 248n130; common-­law rights and, 103; photography and, 17, 93, 101, 107, 114; visible expression of, 105, 110, 112 Azoulay, Ariella Aïsha, 11, 29, 107, 116, 133, 192, 220, 249n153 Bacon v. Williams, 79 Mass. 525 (1859), 244n15 Banks v. King Features Syndicate (1939), 256n141 Banner, Stuart, 114, 255n98 Barbas, Samantha, 134, 156, 161, 184, 261n17 Barnes v. Ingalls (1863), 258n29 Barthes, Roland, 3–­4, 231n10, 231n21, 232n28, 236n133 Batchen, Geoffrey, 15, 234n92 Baudelaire, Charles, 106 Bell, Charles, 15

297

INDEX

Benjamin, Walter, 7, 112–­13, 229n29, 231n21 Bentham, Jeremy, 178 Bernhardt, Sarah, 96, 97 bertillonage, 259n72 Best, Stephen, xiii, 27, 192, 193, 199, 211 Bhandar, Brenna, 9, 32, 80, 83, 230n3 “The Big Sunflower,” 111 Bill to Protect Ladies (1888), 250n2 biopower, modern, 41 biotechnology law, 231n16 “Black Below,” 125–­26 blackface, 93, 124–­25, 246n71, 251n24 Black gaze (Campt), 207–­8, 213 Bleistein v. Donaldson Lithographing Co. (1903), 115–­16 bodies, 20, 42, 46, 55, 74, 232n39, 233n64, 241n117; anthropometrical grid, 230n7; art and, 12, 17; bertillonage, 259n72; Black, xi, 10–­11, 228n17, 234n79, 263n55; Black Bodies, White Gold, 234n79; Delsartism and, 60–­62, 64–­70, 72–­73, 75; expression, souls and, 11, 14; expressions and, 62–­63; human face and copyright, 104–­5, 110, 120; kinesthesia and, 40, 60–­ 61, 64, 143, 238n40; musculature, 60–­61, 72; pantomime, 47, 238n46; realism and, 44; Screening the Body, 256n141; silhouettes, 163–­64, 185; three position types of, 58. See also poses Bourdieu, Pierre, 41 Brandeis, Louis, 33, 141, 156, 248n129, 252n51, 255n101; copyright and labor of art, 142–­43; everyday communication and, 138, 161; with photography and legal harms, 133, 137–­39; privacy rights and, 120–­22, 128–­33, 134, 144–­48, 152, 153, 157, 183, 252n39 British Aesthetic Movement, 92, 111 Brooks, Daphne, x, 44, 93 Brown, Henry Box, 86, 209 Brown, Kimberly Juanita, 18, 220 Browne, Simone, x, 49, 228n17, 256n142 Brownie camera, 3, 135

Bryan, William Jennings, 149 Buchanan, James, 197 Buck-­Morss, Susan, 138 Buck v. Bell (1927), 231n18 Bureau of Ethnology, U.S., 149 Burrow-­Giles Lithographic Co. v. Sarony (1884), 32, 83, 85, 89, 101, 110, 156, 244n22; aesthetics of whiteness and, 117; arrangement in, 109, 116, 179, 183; with evidentiary and creative photographs, 82; photographic copyright and, 102 button cameras, 22 Byrne, Charles Alfred, 122–­25 Cadava, Eduardo, 13, 16, 78–­79, 100, 192, 220, 234n89 Camera Club of New York, 134 “camera fiends” (Kodakers), 22, 134–­36, 253n78 cameras: button, hat and miniature, 22; Kodakers, 22, 134–­36, 253n78; point-­ and-­shoot, 3, 117, 127, 133, 135–­37, 146, 153 Cameron, Julia Margaret, 110 Campt, Tina, xii, 18, 207–­8, 211, 212, 213, 214 carte-­de-­visite, viii, ix, xi, 227n1, 228n17 Carter, J. Kameron, 27–­28, 235n104 Cartier-­Bresson, Henri, 17, 232n28 Castles in the Air, 122–­25, 126, 147 celebrity, 114, 200–­201, 263n50 chancery courts, 159 Charcot, Jean-­Martin, 145 Charles Beseler Company, 108–­9 Chinn, Wilson, viii, ix–­xiii, 47, 228n17 Chirologia, or The Natural Language of the Hand (Bulwer), 68 Chy Lung v. Freeman (1875), 237n4 “civil contract,” of photography, 29 Civil Rights Act (1875), 112 Cobb, Andrew Jackson, 26–­27, 195–­200, 261n16 Cody, Buffalo Bill, 50, 54

298

INDEX

Colonial Lives of Property (Bhandar), 230n3 colonial logics, of property (Bhandar), 9, 80 Columbian Exposition, Chicago (1893), 50, 177 commercialization, daguerreotypes, 22, 24 commercial production, of photography, 22 common-­law rights, authorship and, 103 composite portraits, 15, 33, 158, 166, 172–­74, 177, 183 Cooley, Thomas McIntyre, 121, 140–­41, 157, 166–­67, 173–­74, 182, 258n40 copyright, 21, 24, 100, 103; human face and, 104–­5, 110, 120; labor of art and, 142–­43; literary work, 82–­84, 86, 102, 104, 106–­7, 245n32, 254n95; non-­literal copying, 107; originality and, 105, 108, 247n103; perpetual, 104, 143, 248n122, 254n93; photographs and, 80–­84, 87, 101–­2, 108–­9, 113–­14, 116–­17, 248n129, 249n154 Copyright Act (1790), 139 Copyright Act (1865), 27, 101 Copyright Act (1909), 255n97 Copyright Act (1912), 255n97 Corliss v. Walker (1894), 197, 257n10, 261n16, 262n33 correspondences, law of (Delsarte), 53, 55, 56 countersovereignty (Karuka), 229n1, 257n14 countervisuality (Mirzoeff), 16–­17 creative expression, 17, 80–­81, 83, 86, 100 credit: agencies and financial identity, 48–­ 49; mercantile agencies and, 239n60; private, 49, 74, 140, 187, 215; reporting, 2, 45, 49, 74; reputation, 45–­46, 140 crime, 40, 157, 163, 173–­74, 237n16, 259n72 Currier & Ives, 92, 201 cursive writing, 243n1 Curtis, Eduard, 150 dactyloscopy, 259n72 Daguerre, Louis, 13–­14

daguerreotypes, 13, 14, 22, 24, 77, 106; of Douglass, 188, 189–­90, 191, 192, 213; of enslaved people at Harvard University, 217–­22; patents, 75, 233n53 Darwin, Charles, 15 Daston, Lorraine, 57, 59 Davis, Jefferson, 26, 112, 197 Day, F. Holland, 89 Dayan, Colin, 85, 205–­6 Death of Cleopatra (Lewis, E.), 52 “decisive moment,” 17, 232n28 decomposing exercises (Delsarte), 64, 74 defamation cases, 134, 252n42 DeLombard, Jeannine, 25, 158, 263n49 Delsarte, François, 32, 45, 55, 58–­59, 59, 63; Sarony, Napoleon, and, 99–­100; students of, 57, 60–­61, 72, 238n38, 242n159; system of expression and, 46–­54, 64–­68 A Delsartean Scrap-­book (Sanburn), 61–­62 Delsarte’s System of Expression (Stebbins), 53, 64 Delsartism, 45, 71, 74; bodies and, 60–­62, 64–­70, 72–­73, 75; grace, light and, 54–­ 59; system of expression and, 50–­54 De May v. Roberts, 130 detective cameras, 135 Dewey, John, 143 Doane, Mary Ann, 137, 144 Douglass, Frederick, 16, 201, 263n49, 263n52; daguerreotype of, 188, 189–­90, 191, 192, 213; performance and, 208–­12; portraiture and, 202–­8, 211–­12, 214; slavery and, 204–­11, 263n44, 263n55; on U.S. Constitution, 204–­5 Downs, Rosina “Rosa,” viii, ix–­xvii, 24, 33, 47, 229n28 Downs v. Swann (1909), 178 Drone, Eaton S., 106, 107, 248n122 dry plates, 135, 253n75 “dual mirror,” law as, 89, 90 Du Bois, W. E. B., 30, 43, 125, 193 Duchenne, G. B., 145

299

INDEX

Eastman Kodak Company, 3, 19, 21, 21–­22, 23, 135 Edelman, Bernard, 25, 28, 89–­91, 103, 117, 140, 176 Edison, Thomas, 200, 249n154 Edison v. Edison Polyform Mfg. Co. (1907), 200 Edison v. Lubin (1903), 249n154 effort, labor and, 143, 146–­47 elocution, 47–­48, 50–­51, 53, 55, 73 embodied cognition, 62, 68 embodiment, law of, 73, 75 enslaved, 202, 204, 263n50; children, viii, ix–­xvii, 227n1, 228n19, 228n21, 229n28; in civil society, 228n14; The Greek Slave, 227n6; Harvard University with daguerreotypes of, 217–­22; photographs and, 90; as property, xi, 228n17, 228n19; women, ix–­x equity, 159–­62 etiquette manuals, 48 evidence, photographs as court, 87–­89, 244n15, 246n59, 248n127 expressions, 4; as being, 69; bodies and, 11, 14, 62–­63; of Chinese people, 35–­37, 39; creative, 17, 80–­81, 83, 86, 100; defined, 11, 24, 54–­55; Douglass and, 204, 214; of Downs, Rosina, xii, xiv–­xvii; facial, 69, 81, 119–­20, 140, 142, 144–­45, 250n3; nature and, 13–­14, 15; New York School of Expression, 240n72; performance and, 42, 46; as “photogenic drawings,” 32; as question, 11–­20, 43–­44, 45; system of, 46–­54, 64–­68, 238n46; visible, 84, 105–­7, 110, 112, 141; of white people, 37 facial expressions, 69, 81, 119–­20, 140, 142, 144–­45, 250n3 Falk, Benjamin Joseph, 109, 110, 112, 131, 248n131 Falk, Isaac N., 248n131 Falk v. Brett Lithographic Co. (1891), 109 Falk v. Donaldson (1894), 109

Falk v. Gast Lithographic & Engraving Co. (1891), 109 Falk v. Schumacher (1891), 109 Fanon, Frantz, 18, 124 Feeney v. Young (1920), 152 Ferreira da Silva, Denise, 12, 17, 192, 203, 212, 214 financial identity, 48–­49 financialization, 26, 32, 42, 48–­49, 54, 74, 140 Flower of the Family (Prentiss), 169 “Folding Box case.” See Roberson v. Rochester Folding Box Co. forgetting, privacy rights as, 220, 221. Franklin Mills Flour Company, 159, 167, 168, 169, 182, 186. See also Roberson v. Rochester Folding Box Co. From Here I Saw What Happened and I Cried, 218 Fuentes v. United States, 63 U.S. 443, 16 L. Ed. 376 (1859), 244n15 Galton, Francis, 6, 15–­16, 172–­73, 231n18 generative dynamic (Park), 32, 84 Gibbs, Milton, 160, 171 Godkin, Edwin Lawrence, 148–­52, 171, 256nn123–­24 grace, 51, 63–­64, 69–­70; light and, 54–­59; whiteness and, 45–­46, 71–­73 Gray, John Chapman, 162, 179–­80, 181, 185, 196, 260n81, 261n16 Gross v. Seligman (1914), 116 Haelan Labs., Inc. v. Topps Chewing Gum (1953), 260n85 Haitian Revolution, 102–­3, 123–­24 Hand, Learned, 116 Hargrave, Francis, 102, 104, 106, 138 Harris, Cheryl, 26, 29, 31, 32, 152, 153, 187 Hartman, Saidiya, xi, xiii–­xiv, 2, 12, 18, 24, 193–­94, 210, 220–­21, 228n19; on Black bodies, 10–­11; on entitlement and white supremacy, 80; “narrative restraint” and,

300

INDEX

229n33; on performance, 208; privacy and, 121, 208 Hartog, Hendrik, 170 hat cameras, 22 Hawthorne, Nathaniel, 16 Herschel, John (Sir), 56–­57, 58 hieroglyphics, “of the flesh,” 18, 234n76 History of American Law (Friedman), 231n14 Hodgeman v. Olsen (1915), 178–­79 Holmes, Oliver Wendell, Jr., 4–­7, 20, 24, 196, 231n20; with Bleistein v. Donaldson Lithographing Co., 115–­16; with Buck v. Bell, 231n18 Holmes, Oliver Wendell, Sr., 4, 13 An Hour with Delsarte (Morgan, A.), 58, 59, 59, 63, 241n110, 243n164 The House of Mirth (Wharton), 66–­67 How the Other Half Lives (Riis), 145 Hoyt v. Mackenzie (1848), 259n70 Huger, Rebecca, viii, ix–­xiii, 47 human face, copyright and, 104–­5, 110, 120 identity, 35–­36, 48–­49, 228n11, 258n32 images, 21, 25, 27, 89, 103, 116 impressibility, 42, 211 intangible assets, in whiteness, 26, 32, 41, 45, 74, 140, 159, 187, 196, 216 intellectual property, 9, 27, 75, 84–­85, 106, 117, 229n1 International News Service v. The Associated Press (1918), 248n129 involuntarity, 10, 117, 120, 145, 174, 203, 214 James, William, 50, 67, 231n20 Jameson, Fredric, 7 Jay, Martin, 29 Jefferys v. Boosey (1854), 104–­5 Jenkins, Destin, 10, 24 Jewelers’ Circular Publishing Co. v. Keystone Publishing Co., 116 Jim Crow, 10, 20, 29, 45, 73, 84, 152, 170 journalism. See media

Karuka, Manu, 10, 41, 158, 229n1, 257n14 Kelley, Robin D. G., 24 kinesthesia, 40, 60–­61, 64, 143, 238n40 King, Tiffany Lethabo, 18, 153, 211, 214, 227n2 Kodakers (“camera fiends”), 22, 134–­36, 253n78 Kracauer, Siegfried, 20, 136 Krauss, Rosalind, 86 labor, 30, 60–­61, 72, 145, 232n31, 232n39; of art and copyright, 142–­43; effort and, 143, 146–­47 Lake, Jessica, 24, 88, 110, 127, 130, 133–­34, 250n2, 257n3 landscape photography, 86 language: copyright in, 104–­5; of white women, 124 Lanier, Shonrael, P. G., 217 Lanier, Tamara, 218, 220, 221–­22, 265n21 law, 20, 24, 33, 106, 120, 231n16, 260n87; of correspondences, 53, 55, 56; of embodiment, 73, 75; History of American Law, 231n14; intellectual property, 31, 105; the real in, 89–­91; subject in, 25, 89–­90, 117; The Transformation of American Law, 129; Treatise on the Law of Torts, 140–­4 1, 157, 166–­67, 173, 258n40; White by Law, 236n124 learning, wealth and, viii, ix, x, xi, 228n22 Le Brun, Charles, 12–­13, 68, 232n42 Legendre, Pierre, 25 Lewis B. Monroe School of Oratory, Boston, 51 Liebig’s Extract of Meat Co. v. Liebig Extract Co. (1910), 201 light: Delsartism, grace and, 54–­59; Douglass and, 213, 214; with photography of survival, 212–­13; waves, 14, 56, 57, 71; whiteness and, 45 likeness, privacy rights and, 162–­65, 201–­3 301

INDEX

literary work: copyright, 82–­84, 86, 102, 104, 106–­7, 245n32, 254n95; originality of, 104, 105 Locke, John, 102, 107, 182 Lowe, Lisa, 9–­10, 17–­18, 192, 201 Luco v. United States (1859), 244n15 Lynch, Deirdre, 48 Mackaye, Steele, 50–­51, 54–­55, 64, 68, 72, 94 Manola, Marion, 118, 131, 161, 185; acting career, 126–­27, 250n9, 251n25, 251n30, 252n38; privacy rights and, 119–­20, 122, 125–­30, 137, 147, 251n26 Marey, Étienne-­Jules, 3 Marks v. Jaffa (1893), 176, 177, 261n16 marriage, race and, 170 Martí, José, 78, 243n4 Martinique, 123–­25, 251n14 Mayer, Julius Marshuetz, 108–­9 McCauley, Anne, 25, 243n1, 246n58, 248n122 McCreary Amendment (1893), 237n3 mechanical objectivity, 18, 57, 59, 67 media, 131–­32, 136–­37, 140, 148–­49, 152 medical photography, 86 Melvin v. Reid (1931), 260n92 mercantile agencies, 239n60 Millar v. Taylor (1769), 138, 248n122 Miller, Samuel, 84, 101–­3, 105, 107–­11, 113–­14 Mind Cure Movement, 67 minstrel show, 47, 83, 93, 246n71, 251n24 Mirzoeff, Nicholas, 16, 54, 103 Mnookin, Jennifer, 88, 166 Molina, Natalia, 75, 93, 236n124 Morgan, Anna, 58–­59, 63, 63, 241n110, 243n164; Delsartism and, 50, 54–­55, 59, 65–­67, 68–­71; physiognomy and, 70–­71 Morgan, Jennifer, xi, 20, 24, 228n17 Morrison, Toni, 31, 236n126 Morse, William Francis, 92, 113–­14 Moten, Fred, 220

musculature, 60–­61, 72 Muybridge, Eadweard, 3, 230n7 Nadar, Felix, 13 Narrative of the Life of Frederick Douglass (Douglass), 189, 205, 208–­10 natural disasters, 136 “Natural poise,” 58 natural rights, to property, 102, 176, 182–­83, 254n93 nature, expressions and, 13–­14, 15 New England Mutual Life Insurance Company, 193–­94, 195. See also Pavesich v. New England Life Insurance Company Newsboy trading cards, 118, 119, 120, 126, 260n85 newspaper industry. See advertisements; media Newton, Isaac, 57 New York Civil Rights Act (1903), 184 New York School of Expression, 240n72 Niépce, Nicéphore, 14 non-­literal copying, 107 “non-­sovereign” mode of looking (Azoulay), 29, 107, 192 opera, light, 37–­38, 104–­5, 122–­25, 147 optical unconscious, 7, 231n21 originality, in copyright, 101–­2, 104–­5, 108–­ 10, 247n103, 248n130 “overappropriation” (Edelman), 90–­91, 117 ownership, 41, 72, 102; photography and, 3–­4, 22–­24, 86–­87, 90–­91; of Wilde portrait, 32, 77, 81, 83–­84, 103. See also copyright; property rights Ownership of the Image (Edelman), 25, 89 Pagano, Antonio, 108–­9, 248n127 Pagano v. Charles Beseler Co. (1916), 108–­9 Page Act (1875), 35, 237n4 Parker, Alton, 160–­62, 175, 179–­81, 184–­85, 261n17 302

INDEX

particles, light, 14, 56 Pashukanis, Evgeny, 89, 103 patents, 21, 75, 97–­98, 101, 233n53 “The Path of the Law” (Holmes, Jr.), 4, 20, 24 Patience; or Bunthorne’s Bride (Gilbert and Sullivan), 92, 93 Pavesich, Francis X., 198–­99 Pavesich, Paolo, 194, 197–­99 Pavesich v. New England Life Insurance Company (1905), 26, 27, 162, 193, 195, 197, 261n17 Paxson, Charles, viii, xiii Peabody Museum, Harvard University, 218, 265n11 Peirce, Charles, 46, 69 performance, 53, 68, 75, 130, 208, 236n133; copyright, 82–­83; Douglass and, 208–­12; expression and, 42, 46; minstrel show, 47, 83, 93, 246n71, 251n24; of Stebbins, 52, 54 perpetual copyright, 104, 143, 248n122, 254n93 personal immunity, 165–­66, 175, 177 personalities, 48, 137–­38, 140–­41, 147, 255n101 personal productions, 139, 141 Peters, Julie Stone, 25, 42, 75, 177–­78, 251n27 photochemical process, photography, 5–­6 “photogenic drawings,” expressions as, 32 photographers, 110, 119–­20, 127–­28, 144–­ 46. See also amateur photographers photographic imagination, 5, 6, 16, 42, 85 photographic logic, 6–­7, 69 photographic studies, advertisements, 98, 99 photographs, 7, 90, 110, 227n1, 231n18; copyright and, 80–­84, 87, 101–­2, 108–­9, 113–­14, 116–­17, 248n129, 249n154; as court evidence, 87–­89, 244n15, 246n59, 248n127; property protections of, xvi, 10, 17–­18, 24, 44, 75, 109

photography: as art, 17, 101; authorship and, 17, 93, 101, 107, 114; as “capitalist mode of production,” 20; “civil contract” of, 29; commercial production of, 22; criminal, 40, 157, 163, 173–­74, 237n16; disturbance of, 3–­4, 16; Douglass and, 201; identity and, 258n32; landscape, 86; legal harms and, 133–­40; legal history in France, 245n32; legal thinking, expressions and, 4; medical, 86; “non-­sovereign” mode of looking and, 29, 107, 192; “Notes on Love and Photography,” 16; ownership and, 3–­4, 22–­24, 86–­87, 90–­91; photochemical process, 5–­6; posing apparatus, 97–­100; as property, xvi, 84–­85, 216, 228n13, 249n153; race and, 213; “Short History of Photography,” 229n29; spirit, 113; of survival with light, 212–­13; theater, performance and, 53; as theater, 236n133 photography-­to-­be, 33, 213 Phu, Thy, 7, 163, 231n21 physiognomy, 54, 56, 70–­71, 164 Pictorialism, 89, 109 Playing in the Dark (Morrison), 236n126 Poe, Edgar Allan, 13, 16 point-­and-­shoot cameras, 3, 117, 127, 133, 135–­37, 146, 153 political theology, of property (Carter), 27–­28 politics, 129, 149 Pollard v. Photographic Co. (1888), 133, 182, 257n10, 259n70 portraiture: composite, 15, 33, 158, 166, 172–­74, 177, 183; Douglass and, 202–­8, 211–­12, 214; likeness and, 201; mind-­ body problem and, 233n64; ownership of Wilde, 32, 77, 81, 83–­84, 103; U.S. Constitution protecting, 115; visual preferences, 38–­39, 40 poses: of actors, 37–­38, 68; of Chinese people, 35–­38, 39; social status of, 37, 38, 40

303

INDEX

posing apparatus (Sarony’s), 97–­100 Pottage, Alain, 231n16 A Preliminary Discourse on the Study of Natural Philosophy (Herschel), 56–­57 “pre-­shutter” arrangement, 109, 116, 248n130 Prince Albert v. Strange (1849), 133 Pritchett v. Board of Commissioners of the County of Knox (1908), 178 privacy: Douglass with, 209–­12; public divide and, 121, 127, 130, 132, 146, 151–­53 privacy cases, 138, 156, 167; Corliss v. Walker, 197, 257n10, 261n16, 262n33; early, 24, 130, 184; Feeney v. Young, 152; torts protected in, 121; women and, 127, 130, 152, 252n42. See also Roberson v. Rochester Folding Box Co. privacy rights, 183, 252n39, 257n3; amateur photographers and, 144, 152; to be let alone, 140–­41, 165–­75, 184–­85; Cobb, Andrew Jackson, on, 195–­96; copyright and, 120; with effort and labor, 143, 146–­47; as forgetting, 220, 221; of Indigenous people, 149–­51; invasion of, 120–­21, 177, 184; with law and politics, 129; likeness and, 162–­65, 201–­3; Manola and, 119–­20, 122, 125–­30, 137, 147, 251n26; media and, 131–­32; Pavesich v. New England Life Insurance Company, 26, 27, 162, 193, 195, 197, 261n17; performance and, 130; with photographers as threat, 144–­46; photography and legal harms with, 133–­40; property protections and, 157, 216; “Right of Privacy,” 260n87; “The Right to Privacy,” 33, 120, 128–­33, 138, 145–­47, 152–­53, 252n51; Roberson v. Rochester Folding Box Co. and, 195–­96; “whitened people” and, 132, 138, 145, 147–­48, 252n42; whiteness and, 121–­ 22; white women and, 130–­31 private credit, 49, 74, 140, 187, 215 property: An Argument in Defence of Literary Property, 102; Colonial Lives

of Property, 230n3; colonial logics of, 9, 80; expressions and, 15; in images, 27; intangible, 140; intellectual, 9, 27, 75, 84–­85, 106, 117, 229n1; intellectual property law, 31, 105; natural rights to, 102, 176, 182–­83, 254n93; photography as, xvi, 84–­85, 216, 228n13, 249n153; political theology of, 27–­28; slaves as, xi, 228n17, 228n19; soul and private, 27; as theft, 91; Theft Is Property! (Nichols), 227n2; whiteness and, 26, 31 property protections, 176, 177; of photographs, xvi, 10, 17–­18, 24, 44, 75, 109; privacy rights and, 157, 216; for texts, 105; whiteness and, 24 property rights: land ownership in Haiti, 102–­3; racial capitalism and, 1; Roberson v. Rochester Folding Box Co. and, 175–­83; whiteness and, 18, 26, 29, 84 proprioception, 40, 61 Prosser, William, 120–­21, 180 Proudhon, Pierre-­Joseph, 91 “Psychology of Effort” (Dewey), 143 publicity: Bentham on, 178; rights, 10, 18, 33, 114, 156, 196, 260n85 publicness, 67, 242n145 public/private divide, 121, 127, 130, 132, 146, 151–­53 race, 30–­32, 40, 170, 213, 216, 227n6 racial capitalism, 4, 15, 40; aesthetics of, 8, 24–­33; defined, 24–­25, 229n1; whiteness and, 1–­2, 10, 156 racial caricature, 32, 78, 92–­93, 111, 125 “racial epidermal schema,” 18 racial scripts (Molina), 75, 93 racial sight, 204, 263n49 racial surveillance, 33, 49, 153, 177, 256n142 racism, 11, 95, 130, 229n1, 230n3; antiblackness, 12, 32, 93, 111, 199, 203, 211; Chinese people and, 38 railroad, 9, 50, 148, 151, 196, 248n127, 255n120

304

INDEX

realism: bodies and, 44; in theater, 46 the “real,” in law, 89–­91 Redpath Lyceum Bureau, 55 The Red Kimono (film), 260n92 Reed, Trevor, 219–­20, 221 Renty, 217, 218, 220, 221 reputations (whitened), 45–­46, 49, 140, 148, 149, 171 Rhodes v. Sperry & Hutchinson Co. (1908), 260n88 “The Rights of the Citizen to His Own Reputation” (Godkin), 148, 149, 171 “The Right to Privacy” (Warren and Brandeis), 33, 120, 128–­33, 138, 145–­47, 152–­53, 252n51 right to be let alone, privacy and, 140–­41, 165–­75, 184–­85 Roberson, Abigail, 155–­56, 159, 167, 168, 182, 184–­85, 186, 187 Roberson v. Rochester Folding Box Co. (1902), 26, 33, 252n39, 258n42; equity and, 159–­62; likeness in, 162–­65; privacy rights and, 195–­96; property rights and, 175–­83; with right to be let alone, 165–­ 75, 184–­85 Robinson, Cedric, 24, 30, 32, 229n1, 230n3 Robinson, Henry Peach, 97 Rochester Folding Box Company. See Roberson v. Rochester Folding Box Co. Roosevelt, Theodore, 4, 161, 184 Royal Photographic Society, 97 rumors, media with, 140, 152 Rumsey, William, 160–­62, 165–­66, 176, 177, 179, 185, 259n70 Saint-­Amour, Paul, 82, 105 Salamagundi Sketch Club, 95 Sandweiss, Martha, 86 Sarat, Austin, 75, 97 Sarony, Napoleon: Burrow-­Giles Lithographic Co. v. Sarony, 32, 82, 83, 85, 89, 101, 102, 110, 116, 117, 244n22;

Delsarte and, 99–­100; legacy, 96–­98; with lithographs, 94, 95; “Madame Patti” and, 244n11; with photograph copyright, 81–­84, 101, 102, 108–­9, 113–­ 14; photographic studies and, 98, 99; posing apparatus and, 97–­100; studio, 86, 99–­100, 108; Wilde and, 76, 77–­78, 79, 92–­93, 95, 96, 100–­101, 103, 105, 107, 110–­15, 113, 117, 156 Sarony, Oliver, 97 Saussure, Ferdinand de, 69 Schuyler, Mary Hamilton, 176–­77 Schuyler, Philip, 176–­77 Schuyler v. Curtis (1895), 176–­77, 261n16 Scribner’s (magazine), 136, 148 Sealy, L. W., 236n133 secularism, 44–­45, 56 Sekula, Allan, 156–­57, 177, 231n21 séméiotique, 69–­70 Sharpe, Christina, 18, 62, 233n73 shutters, 109, 116, 117, 133, 135, 137, 174, 248n130 signs, Delsartism and, 68–­70 silhouette drawing, 33, 164 silhouettes, 163–­64, 185 slavery, 24, 27, 123–­24, 227n2, 251n14; Douglass and, 204–­11, 263n44, 263n55; Reckoning with Slavery, 228n17; underground railroad, 209 social status, with poses, 37, 38, 40 Society Gymnastics (Stebbins), 51, 238n45 Society of Amateur Photographers, 134 Sontag, Susan, 90, 132, 231n21 souls: bodies, expression and, 11, 14; private property and, 27 sovereignty, 102, 116, 158, 192, 202–­3, 229n1, 257n14 Spillers, Hortense, 8, 12, 17–­18, 20, 211, 214, 228n19 spirit photography, 113 spiritual natures, 128, 140, 196 Stanton, Elizabeth Cady, 176 Statute of Anne, 248n122

305

INDEX

Stebbins, Genevieve, 96, 238n45, 240n72; bodies and, 58, 63; Curry, Anna Baright, and, 73; Delsartism and, 50–­53, 55, 59–­60, 64–­65, 69–­71; influence of, 72; performances of, 52, 54 stereoscopes, 4, 233n54 Stieglitz, Alfred, 106, 253n78 Stowe, Harriet Beecher, x, xii, 254n95 Stowe v. Thomas (1853), 103 subject in law, 25, 89–­90, 117 systems of expression: Delsarte and, 46–­54, 64–­68; Stebbins and, 53, 64–­65; teaching, 238n46 Talbot, Henry Fox, 58 talbotypes, 13, 106, 212 texts, property protections for, 105 theater, 37–­38, 42, 46, 47, 50, 53, 236n133 theatergoers, 92, 236n133 theft, property as, 91 Theft Is Property! (Nichols), 227n2 Trademark Cases (1879), 101, 108 transluminosity, 45, 54, 56, 58, 60, 69, 73–­74, 107 A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States (Drone), 106 Treatise on the Law of Torts (Cooley), 140–­ 41, 157, 166–­67, 173, 258n40 Truth, Sojourner, 21, 90, 227n6 Tuck v. Priester (1887), 133 Uncle Tom’s Cabin (Stowe), x, 254n95 United States (US): Bureau of Ethnology, 149; Constitution, 115, 204–­5 The Varieties of Religious Experience (James, W.), 67 Vats, Anjali, 31, 32, 117 Veblen, Thorstein, 26, 41 “Victorian compromise,” 252n51 violence, ix, x, 56, 153, 200, 205–­6 visible expressions, 84, 105–­7, 110, 112, 141

visual imperialism (Wanzo), 24, 93, 105, 111–­12, 116, 201, 234n91 Vizenor, Gerald, 145, 149–­50, 151 Wald, Priscilla, 41 Wanzo, Rebecca, 93, 234n91 Warren, Samuel, 32–­33, 141, 156, 252n51, 255n101; copyright and labor of art, 142–­43; everyday communication and, 138, 161; with photography and legal harms, 133, 137–­39; privacy rights and, 120–­22, 128–­33, 134, 144–­48, 152, 153, 157, 183, 252n39 waves, light, 14, 56, 57, 71 Wayward Lives, Beautiful Experiments (Hartman), xiv wealth, learning and, viii, ix, x, xi, 228n22 Weems, Carrie Mae, 218, 240n80 Wetmore v. Scovell (1842), 259n70 Wexler, Laura, x, 170, 190, 213, 220 Wharton, Edith, 16, 66–­67 Wheaton v. Peters (1834), 103 when-­time, 194, 207–­8, 211, 214 “whitened people”: expressions of, 37; identity and, 228n11; with land ownership in Haiti, 102–­3; portraits and visual preferences of, 38, 40; poses of, 39; privacy rights and, 132, 138, 145, 147–­48, 252n42; women, 47–­48, 52, 55, 124, 130–­31 whiteness: aesthetics of, 2, 25, 28, 30, 42, 44, 117, 156–­59, 177, 200, 212–­13, 216; and countersovereignty (Karuka), 257n14; defined, 215; Delsartism and, 73–­74; grace and, 45–­46, 71–­73; intangible assets in, 26, 32, 41; invisibilizing of, 31; minstrel show and, 47; power and, 2, 3, 8, 28–­29, 30–­31, 41, 44; privacy rights and, 121–­22; property and, 26, 31; property protections and, 24; property rights and, 18, 26, 29, 84; racial capitalism and, 1–­2, 10, 156; reputations and, 45–­46, 49

306

INDEX

white supremacy, 7, 11, 20, 30, 56, 86, 177; Chinese people and, 40; Delsartism and, 71; entitlement and, 80; futurity of, 243n171 white women: “About Women’s Arms,” 60; Bill to Protect Ladies, 250n2; with bodies and grace, 63–­64; elocution and, 47–­48; grace and, 55; language of, 124; with performance-­based entertainment, 52; photographers, 110; privacy cases and, 127, 130, 152, 252n42; privacy rights and, 130–­31 Wigmore, John Henry, 88

Wilde, Oscar, 74, 243n4; with fashion advertisements, 78–­80; with gender and sexuality, 111–­12; portrait and ownership, 32, 77, 81, 83–­84, 103; publicity tour of, 92–­93, 112, 114; in Punch magazine, 249n142; racial caricature of, 32, 78, 92–­93, 111; Sarony, Napoleon, and, 76, 77–­78, 79, 92–­93, 95, 96, 100–­101, 103, 105, 107, 110–­15, 113, 117, 156 Woolsey v. Judd (1855), 259n70 Wynter, Sylvia, 7, 12, 17, 18, 24, 25, 44, 124 Zealy, Joseph T., 145, 217

307

A bout the Author

Monica Huerta is Assistant Professor in the Department of English and Program in American Studies at Princeton University and author of Magical Habits. She previously held a Link-­Cotsen Postdoctoral Fellowship at the Princeton Society of Fellows in the Liberal Arts and a Provost Postdoctoral Fellowship at Duke University.

309