Better than art Copyright in Photography in the 19th century


Considering photography in terms of experimental forms of pre-institutionalized knowledge we encounter with how artificial construction every interpretation is, and delve into an epistemological power battle in which inherently autonomous views compete with each other. Even in the early phases of the evolvement of photography in the 19th century, efforts were made to elevate photography to the level of high art. On the other hand, it can stand for the symbol of commodified knowledge, a popularized form of ‘certifying experience’ (9). Some of the great thinkers, pre-eminently Barthes thought about it as a form of death, ‘this difficulty in existing’ (20), ‘Tableau Vivant’ (32), photography is ‘a made-up face beneath which we see the dead’ (33), ‘our mythic denial of an apprehension of death’(32), Susan Sontag has a different a view-point ‘an imaginary possession of a past that is unreal’ (9), but photography itself and especially when photography, the mythological construction of reality tries to present itself as a form of science and art form and it converges reality. This is the point when these construed concepts—its separate entities; innovation, idea, techné, process, art form, art object—become the subject of the law, then it comes to encapsulate every core issues of—life.

In this essay I was looking at examples of how the construed reality of photography converges the actual reality of economics and society in terms of the evolvement of its copyright law in the nineteenth century and I also endeavoured to give a cross-section of how it has become embedded in the greater context of a society that is defined by sober considerations of law and that seeks to pacify clashing interests of social-business interests; increasing production, evolvement of the classes, changing market needs, and generating profit. In order to map up originally slippery-from-birth, late-new comer concept becomes a legitimized part of knowledge before the law I sought to give this cross-section between the imaginary and real by looking at key issues that influenced its evolvement; the historic basis of the copyright law, the creation of a new profession, the patent agent, the discourse that parties pursued and noteworthy cases. As ‘the profound madness’ (13), photography is a History of Looking as Barthes would have wanted it, I did not aim higher but I just look for answers that animate(20)its picture by superimposing the imaginary on the real.

Chimeras of Photography

Discourse combines signs which have referents, of course, but these referents can be and are most often “chimeras”. Contrary to these imitations, in Photography I can never deny that the thing has been there. There is a superimposition here: of reality and of the past.

Photograph is violent: not because it shows violent things, but because on each occasion it fills the sight by force, and in it nothing can be refused or transformed

Such are the two ways of Photograph. The choice is mine: to subject its spectacle to the civilized code of perfect illusions, or to confront in it the wakening interactable reality

The research question paraphrased how did the legal status of photography developed with a special regard to copyright. Furthermore it is examined that in what ways was it embedded or whether it has become an independent legal object, where my main assumption is being that the way copyright of photography emerged and was in fact shaped by the interplay of variability, by cultural lineage of art and customs related to intellectual property in the given culture. It has also been defined by the rigid logic of legal terms and inherent language usage and bears marks of the rapidly emerging world of competition and business.

In short, evidence supports that ‘history inhabits the present in very real ways; that practice of history is always an exercise of power; that history matters’(preface), this was what the Burning with desire set out to do and I claim that the development in copyright of photography displays a broad range of symptoms that characterized the given society. As it follows from the particular feature of the given society, these forces of history act as filters of ultimate purpose to tailor any new invention to fit into the existing patterns of intellectual property in such a way that both protects the owner of original property and deters claimants to the same subject.

Fundamentals of copyright

Copyright in England as in Germany, USA and France sprouted from the property law and its variations are defined by the frame of social-economic developments of the given area. In Great Britain most sources refer to John Locke, who, in Two Treatises on Civil Government (1690) postulates the labour theory of property.

’Though the earth and all inferior creatures be common to all men, yetevery man has a property in his own person; this nobody has any right to but himself. The labour of his body and thework of his hands we may say are properly his. Whatsoever, then, he removes out of the state that nature has provided and leftitin, he hath mixed hislabourwith, and joinedtoitsomethingthat is hisown, and there by makes it his property. It being by him removed from the common state nature placed it in, ithathbythislaboursomethingannexedtoitthatexcludesthecommon right of othermen. For this labour being the unquestion able property of the labourer, no man but he can have a right to what is once joined to, atleastwherethere is enough and as good left in common for others.

The idea that something originally belonged to all, however by virtue of one’s labor can be turned something into an individual property was revolutionary. It has created the very foundation of ownership by removing a property from its natural state and was highly influential on formation of the ideological basis of historically important documents, such as the Berne Convention and the Universal Declaration of Human Rights

Strolling through the key concepts of the field it is also important to note that in England patent and copyright have a distinct lineage. To get to the heart of the matter it is also important to distinguish between whether the work or the author is protected, what are the differences between copyright laws or authorial rights and how copyright concepts could be discussed from the point of view of natural law, from cultural and economic point of view. Keeping all of these in mind, various kinds of intellectual properties need to be considered, along with questions of originality and comparisons with another image-making art form, painting and in its history of its patents, the copyright history of prints.

However, one of the core issues of copyright question that how can it be captured that the author or subject contributed a unique part of their personality into the representation and how can this become ‘a legal claim of ownership

Further problem was represented by the fact that ‘The law did not even try to draw lines between good and bad work in these media and it did not presume to erect criteria for aesthetic quality’ (233). ‘Authors were not necessarily artists

The eruption of modern techniques of the (re)production of the real—photographic apparatuses cameras—surprises the law in the quietude of its categories

New technologies such as photography and film required accommodating new concepts into the body of the law that faced with the challenge of having to answer whether the photographer is entitled to the same protection as a painter, or whether in a mechanical production there is anything that imbued with the human soul, though the general attitude is to consider all machine-work soulless seems to have a fair degree of truthfulness in it.

During this period when law battled with incorporating new concepts into its legal cases in French court they developed the idea of looking at the photographer as an artist and the film-maker as a creator, ‘since the relations of production will demand it’.

French law according Edelman found its way around the challenge by saying that ‘“Man” invests the photograph something with himself’ (47) and they produced the concept of ‘imprint of personality’

In the Anglo-American law, copyright most often thought to have originated from 1709 Statute of Anne that aimed at dissolving the monopoly power of the Stationers Company, but only later, at the Battle of the Booksellers (1774) due to the controversies represented by the case Donaldson v Becket, started the legal formulations resemble today’s Anglo-Americal authorial rights. ‘Between the significant 1909 Copyright Act revisions, which reorganize protection into eleven categories, and the complete revision in 1976, the U. S. copyright was amended only twice. In the U.S. property rights were solely shaped by the Supreme Court and focused on the industry, while the French were focusing on the artist and copyright law historically based on the author’s rights, le droit d’auteur.

The protection of industrially produced culture in the U.S. has origins in the Turkish carpet that was arranged at the feet of Oscar Wilde.

Clearly, the inherent rigidity of legal phraseology derives on making strong distinctions between cases of various types and upholding discourse per se in their natural order and it never becomes flexible in term of language usage and terminology. In the 19th century the language of the law starts to display a certain kind of elasticity through listings and extensions with regard to copyright of new inventions to fit demands of the age that are cantered around the evolvement of new bourgeois and mass production.

Photography as such has no identity. Its status as a technology varies with the power relations which invest it. Its nature as a practice depends on the institutions and agents which define it and set it to work. Its function as a mode of cultural production is tied to definite conditions of existence, and its products are meaningful and legible only within the particular currencies they have. Its history has no unity. It is flickering across a field of institutional spaces. It is this field we must study, not photography as such.

Photography has undoubtedly attained to the dignity of a Science; and among the marvels of this age of discovery, there are perhaps none so great as those that are associated with this art.’ was written in 1858 in one of the articles of the Photographic News, but the overall situation does not seem to point towards its universal acceptance. It was written 19 years later when photography as an invention was protected under No 8194 by a patent agent himself, who has become the exclusive right holder in Britain, even though the actual legal process had not finished until 1840. Innumerable challenges surrounded patents, as the industrial capitalist world in the 19th century was well aware of its actual value and a whole new profession of patent agents was established and lawyers specialized in this promising new field.

From an economic point-of-view, in the nineteenth century, there is increasing productivity by ‘continual subdivision of manual task’ (135). The fact in Great Britain English peasants lost control over their land and forced to migrate to cities. There had become a mass urban market for cheap consumer goods from the 15th century and as the government sought to reduce imports the handicraft producers were encouraged to produce more. The pattern of industrialisation remained more differentiated (167) than in the US as industry provided bread and butter in rural areas. This in turn reinforces a different provincial set of tastes and demands. But because make a living was possible and employers had an abundance in skilled and unskilled labour, there was no immediate need to find devices that eliminate or reduce human labour and thus the Great Britain was partially characterized by mass industrialisation, unlike in the US and in many respects it preserved similar characteristics than can be found in France, with more local colours. The landscape of industrialisation is complex and it is hardly possible to give an outline, it was solely mention on the account to make give weight to the concept that mass production, specialisation, and the establishment of new bourgeois society these all partially shaped the discourse and need be considered as aspects that shaped and imbue the copyright disputes of photography.

Photography came before the second wave of industrial revolution in an era that was greatly affected by the rapid industrialization. It is a landscape of emerging new ideas and the extent of competition only can be understood by realizing what had been at stake, looking for inventions that could become a mass commodity from top to bottom and harnessing all benefits of getting the range of products that offer exclusive products for the crème a la crème of the society for astronomical prices and in its cheap versions change the lives of the masses.

Mass production — the combination of single-purpose machines and unskilled labour to produce standard goods – has been throughout this century the undisputed emblem of industrial efficiency.

Also the creation of single-purpose machines in this century generated a huge demand, invigorated the market and accelerated controversies between the classes.

If the origins of intellectual property could be originated from singularly to John Locke, the philosopher then has looked upon the way nineteenth century developments. Apart from Althusser and Marx, has been greatly influenced by Walter Benjamin who claimed that artistic copyright is the product of the age of mechanical reproduction. He observes that the new technologies of reproduction in this century had changed the nature of art and pictorial reproduction gained a peculiar new meaning. In comparing the manual and mechanical forms of reproduction he finds that the original can never be replaced by the copy.

Even the most perfect reproduction of a work of art is lacking in one element: its presence in time and space, its unique existence at the place it happens to be. This includes the changes which it may have suffered in physical condition over the years as well as the various changes in ownership. The traces of the first can be revealed only by chemical or physical analyses which it is impossible to perform on a reproduction; changes of ownership are subject to a tradition which must be traced from the situation of the original.

He observes a polar opposition between the original artwork and its reproductions with latter lacking authenticity, ostentatious lack of authenticity, even: anti-authenticity. Due to the techniques a reproduced version can be manipulated, therefore signalling there inauthenticity.

Benjamin seems to have been appalled by the idea that technical reproduction can put the original into situations which would be out of reach for the original itself (43). More importantly he notes that

The uniqueness of a work of art is inseparable from its being embedded in the fabric of tradition

There is no tradition into which photography is so closely embedded, rather it is wrapped into the conditions that prevailed in the 19th century’s economic and social developments, with the emergence of new capitalist classes about which Walter Benjamin thought that photography will be the reason of their demise.

Convergences between law, economics and social changes create the discourse in which photography can justly be discussed. Friction between fields with different logics and terminologies will produce or fail to produce a new discourse that allows or in a partially satisfactory way allows the protection of new products that exist on the verge of art, science and goods.

On the friction between law and economics new specialisation of lawyers appeared with the nineteenth century inventions that forced to create a new way of translating the language of business and production into the language of law and intellectual property.

Ideas Appropriated

Nineteenth century is characterized by a series of break through and rapid industrialisation. Everyday life radically changed with different speed in different strata of society but all were affected by the series of inventions. tin can: Peter Durand, 1810, modern fire extinguisher: George William Manby, 1818, electric motor: Michael Faraday, 1821, Waterproof material: Charles Macintosh, 1823, Cement: Joseph Aspdin, 1824, Passenger railway: George Stephenson, 1825, Lawnmower: Edwin Beard Budding, 1827, Photography: William Henry Fox Talbot, 1835, Electric telegraph: Charles Wheatstone & William Cooke, 1837, Chocolate bar: JS Fry & Sons, 1847, Hypodermic syringe: Alexander Wood, 1853, Synthetic dye: William Perkin, 1856, Bessemer process: Henry Bessemer, 1856, Linoleum: Frederick Walton, 1860, Sewage system: Joseph Bazalgette, 1865, Modern Torpedo: Robert Whitehead,

1866 Telephone: Alexander Graham Bell, 1876, Light Bulb: Joseph Swan, 1880, Steam turbine: Charles Parsons, 1884, Safety bicycle: John Kemp Stanley, 1885, Pneumatic tyre: John Boyd Dunlop, 1887.

In photography, we find William Henry Fox Talbot who developed three key elements of photography but his contemporaries did not think highly of him do not “contain great additions to our knowledge” (83). One expert in 1846. Overall, the 19th century through its technological developments made the potential competitors more conscious about the nature of the competition, the speed, and the stake of a great innovation. Suddenly patent agents appeared and the lawyers specialising in protecting intellectual property (source).

Photography making as an invention was registered as the Patent 8194 in 1839 – by a patent agent himself and even though it was on in 1840 when the process was completed.

Patents - “Why I had not patented process?

Judicial disputes about Victorian technologies entailed both ritualistic and performative elements that informed the parties who took part in the process; lawyers, inventors and engineers. These were the key figures that attributed meanings to patents and prescribed patenting practices as well as distributing credit. These were the key features that transformed legal contests into complex procedures and through this process the judicial system played an important role in what patent-management strategies could put to use under legal aegis for the individual and corporations, as well as in the commodification of knowledge regarding legal protection. Araposthatis and Gooday emphasize ‘the contingent character of judicial actions arising from the multiplicity of actors in patent disputes, the outcomes of which propelled successfully defended patents towards economic success—and others to oblivion’ (59).

New profession evolved, patent agents appeared in 1820s by 1942 there were thirteen patent agents, by 1882 they had their professional organization the Institute of Patent Agents in 1882, their official register was entered in 1889 in the Board of Trade and the corpus of their expertise of these ‘legal-technical hybrids’ was on how to proceed was

‘to understand filed specifications, to search the registers, to trace patents, and to compare them’ and based upon what, the breadth of their knowledge entailed ‘a very full knowledge of applied science, …, have an intimate acquaintenance with patent law, not only of this country, but of all foreign countries and the colonies; he must intimately know the patent procedure; not only at home but abroad; he must have a large and extensive knowledge of what has been done in the way of patents, … getting hold of the salient points of an invention, … and know how it should be defined (62)

Too many inventive irons in the fire

photography in the mirror of the contemporary cases

In this century more and more it was realized how much could be gained by patents so we can see this bitter competition not only in the successful legal processes but see in the efforts to reinvent the wheel. According to the Photographic News in 1859 Mr Gaultier claimed that he developed an idea and he put it on a sealed envelope only to realize later that Mr Niepce St Victor invented the very same and even more a Mr Page has realized the patent on a much larger scale and actually the whole enterprise is outdated as the first thermo graphic reproduction of imprints dated back ten years before Mr Gaultier sealed his envelope, thanks for Mr Draper…. Clearly, bitter competition surrounded inventions and has become a field of speculators and excited minds.

The sealed envelope story referred to thermograph, the idea of having recourse to heat as an agent for reproducing pictures. In 1859 – inventors were working on the parchment papers, Reverend J. Barlow and Mr. Gaine. Even if we look through the main cases of Photographic News we are given a fairly thought-provoking view of the issues that were at the centre of how photography was seen at the very beginnings. In 1860 the Photographic News admirers of photography were struggling with self-definition whether they are artists. Even just by listing titles and subtitles, it emerges how vital issues these were for them; “If there was any claim to the title of artist” (401), “to claim originality of every photographer” M Fordos (8), “all claim to the discovery” Professor Wheatfone – Mr Elliot, “Why I had not patented process”? (349), “The word invention is a problematic one”, “instantaneous portrait”, the Pneumatic Plateholder (21-22.), “infringement of law”, misdiscretion, and gradually the Reader arrives from the artist and inventive genius to photography as a document, photographic copies of wills (96). In 1866 Mr Davies and Ms Swan quarrelled about appropriated ideas (a certain gentleman from Newcastle obtained something unlawfully), and regarding ideas appropriated a Mr. Highley issues a Bill of Complaint, on the basis that copyright has been infringed, then the subtitle mentions “against piracy” – Ms Graves (470), then we find an amusing story on “how much is the price of a bad photograph?”, about avesuvian portraits by Charles Knight (103), new printing process by Mr Swan and Woodbury (208). In 1875 new developments occur and informs the gentle readers about the New Patent Bill (112), Lambertype, Lambert Patent (382-383), ‘Sir Oracle, and while he speak, let no dog bark’, patent 1631 (394), a case of ownership of the scratched negative (594)., 1876 – legal redress in a case infringement of a copyright (240). This broad range of titles, matters and cases displays a dynamic or even a Barthian animated picture of the development in copyright of photography in the 19th century.

‘Sir Oracle, and while he speaks, let no dog bark’ The Sandwich Man of Authors’ Rights

All Authors

What with the multiplication of reproductive processes, of the means of distribution, and the complexity of the techniques of creation, the identity of the author is more and more difficult to grasp and define. The paternity of a work, then, indefinable?

-Les Immatgriaux (1985)

‘The situation of positive unclarity’ (229) as Molly Nesbit refers to the author well applies to the copyright cases related to photography.

Daguerreotype as an invention in England was patented by Miles Berryso far as it was claimed that he was said to be ‘the first and true discoverer and importer of the invention’ as according to law’s narrow definitions that only decisive factor is who is the person solely responsible for having the full know-how of daguerreotype making in the country. According to law, Berry was the inventor as well as the only practitioner in England, Wales, and the Town of Berwick upon Tweed and all Crown Colonies and Plantations Abroad. Berry was a sole and exclusive user of the daguerreotype apparatus even though, as Steve Edwards puts it, he never used it and about the same time experiments were made with the daguerreotype in public. Miles Berry may not have been the inventor of the daguerreotype but he certainly was in legally privileged position as it has been previously referred to a whole new profession emerged, in 1820 is the date when first patent agents appeared but by 1942 there were thirteen. Miles Berry in fact was the employee of the Patent Office and patent agent in a firm when he had registered Patent No. 8194, with the summary of ‘New or Improved Method for Obtaining the Spontaneous Reproduction of All Images Received in the Focus of the Camera Obscura’. It would be interesting to see whether other patent agents tried to obtain patent rights in the same way Miles Berry did or whether legal concern had been ever formulated that is holding a patent as a patent agent could be considered legally questionable on the basis of fair code of conduct of the profession. However as the code of practice was only formulated later, therefore Miles Berry could not have infringed any laws though he did make a good use of a hiatus that existed in the letter of the law in time of his patent acquisition.»‘In practice, Berry was the agent for Daguerre and Niepce, working for a fee, or possibly a percentage. Although he was representative for Daguerre and Niepce, in accordance with English law ‘he received a communication from a foreigner residing abroad’ and became the patent holder within the name territory’«.(369) ‘Too close adherence to legal formalities lead sometimes to the denial of justice’ as it is written in the Preface to the introduction to law and this principle seems prevail in the trajectory of obtaining a patent as a patent holder on the basis of narrow definitions of the law. The narrow definitions of the law has created fusillade of fascinating cases of whose singularity lies precisely in the myopic adaptations of the legal definitions. From the nineteenth century, one of the most well-known copyright cases involves Oscar Wilde, which itself poses an entirely different set of questions. Ann Baron refers to the literary work of art, Dorian Gray written by Oscar Wilde that the matizes the unique relationship between the creator image and on this account she formulates that For aesthetic theory, the question of ownership dramatized in Dorian Gray is an interesting ambiguity. But for legal doctrine, it is an ambiguity that must be resolved. Intellectual property law must know whether or not there is personality in the work. And yet, as we will see, the property right question historically took the answer it wanted from aesthetic debates, while at the same time it went its own way, under pressure from social, economic and technological factors. (45) Much interestingly though U.S. legislation was faced challenge of discussing a precedent case on the basis of the maximum of originality and what constitutes authorship today in copyright law derives from the Burrow-Giles Lithographic Co. v. Sarony case. Napoleon Sarony filed suit for copyright infringement against Burrow-Giles Lithographic Company, charging it with producing 85000 unauthorized copies of Oscar Wilde, one of twenty images the photographer took in 1882. In this case, the Supreme Court accepted the photographer’s argument of authorial creation of ‘lapdog pose, to the assumption of his own signature gesture (the fingers to the face), and to the way he holds the small book poised on his knee.’ However the court refused to take a stand regarding ordinary photographs, but made a distinction referring to this particular one that could be associated with a certain degree of aesthetic density. Thus the protection is upheld in the cases of such photographs where some degree of personality was invested.


In this essay, all the relevant concepts have been reviewed that per se by nature and it played a part in shaping the copyright status of photography in nineteenth century—as clearly the legal-historic roots of property law were, as well as the peculiar setting of the nineteenth century— it also seemed to be important to get a broader view of the conditions among which the legal status of photography started to develop.

Examining legal questions require to apply formal logic specific to the field and to observe governing rules that apply whenever the law seeks to set up a new case into its case studies. It seemed to be productive not to ignore the greater social context; the clashing interests but on the basis of classes of capitalism; the evolvement of mass production, radical changes of life forms in which a broad range of products previously unheard that had become a commodity and it would not be an inappropriate example to characterize the entirety of society as a gigantic factory.

The template for the copyright in photography was taken from the existing copyrights of print and as well as the great sibling of image-making that had grander tradition; painting. All in all, even before the law, the copyright of photographs had many aspects but its status poses a complex picture with countless numbers of variations.

I was looking at examples of how the construed reality of photography converges the actual reality of law and these encounters certainly tell as much about the status of photography as the society in which this discourse had taken place and its legal terms seem to be arbitrary but understood from the narrow interpretation of the letters of the law and placed within the traditions of the given culture that in the Anglo-American world protects more the industry, while in France the author; where all the copyright legislations seem to give a caleidoscopic view of the culture in which they were created.


  • Photographic News, publisher Gassell, Petter and Galkin, La Belle Sauviga Printed Works, London, Ludgate Hill, E. C., 1858
  • Teilmann, Stina, British and French Copyright: A historical study of aesthetic implications, Department of Comparative Literature, University of Southern Denmark, 2004, PhD degree, Date of Submission: 7 October 2004
  • Bently & Kretschmer (eds), Primary Sources on Copyright (1450-1900) ( Locke's Second Treatise on Government (selected extracts), London (1690), Primary Sources on Copyright (1450-1900), eds L. Bently& M. Kretschmer,
  • David Saunders, Authorship and Copyright (London: Routledge, 1992), p. 10
  • Sabel, Charles &Zeitline, Jonathan, Historical Alternatives to Mass Production: Politics, Markets And Technology in Nineteenth-Century Industrialization, Past & Present, Volume 108, Issue 1, 1 August 1985, Pages 133–176,, Published: 01 August 1985 According to Uni notes this experpt is being republished, the uni note has been relied upon
  • John Locke, The SecondTreatise of Civil Government and ALetterConcerningToleration. Edited by J. W. Gough, ed. C.H. Wilson and R.B.McCallum (Oxford: BasilBlackwell, 1948 (1690))
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