Law and the Emerging Profession of Photography in the Nineteenth-Century United States

Photography Distinguishes Itself: Law and the Emerging Profession of Photography in the Nineteenth-Century United States Lynn Berger Submitted in partial fulfillment of the requirements for the degree of Doctor of Philosophy under the Executive Committee of the Graduate School of Arts and Sciences COLUMBIA UNIVERSITY 2016 © 2016 Lynn Berger All rights reserved ABSTRACT Photography Distinguishes Itself: Law and the Emerging Profession of Photography in the 19th Century United States Lynn Berger This dissertation examines the role of the law in the development of photography in nineteenth century America, both as a technology and as a profession. My central thesis is that the social construction of technology and the definition of the photographic profession were interrelated processes, in which legislation and litigation were key factors: I investigate this thesis through three case studies that each deal with a (legal) controversy surrounding the new medium of photography in the second half of the nineteenth century. Section 1, “Peer Production” at Mid-Century, examines the role of another relatively new medium in the nineteenth century – the periodical press – in forming, defining, and sustaining a nation-wide community of photographers, a community of practice. It argues that photography was in some ways similar to what we would today recognize as a “peer produced” technology, and that the photographic trade press, which first emerged in the early 1850s, was instrumental in fostering knowledge sharing and open innovation among photographers. It also, from time to time, served as a site for activism, as I show in a case study of the organized resistance against James A. Cutting’s “bromide patent” (1854-1868). Section 2, Spirit Photography, Boundary-Work, and the Socio-Legal Shaping of Photography, focuses on the attempts of Oscar G. Mason and other photographers to get “spirit” photographer William H. Mumler behind bars for fraud and deception in 1869. Seeking to uphold the image of photography as a scientific, mechanically objective technology, and that of the photographer as an honest, trustworthy, and honorable professional, these photographers turned the courtroom into an arena for both the social construction of technology and for policing the boundaries of the photographic profession. Section 3, “Privacy, Copyright, and Photography in the United States, is about a question that photographers, publishers, courts and legislators spent much of the nineteenth century struggling to answer: who was the rightful author, and therefore owner, of a photograph? The Section details why that question arose when it did – in the final third of the nineteenth century – as well as the different ways in which photographers, their opponents, and representatives of the law struggled to define the nature of photography along with the meaning of photographic copyright. It also deals with the emergence, around the turn of the century, of a third party claiming ownership in the photograph – the sitter – and with how the “right to privacy” was formulated in part to accommodate that party. Finally, this third Section reveals the sometimes contradictory and often quite resourceful ways in which both the advocates and adversaries of photographic copyright enlisted the right to privacy in order to back up their own property claims, even when the nascent privacy right was meant to curtail the power of both these parties. Table of Contents List of Illustrations………...…………………………..……………………………...….….…..ii Acknowledgments………………………...……………….…………………………….….…..iv Dedication……....………………...……………………….….……………......…….…............viii Introduction: Photography and Law in the Nineteenth Century United States……..…………....1 Section 1. “Peer Production” at Mid-Century: The Bromide Patent and the Photographic Press, 1854-1868..........................................................................................................29 Chapter 1. “You Poor Deluded Delineator of Shadows”: Photographic Journals and the Photographic Community of Practice.........................................................................30 Chapter 2. “Photography is Everybody’s Property”: Peer Production, the Patent System, and the Campaign Against the Bromide Patent......................................78 Section 2. Spirit Photography, Boundary-Work, and the Socio-Legal Shaping of Photography, 1862-1869.....................................................................................................................120 Chapter 3. “The Whole Thing is a Marvel Anyway”: Spiritualism and Photography......121 Chapter 4. “A Transparent Lie on Its Face”: The Mumler Case and the Policing of the Photographic Profession.................................................................................150 Section 3. Privacy, Copyright, and Photography in the United States, 1865-1909.........................194 Chapter 5. “Merely Machines”: Photography as Mass Medium, the Photographer as Artist, and the Contestation of Photographic Copyright...................195 Chapter 6: “A Sort of Natural Copyright”: The Right to Privacy and the Debate over Photographic Copyright.......................................................................................................231 Epilogue: Lessons From a Perennially New Medium.........................................................................294 Bibliography...............................................................................................................................................309 i List of Illustrations Fig. 1. William H. Mumler, “Colonel Cushman” (Boston, 1862-1975), Albumen silver print. Digital Image Courtesy of the Getty’s Open Content Program…....……….........140 Fig. 2. William H. Mumler, “Mrs. Tinkham” (Boston, 1862-1975), Albumen silver print. Digital Image Courtesy of the Getty’s Open Content Program..…..……….........140 Fig. 3. William H. Mumler, “Bronson Murray” (Boston, 1862-1975), Albumen silver print. Digital Image Courtesy of the Getty’s Open Content Program. …..……………140 Fig. 4. London Stereoscopic Company, “The Ghost in the Stereoscope” (London, ca. 1856), Albumen silver prints with applied color. The Metropolitan Museum of Art, Gift of Weston J. Naef, in memory of Kathleen W. Naef and Weston J. Naef Sr., 1982, www.metmuseum.org…………………………………........142 Fig. 5. Oscar G. Mason, Fake “spirit” carte de visite of Dr. Charles Reiss, of Bellevue Hospital, ca. 1869. Source: William Welling, Photography in America: The Formative Years, 1839-1900 (Albuquerque: University of New Mexico Press, 1978): 168..............………154 Fig. 6. Abraham Bogardus, “P.T. Barnum with the Spirit of Abraham Lincoln,” 1869, a fake “spirit” photograph. Source: Louis Kaplan, The Strange Case of William Mumler, Spirit Photographer (Minnesota: University of Minneapolis Press, 2008): 196………………………………………………………...154 Fig. 7. Detail from front page of Harper’s Weekly (May 8, 1869)……………....………….........160 Fig. 8. Frederick Gutekunst, “Ulysses S. Grant, Lieutenant-General, U.S.A,” 1865. Courtesy: Library of Congress, Prints and Photographs Division………………….........198 Fig. 9. Alphonse Bigot, Portrait of General Ulysses Grant. Philadelphia: A.L. Weise, 1868. Courtesy: American Antiquarian Society…………………………………….…...198 Fig. 10. Napoleon Sarony, “Oscar Wilde No.12,” 1882. ii Source: OscarWildeInAmerica.Org…………………………………………………...215 Fig. 11. Burrow-Giles Lithographic Co., Trading Card for Ehrich Brothers Department Store, 1882. Source: kwlibguides.lonestar.edu……………….……............215 Fig. 12. Advertisement for Scovill Detective Cameras, American Annual of Photography (1887): ixix……...………………………………………………………...226 Fig.13: Advertisement for Concealed Camera, American Annual of Photography and Photographic Times Almanac (1887): n.p….…………………………....……………...226 Fig. 14. Benjamin J. Falk, “Julia Marlowe,” Copyright 1888. Source: The Cabinet Card Gallery (cabinetcardgallery.wordpress.com)…………........……………………….255 Fig. 15. Oscar G. Mason, “Plastic Operations for Loss of Nose, Lower Eyelids, &C,” in Illustrated Medicine and Surgery I (1882): 37….……....………………………………….276 Fig. 16. Oscar G. Mason, “Favus Capitis,” in George Henry Fox, Photographic Illustrations of Skin Diseases, From Life (New York: E.B Treat, 1879): 34……………....…276 Fig. 17. Oscar G. Mason, “Elephantiasis,” in George Henry Fox, Photographic Illustrations of Skin Diseases, From Life (New York: E.B Treat, 1879): 12……………......279 Fig. 18. Oscar G. Mason, “Lichen Ruber,” in George Henry Fox, Photographic Illustrations of Skin Diseases, From Life (New York: E.B Treat, 1879): 68..……………....279 Fig. 19: Advertisement for Franklin Mills Flour, “Flour of the Family,” 1901. Source: Harvard University Press…………….........…………………………………..284 Fig. 20. Advertisement for New England Life Insurance, published in the Atlanta Constitution (November 15, 1903): 9. …………...……………………………..284 iii Acknowledgments This dissertation has been a long time in the making, and along the way I have been helped, inspired, and encouraged by a great amount of colleagues and friends. It is a pleasure to thank some of them here. First of all I would like to thank my advisor, Michael Schudson, for many years of intellectual and moral support and for his patience, careful reading, and thoughtful guidance. His nuanced scholarship and gentle approach to life and academia serve as an example and an inspiration. Andie Tucher likewise shepherded this dissertation along with attentive encouragement, admirable patience, and many insightful comments and

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