New Addition to Professor Ann Bartow Copyright Litigation Collection


Sex, Censorship and Copyright


State v. Conroy (New York Trial Court)                          

Recovering the lost history of New York v. Conroy permits us to celebrate the contribution of New York City photographers to the cause of expanding artistic freedom in the United States, and to explore the role this case played in the expansion of copyright protection to a broader array of creative works.

As Secretary of the New York Society for the Suppression of Vice and an Inspector for the United States Post Office Department, Anthony Comstock held broad authority to prosecute obscenity crimes. His powers stemmed from both state and federal laws passed beginning in 1873. In 1884, Comstock dragged one of his old nemesis, photographer Charles Conroy, to court. Comstock had arrested Conroy for selling pornographic pictures numerous times. Comstock arrested Conroy for selling some pictures on the street but this time, lawyers from the National Defense Association were working on behalf of Conroy as a type of test case. The photo in question was of actress Annie Sutherland.

The actual photograph does not exist anymore but one of Conroy’s attorneys described it. “Miss Sutherland was represented sitting on a rock with the ocean behind her. Her position was a natural and not ungraceful one, and her leaning slightly forward heightened the look of earnestness which appeared in her exceptionally pretty face. The figure was entirely clothed except the arms which were bare, the bust even was not exposed.” And we have a fairly good idea of what this picture looked like, as it was very common for popular actresses of the time to pose in these types of photographs. Many might be tight-laced in a corseted bodice but practically covered head to toe with fabric. The ensemble was often form fitting. The clothing in the picture is described as “the usual costume of the ballet with the short skirt surrounded by a border of fringe. In this case the fringe was made of a chenille or some heavy substance and was put on in loops so that all around the thighs and across the figure was a row or series of these loops…” First, in this trial they at least have a copy of the photograph in question. Secondly, the judge allowed testimony from professional photographers who are asserting that these types of photos of popular actresses was a common and normal practice of all professional photographers. Conroy’s lawyers, were really pushing Comstock on this question of expertise. At first he says that it is indecent because “the figure of a woman divested of her proper womanly apparel and sitting in a posture that is lewd and indecent” is obscene. The lawyers push him to be more specific but they get nowhere. The trial is postponed for a week and on return and cross-examination, Comstock finally tells them what he finds indecent about the photo. It was the loops on the fringe of Sutherland’s short jacket, and the shadows it was casting looked like “private parts. The trial ended up being postponed indefinitely added little to the body of jurisprudence.

Amy Werbel, State v. Charles Conroy : New York City Photographers' Battle for Free Speech in the Late Nineteenth Century

99 New York History 356 (2018)