Volume 21, Issue 1 | Spring 2022

Circulation and Control: Artistic Culture and Intellectual Property in the Nineteenth Century edited by Marie-Stephanie Delamaire and Will Slauter

Reviewed by Travis McDade

Marie-Stephanie Delamaire and Will Slauter, eds.,
Circulation and Control: Artistic Culture and Intellectual Property in the Nineteenth Century.
Cambridge, UK: Open Book Publishers, 2021.
524 pp.; 140 color illus.; contributor biographies; notes; bibliography; index.
$59.59 (hardback)
$44.29 (paperback)
ISBN 978–1–80064–146–4
ISBN 978–1–80064–147–1
Free (PDF) ISBN 978–1–80064–148–8

Circulation and Control: Artistic Culture and Intellectual Property in the Nineteenth Century, edited by Marie-Stephanie Delamaire and Will Slauter, covers a century in which the pace of artistic innovation was staggering. Lithography was invented near its beginning and photography within about four decades of that. By the end of the century there were motion pictures. It is the nature of a conservative legal system to be reactive, but in the nineteenth century it seemed like no sooner had intellectual property laws been passed than they were outpaced by changes in technology. The legal system—in this book, almost entirely Anglo-American—had to come to terms with these questions in fits and starts, usually between instances of statutory creation, with the help of case law. When lacking even that, sometimes only agreements between competitors filled the void. These rulings, when they did come, were often highly dependent upon which form of art was under discussion. In “The Scope of Artistic Copyright in Nineteenth-Century England,” Simon Stern notes that “In elaborating copyright doctrine for visual works, the courts proceeded more slowly and haltingly than they did for literary copyright, in part because the judges were much more at home on textual terrain” (120). So even when the legal system did grapple with intellectual property issues, the results were uneven. The question of what was afforded copyright protection, in particular, often boiled down to: why this and not that? Why books but not paintings? Why sculpture but not architecture? What you get is a century in flux.

Delamaire and Slauter’s introductory essay notes that this “volume makes no claim to exhaustively cover the full gamut of IP law during the formative period [the nineteenth century], nor does it adequately treat the immense range of creative production that might be considered under the umbrella of art and visual culture” (4). Of course not—this is a collection of discrete articles, not a textbook. Still, it does cover a lot of territory, either directly or obliquely, and a person without any knowledge of the subject will come away well-informed. Lack of coverage is not a complaint I had. In fact, one minor issue is something close to the opposite: overlap and repetition. But that is the downside of this genre, not this particular book, and is only a problem if you read straight through from beginning to end, which is generally not how you would.

This book is almost universally excellent. The writing is strong and free of both common mistakes and jargon. The illustrations are perfectly placed, often demonstrating at a glance the nature of the dispute. The book is not without flaws, some of which I will mention, but they are overall minor. This deserves a place on the shelf of anyone studying nineteenth-century art, history, or intellectual property.

There are few events that help describe an historical time-period as well as legal cases. They of course set the parameters for what is allowed—both then and in the future. But quite aside from their meaning to individual parties or even whole sectors of society, to the historian of an era they are rich, often-overlooked sources of information. They allow us a snapshot of a distinct time, drawn in fine detail, not poisoned by the knowledge of later developments. In “Photography VS the Press: Copyright Law and the Rise of the Photographically Illustrated Press,” Katherine Mintie notes “these contentious, and often bitter, copyright cases indicate that the emergence of the photographically illustrated press did not smoothly follow the rise of halftone technology—as histories of the periodical press often claim” (474). Oren Bracha, in an article on copyright and Ben-Hur, suggests that even minor cases offer something akin to a scientific benefit. “It was not a ‘great case’ in its time and it has been mostly forgotten since. It is, however, an invaluable specimen for studying the changing ideology of copyright. The case is the equivalent of the geologist’s stratigraphic column, juxtaposing the different strata of copyright and conveying a clear image of the process of change” (197).

But aside from preserving in amber a moment in time, cases perform something like an autopsy of the issue, giving us facts that otherwise would not have survived. We know as much as we do about the first printing press in British North America, founded in 1639, because it was subject to a lawsuit that recorded facts no one else would think to. Similarly, in “New or Improved? American Photography and Patents ca. 1840s to 1860s,” Shannon Perich notes that, thanks to a federal lawsuit against him, we know exactly how much James Ambrose Cutting earned from licensing the photographic process for which he held a patent. “Jesse Briggs paid $10,000 to Cutting for the right to license Cutting’s process, and Asa Millet paid $1,100 for the same rights in Maine and New Hampshire” (424). These are facts otherwise unlikely to have been disclosed at the time or kept for posterity in any event. Thanks to a lawsuit, we have them.

But these are just corollary benefits of case law. The actual decisions of judges, no matter how small they seem at the time, reverberate far into the next century. This is the nature of reported cases in common law countries. The principles arrived at in some of the smallest nineteenth-century cases are still with us today, good or bad. It is important to see the stories that go along with that precedent.

And then there is this: cases are interesting. A disagreement between two or more parties that compels them to spend money, risk more money, and invest time and psychological wellbeing on the outcome of a judicial proceeding that is by its nature unpredictable—that’s high drama, even when it doesn’t involve whole classes of rights that might turn on the decision.

All of this—the window into an era, the preservation of small details, the precedent of opinion, and the enjoyment of reading an interesting story—occur in the first chapter after the introduction. Isabella Alexander and Cristina S. Martinez’s “The First Copyright under the 1735 Engravings Act: The Germination of Visual Copyright?” tests just how long the nineteenth century was. The case under discussion is from 1740—and even Giorgio Vasari gets a paragraph, as perhaps an influence of the 1735 Engravings Act. This chapter so thoroughly and comprehensively covered the case in question that I worried I was in for a book full of similar dissections. As the editors promised, however, this is the only chapter that offers us such a complete accounting of a single case. The case, Blackwell v. Harper, merits the attention because it was the first to evoke the protection of the 1735 Act and because the artist whose work was infringed was a woman, Elizabeth Blackwell. This chapter also sets the stage for the rest of the book, giving readers unfamiliar with the practice of law an introduction as to how a case is brought, develops, and is adjudicated. That Alexander and Martinez consult the actual documents of the case—not just the decisions, available in case reporters, but the actual filings—allows this thorough reporting. This is a great standalone chapter, but also one that should be read in conjunction with nearly any other piece in the book.

In “Who Owns Washington? Gilbert Stuart and the Battle for Artistic Property in the Early American Republic,” Marie-Stephanie Delamaire tackles an interesting era of both art in the United States and common law—a brackish time in the early nineteenth century when both were heavily influenced by the British. The flow of this chapter might have benefitted from a smoother chronological arrangement, but this is a minor quibble. The piece is interesting, and rich in small conclusions that supplement the text. (“Scholars have estimated the total output of Stuart’s Washington portraits slightly above one hundred, a quantity exactly corresponding to the number of Sword’s Chinese copies. Over the course of just a few months, Sword was throwing on the market an equivalent of the painter’s life’s works” [108]).

Simon Stern contributes a straightforward essay entitled “The Scope of Artistic Copyright in Nineteenth-Century England.” It delivers on the promise of that title, even if the most interesting case considered is one from 1868 in the United States, in which, exceptionally, infringement on intellectual property rights was successfully prosecuted. In it, Augustin Daly won a suit against a producer of a play that shared only one feature with his: a scene in which a character is tied to a railroad track and rescued before she can be run over.

Will Slauter’s “The ‘Death of Chatterton’ Case: Reproductive Engraving, Stereoscopic Photography, and Copyright for Paintings ca. 1860,” starts off interesting and gets better from there. In order to understand the disagreement at issue in a court case, its various subjects must first be explained. Slauter takes each of these, one after another, in a way that is enough to inform a lay reader but not bore an expert. Slauter gives an accessible but thorough accounting of relevant cases, a practice not always followed when attorneys write about the law. This essay is, however, sometimes wordy. For instance,

Scattered evidence from contemporary newspaper notices and exhibition catalogues as well as extant portraits by him in major collections reveal that over time Robinson built a successful business that combined studio photography and the manufacture and sale of camera, lenses, and related materials (154).

The first half of that sentence belongs, and actually appears, in a footnote.

Oren Bracha’s “Before an Image Was Worth a Thousand Words: Ben-Hur and Copyright’s Right of Derivatives” is a study in the competing impulses of academic writing. The first nine pages are fairly academic, with some background that employs language and reasoning that might not be easy to grasp for people not overly familiar with the law. But the next twenty-five pages provide an accessible, high-quality narrative that is lively, informative, and occasionally humorous, and rich in revealing period-language quotations. It is what writing about the law for a general audience should be.

Erika Piola’s “The Frame Maker/Picture Dealer: A Crucial Intermediary in the Nineteenth-Century American Popular Print Market,” speaks more to the “artistic culture” than the “intellectual property” of this book’s subtitle. Copyright is mentioned, but the point of the piece is a transitional time in antebellum Philadelphia when commerce and context—literally framing—imbued certain works with artistic cache. It is well written and informative.

Thomas Smits returns to the legal fold with “Piracy, Copyright, and the Transnational Trade in Illustrations of News in the Mid-Nineteenth Century.” This chapter often felt more like a literature review than one with a self-sustaining point, a fact Smits seems to acknowledge when he suggests it will help fill a gap in the scholarship. The chapter begins with the rivalry between the innovative and popular Illustrated London News and its imitators, a subject that proves more interesting than the legal case that springs from it.

Rose Roberto’s “(Re)Assembling Reference Books and Recycling Images: The Wood Engravings of the W.&R. Chambers Firm,” is another chapter less about the law than culture. Encyclopedia publishers in the mid-nineteenth century tended to slightly amend the text and illustrations of their predecessors, but not so much that a comparison with the source material would not reveal the copying. When caught, they justified the copying by claiming that everyone did it—and, anyway, the information belonged to the public. This was the classic legal tactic of “I didn’t do it, but if I did, here’s why.” Unlike other chapters, where a distinct conflict takes a central role, here it is closer to the opposite: publishers understood that agreements, instead of litigation, would be mutually beneficial. This chapter also includes a copy of a contract under discussion. This book is overall finely and colorfully illustrated, but this inclusion of an actual nineteenth century contract speaks directly to the care that went into this work, quite aside from its text.

Many of the chapters in this book deal with ideas that are familiar—an evolution in copyright coverage for certain types of art or the tension between two competing though slightly different media. But the question posed by Elena Cooper and Mart Iljadica’s “Architectural Copyright, Painters and Public Space in Mid-Nineteenth-Century Britain,” is more unexpected. It would not surprise anyone in mid-nineteenth century Britain that a painted panorama of a cityscape would earn protection—so why not the actual vista itself? A two-dimensional image of a three-dimensional sculpture deserves protection—why not the building behind the sculpture? This lively article recounts how such questions were sorted out.

Karen Lemmey’s “Nineteenth-Century American Sculpture and United States Design Patents,” is an essay on the changing nature of sculpture in the United States and the protection it was afforded. By profiling several sculptors who relied upon their artwork for their livelihood, and the relatively onerous and expensive design patents that allowed some measure of protection, she shows the evolving status of this particular artform. By the dawn of the twentieth century, the design patent had been replaced by copyright, which was easier to obtain and cheaper.

Shannon Perich’s “New or Improved? American Photography and Patents ca. 1840s to 1860s” is a fascinating history of the photographic arts in the mid-nineteenth century, and how its various processes were shaped by patents. Rights granted by the government, often capriciously, played an important role in the development of photographic processes. But as fascinating as that is, the ground-level view of the US legal system of the time is even more so. No one who knows the modern system would fail to recognize its antecedents in the commerce-based lawsuits of this era, from the crowd-sourcing of a legal war chest to the cost/benefit analysis in deciding whether to sue or settle, whether to pay a small licensing fee or stand your ground.

Jill Haley’s “King Tawhiao’s Photograph: Copyright, Celebrity, and the Commercial in Nineteenth-Century New Zealand,” examines a case that tested a new copyright law. The case highlights the growing importance of celebrity, particularly involving Maori, who used their newfound fame for commercial and political purposes. Unfortunately, because the King did not testify in the case, history has lost what might have been a valuable glimpse into this time.

The final chapter in this book, Katherine Mintie’s “Photography VS the Press: Copyright Law and the Rise of the Photographically Illustrated Press,” treats us to the one aspect of case law not yet seen: the disappointing decision. In Bolles v. Outing, Co., the United States Supreme Court hands a photographer whose work has been infringed a victory—but a very small one: $1. Nearly as galling to professional photographers, a group of people struggling to convince society of their medium’s status as artwork, was that the newspapers doing the infringing very often published the photos in the relatively crude halftone. These, the photographers thought, gave them a bad reputation and depicted “nothing so much as an upset inkstand” (479).

Circulation and Control has one chief flaw: its title. Those two words could be applied to nearly any other area of culture and the law and be as precise. But the contents of the book live up to a high standard, and every single chapter was worth reading, some more than once. I teach an undergraduate class on cultural heritage law. This strikes me as slightly above its level, but the text would be accessible to graduate students in any of a half-dozen disciplines.