Elena Cooper

Repetitive/badly organized but with a lot of rich sources about late 18th-early 20th century UK treatment of copyright in visual works. Suffers from insisting that it disrupts the existing accounts when I don’t actually see any contradictions, only some (valuable) rich detail about how copyright principles worked for paintings that were created to be valued as physical artifacts as well as, or more than, intangible assets, as well as for early photos. Most interesting to me was the discussion of how art collectors wanted copyright law to discipline painters—to prevent them from making similar paintings that might compete with their own artifacts. Relatedly, they wanted copyright to transfer with the object, so that they could authorize the creation of engravings—a valuable licensing market in most of the 19th century. And—art collectors being better represented in the halls of power than painters, despite the social renown of some painters—they got what they wanted for a while. We might find it hilarious or disingenuous, but the collectors argued that art was “degraded” if artists could just paint a bunch of similar paintings and sell them instead of creating new ones, and also the practice encouraged deception because doing that was boring, so artists were likely to fob off most of the work to “assistants” and then put their names on the paintings. “As the barrister Blaine stated in a paper on artistic copyright published in 1861, copyright was not just about correcting ‘the wrongs which artists suffer’ but also ‘the wrongs which artists commit.’” She emphasizes that things that might look to us like modern moral rights—legal prohibitions of misrepresenting authorship, in particular—were aimed in significant part against artists themselves so that they wouldn’t defraud purchasers by representing work done mostly or entirely by assistants as their own.

Printsellers also got in on the action, insisting that, when they bought the copyright in a picture, artists should be deemed infringing if they painted a similar picture, in order to protect the printsellers’ copyrights. (This argument still goes on; the character of Sam Spade was involved in a similar dispute, as were some cardinal paintings used by the Franklin Mint and a competitor, as were the songs Run Through the Jungle and Old Man Down the Road, both by the same composer/singer.)

She argues that changes in the social meaning of painting helped resolve tensions between collectors and painters: “[W]hereas collectors saw painting as giving rise to a unique material artifact [which should not be repeated by the painter], painters preferred the view that painting was a repeatable performance, akin to an oral retelling. These tensions were eventually resolved in the early twentieth century, with a shift in aesthetic understandings of painting, which conceived of painting as an unrepeatable textured surface. In this new aesthetic context, the distinction between the physical and the intangible was easier to draw.”

Cooper also provides interesting details about portraits of people—first paintings, then photographs—though I didn’t find the argument that copyright served as an early right of publicity all that convincing. It did so pretty much by accident and disappeared as a means of protecting publicity rights as soon as it was technically possible to take pictures of people without their consent, suggesting that this was a legal spandrel rather than something that really offered publicity rights avant la lettre. Still, rules about ownership of copyright in a painting did generate concern, and ownership by the commissioning party seemed particularly appropriate to many lawmakers in the case of portraits. What Cooper doesn’t talk about is that, in the case of many portraits, especially of women and children, the commissioning party wouldn’t have been the person portrayed: copyright ownership would have been part of ownership/legal custody of the people portrayed, not rights they held in their own images. As for photos, she argues that a de facto understanding emerged, albeit not recognized in the law: copyright in a “private” photo commissioned by the subject (or the subject’s legal guardians) would be owned by the commissioner. In contrast, a “public” photo done for distribution/publicity would have its copyright owned by the photographer, often in return for a royalty to the sitter for photo sales; the sitter would often agree to sit exclusively for one photographer.

Also discussed: before the modern conception of derivative works, whether a photo of a painting infringed the copyright in the painting was conceptually complicated by the question of whether photos in general represented creative work deserving of their own copyrights. In finding infringement in photo-of-painting cases, she argues, courts disregarded the creative labor of the photographer—something we today might well acknowledge but say was directed at an illegitimate goal (copying an existing work).… (lisätietoja)