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Marie Stéphanie Delamaire and Will Slauter, eds., Circulation and Control: Artistic Culture and Intellectual Property in the Nineteenth Century

Cambridge, UK: Open Book Publishers, 2021, 524 p.
Richard Salmon
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Marie Stéphanie Delamaire and Will Slauter, eds., Circulation and Control: Artistic Culture and Intellectual Property in the Nineteenth Century (Cambridge, UK: Open Book Publishers, 2021), 524 p. ISBN (paperback) 9781800641464; (hardback) 9781800641471

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1This wide-ranging collection of essays makes a valuable contribution to recent scholarship on visual culture and intellectual property within the long Nineteenth Century. The role of intellectual property law in the development of visual media is less well documented, the editors contend, than its corresponding impact on literature and printed books. While not claiming to provide a comprehensive historical account of the subject, this collection offers ‘a series of case studies that examine interactions between artistic practices, business strategies, and questions of IP (Intellectual Property) as they emerged throughout the nineteenth century’ (4). Taken together, these case studies amount to a richly detailed study of the conflicting material pressures on the ‘circulation of images’ within the period. While the century witnessed major technical innovations in the creation and mass reproduction of visual artefacts, the gradual development of copyright law managed ‘to exert some form of control over that circulation’ (2). The two keywords of the title—‘circulation’ and ‘control’—operate in dialectical tension throughout the collection.

2Given this dual focus, the collection is necessarily interdisciplinary. The fourteen chapters draw on the expertise of legal scholars and art historians in roughly equal numbers and are evenly divided between British and American case studies (the one exception is focused on colonial New Zealand). While the majority of chapters are concerned exclusively with the nineteenth century, a few of the earlier ones delve further back into the eighteenth-century origins of copyright law (for example, Isabella Alexander and Cristina S. Martinez’s discussion of the first copyright case under the British 1735 Engravings Act, apparently ‘the world’s first copyright statute in relation to visual works of art’ (39)). The arrangement of the chapters is broadly chronological and allows readers to follow the development of IP legislation and its impact on visual culture within Britain and the United States through to the end of the nineteenth century. Most contributors focus on historically significant legal disputes within a given field of visual art; as ‘case studies’ in the broader sense, then, they explore documented legal case-histories. By gathering together important copyright cases from the period, the book serves a valuable function and uncovers much fascinating material. Yet a recurrent theme of the chapters is that legal history alone does not tell us how matters of Intellectual Property were addressed in practice during the period. As the editors state, ‘It is therefore necessary to study how law, culture, and business shaped one another, and to think of the history of IP as a history of norms and practices, rather than solely a history of legislative and judicial developments’ (13).

3The collection is divided into three Parts. Part I, ‘Who Owns What? Images and Copyright Law’ (comprised of five chapters) traces a series of disputes between competing economic agents within the circulation of images, often revealing an underlying story of the effects of technological or entrepreneurial innovation on settled norms of cultural practice. Delamaire, for example, considers the legal case brought by the painter Gilbert Stuart against the sea captain John Sword for the unauthorized circulation of one hundred copies of his portrait of George Washington, imported from China to Philadelphia in 1802. Although US copyright legislation enacted in the same year did not afford statutory protection to paintings, Stuart asserted an intangible claim to ownership of the image based on a conception of the artist as creative ‘inventor’, which had been nurtured through collaborative relationships between painters and print-makers over the preceding century. Printed images were afforded legal protection, so by means of an established cultural claim painters were able to ‘control when, how, and by whom their work of art would be adapted into print’ (100).

4Unsurprisingly, the invention of photography provides a major example of technological disruption to settled cultural practices of image circulation in several chapters. Simon Stern notes that in Britain ‘[t]he Fine Art Copyright Act of 1862 had provided for copyright in photographs (among other forms), but had not expressly provided that photographs of other images in other media were infringing’. In consequence, makers of prints using other forms of reproduction (chiefly engravings of various types) launched ‘an extensive amount of litigation aimed at the problem of photographs’ (133). Stern is primarily interested in tracing the differences between copyright in visual art and literary copyright law, and he concludes that the former ‘proceeded more slowly and haltingly’ than the latter because of the greater difficulty that the law faced in handling the reproduction of non-literary media (120). Slauter examines the 1860 copyright case surrounding Henry Wallis’s famous painting The Death of Chatterton, which arose when the print publisher Robert Turner took legal action to prevent the photographer James Robinson from selling stereographic images of the picture derived from its public exhibition. Turner claimed to have the exclusive right to circulate reproduced engravings of the painting, which he had negotiated with the artist. In this case, as in several others, it was the commercial agent whose market was threatened by new technology or entrepreneurship who had recourse to legal action, rather than the original creator of the image. Often, though, plaintiffs were forced to invoke other legal provisions (such as common-law rights) that served in lieu of specific copyright protection, as legislation inevitably lagged behind technological development. For example, in a case discussed by Oren Bracha, the author and publishers of the best-selling novel Ben Hur (1880) argued (unsuccessfully) that unauthorized magic-lantern images based on scenes from the novel constituted an infringement of their dramatic performance rights. The images per se did not infringe copyright protection, since there was no precedent at the time for claiming that ‘a visual representation was a copy of a text’, forcing those who felt their commercial interests in exploiting the popularity of the novel under threat to make a dubious analogy between the magic lantern show and dramatic performance (196). By the early twentieth century, according to Bracha, the idea that authors and artists created an intangible form of Intellectual Property which survived the process of translation into different media (including film) had become more widespread, ‘transcending specific expressive forms and spanning all possible markets’ (230).

5Part II, ‘Agents of Circulation: Entrepreneurs and Rivals’, contains three chapters on ‘different individuals and groups involved in the production, distribution, and reuse of images’ (27), which take a slightly broader approach to the intersection of art history and Intellectual Property. Erika Piola explores the ‘intermediary’ role of the frame-maker and picture-dealer in the nineteenth-century American print market, concluding that trade custom rather than copyright law was of primary importance to their rivalry (and collaboration) with contemporary Art Unions. Thomas Smits’s discussion of ‘piracy’ in the use of photographic images by British illustrated newspapers of the 1840s and 50s is more centrally concerned with copyright history; in particular, the issue of ‘transnational trade’ raised by the publisher John Cassell’s 1856 legal action against his commercial rival George Stiff for publishing images taken from the French journal L’Illustration, to which Cassell claimed an exclusive right by prior agreement. The legal context for this case was the International Copyright Act of 1852 based on an Anglo-French copyright agreement of 1851. Similar questions around the legal and customary basis of re-using images drawn from earlier printed sources are discussed in Rose Roberto’s interesting chapter on Chambers’ Encyclopaedia, though here the threat of transatlantic piracy is the pertinent context.

6The third Part of the collection, ‘Navigating Intellectual Property: Architects, Sculptors, and Photographers’, includes an additional five chapters, three of which are again focused on photography. Shannon Perich provides a useful account of the contested patent law surrounding the development of photography from the period of Louis Daguerre and William Fox Talbot, drawing largely on the records of the United States Patent Office. This chapter takes us through the various forms of photographic procedure patented in the US, from the Calotype to the Ambrotype and Tintype, prior to the introduction of paper-based photography in the 1870s. Jill Haley examines photographic copyright in the context of settler colonial representations of Maori ‘celebrities’, bringing a different perspective to the question of ‘who owns’ the image in visual portraiture: the photographic artist or the sitter; and Katherine Mintie concludes the volume with a discussion of the ‘halftone revolution’ in the ‘photographically illustrated’ newspaper press at the end of the century (472). Questions relating to patent design and the Intellectual Property invested in portraits are also discussed by Karen Lemmey in a chapter which explores American sculpture during a period—from 1842 to 1902—when ‘patent law offered the most significant protection for this art form’ in the absence of effective copyright legislation (369). Elena Cooper and Marta Iljadica add further breadth to the collection in a chapter on the distinctive issues faced by architects seeking to protect both two-dimensional drawings and three-dimensional buildings from unauthorised reproduction by painters in the 1850s and 60s; issues which were not fully resolved until the 1911 Copyright Act in Britain.

7The rationale for the tripartite structure of the book is slightly opaque, given the overlapping attention paid to the significance of photography to nineteenth-century visual culture and copyright debates in both Parts I and III. Similarly, the distinctive function of Part II could have been made clearer. Nevertheless, the collection succeeds in conveying an impressively cohesive account of the core issues concerning artistic copyright across a wide range of historical examples. The book is extensively illustrated, as befits the subject-matter, and will provide a valuable resource for readers interested in nineteenth-century Anglophone visual culture.

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Richard Salmon, « Marie Stéphanie Delamaire and Will Slauter, eds., Circulation and Control: Artistic Culture and Intellectual Property in the Nineteenth Century »Cahiers victoriens et édouardiens [En ligne], 96 Automne | 2022, mis en ligne le 01 octobre 2022, consulté le 23 mai 2024. URL : http://journals.openedition.org/cve/12085 ; DOI : https://doi.org/10.4000/cve.12085

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Richard Salmon

University of Leeds

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