Copyright and the Beginnings of Photography

"Ceres." by E.P. Barney, 1865.

As a Jay and Deborah Last Fellow at the American Antiquarian Society, I was excited to find a wealth of material related to my dissertation on photography and intellectual property law.  The United States Constitution pledged “To promote the Progress of Science and useful Arts, by securing, for limited Times, to Authors and Inventors the exclusive Right to their respective Writings and Discoveries.” But it has often been difficult for American courts to determine how to accommodate visual forms as “writings” and to decide in what ways artists might be considered “authors.” When photography was introduced in the mid-nineteenth century, it proved particularly problematic to slot the new medium into existing frameworks of legal protection.

Until photography was granted a separate category of federal protection in 1865, photographers in many districts were able to apply for copyright only by registering their works as prints. But even once the new classification was available, distinctions between photography and other media were not always clear.  I assumed from study of the copyright archives in the Library of Congress that the first images registered as photographs in the Southern District of New York were creative rather than documentary—their titles were Ceres, Sweet Sixteen, and Purity—but it was not until my residency at AAS that I was finally able to see copies of the photographs and learned that each is a carte-de-visite of an allegorical lithograph. Like the subjects of the images initially registered, photography in the mid-nineteenth century was in a stage of unfettered promise.

"Sweet Sixteen" by E.P. Barney, 1865

The wealth of varied photographic images in the American Antiquarian Society collections is an important reminder that inventive images were as prevalent as the documentary photographs favored in most histories of the medium. In 1868 photography dealer George W. Thorne marketed 370 portrait photographs—some captured contemporary celebrities while others reproduced painted or printed sources—as well as more than 450 “miscellaneous subjects,” encompassing titles which might have been photographed from life, such as Cats (“15 kinds”), as well as more imaginative options which were presumably staged or reproduced from other media, such as Angel’s Whisper, Convenience of Married Life, The Immaculate Conception, Mozart Before the Court of Austria, and Naughty.

But American courts wrestled with the rich variety of photographic forms and their close relationships with other media, struggling to determine whether photographic prints were translations or mere copies of their subjects.   If a photograph was considered a form of translation, then reproduction of a print or painting would not necessarily be deemed infringement, but if photography was perceived as merely transcriptive, then it would be difficult for photographers to claim rights to much of what they produced.  Further complicating matters, because painting and sculpture were not covered by American copyright until 1870, some artists registered photographs of their works in other media as a means of attempting to control circulation of their compositions, contributing to the

"Purity" by E.P. Barney, 1865.

perception of photographers as conduits for ideas rather than originators. My dissertation tracks the ways in which mid-nineteenth-century photographers sought to assert themselves as authors rather than mere copyists, but frequent changes to copyright statutes left potential applicants in all media unsure of how best to guarantee protection of their compositions.  I laughed aloud when I saw that a copy of the handbill Directions for Securing Copyrights in the American Antiquarian Society archive of Prang materials was inscribed and underscored “Don’t lose this” by an employee—a conspicuous reminder of the confusion which reigned in mid-nineteenth century copyright protocols.

Today, as copyright laws again grapple with how best to regulate new photographic technologies, looking back to historic attempts to control appropriation and circulation of images is a reminder that photography has long proven difficult to delimit. Photographs such as Ceres, Sweet Sixteen, and Purity are apt metaphors for the medium’s fecundity.

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