MERELY MECHANICAL’: ON THE ORIGINS OF PHOTOGRAPHIC COPYRIGHT IN FRANCE AND GREAT BRITAIN

‘MERELY MECHANICAL’: ON THE ORIGINS OF

PHOTOGRAPHIC COPYRIGHT IN FRANCE

AND GREAT BRITAIN

A N N E M C C A U L E Y

In December 2001, the Boston Globe published an editorial entitled ‘Tracing Art’sGenius’ in which the writer sallied, ‘Have great painters been cheating forcenturies? Are their works merely the result of tracing optical and photographicimages?’1 The immediate inspiration for this unusual referencing of the arts onthe editorial page was David Hockney’s controversial Secret Knowledge: Rediscoveringthe Lost Techniques of the Old Masters, which uncovered the ways that artists fromHolbein to Ingres relied on drawing aids and the camera obscura for theircompositions. While art historians downplayed Hockney’s sensationalistic expo-sure of how the Old Masters copied projected or reflected images, the Globewriter’s comments reveal that one idea was beyond dispute: artistic genius andphotography were automatically antithetical, and the photograph (or otherdevices such as lenses) was different in kind from brushes and pencils movedthrough the agency of hand and mind.

The ready willingness of the majority of individuals to denigrate the photo-graphic as ‘merely mechanical’ (using the same terms for over a century) and toassume that art’s transcendent meaning derives from its peculiarly ‘human’qualities marked the earliest debates about the medium and its legal status asintellectual and artistic property. By looking at the history of copyright as appliedto photography, I propose to locate the assumptions about what constituted acopy and where creativity lay that helped to shape the direction of nineteenth-century art and industry. I would also like to explore the origins of what Foucaultcalls the ‘author-function’ of the photographer – a series of socially constructedbeliefs that necessitated the creation of a named individual who was responsiblefor the appearance of a stylistically coherent text (or photograph in this case) thatwas linked in some way to the author.2 The photograph, as at once a seeminglydirect reproduction of nature and, in its incarnation by the 1850s as a negative/positive process, an object itself subject to presumably infinite reproduction,presented a thorny jurisprudential challenge to existing copyright laws anddefinitions of intellectual creators. It raised questions about the fundamentalbeliefs that protected human products against illicit copying: What constituted a

DOI:10.1111/j.1467-8365.2007.00583.xART HISTORY . ISSN 0141-6790 . VOL 31 NO 1 . FEBRUARY 2008 pp 57-78& Association of Art Historians 2008. Published by Blackwell Publishing, 579600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA.

copy (and, by implication, an original)? How did labour imbue value? Whatdefined ownership? And what made a product artistic rather than industrial?

Even though various countries legally resolved the incorporation of photo-graphy within copyright protection at different moments (with France’s 1957statute a notable latecomer), the focus of this article is the flurry of court deci-sions and debates in France and Great Britain between 1861 and 1864 that stakedout the issues that continued to be argued into the twentieth century.3 The focuson France and Great Britain is to some extent arbitrary, in that every indus-trializing country evolved its own copyright laws and confronted the challengespresented by photography: for example, the United States granted copyrightprotection to photographs and negatives in 1865.4 However, by using as casestudies France, a country whose fine arts were internationally celebrated andwhose legal tradition strongly protected authors’ rights as creators, and GreatBritain, whose common law system tended to favour the rights of publishers overauthors and whose arts establishment was less centralized, we can suggest therange of juridical arguments that were later repeated in countries whose legalsystems borrowed elements from the French and British models.

Largely inspired by the international success of the cheap carte de visiteportrait, the wider circulation of celebrity photographs, and the expandedaudience for all sorts of art works made possible by increasingly ambitiousinternational exhibitions, these early court cases and parliamentary decisionsmirror the growing commodification of public images and the concomitantinvestment in their ownership. It is no accident that this moment coincides withthe advent of modernism, variably starting with Courbet or Manet in the 1850sand 1860s, as it has been retrospectively defined: the Salon des Refuses andbeginnings of the New Painting in France; the reorganization of the Ecole desBeaux-Arts in Paris in response to a sense that its curriculum no longer suited theindustrial age; and increasing calls for expanded suffrage, the abolition of slaveryin the United States, and new laws regulating labour. The pressures of indus-trialization pushing against the bedrock of agrarian and artisanal tradition werethreatening to split apart the old orders, whether political, economic, oraesthetic. Thus, the story of photography and copyright law mimics a largerdiscourse in which servile workers of ‘servile machines’ clamoured for the rightsto enjoy the fruits of their labours.5 I use the term ‘mimics’, however, because thefirms that argued for the protection of their images were more often than notlarger, powerful studios dependent on the mass production of celebrity photo-graphs rather than small, undercapitalized operators. Like the publishers whoshaped eighteenth-century copyright laws for books, changes in copyright camefrom above, not below, and placed traditional guardians of high culture againstthe new entrepreneurs of the mass media.

An overview of the development of copyright law reveals that it is normallydriven by three sometimes conflicting forces: (1) changes in techniques ofproduction that expand the audience for texts and pictures; (2) popular demandsfor greater freedom of expression and dissemination of information; and (3)pressure by the owners of extant copyrighted works who want to protect theirinvestments and profits. Legal decisions, in the form of common law judgmentsor statutory changes, were made in response to, rather than in anticipation of,new modes of production and reflected prevalent attitudes toward who should

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own and be rewarded for creativity and labour. However, in some cases (such asBritish statute 25 & 26 Vict. c. 68 extending copyright to paintings, drawings andphotographs in 1862), laws resulted in unforeseen consequences that altered theways that images were marketed. As I will demonstrate, individual court decisionsin the absence of statutory amendments were frequently overturned or ignored ifthey veered too far from the realities of current practice and should not be citedas ‘definitive’ proof that a certain medium was finally considered an ‘art’ orpermanently (or universally) protected by copyright, as has too often beenclaimed in the literature on the history of photography.6

It is beyond the scope of this study to detail the early history of copyright, butit is nonetheless important to review the fate of the ‘fine’ and ‘applied’ arts withinthat history, because photography was very much seen as analogous to traditionalmultiples that involved various balances of manual and mental work (such asprints, casts of artworks, or textiles). The popular conception of photography asan automatic or autogenetic process in which nature imprinted its own imagealso caused it to be likened to other material objects in which little humanintervention was assumed, such as casts from life. The problem for jurists wasfinding the appropriate precedent into which to insert the photograph, ratherthan rethinking the entire, incrementally adjusted and largely unworkable bodyof copyright legislation as it had evolved piecemeal since the sixteenth century.

Although the concept of ‘forgery’ certainly existed in the ancient Greekworld,7 misrepresenting the authorship or authenticity of an object whose valuedepended in large part on its creator or historic identity became subject to thebranch of the law that dealt with fraud (criminal law), rather than civil law, anddid not necessarily entail a copy. Among the many preconditions for the devel-opment of the legal idea of ‘copyright’ as a property right protecting intellectualcreation both before and after reproduction were the rise of text-based ratherthan oral societies, the development of the idea of individual rather thancollective creation, the decline of church, guild, and university control of bookproduction, and the evolution of merchant capitalism in eighteenth-centuryEurope.8 Most histories of copyright begin with the introduction of the printingpress in the late fifteenth century, which triggered protective legislation forprinters (and, occasionally, authors) in the form of royal privileges which entitledthem to monopolistic control of editions for very short periods of time (one or twoyears in early sixteenth-century France).9 Independent pictorial images (in otherwords, those not included as book illustrations) created by the new processes ofwoodcut or engraving were first protected by printers’ privileges in Venice, whereon 30 October 1500 the publisher Anton Kolb was granted a four-year privilege topublish Jacopo de Barbari’s large, woodcut map of the city.10 In England, a royalcharter in 1557 granted the members of the Stationers’ Company the right toregulate the publication of any printed matter, with authors still largely depen-dent on private, noble patrons for income.

Although he was not thinking specifically of intellectual property, John Lockein 1690 published a definition of private property that helped to establish thenatural right of authors, rather than publishers, to the ownership of their texts.Acknowledging that each man had a right ‘to the labour of his body and the workof his hands’, Locke concluded that ‘whatsoever then he removes out of the statethat nature hath provided and left it in, he hath mixed his labour with, and


59& ASSOCIATION OF ART HISTORIANS 2008

joined to it something that is his own, and thereby makes it his property.’11 Lockedid not, however, believe in unlimited authors’ rights, as is proven by his 1692 and1694 opposition to the renewal of the 1662 Act for the Regulation of Printingwhich preserved the Stationers’ Company’s control over printing. Complaining ofthe poor quality of Latin imprints and the Stationers’ Company’s monopoly, Lockepenned an eighteen-point memorandum that included a proposal for contem-porary authors to have rights to their texts for fifty to seventy years.12

What is generally conceded as the first modern copyright law, the Statute ofAnne (8 Anne c.19), was passed in Great Britain in 1710. This law, which wasinspired by publishers rather than authors and represented an attack on thestranglehold of the Stationers’ Company, granted protection against piratecopying to already registered titles for twenty-one years and to new titles forfourteen years, but also allowed authors to register their own copyrights. Therewas no guarantee or concern with the originality of the manuscript or the moralrights of the author. Furthermore, the right to control publishing was alienable,which meant that it did not adhere to the creator but could be transferred or sold.Subsequent eighteenth-century cases pitted publishers against authors andacknowledged authors’ natural rights to their texts, but ultimately confirmed theconcept of copyright as a statutory right.

The Statute of Anne did not extend to pictorial reproductions. In 1735, inresponse to the proliferation of mezzotints after William Hogarth’s paintings, alaw (the Engravers’ Copyright Act, 8 Geo. II c. 13), popularly known as Hogarth’sAct,13 was passed to protect against piracy ‘every person who shall invent anddesign, engrave, etch, or work, in mezzotinto or chiaro oscuro, or from his ownworks 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 four-teen years. It also required that all prints have the name of the proprietor on eachplate, but allowed persons purchasing plates to reprint them. This law wasapparently not consistently enforced, so in 1766 an amended law (7 Geo. III c. 38)was passed, inspired by the illicit copying of Hogarth’s prints after his paintingsthat was threatening the livelihood of his widow, Jane. It protected Hogarth’splates for an additional twenty years and doubled the copyright protection forother prints (historical, portrait, conversation, landscape, and so forth) executedin engraving, etching, or mezzotint after ancient or modern pictures, drawings,models, or sculpture, to twenty-eight years from the date of publication.14

In France, various ancien regime edicts granted printers’ privileges to authorsand publishers, with a law on 30 August 1777 first abolishing the automaticrenewal of such privileges and granting authors (not playwrights or musicians)and their heirs such privileges in perpetuity. The Revolution resulted in theoverthrow of all previous royal printers’ privileges in August 1789 and the passageof new regulations largely oriented to granting the public greater access toinformation rather than protecting authors.15 After a deputation of writers andartists addressed the Assemblee Nationale on 24 August 1790, to request theconsecration of the legal protection of their works, the legislature on 7 January1791 passed laws on ‘brevets d’invention’ (or patents) and the Le Chapelier law.The latter first clarified the rights of theatrical performances and allowed plays byauthors dead for at least five years to become public property. It was followed by alaw passed by the Convention on 19–24 July 1793 that addressed the rights of



reproduction of texts. This law, defined in a report by Joseph Lakanal, gaveauthors, musical composers, painters, engravers, and draftsmen the exclusivelifetime right to sell, resell, distribute within the French Republic, and cede all orpart of their property. Article 7 of the law, granting heirs a ten-year copyright,added a phrase to include ‘all other productions of mind or genius that belong tothe fine arts’.16

Subsequent nineteenth-century French legislation on literary property rightsprimarily concerned the length of time that writers and their heirs could benefitfrom copyright. A French decree of 5 February 1810 gave authors’ widows anddirect descendants twenty-year rights to their deceased spouses’ texts (with otherlines of descendants maintaining the ten years established in 1793). The case forperpetual copyright was raised and debated in 1825–26, again in 1836, and mostfamously in 1841, when the poet Alphonse de Lamartine eloquently defended theimportance of intellectual property to society as a whole. On 8 April 1854, thelength of copyright was extended to thirty years after the author’s death fordirect descendants; that protection was extended to fifty years on 14 July 1866.17

Similarly in Great Britain, the length of protection for authors was graduallyextended in the face of comparable demands for perpetual copyright. The 1814Copyright Act doubled the fourteen years of the 1710 statute to twenty-eight yearsafter the date of publication or the life of the author, prompting the poet RobertSouthey in 1819 to argue in favour of perpetual rights. Thomas Noon Talfourd, anamateur author, waged a long battle for extension of copyright that resulted inthe Copyright Amendment Act of 1842 that settled on a period of protection offorty-two years post-publication, or the life of the author plus seven years.18

Technological changes in modes of graphic reproduction were easily accom-modated by adapting the 1793 French law that had included engravings and the1766 British statute concerning reproductions of prints. The growing popularityof lithography, a printmaking technique that took off commercially after theNapoleonic Wars, caused it to be taken up by French legislators on 8 October 1817.A new law passed that day required that editors or publishers of all lithographsfor public sale deposit five copies with local prefectures and the national library.Whereas this depot legal of printed matter was a necessary precondition forproving copyright protection in case of legal challenges (the 1793 ruling did notcover materials that were not registered with the state), the extension of depositrequirements in and of itself did not prove that the object’s creator automaticallyhad a right to the image. Nonetheless, the 1817 law on lithographic registrationreflects the growing commercial value of such images.19 In Great Britain,extension of copyright protection to lithography did not occur until 1852 (15 and16 Vict. c.12) in a law that claimed that the process had been accidentally over-looked in an earlier ruling and that similar protections should automatically beextended to ‘any other mechanical Process by which Prints or Impressions ofDrawings or Designs are capable of being multiplied indefinitely’.20 Since theimage on the stone was still made by hand, or through the transfer of a drawing,there seemed to be no difference in concept from earlier intaglio and reliefprocesses that were already protected.

The popularity of decorative, Neoclassical plaster cast reproductions amongthe middle class made sculpture a medium for new scrutiny by legislators in thelate eighteenth century. The Sculpture Copyright Act of 1798 (38 Geo. 3 c.71)



protected for fourteen years after completion models, copies, or casts fromhuman figures or animals (including parts of humans or animals), provided thatthe work contained the name of the person who made it and the date. 21 TheFrench response to casts, however, set the stage for the confusion surrounding thesubsequent treatment of photography. The 1793 copyright law, through an over-sight, had neglected explicitly to include sculpture, but had introduced languageso that one would have to demonstrate that casts were ‘products of mind orgenius that belonged to the fine arts’, a categorization that was singularly absentfrom the English statute that categorically protected a stipulated mediumregardless of quality. In an 1834 case involving a death mask made of Napoleon Iin 1821 by his doctor, Francesco Antommarchi, members of the Fine Arts sectionof the Institut de France judged that casts of a human figure, whether dead oralive, did not involve ‘mind or genius’ and thus could not be considered artisticproperty protected by the law of 1793; the Tribunal of the Seine agreed.22 Castsfrom living (or deceased) natural forms seemed to require technical skill inmanufacture but no real creativity. 23

The limits between ‘artistic’ and industrial (often mass-produced) sculptures,however, were more difficult to draw. Industrial property in France, as in GreatBritain, had its own protections that were distinct from those for artistic andliterary property. These included the 1806 law protecting industrial designs andmodels (inspired by Lyons textile designers wanting to protect copying of theirpatterns), the 1824 law protecting commercial names or trademarks, and the 1791and 1844 statutes governing patents for inventions. The inclusion of sculptureshad been tested in 1814 by a case involving Antoine Joseph Romanelli, butconfusion remained as to what distinguished an ‘art’ cast from the mass-produced bronzes that increasingly graced July Monarchy living rooms. In legalvictories for commercial manufacturers of art bronzes in 1847 and 1848, the Courde Paris recognized Collas and Barbedienne, who sold popular bronze reductionsof statues by Germain Pilon and the Venus de Milo using a ‘purely mechanical’process, as having a right to their reproductions.24

The first commercial photographs in France, in the form of direct positive,unique daguerreotypes in the 1840s, could not be easily reproduced and thusinspired few copyright disputes. That is to say, very few daguerreotypists saw theirworks copied by other daguerreotypists, and in those cases in which daguerreo-types were translated into prints (as in Lerebours’ Excursions daguerriennes of 1840–44 or the lithographic plates of skulls published in 1854 in Emile Blanchard’sVoyage au Pole Sud et dans l’Oceanie sur les corvettes L’Astrolabe et la Zelee drawn fromBisson freres’ daguerreotypes made in 1842), the daguerreotypists seem to havereadily relinquished the rights to their images upon payment. In one isolated casein 1847, the medium was judged ‘purely mechanical’ and subject to commercialrather than civil jurisdiction.25

Despite the fact that during the 1840s photography’s legal status in France aswell as Great Britain remained that of a commercial product, there is goodevidence that early photographers acted as if they were the authors and not justthe manufacturers of their work. One indication of this is their adoption of whatmany still consider the most fundamental sign of authorship, the signature. Bythe early nineteenth century, the autograph signature was the established way ofindicating authorship in the visual arts, whether on unique paintings or the



plates and stones of printers where it had to be contrived in reverse. The cursivesignature’s differences from the monogram or trademark also need to be clar-ified: monograms, which were used by goldsmiths before being adopted by earlyprintmakers in the fifteenth century, maintained their artisanal associations andwere commonplace on manufactured goods on which they could be stamped,such as the silver-coated plates by Christofle purchased by early daguerreotypists.Cursive writing, as a mark of an individual’s hand, had achieved legal prestige as atestament of authenticity in the era after the invention of moveable type, as isindicated by a 1554 ordinance by Henry II that required all notarized acts,contracts, and legal transactions to be signed.26 The cursive signature denoted amore personal, chirographic type of authorship in which the body of the makerwas invested in the product; its uniqueness and authenticity were functions of itsstatus as a material trace of the distinctive gestures of an equally unique andcoherent personality.

Early daguerreotypists, including the inventor Louis-Jacques-Mande Daguerrehimself, often inscribed their names with a stylus across the corner of theirplates. Such a sign of authorship in Daguerre’s portrait of Francois-JulesCollignon (formerly identified as Charles Arrowsmith) in 1843 was clearly acarryover from his experiences as a painter and lithographer, in which he routi-nely signed his canvases or stones (backwards or through a transfer drawing).However, other daguerreotypists with no formal training in the visual arts, suchas E. Thiesson in his 1844 portrait of Daguerre, incorporated the same device as atestimony to their pride in craftsmanship and desire to advertise the authorshipof their images (plate 1).27

In contrast, the inventor of thepaper negative process, William HenryFox Talbot, working initially as anamateur, did not write his name in inkon his paper prints or negatives butrather signed the versos and occa-sionally inscribed dates and places onthe rectos as diaristic records. As papernegative photographers began tocommercialize their works in the1840s, abbreviated monograms weredrawn on the negatives (as in the caseof Henry Collen, the first commercialpaper negative portraitist in GreatBritain, who applied his initials on hisportraits as early as 1843). By the late1840s, ink signatures (appearing aswhite lines in the resultant positives)were commonplace on paper negativesmade by men trained as painters, suchas Henri Le Secq, Charles Marville, andCharles Negre. The addition of an inksignature on a positive print or itsmount, however, stretched the limits

1 E. Thiesson, L. J. M. Daguerre, 1844. Daguerreo-

type. Paris: Musee Carnavalet. Photo: Musees de

la Ville de Paris.



of how an original could be defined (since, if anything, it was easier to argue the‘creation’ in the camera of the negative than it was the pulling of multiples fromthat negative), and the precedent from printmaking did not apply (individuallypulled prints were rarely signed by hand in the 1830s and 1840s except for specificdedications as gifts; editioning of prints with pencil or ink signatures came laterin the nineteenth century).

The fact that photographers were acting and publicly proclaiming themselvesas artists did not in and of itself have any impact on the law. But as graphic artistsand other photographers began reproducing extant photographs in the era ofcollodion on glass negatives and albumen prints, large or ambitious photographicfirms pushed the courts to defend their works as products of mind. In anunusually aggressive move for a photographer with no real reputation, AdrienTournachon, Nadar’s younger brother who had just taken up the medium, in 1856sued Arsene Houssaye, editor of L’Artiste, for reproducing Louis Flameng’sengraving after his photographic portrait of the then deceased poet, Gerard deNerval. It was accepted within law that persons owned their own images, whichmeant that portraitists in any medium could not publish a work withoutpermission of the sitter.28 The issue in this case was that Houssaye unwittinglyreproduced a print derived from a photograph, and Tournachon claimed thephotograph was protected by the 1793 law. The commercial court, withoutdebating the nature of the law, agreed that the print was a ‘servile copy’ of thephotograph and awarded Tournachon the modest sum of fifty francs. The lawyer,Henri-Jules-Simon Pataille, commenting on the case, argued that all artisticreproductions, regardless of medium, should be protected by law.29

The most heated rhetoric regarding photography’s status within Frenchcopyright law occurred in a series of cases and appeals between 1861 and 1863. InJuly 1861 the successful Parisian portrait firm of Mayer et Pierson sued theconfectionary manufacturer Siraudin for reproducing their carte de visite portraitsof celebrities on sweet wrappers. The civil court for the Department of the Seineruled that Siraudin had to pay 200 francs to the plaintiffs and cease using theirportraits, but did not address the question of intellectual property rights.30 Whenanother photographer, Duroni, accused the Milanese operator Tuminello ofcountertyping his photographic portrait of King Victor Emmanuel, the Tribunalof Commerce decided that it had no jurisdiction over such a case becausephotography was not subject to laws governing intellectual property but to thoseregarding industrial patents. The court declared that photographers needed‘more or less skill, but cannot be assimilated to those who profess the fine arts inwhich spirit and imagination operate’; the Court of Turin in October 1861 upheldthe Tribunal in this decision.31

In January 1862, Mayer et Pierson filed a similar suit in the Tribunal correc-tionnel de la Seine against the firms of G. Thiebault and Betbeder for copyingtheir carte of the Italian minister, Count Camillo Benso di Cavour, and againstSchwalbe for copying their portrait of Lord Palmerston. The carte of Cavour hadbeen retouched, with Betbeder’s employees (Thiebault had in effect ceded hisbusiness to Betbeder) enlarging the figure of Cavour, changing the pose of thelegs, and adding a library scene for the background. Pataille, the lawyer forBetbeder, maintained that most photographers recycled celebrity cartes andcharged that Mayer et Pierson had to prove that Cavour had ceded to them the



reproduction rights for his image. The judge ruled against Mayer et Pierson anddeclared that ‘in effect photography does not invent and create . . . that its works,produced with the aid of mechanical means, can in no way be assimilated toworks of intelligence . . . that in selling his secret to the State, Daguerre freed hisinvention and its results to the public domain, and that it would be contrary tothe rules in such a matter to give a privilege not only to the inventor himself butto all those who have profited or will profit from his discovery.’32

Mayer et Pierson appealed and, thanks to the compelling argument of theirlawyer, in April received a contradictory judgment against Betbeder and Schwalbefrom the Cour de Paris based not on the concept that all photographs by definitionwere covered by the law of 1793, but that certain images could be considered artisticin ‘their choice of point of view, the combination of effects of light and shadowand, in portraits, the pose of the subject, the distribution of the costume andaccessories’, all of which could give the photograph the ‘imprint of [the operator’s]personality’.33 This decision was very unsatisfactory, because it placed jurists in theposition of art critics who had to evaluate each photographic product. Further-more, the issue of how the photographer’s ‘personality’ was ‘imprinted’ in aphotograph through activities that took place prior to exposure was not resolved.

The case was reargued in November 1862 before the Cour de Cassation (theSupreme Court). Herold, defending Betbeder and Schwalbe and writing in thewake of arguments over realism as a style in painting, distinguished between theaesthetic and legal definitions of a work of art. While many makers of objectsranging from clothing to jewellery could be considered talented ‘artists’,according to the law of 1793 a work had to be a product of mind and genius that‘originated from the artist himself, was original, and constituted a creation’ to beconsidered under the law.34 Works of dubious aesthetic quality or inspired byearlier artworks, such as Raphael’s Marriage of the Virgin, which was a variation ofa Perugino painting, would be protected, whereas reproductions, ‘un doubled’une oeuvre anterieure’, would not.35 Photographs clearly offered none of thequalities of ‘creation, originality, and individual emanation’ that were requiredfor the legal definition of works of art. The April decision, which had grantedMayer et Pierson possible artistic status based on their posing, choice of vantagepoint, lighting, and so forth, was erroneous because all photographers manip-ulate these variables and all human products entail some degree of intelligenceand choice. Herold also invoked the recent decision of 15 January 1862 involvingthe commercial bronze manufacturer Barbedienne, whose reduced version of asculpture in the public domain was not judged a work of art protected by copy-right (counter to earlier decisions in its favour).

To close his case, Herold presented a declaration signed by many of theleading artists of the day declaring that photography was not an art. Members ofthe Institut de France including Jean-Auguste-Dominique Ingres, Hippolyte Flan-drin, Joseph-Nicolas Robert-Fleury, Francois Picot, Charles-Francois Nanteuil, theprintmaker Henriquel-Dupont, and Louis Martinet as well as Philippe-AugusteJeanron, Luigi Calamatta, Charles Jalabert, Constant Troyon, Philippe Rousseau,Eugene Isabey, Francois Francais, Pierre Puvis de Chavannes, and others, agreedthat photography consisted of ‘manual operations’ whose prints could not in anycircumstances be ‘assimilated to works that were the fruit of intelligence and thestudy of art’.36



Ambroise Rendu, speaking for Mayer et Pierson, responded with his owndefinition of what art was and, echoing Victor Cousin, defined three elements ofintellectual products: truth, beauty, and utility. Science was the manifestation oftruth, art the domain of beauty, and industry that of utility. By showing a spec-tacular Alpine view by the commercial photographic firm of Bisson freres andlikening Mayer et Pierson’s group portrait of the representatives at the ParisPeace Congress after the Crimean War to Raphael’s School of Athens, he comparedthe camera to the brush as a tool and emphasized the role of the photographer(plate 2). Machine products were characterized by uniformity, while everyone

could see that portraits of the same sitter by different studios varied enormouslyin their effect.37 This example turned on its head a familiar, commonsensicalargument that had been used to defend the very uniqueness of human versusmachine labour. Quatremere de Quincy, in his 1825 Essai sur la nature, le but et lesmoyens de l’imitation dans les beaux-arts, had described many painters lined upbefore a model who thus produced vastly different paintings.38 In turn, therealist defender Champfleury, in his pamphlet Le Realisme published in 1857,modified the anecdote to evoke ten daguerreotypists exposing plates in thecountry versus ten landscapists before the same scene. Champfleury’s conclusion,which was ultimately consistent with Quatremere de Quincy’s belief in the ways

2 Mayer freres et Pierson, Congres de Paris [Paris Peace Conference], 1856. Salt paper print from

collodion on glass negative. Austin, TX: Gernsheim Collection, Harry Ransom Humanities

Research Center, The University of Texas at Austin. Photo: HRHRC.



that painters transformed nature, was that the daguerreotypes would be all thesame and the paintings all different because of the ‘temperament’ of man.39

What changed between 1857 and Rendu’s reframing of this literary trope in orderto liken photographers to painters in the 1862 court case was the new evidenceprovided by outstanding albumen prints by Bisson freres, Adam-Salomon, andNadar that showed that photographers controlled the style of their final products.Rendu effectively concluded that ‘the painter has his painting in his mind beforeputting his hand to the work, and the brush is only the instrument of histhought.’ This made the operations of photographers analogous to those oftraditional fine artists. The judge was convinced of the validity of this argument,and upheld the decision of the Cour de Paris.

The original wording of the 1793 law, with its demand that protected mate-rials be ‘productions of mind or genius’ and incorporated within the ‘fine arts’,caused copyright in France to be something more than a subset of property law. Ifone made a reproduction by a machine, then one could patent the mould ortemplate but the reproduction itself was not protected; if one made a copy, whichby definition was different from a ‘reproduction’, then the copy was protected solong as it embodied or contained within it some sign of the human hand or mind.The concept of a ‘droit moral’, or moral right to ownership of a creation because itexpressed the nature or essence of a personality, gradually crept into Frenchjurisprudence through the cautious wording of the 1793 law, which was intendedto calm authors and artists threatened by the loss of royal patronage and theproliferation of mechanization. Under ‘droit moral’, an author or creator had aninalienable right to his or her work, and the work could not be altered, cropped,or manipulated after creation because such an alteration was an attack on theconcept and personality of the originary creator. The work, in a sense, became anappendage of something legally defined as a coherent personality, not justsomething the maker had acquired through labour.40

Although the 1862 Mayer et Pierson victory in the Cour de Cassation washailed by photographers as a vindication of photography as an art, subsequentcourt decisions failed to uphold its decision. In November 1862, immediatelyfollowing the Mayer et Pierson decision, the Parisian photographer Disderi seizedcelebrity portraits from Ledot aıne, Ledot jeune, Deplanque, Taupin, Damervaland Algiers that he claimed were made after his photographs. He brought his caseup before the Tribunal civil de la Seine in December 1863, where the judge ruledthat photographs were not works of art but were the ‘results of mechanicalprocesses and chemical combinations servilely reproducing material objectswithout requiring the talents of an artist’.41 The Tribunal correctionnel de laSeine reached a similar conclusion in March 1863, when the French painterMasson accused his former partner Derain of illicitly reproducing through alithographic copy a photographic portrait he had taken of Sultan Abdul-Aziz inConstantinople.42 On appeal, however, this decision was overturned.43

Depending on the details of the case, the flagrancy of the copying, and thecommercial gain involved, judges were left to impose various standards andprecedents in the absence of legal reform throughout the century. Even thoughthe Congres de la propriete industrielle, held in Paris in 1878, advocated a speciallaw for photography,44 the general public’s and the fine arts establishment’sunwillingness to consider the medium as an art form, and the impracticality of



enforcing such a law in light of the explosion of photographic images, led tojudicial inertia.

What is surprising about the French legal arguments mustered in the early1860s to attack or defend the extension of copyright protection to photography ishow very narrow and repetitious they were in comparison with comparabledebates over copyright protection in Great Britain. The plaintiff was normally alarger and successful urban business filing a complaint against a smaller entre-preneur, and the courts were generally sympathetic to arguments regardingunfair loss of income through piracy. There were no mentions made of consu-mers’ roles or rights to the dissemination of photographs, as there were in Britishcases in the 1840s regarding the copyright of calico designs, perhaps becausephotographs, unlike cheap printed textiles, were not seen as necessities.45 Nor didany of the defence lawyers argue that free trade policies of manufacture benefitedsociety as a whole. The central concern, as had been the case with plaster casts,was whether or not the new medium could be considered an ‘art’ in its mode ofproduction (not its appearance). Given that the courts were forced to adaptcurrent language from the 1793 law (and were not legislative bodies considering achange in the law), the critical issue remained whether or not photographs couldbe viewed as ‘productions of mind or genius that belong to the fine arts’.

Another issue that remained invisible in suits brought by large firms such asMayer et Pierson was the fact that photographs were collective rather thanindividual products. When Mayer and Pierson filed their cases in 1861 and 1862,the plaintiffs were a company, a partnership between Louis Pierson and ErnestMayer formed in 1855 with a capital investment of 600,000 francs, that employednumerous operators, printers, and mounters in their two studios on the rueVivenne and Boulevard des Capucines. Although Mayer and Pierson must haveattested that they actually travelled to Italy to take the portrait ‘from life’ ofCavour that had been counterfeited (this is not noted in the summary of the trialargument), the nature of their role in the production of the final print was neverdisclosed (nor queried by the lawyers for Thiebault and Betbeder). Even if bothMayer and Pierson had been present at the photographic sitting, there was stillthe issue of how two individuals could have jointly contributed their ‘creativepersonality’ to a product (in all fairness, the question of workshop practice inpaintings or sculptures was also avoided in copyright cases in order to protect themyth of the individual genius/artist). The focus remained on the nature of thework itself and its general mode of production (through the use of a camera andposing), rather than the specific conditions and roles of identifiable photo-graphers in making the contested images.

The story of photography’s fate before the British courts and parliament issomewhat different due to the lack of ambiguous language in the copyrightstatutes. In keeping with earlier rulings based strictly on medium, British lawsextended statutory copyright protection all at once to ‘paintings, drawings, andphotographs’ on 29 July 1862 (the Fine Arts Copyright Act). The inclusion ofphotography within this law was something of an accident, since the maininspiration behind the initial proposal was a petition to the House of Lords in July1858 by the Society of Arts, the Royal Institute of British Architects, and variouspainters, engravers, photographers, and others calling for general copyrightextension.46 The legal reformer Lord Lyndhurst, son of the painter John Singleton



Copley, who presented the bill, noted that even though prints made after apainting were covered by extant laws, the painting itself was not protected.47 Lowquality oil copies of famous oils, not to mention the flood of reproductions inother media including photography, had proliferated and were injuring thereputations of artists. Since the eighteenth century some painters had often madehuge sums by selling narrative works to printmakers, who would popularize themthrough mass distribution (such as Boydell’s Shakespeare Gallery), and Art Unionsoriginating in the nineteenth century similarly bought paintings with theexpress goal of distributing reproductive engravings (and, by 1858, photographs)to subscribers.48 However, what was distressing to artists in 1858 was the illicitcopying of parts or the entirety of their works that were increasingly available tothe public in large international exhibitions.

In the event, the House of Lords was dissolved before it had time to deal withthe bill in 1858, and the issue was unresolved. Intervening court cases, such as thesuit brought by the Newcastle upon Tyne publisher Robert Turner against aDublin photographer, James Robinson, highlighted how complicated the chain ofreproduction had become and the limits of the eighteenth-century lawsgoverning the reproduction of engravings. Turner had paid 150 pounds to painterAugustus Egg for the rights to reproduce Henry Wallis’s 1856 oil, The Death ofChatterton, which Egg had bought from Wallis. This painting, which was exhibitedto much acclaim in 1856 at the Royal Academy and in 1857 at the Manchester ArtTreasures exhibition, had been seen by Robinson and was used as the basis for atableau vivant reenactment of the dramatic death scene, which he then photo-graphed. Turner sued the photographer even though only a crude woodcutafter the painting had been published (the finished engraving only appearedin 1860).49

Plans for the 1862 London International Exhibition inspired the earlier peti-tioners, known as the Artistic Copyright Committee, to reconvene and press foranother bill in the House of Commons in 1861. The bill, passed after over a year ofdebate in both Houses, gave the authors (British subjects or residents within thedominions of the crown) of ‘every original painting, drawing and photograph . . .the sole and exclusive right of copying, engraving, reproducing and multiplyingsuch painting or drawing, and the design thereof, or such photograph, and thenegative thereof, by any means and of any size, for the term of the natural life ofsuch author, and seven years after his death.’50 In other words, the jurisdiction ofthe law was determined by medium and was an alienable right, which meant thatcopyright passed to the purchaser or commissioner of an artwork unless the artistexpressly stated otherwise at the time of sale. Copyrighted objects also had to beregistered at the Hall of the Stationers’ Company, and had to bear a signature ormonogram.

The main issues that arose during the parliamentary debates were the effectsof the law on purchasers, the determination of originality, and the problematicinclusion of photographs. Editors for the Art Journal strongly objected to the bill,which they thought would deter pictures from selling since purchasers would notautomatically get copyright of the image; Lord Fermoy, in the House of Commons,raised the same complaint. The Attorney General replied that purchasers of thework could also purchase the copyright.51 Renaissance painting collector,archaeologist and diplomat Henry Layard opposed the bill because it was difficult



to determine to what extent a work was original: he noted that even artists suchas Raphael and Michelangelo recycled motifs from earlier artists, and thatacknowledged genius was its own copyright. He also felt that reproductionsenhanced an artist’s reputation, and that ‘art was being reduced to that degradedstate which rendered a picture more like a button, a needle, or any other commonarticle of manufacture subject to the same, and only to the same, conditions withresponse to purchase and sale.’52 On another point, photographer Julia MargaretCameron’s friend the banker Lord Overstone demanded in the House of Lords thatthe words ‘new and original’ be introduced before the term ‘picture’ in order tomake the law in keeping with the language governing patents.53

The surprising inclusion of photographs within the media protected no doubtresulted from the same commercial forces that were simultaneously inspiringcopyright cases in France: growing industrialization of albumen prints, coun-tertyping of celebrity portraits, and the presence of a few vociferous and middle-class photographers who could defend their claims as artists. One member of theHouse of Commons, Harvey Lewis, objected that photography was ‘not a fine artbut a mechanical process’. The Solicitor General countered that ‘although, strictlyand technically speaking, a photograph was not in one sense to be treated as awork of fine art, yet very considerable expense was frequently incurred inobtaining good photographs. Persons had gone to foreign countries – to theCrimea, Syria and Egypt – for the purpose of obtaining a valuable series ofphotographs. Should others, by obtaining negatives of their positives, be able toenrich themselves?’54 Those ‘persons’ included Roger Fenton, a gentlemantrained as a lawyer with connections to the royal family, who represented the typeof respectable photographer and member of the Royal Photographic Societyundoubtedly putting pressure on the House of Commons for copyright protec-tion. In an effort to appease the sitters of photographic and other portraits, it wasdecided to add a provision whereby they retained the rights to their likenessesunless specifically ceding them to the artist or photographer.

In the House of Lords debate, there were similar objections that ‘it was quitepossible for two or more persons to take photographs of the same scene, building,or work of art from the same spot, and under the same circumstances, and ofcourse produce similar results’.55 People could also make photographic copies ofphotographs, for example of the Coliseum, and who could determine which wasthe ‘original’?56 However, members of the House of Lords, undoubtedly fatiguedby the length of the debate, encouraged by Lord Westbury, the Lord Chancellor,and conceding to commercial interests, finally passed the amended but highlyproblematic bill with no further discussion of photography. The unclear ramifi-cations of the bill, and the dissatisfaction of many people with the inclusion ofphotography under copyright protection, resulted in ongoing failed amendmentsand legal challenges until 1911, when photographs suffered a set-back and wereonce again distinguished from other types of creative products and given ashorter term of protection (fifty years from the making of the negative, ratherthan fifty years after the death of the creator of a dramatic, literary, or musicalwork).57

Despite publicly voiced complaints from the art world, the passage of the 1862law had an immediate impact on the behaviour of British photographers, who forthe first time had to register prints to allow them to be protected from counter-



typing.58 The first entries appeared on 15 August 1862, and during the first yearcommercial firms marketing celebrity portrait series such Caldesi, Mayall, andSilvy profited from the legislation. H. P. Robinson registered his rural genre sceneBringing Home the May, while Oscar Rejlander, today well known for his allegoricalimages, saw money to be made with his portraits of the Tennyson family andHenry Taylor. Following Rejlander’s example, a recent initiate to the silver arts,Julia Margaret Cameron, in May 1864, less than two years after the passage of thelaw, registered her own studies of the Madonna, Holman Hunt, James Spedding,Alfred Tennyson, and Henry Taylor.59

While photographers gleefully profited from the greater protections againstpiracy, printmakers were disgruntled because their medium had not beenspecifically listed in the Act of 1862. Noting that the photographic firm SouthwellBrothers had just won a case against two other London photographic firms whohad sold copies of a portrait of the actress Lydia Thompson, Ernest Gambartcomplained to the editors of The Times in December 1862 that he was beinggiven the run-around by the courts when he tried to pursue photographerswho were copying engravings after paintings by Rosa Bonheur and HolmanHunt sold by his firm. After twenty years of residence in Great Britain, why couldhe not get the same protections that were granted in France?60 The SouthwellBrothers firm smugly responded in the same paper the next day that engravingswere covered under the old (1766), rather than the new, copyright law andsuggested that Gambart should become a photographer, ‘as where one expensiveprint is now sold, 100 moderate priced photographs would be disposed of.’61

Gambart had the last laugh, however, because later in 1863 he won his suitagainst the photographer, Ball, because the judge interpreted the intent of the1766 law (which concerned reproduction of prints by other prints) to protect theloss of reputation and income regardless of the means whereby the print wascopied.62

The turmoil over the legal status of photographs as well as works in othermedia in the early 1860s, whether in the Paris courts or the British Houses ofParliament, marks a transitional moment analogous to that of the 1980s–90sduring which improved techniques of reproduction and large investments by newimage entrepreneurs called into question the status and ownership of intellectualproperty. British painters, assailed by roaming cameramen stalking their canvasesin public exhibitions, pushed for and won new copyright laws. French photo-graphers, threatened by other photographers, found themselves arguing thatthey acted just like painters, with their minds, not their tools. Whereas Renais-sance artists, drawing from classical rhetoric, had emphasized inventio, or theconception of their composition, as the justification for their superior status toartisans or handworkers, the usurpation of this claim by photographers pushedtraditional fine artists into a corner. As Robert Herbert noted twenty years ago inhis article, ‘Impressionism, Originality, and Laissez-Faire’, the irregular marks ofthe hand re-entered aesthetic discourse in a positive light under the pressure ofmachine-made, commodified goods.63 By flattening the differences betweenphotography and painting, copyright cases inadvertently contributed to painters’defensive unification of both mind and body, conception plus evidence of thehand, as the new locus of their creative force in the waning years of the nine-teenth century.



What is also telling in the debates over the legal status of photography is thefact that no one challenged the qualities that separated the human from themechanical. The photograph could be redeemed (and made copyrightable) inFrance only by locating it as the result of a chain of aesthetic decisions dependenton training and inherent talent. One read such decisions in the visible differencesin composition, lighting, and focus of various photographers’ treatments of thesame sitter or landscape site, with the fact that the photograph itself was amultiple having nothing to do with the debate (just as it had not been an issue inearlier printmaking processes that were protected by copyright). The identifica-tion of the machine with programmatic repetition and standardization – quali-ties that were increasingly devalued by intellectuals at the same time thatWestern capitalists and governments were successfully imposing norms of humanbehaviour, physiology, and social controls – was the unchallenged shibboleth thatdialectically made possible a legal defence of the personal ownership of creativeproperty in France. If one were to argue that there was no appreciable difference invalue between repeatable, machine-made goods and those produced by hand, orthat the former in fact possessed a certain perfection and smoothness of form andconsistency like that of mathematics, then not only did the lines between theaesthetic and the utilitarian disappear, but the social divisions that allowed certainpersons to be considered as standardized and quantifiable and others as loci ofmind and genius were threatened. Such an argument was almost unthinkable inthe 1850s and 1860s.64 And, as the Boston Globe editorial quoted at the beginning ofthis article reveals, it remains largely inconceivable today (despite advances inartificial intelligence and bioengineering) that humans and machines could bealike, and that one person’s labour was just as valuable as another’s.

Notes

A version of this article was first presented as a paper in the session on copiesorganized by Patricia Mainardi for the College Art Association meetings, Phila-delphia, 22 February 2002. All translations are by the author.

1 ‘Tracing art’s genius’, Boston Globe, 16 December

2001, section D, 6.

2 Michel Foucault, Language, Counter-Memory, Prac-

tice: Selected Essays and Interviews, ed. Donald F.

Bouchard, Ithaca, NY, 1977, 114–38. Foucault

touches briefly on copyright as marking a

moment when the author becomes legally

assimilable to property, but he sees this move in

the late eighteenth century as premised on the

construction of a penal code that defines writing

as potentially transgressive (125). Copyright

regulations would undoubtedly be considered by

him as participating in the ‘legal and institu-

tional systems that circumscribe, determine, and

articulate the realm of discourses’ that define

the author-function (130).

3 Underlying the specific legal history of the

concept of copyright is of course the larger

development of the ideas of originality and

imagination as critical measures of artistic andliterary value. Laws, directly responding to theeconomic interests of majority stakeholders, donot always coincide with the opinions of theintelligentsia (including the writers, philoso-phers, and artists who begin to emphasize theimportance of originality in the eighteenthcentury). This paper does not pretend to unravelthe complex dialogue among professionalgroups (aestheticians, jurists, artists, printers,inventors of new modes of reproduction) whoparticipated in the discourse surrounding copiesand originals, but would encourage readers toconsider the copyright history presented hereagainst intellectual histories such as J. M.Cocking, Imagination: A Study in the History of Ideas,London, 1991; Thomas McFarland, Originality andImagination, Baltimore, 1985; Roland Morier,L’Originalite: Une nouvelle categorie esthetique ausiecle des lumieres, Geneva, 1982; Hillel Schwarz,



The Culture of the Copy: Striking Likenesses, Unrea-sonable Facsimiles, NY, 1996; and, more specificallydealing with nineteenth-century Frenchaesthetic theories, Richard Shiff, ‘The original,the imitation, the copy, and the spontaneousclassic: theory and painting in nineteenth-century France’, Yale French Studies, 66, 1984,27–54.

4 The United States act passed on 3 March 1865 didnot protect paintings and the other fine arts theway the British Copyright Act of 1862 did, prob-ably because the traffic in reproductions ofAmerican-made fine arts and the professionalorganization of artists were less developed.Copyright was extended to statues, chromo-lithographs, models and designs that were worksof fine arts only on 8 July 1870. B. Zorina Khanhas argued that American copyright laws wereconsistently more oriented to the promotion ofthe public good and utilitarian works thanBritish and French laws. The widespread publicdissemination of documentary photographs inthe collodion era would have made them morelikely candidates for protection than the ratherlimited exchange of artistic objects. See B. ZorinaKhan, The Democratization of Invention: Patents andCopyrights in American Economic Development, 1790–1920, Cambridge, 2005, 222–57.

5 Although he does not address copyright per se,Steve Edwards in his excellent study of thecritical discourse surrounding British photo-graphy locates this same moment, 1861, as theday ‘professional photographers decided to callthemselves artists’ (1). The debates within thephotographic press regarding the relative posi-tion of photography within the art and indus-trial worlds naturally mirror the argumentsmustered by jurists in copyright cases, since thewriters shared the same class and professionalbackgrounds. Steve Edwards, The Making of EnglishPhotography: Allegories, University Park, PA, 2006.

6 Photographic historians have been particularlysimplistic in their use of isolated legal decisionsto verify that the medium was accepted as an‘art’. Establishing a chronology that was pickedup by many subsequent authors, the sociologistGisele Freund, in her La Photographie en Francaisau dix-neuvieme siecle, Paris, 1936, cited variousFrench court cases involving Mayer et Pierson in1862 as reported in the photographic press of thetime, and concluded that the final decisionrepresented the consecration of photography asan art (127–31). Unfortunately, she failed toexamine subsequent cases that went against theMayer et Pierson decision of November 1862.Other writers on the history of French copyrightlaw and photography have been more compre-hensive in their presentation of the contestedstatus of the photograph, but have not oftenbeen cited by photographic historians (with theexception of Bernhard Edelman, whose book, LeDroit saisi par la photographie, Paris, 1973, has beencited by several recent writers sympathetic to his

Marxist critique of copyright as an extension ofcapitalism). See, for example, A. Bigeon, Laphotographie et le droit, Paris, 1892; EdouardSauvel, De la propriete artistique en photographie,Paris, 1897; and, more recently, Ysolde Gendreau,La Protection des photographies en droit d’auteurfransais, americain, britannique et canadien, Paris,1994. One of the most thoughtful considerationsof how copyright legislation intersects with thedefinition of the ‘author’ as a shifting conceptwhen faced with industrialization is MollyNesbit, ‘What was an author?’, Yale French Studies,73, 1987, 90–105. Nesbit’s discussion is appro-priate for the French tradition of ‘droit moral’rather than the legal definition of the owner of acopyright in Great Britain and many othercountries, where the purchasers rather than themakers of an image could be granted copyright.

7 Alison Burford has traced the presence of signa-tures in Greek sculpture of the seventh-centuryBCE, vases of the sixth-century BCE, and occa-sionally in Roman buildings, but makes clearthat manual workers (who would have includedwhat would later be termed ‘artists’) held lowsocial positions and were rarely recognized asidentifiable creators. Alison Burford, Craftsmen inGreek and Roman Society, Ithaca, NY, 1972, 207–12.

8 Ronald V. Bettig, in his review of the prehistoryof intellectual property rights, accepts the viewthat predominantly oral cultures without aclearly defined sense of individual authorshipdid not evolve systems of copyright legislation.Although he mentions the decline of guilds as areason for the emergence of copyright, he doesnot posit that guild protections may have in factfulfilled many of the same economic functions ascopyright laws subsequently did. Ronald V.Bettig, Copyrighting Culture: The Political Economy ofIntellectual Property, New York, 1996, 11–16.

9 On the impact of printing on late medievalauthors and early attempts to protect authorialrights in sixteenth-century France, see Cynthia J.Brown, Poets, Patrons and Printers: The Crisis ofAuthority in Late Medieval France, Ithaca, NY, 1995.For overviews of the history of copyright, seeDavid Saunders, Authority and Copyright, London,1992, and Martha Woodmansee and Peter Jaszi,eds, The Construction of Authorship: Textual Appro-priation in Law and Literature, Durham, NC, 1994.

10 A good survey of the economic conditions ofearly print publishing during the Renaissance isDavid Landau and Peter Parshall, The RenaissancePrint, 1470–1550, New Haven, CT, 1994. Lisa Ponhas also dealt with the history of printers’privileges in Italy in her essay accompanying anexhibition on the same subject, ‘Prints andprivileges: regulating the image in 16th-centuryItaly’, Harvard University Art Museums Bulletin, 4: 2,Fall 1998, 40–64, and has compared the evolutionof concepts of the copy in sixteenth-centuryprintmaking to nineteenth-century photo-graphic debates in her book, Raphael, D.urer, andMarcantonio Raimondi: Copying and the Italian



Renaissance Print, New Haven, CT, 2004. On Vene-tian copyright, see also Deborah Howard,‘Sebastiano Serlio’s Venetian copyright,’ 115Burlington Magazine, August 1973, 512–16.

11 John Locke, ‘Concerning Civil Government’,Chap. 5, Sect. 27, in Edwin A. Burtt, ed., TheEnglish Philosophers from Bacon to Mill, New York,1939, 413.

12 Bettig has convincingly argued against Locke asthe originator of the idea that copyright was anatural right. However, it does seem possiblethat Locke’s defence of private property andbelief in free enterprise were consistent withinmercantilist thought at the time. Bettig, Copy-right Culture, 19–22.

13 William Hogarth had published his firstengraved ‘modern moral subject’ series, AHarlot’s Progress, in 1732, but saw the marketflooded with copies after this work. He thenadvocated for a new law to protect engravings,which was passed on 25 June 1735. The publica-tion of his next engraved series, A Rake’s Progress,was delayed until the law went into effect. Fordetails on the ambiguities and limits of this law,see Mark Rose, ‘Technology and copyright in1735: The Engraver’s Act’, The Information Society,21: 1, January–March 2005, 63–6.

14 Charles Palmer Phillips, The Law of Copyright inworks of Literature and Art and in the Application ofDesigns with the statutes relating thereto, London,1863, 205–10, appendix v–ix.

15 David Saunders, like most current writers oncopyright history, believes that laws defining‘propriete litteraire’ immediately following theFrench Revolution were not expressly concernedwith authors’ rights. Saunders, Authority, 90. Thelaw seems to have been lagging behind intellec-tual discourse regarding the value of originalityand genius which dominated eighteenth-centuryaesthetics.

16 For an excellent discussion of the relationshipsbetween the 1793 copyright law, the Academiedes Beaux-Arts, and French printmakers in thelate eighteenth century, see Katie Scott,‘Authorship, the Academie, and the market inearly modern France’, Oxford Art Journal, 21: 1,1998, 27–41.

17 On 28 December 1861, Napoleon III set up acommission under the Ministry of State toexamine copyright legislation. Its membersincluded writer Prosper Merimee, physiologistPierre Flourens, Silvestre de Sacy, composerDaniel Auber, president of the Society of AuthorsBaron Taylor, historian Alfred Maury, CamilleDoucet, administrator of the Comedie FrancaiseEdouard Thierry, poet and critic TheophileGautier, and publisher Firmin-Didot. On 15January 1862 the painter Ingres was added. Thecommission was strongly in favour of extendingcopyright protection for authors and alsoallowing artists to maintain copyright of theirworks even after their sale. Ministere d’Etat,Commission de la propriete litteraire et artistique –

Rapport a l’Empereur – Decrets, Collections des Proces-Verbaux, Documents, Paris, 1863.

18 On Talfourd and the debates over the extensionof copyright prior to the 1842 amendment, seeCatherine Seville, Literary Copyright Reform in EarlyVictorian England: The Framing of the 1842 CopyrightAct, Cambridge, 1999.

19 The depot legal functioned primarily as a vehiclefor state censorship and control of printingpresses, and the laws governing its application,the number of copies required for registration,and the places of registration in the course of thenineteenth century were independent of theoriginary droit d’auteur legislation of 1793, whichcontinued to be in effect. For a history of thedepot legal, see Marcel Neveux, Le Depot legal desproductions des arts graphiques, Paris, 1934.

20 N. Simons, ed., The Statutes of the United Kingdom ofGreat Britain and Ireland, London, 1853, vol. 21, 15& 16 Vict. c.12 s. 14.

21 This law was amended in 1814 (54 Geo 3, c. 56) toencompass casts and statues including drapedfigures and those combining animals andhumans. The term of copyright was alsoextended an extra fourteen years if the maker ofthe original sculpture were still alive and hadnot sold the right. After the passage of the 1850Design Act, sculptures could also be protectedthrough registration as designs, but for aconsiderably shorter period (one year, subject torenewal by application to the Board of Trade). Onthe history of the copyright of sculpture, see NeilDavenport, United Kingdom Copyright and DesignProtection, London, 1993, 87–90, 183.

22 The Institute members who participated weresculptors Francois-Joseph Bosio, Claude Ramey,his son Etienne-Jules Ramey, Jean-Pierre Cortot,Charles-Francois Nanteuil, and James Pradier.Cited in Pataille, ‘Art. 98 – Photographie –Moulage sur nature – Reproduction d’objets dudomaine public – Droit de propriete – Depot’,Annales de la propriete industrielle, artistique etlitteraire, 1855, 199–200 (hereafter referred to asAnnales de la propriete).

23 Quentin Bajac has traced the legal status ofsculpture involving casts from life and the asso-ciation of such casts with photography in the1840s–50s in ‘Les procedes compromettants:Moulage sur nature et photographie face a la loi,1830–1900’, in Musee d’Orsay, A fleur de peau: Lamoulage sur nature au XIXe siecle, Paris, 2001,78–85.

24 Pataille, Annales de la propriete, 1855, 201.

25 Tribunal de Commerce de la Seine, 11 June 1847,cited in Le Droit, 17 June 1847, cited in Pataille,Annales de la propriete, 1855, 200.

26 According to H. F. Jolowicz, the cursive signature,as a personal identification created by a uniqueautograph, was unknown in the Roman world. InRoman legal documents written on wax tablets,‘if, however, a document were written in wholeor in part by the person to be charged under it,



its authenticity would be better evinced than if itwere wholly in someone else’s handwriting.Hence arose the practice of adding a short phraseindicating adherence to a document written bysomeone else, of which we have seen examples indiscussing imperial rescripts. These phrases,which constitute the ancient signature, are insubjective form and thus chirographs, so thatthere is really no hard and fast distinctionbetween a short chirograph and a long signa-ture.’ Historical Introduction to the Study of RomanLaw, 3rd edn, Cambridge, 1972, 416. During theMiddle Ages, there was an apparent suspicion ofwritten documents in ecclesiastical courts. AsPope Innocent IV is reported to have said, it was‘contrary to nature to trust the skin of a deadanimal more than the voice of a living man.’ Theimportance of seals as testimonies of authorityin eleventh- and twelfth-century England andthe shift to written legal procedures in the thir-teenth century is described in M. T. Clancy, FromMemory to Written Record: England, 1066–1307,London, 1994. On the persistence of eyewitnesstestimony over written declarations in medievalcourts, see Jean Philippe Levy, La Hierarchie despreuves dans le droit savant du moyen-age, Paris,1939.

27 Signatures historically have served manydifferent functions. Medieval signatures wereoften in the form of offerings of the work to apatron saint or divinity and thus fulfilled aredemptory role. For a semiological analysis ofthe language used to indicate authorship inmedieval and Renaissance artworks and texts,see Louis Marin, ‘Topics and Figures of Enuncia-tion: It is Myself that I paint’, in Stephen Melvilleand Bill Readings, eds, Vision and Textuality,Durham, NC, 1995, 195–214. Andre Chastelclaims that early signatures in quattrocentoItalian paintings functioned as trademarks forworks being sold outside the region of theircreation. Chastel, ‘Signature et Signe’, Revue del’Art, 26, 1974, 8–14. Creighton Gilbert, focusingon Venice, agrees that signatures catered to a lesssophisticated audience which bought based onan artist’s name, rather than connoisseurship.Gilbert, ‘A preface to signatures (with some casesin Venice)’, in Mary Rogers, ed., Fashioning Iden-tities in Renaissance Art, London, 2000, 79–87. Post-Renaissance practices in signatures also aregeographically specific, with Northern Europeanartists more prone to sign than Southern ones.By the nineteenth century, signing paintingsand drawings had become normalized, althoughgreat variations in signature format and locationoccur. For a fascinating interpretation of thelocations and styles of signatures on Americanpaintings, see John Wilmerding, Signs of theArtist: Signatures and Self-Expression in AmericanPainting, New Haven, CT, 2003.

28 The right of a person to his or her own image fellunder the protections of private property. Afterthe invention of photographic portraits, many

cases tested this right, such as the suit filed bythe family of the classic actress Rachel (ElisabethRachel Felix) in 1858 against the artist, MmeO’Connell, who had copied an after-deathportrait the family had commissioned from thephotographer, Crette. The court upheld that ‘noone can, without the formal consent of thefamily, reproduce and exhibit to the public thefeatures of a person on his death bed, no matterhow famous this person and the degree ofpublicity given him during his lifetime.’ ‘Art. 333– Propriete artistique – Portraits – Personnescelebres – Droits de la famille – Trib. civ. de laSeine –16 juin 1858 – Felix c. O’Connell et autres’,Annales de la propriete industrielle, 1858, 250–2. Inanother case in 1860, the poet Adam Mickiewiczhad had his portrait taken by Michel Szweycer,and the photograph was copied as an engravingand distributed after the poet’s death. The familysued, arguing that the sitter had not grantedpermission to reproduce, and Szweycer in turnsued the firm selling the print. The civil courtaccepted that ‘a portrait of a person cannot bepublicly exposed, reproduced, or sold withouthis permission’ but concluded that Mickiewiczappeared to have allowed the photographer tohave the rights to the image and that any chal-lenge based on copyright had to be settled in theTribunal correctionnel. ‘Art. 555 – Portraitphotographique – Personne decedee – Autorisa-tion de publier – Droits de la famille et del’artiste – Saisie – Competence – Trib. civ. de laSeine – 14 mars 1860 – Mickiewicz c. Szweycer’,Annales de la propriete industrielle, 1860, 171–6. In acelebrated later suit by Alexandre Dumas pereagainst the photographer Alphonse Liebert, inwhich Dumas objected to the sale of cartes ofhimself in compromising poses with the eques-trienne Adah Mencken, it was decided that acelebrity who received photographs withoutpaying for them could not claim to own therights to the pictures. ‘Art. 1439 – Portraitsphotographiqes – Autorisation tacite de publi-cation – Retrait de l’autorisation – Dommages-interets – C. de Paris – 25 mai – Alexandre Dumasc. Liebert’, Annales de la propriete industrille, 1867,247–50.

29 Pataille, ‘Art. 99 – Portrait – Photographie – Droitexclusive – Reproduction – Copie – Interdictions– Dommages interest – Actions en garantie –Trib. de Comm. de la Seine – 10 juin 1856 –Tournachon Nadar c. Houssaye’, Annales de lapropriete, 1855, 202–5.

30 ‘Art. 772 – Portraits photographiques – Repro-duction partielle – Enveloppes de bonbons – Trib.civ. de la Seine – 26 juin 1861 – Mayer et Piersonc. Siraudin’, Annales de la propriete, 1862, 64–66.

31 ‘Art. 774 – Portraits photographiques – Repro-ductions – Contrefacon – Competence – C. deTurin – 25 octobre 1861 – Duroni c. Tuminello’,Annales de la propriete, 1862, 69–71.

32 ‘Art. 775 – Propriete artistique – Portraitsphotographiques – Trib. corr. de la Seine – 9



janvier 1862 – Mayer et Pierson c. Thiebault etautres’, Annales de la propriete, 1862, 75. Thereference to Daguerre selling his rights to thestate reflects the award of state pensions in 1839to the French inventors of photography,Daguerre and the heirs of Nicephore Niepce, inexchange for their not taking out a patent. TheFrench prided themselves on this magnanimousgift to the world, in contrast to the Britishinventor, William Henry Fox Talbot, who tookout patents for his invention in France andEngland.

33 ‘Art. 787 – Propriete artistique – Portraitsphotographiques – C. de Paris – 10 avril 1862 –Mayer et Pierson c. Thiebault et autres’, Annalesde la propriete, 1862, 116–17.

34 ‘Photographies – Portraits – Contrefacon – C. decass.–28 novembre 1862 – Mayer et Pierson c.Betbeder et Schwalbe’, Annales de la propriete,1862, 423–8.

35 ‘Art. 787’, 423.

36 ‘Assimilees aux oeuvres fruits de l’intelligence etde l’etude de l’art.’ These artists represented forthe most part conservative figure paintersdevoted to historical and mythological subjectsor, in the cases of Calamatta and Henriquet-Dupont, reproductive engravers. The academi-cians were all over the age of sixty-five and,following the pattern of Ingres, used photo-graphy as a record-keeping and publicity toolrather than considering it a potentially creativemedium. ‘Art. 787’, 427.

37 ‘Art. 787’, 431.

38 Quatremere de Quincy’s book (1825), heavilyindebted to German idealist aesthetics, partici-pated in the larger Romantic reaction againstmechanization that was spreading from GreatBritain to France. He used manufactured goodsas the standard against which art should bemeasured and distinguished between an artisticimitation of nature, which gave pleasure in theways it differed from the original, and mechan-ical identification or repetition, the ‘vice de lasimilitude identique’. Tracing, casting, thepantograph, the magnifying glass, the mirror,and the camera obscura were all condemned asleading to ‘contrefacon, singerie [with thefamiliar comparison with a mindless and sillymonkey], parodie’. The example of placing thehuman model before all the draftsmen in theworld and then examining their drawings wasintroduced to demonstrate how individuality ofvision and creation was inherent within andessential to the definition of the ‘human’ (asopposed to the mechanical or animal). Essai sur lanature, le but et les moyens del’imitation dans lesbeaux-arts, Paris, 1825, pt. 2, 182.

39 Jules Fleury [Champfleury], Le Realisme, Paris,1857, 92–3.

40 Many writers on the history of copyright havetraced the origins of the jurisprudential conceptof ‘droit moral’ to France, but they have differed

on when during the nineteenth century they

thought that the concept gained legal recogni-

tion. Certainly mid-century cases such as those I

have been discussing that involved photography

and sculptural reproductions increasingly

invoked concepts such as the creator’s ‘person-

ality’ or ‘individuality’ as the grounds for

defining a product as art and thus protected by

copyright according to the 1793 laws. However,

according to David Saunders, independent

jurisprudential discussion of the moral right of

authors/creators to own their works does not

seem to have occurred until the 1870s, when

Morillot argued that author’s rights rested on

that basis and not on a concept of ‘intellectual

property’. Morillot, De la protection accordee aux

oeuvres d’art en Allemagne, 1878, cited in Saunders,

97. For a general history of the concept of ‘droit

moral’, see Stig Stromholm, Le Droit moral de

l’auteur en droit allemand, francais et scandinave avec

un apercu de l’evolution internationale, Stockholm,

1966, vol. 1.

41 ‘Art. 996 – Portraits photographiques – Propriete

– Trib. civ. de la Seine – 12 decembre 1863 –

Disderi c. Ledot et autres’, Annales de le propriete,

1863, 407.

42 ‘Art. 1065 – Productions photographiques –

Portrait du sultan – Propriete – Trib. corr. de la

Seine – 16 mars 1863 – Masson c. Derain’, Annales

de la propriete, 1864, 227–32.

43 ‘Art. 1066 – Photographie – Portrait du sultan – C.

de Paris – 6 mai 1864 – Masson c. Derain’, Annales

de la propriete, 1864, 232–5.

44 A. Bigeon, La Photographie et le droit, 18.

45 Lara Kriegel has astutely analysed the factions

within the textile industry and society at large

that opposed and supported the extension of

copyright to calico designs in Great Britain

between 1839 and 1843. Although Manchester

copyists of Lancashire print designs used the

argument that designs were not art and that all

design involved a certain degree of imitation

(anticipating arguments used by photographers

being sued for copying other firms’ photo-

graphs), the anti-copyright rhetoric was consid-

erably more varied and sophisticated than that

mustered in 1860s France around photography.

See Lara Kriegel, ‘Culture and the copy: calico,

capitalism, and design copyright in early

Victorian Britain’, Journal of British Studies, 43: 2,

April 2004, 233–65.

46 Journals of the House of Lords, Vol. XC, London,

1857–58, 26 July 1858. Among the signatories of

the petition were the President of the Royal

Academy and the President of the Old Water

Colour Society, according to the transcripts in

Hansard’s Parliamentary Debates for 26 July 1858,

col. 2090.

47 Charles Palmer Phillips, The Law of Copyright in

works of Literature and Art and in the Application of

Designs, London, 1863, 218–20.



48 On the British Art Union, see Lyndel SaundersKing, The Industrialization of Taste: VictorianEngland and the Art Union of London, Ann Arbor, MI,1985. The declining status of reproductiveprintmakers is discussed in Gordon J. Fyfe, ‘Artand reproduction: some aspects of the relationsbetween painters and engravers in London, 1760–1850’, Media, Culture and Society, 7: 4, October1985, 399–426. An overview of the history ofreproductive engraving can be found in AnthonyDyson, Pictures to Print: The Nineteenth-CenturyEngraving Trade, London, 1984. and SusanLambert, The Image Multiplied: Five Centuries ofPrinted Reproductions of Paintings and Drawings,London, 1987.

49 Gillian B. Greenhill, ‘The death of Chatterton, orphotography and the law’, History of Photography,5: 3, July 1981, 199–205.

50 25 & 26 Vict. c. 68, cited in John Shortt, The LawRelating to Works of Literature and Art, London,1871, 119.

51 Hansard’s Parliamentary Debates – 3rd Series,commencing with the accession of William IV – 24Victoria 1861, London, 1861, vol. 162, col. 1633, 6May 1861.

52 Hansard’s Parliamentary Debates, vol. 162, cols.1633–35. Layard’s outrage that the fine arts werebeing reduced to the status of manufacturedgoods recalls earlier rhetorical comparisons ofmechanical and artistic inventions made duringdebates in 1851 over a proposal to amend thepatent laws. During hearings before the SelectCommittee of the House of Lords, Henry Cole,speaking for the Society of Arts Committeewhich was one of eleven committee advocatingreform, argued that industrial inventions werelike artworks that needed to be defended againstillicit copying. The House of Lords Committeemembers, wishing to clarify the limits betweenpublic education through looking (which wasdesirable) and theft of designs, replied: ‘Is therenot a distinction between stealing a picture andlearning, from Raphael for instance, a bettercombination of colours, or a better mode ofdrawing a figure?’ Cole responded that ‘to copyRaphael’s picture without his leave and theproprietor’s leave, I should call theft, and notbeneficial to the public’ (cited in Louise Purbrick,‘Knowledge is property: looking at exhibits andpatents in 1851’, Oxford Art Journal, 20: 2, 1997,59.). Ironically, at the time of Cole’s argument infavour of making it easier for inventors to patenttheir ideas and designs, there was no legalprotection against copying paintings despite hisintroduction of that analogy. The successfulpassage of the Patent Law Amendment Act on 1July 1852 rehearsed many of the issues andarguments that recurred in the 1862 debates onthe Fine Arts Copyright Act and also engagedmany of the same protagonists. Purbrick in facthas noted the adoption of Chartist language byCole and the Society of Arts Committee in whichworkers had claimed their own manual labour as

constituting a type of property that was given uponly by payment of wages. Cole himself laterbecame an avid amateur collodion wetplatephotographer and collector of photographs forhis new South Kensington Museum, thus cham-pioning at once public education, personalproperty, photography as a teaching aid and afine arts medium, and protection for all types ofcreative labourers. On Cole’s photographicactivities, see Mark Haworth-Booth and AnneMcCauley, The Museum and the Photograph,Williamstown, MA, 1998.

53 Hansard’s Parliamentary Debates, vol. 166, col. 2013,22 May 1862, and col. 2094, 23 May 1862.

54 Hansard’s Parliamentary Debates, vol. 165, cols1890–1, 20 March 1862. Certainly the esteemgiven to photography by well-placed men such asHenry Cole and the late Prince Albert also helpedto raise the medium above that of a commercialproduct.

55 Earl Stanhope testimony, as reported in Hansard’sParliamentary Debates, vol. 166, cols. 2016–17, 22May 1862.

56 Hansard’s Parliamentary Debates, vol. 166, col. 2016.

57 In light of later attacks on photography ascopyrightable and the indeterminate status thatthe medium had in French courts prior to 1957,the 1862 Copyright Act was astonishinglyprogressive. For a history of British copyrights forphotographs that carries forward into the twen-tieth century, see Ronan Deazley, ‘Strugglingwith authority: the photograph in British legalhistory’, History of Photography, 27: 3, Autumn2003, 236–46.

58 In France, photographs had been subject toregistration ever since 17 February 1852, when anew depot legal law required that no draw-ings, engravings, lithographs, photographs, andmedals could be published, exhibited or soldwithout the authorization of the Ministry of theInterior and that three copies of photographshad to be deposited with provincial prefects orthe Ministry in Paris (these were the basis ofmuch of the collection in the BibliothequeNationale). Jules Delalain, Resume de la legislationde l’imprimerie, de la librairie, du colportage, de lapresse, de la propriete litteraire et artistique, Paris,1860.

59 Copyright Office, Public Records Office, London.A complete list of Cameron’s copyrightedphotographs compiled by Derek Wood canbe found at http://www.midleykent.fsnet.co.uk/cameron/cameron.htm.

60 E. Gambart, ‘The law of copyright – to the Editorof The Times’, The Times, 24 December 1862, 5,col. C.

61 Southwell Brothers, ‘Copyright law – to theEditor of The Times’, The Times, 25 December 1862,4, col. F.

62 This case, Gambart v. Ball, was decided on 30 April1863 and is reviewed in Davenport, UnitedKingdom Copyright & Design Protection, 85.



63 Robert Herbert, ‘Impressionism, originality, andlaissez-faire’, Radical History Review, 38, Spring1987, 7–15.

64 One writer who did in fact realize the socialunderpinnings of copyright legislation wasPierre J. Proudhon, who in 1863 publishedLes Majorats litteraires – Examen d’un projet deloi ayant pour but de creer, au profit des auteurs,inventeurs et artistes, un monopole perpetuel.

Consistent with his doctrine that ‘propertywas theft’, he responded to the proposedchanges in copyright law by the Ministere d’Etatby arguing that all human products are expres-sions of ideas and the displacement of matter. Infavour of the free circulation of ideas in thepublic domain, he attacked the idea of art asproperty and the growing commodification ofculture.



MERELY MECHANICAL’: ON THE ORIGINS OF PHOTOGRAPHIC COPYRIGHT IN FRANCE AND GREAT BRITAIN

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