Inventors and Manipulators: Photography as Intellectual Property in Nineteenth-Century New York

Mazie M. Harris

A Dissertation Submitted in Partial Fulfillment of the

Requirements for the Degree of Doctor of Philosophy

in the Department of History of Art and Architecture

at Brown University

Providence, Rhode Island

May 2014

© Copyright 2014 Mazie M. Harris

This dissertation by Mazie M. Harris is accepted in its present form by the Department of the History of Art and Architecture as satisfying the dissertation requirement for the degree of Doctor of Philosophy.

Date ______

Douglas R. Nickel, Advisor

Recommended to the Graduate Council

Date ______

K. Dian Kriz, Reader

Date ______

Jennifer L. Roberts, Reader

Approved by the Graduate Council

Date ______

Peter M. Weber, Dean of the Graduate School

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CURRICULUM VITAE

Mazie M. Harris was born in Austin, Texas, in 1977. She holds a B.A. in Art History from

Trinity University and a M.A. in Art History from Boston University. While at Brown University her work has been supported by the Brown University Graduate School, the Department of the

History of Art and Architecture, and the Museum of Art, Rhode Island School of Design. Her research has been fostered by the National Gallery of Art, Library of Congress, Massachusetts

Historical Society, New York Public Library, Smithsonian Institution National Portrait Gallery,

New England Regional Fellowship Consortium, Winterthur Museum & Library, American

Antiquarian Society, Metropolitan Museum of Art, and Terra Foundation for American Art.

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ACKNOWLEDGMENTS

In the conclusion of “The Ecstasy of Influence,” Jonathan Lethem’s 2007 meditation on the pleasure of dialogues between past and present, he confesses that the entirety of his essay was cobbled directly from other sources. Although my references are cited more formally than those in Lethem’s piece and combined with extensive primary research, this dissertation is similarly a celebration of conversations on intellectual property, and deeply beholden to the work of many writers. But whereas Lethem withholds his big reveal until the end of his essay, I am grateful for the opportunity to note at the outset my gratitude to the many friends and scholars whose thoughtful contributions have informed my work.

My greatest debt is to Douglas Nickel. His guidance, curiosity, and good humor have sustained me over the many years it has taken to see this project to completion. I greatly admire his ability to bring new perspectives to the study of photographic history, and am profoundly thankful for his mentorship and encouragement. Dian Kriz’s intellectual rigor has likewise pushed me to deeper scholarly inquiry. I appreciate having had the opportunity to benefit from her generosity, collegiality, and erudition. Jennifer Roberts has also been an incredible advisor.

Her scholarship and commitment to the field of art history are an ongoing inspiration. I am grateful to have a dissertation committee so fully engaged with the issues at the core of this project and unfailingly available to offer advice and challenge any untried assumptions. I look forward to our continued conversations.

Several museum colleagues have thoughtfully served as mentors in both my professional and academic pursuits. At the Harvard Art Museums, the Agnes Mongan Center for the Study of

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Prints, Drawings, and Photographs offered a remarkable education. Most crucially, Marjorie

Cohn has shown me, again and again, the insights that come from careful visual analysis. It has been a privilege to continue to learn from her. Miriam Stewart’s spirited laughter and thorough research have served as important reminders to stay in touch with the pleasures of art historical study. I was drawn to the history of photography by the work of Deborah Martin Kao and

Michelle Lamunière. Their stimulating scholarship in the field continues to motivate me.

Conservators Penley Knipe and Craigen Bowen taught me to carefully consider the importance of photographic materials. Their close looking, along with Michael Dumas’s heroic efforts to catalogue Harvard’s carte-de-visite, cabinet card, and tintype collections, spurred me to learn more about nineteenth-century photographic processes. Michael’s knowledge of the visual culture of the period is unmatched. I treasure his friendship as much as I value his intelligence. I am grateful to have had the opportunity to continue to learn about the history of the medium from Britt Salvesen, Amy Rule, and Leslie Squyres at the Center for Creative Photography. More recently, I have had the good fortune to work with the staff of the Museum of Art at the Rhode

Island School of Design. The work of the museum’s curators, educators, conservators, preparators, registrars, and installers exemplifies the valuable experiences fostered through collaborative effort. I am especially indebted to Tara Emsley, Deb Diemente, Jan Howard, Gina

Borromeo, and Maureen O’Brien, for their camaraderie and astute advice. While at RISD, I benefitted enormously from working alongside Judith Tannenbaum, whose curatorial vision, sharp intellect, and open-minded attitude to a wide range of art continue to invigorate my interest in links between historic and contemporary visual forms.

I am thankful to several institutions for supporting my dissertation research in myriad ways. Doctoral funding provided by the Brown University Graduate School and Department of the History of Art and Architecture enabled me to dedicate myself to graduate work. I have had

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the great fortune while at Brown to work with the amazing librarian Karen Bouchard. Her

willingness to explore and share new avenues of research is always welcome. Staff members at

the Rockefeller and Hay Libraries have been similarly tireless in their assistance and guidance. I am grateful for their collegiality and expertise. In the Harvard Fine Arts Library, Amanda

Bowen’s grasp of the library’s collections and resources has been invaluable. Before I proposed

my dissertation, a research project for the National Gallery of Art prompted me to consider the

difficulties of assigning credit for nineteenth-century photographic innovations. I am grateful to have had the opportunity to work with the NGA’s phenomenal curators Sarah Greenough,

Sarah Kennel, Diane Waggoner, and Matt Witkovsky. I aspire to their ability to bring intensive scholarly study into a museum setting, and I continue to learn a great deal from their intellectually and visually compelling exhibitions. As I began to formulate a dissertation proposal, a Swann Foundation Fellowship provided the opportunity to work with Martha Kennedy and the extensive holdings of the Library of Congress, both have been valuable founts of knowledge

in subsequent visits. I am also pleased to have had the chance to meet Carol Johnson, who

guided me to several important Library of Congress resources in my study of copyright history.

An Andrew Oliver Fellowship at the Massachusetts Historical Society provided important

fodder for research on my first chapter, and connections fostered by Kate Viens and Conrad

Wright continue to inform my project. David Lowe, at the New York Public Library, never fails

to amaze me with his deep knowledge of photographers, and resourceful approaches to research.

A short-term NYPL fellowship not only enabled me to work with the library’s impressive

collections, but also provided the opportunity to consult with Stephen Pinson, whose

scholarship and curating I greatly admire. I am glad to have crossed paths there with Meredith

Friedman, with whom I have also gotten to work at the Center for Creative Photography and the

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Metropolitan Museum of Art. She is a fantastically inspirational colleague. I look forward to

working alongside her again.

During the early stages of my research, a pre-doctoral fellowship at the Smithsonian’s

National Portrait Gallery introduced me several curators whose insights helped me to re-think

my project in significant ways. Ann Shumard, Frank Goodyear, David Ward, and Anne

Goodyear each profoundly impacted the scope of this dissertation. I am also grateful to Amy

Baskette at NPG for her wisdom and can-do attitude. While at the Smithsonian I benefitted as

well from access to the collections of the National Museum of American History. At NMAH

Shannon Perich, Michelle Delaney, Helena Wright, Lilla Vekerdy, Kirsten van der Veen, and

Richard Doty made every effort to assist in my scramble to gather as much information as

possible during my time in Washington. Their encyclopedic knowledge and holdings proved

immeasurably helpful. Smithsonian support also allowed me to spend substantial time with the

Patent Office records at the National Archives, which proved foundational for my second

chapter. The success of the Smithsonian fellowship experience was due in large part to the

careful oversight of Cynthia Mills and Amelia Goerlitz at the American Art Museum. The

scholarly community they fostered continues to enrich my work.

A New England Regional Consortium Fellowship enabled access to several other

collections crucial to my research. Caroline Duroselle-Melish kindly aided my work at the

Houghton Library. Catharina Slautterback was indispensable in guiding me through the rich

resources of the Boston Athenaeum. David Warrington was immensely helpful during my time

at the Harvard Law School Library. And the staff at the Baker Library introduced me to a

number of archives that fundamentally transformed my knowledge of nineteenth-century

business practices. Participation in the New York Art & Law Residency Program likewise

viii decisively shaped my project. Sergio Sarmiento, along with the roster of artists and legal scholars he brought together, helped me to think about intellectual property from a variety of distinctive perspectives.

My time in the Department of Photographs at the Metropolitan Museum of Art as a Jay and Morgan Whitney Fellow was a particularly fruitful opportunity to draw connections between visual and written sources. Access to the museum’s astounding collections was made possible by the staff’s willingness to share their deep knowledge. I learned a great deal from the work of Jeff

Rosenheim, Mia Fineman, Laura Harris, Anna Wall, Meredith Friedman, Karan Rinaldo, Lisa

Barro, Nora Kennedy, Katie Sanderson, Georgia Southworth, Ryan Franklin, and Predrag

Dimitrijevic. Doug Eklund was especially generous with his time. I continue to learn from his incisive exhibitions and intellect. I am particularly indebted to Malcolm Daniel, who took every opportunity to share his knowledge of curatorial and photographic practices. He is a truly extraordinary scholar, curator, and teacher and I am thankful for the many insights into artistic and curatorial creativity that he so thoughtfully conveyed. Marcie Karp and Hannah Kinney went to great lengths to ensure the MMA fellowship broadened my horizons as much as it deepened my research. In addition, I feel fortunate to have had several opportunities while at

MMA to discuss the history of photography with Rebekah Burgess. Her familiarity with the graphic arts made for many engaging conversations.

A summer fellowship at the Winterthur Museum & Library not only provided the opportunity to synthesize my research in an astonishingly beautiful setting, but also enabled access to a number of diaries and other firsthand sources that helpfully supplemented nineteenth-century published texts. Rosemary Krill fosters a truly special intellectual community at Winterthur. I hope for many more chances to work there. A Jay and Deborah Last Fellowship

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at the American Antiquarian Society also provided valuable time for writing. I cannot imagine a

more useful archive in which to complete my research. While there I was able to study several

key images, and I am indebted to the reading room staff, as well as to Paul Erickson, Georgia

Barnhill, and Lauren Hewes, for making my short time there richly productive.

I was able to complete this dissertation thanks to the support of the Terra Foundation

for American Art. The summer fellowship coordinated by Veerle Thielemans and Miranda

Fontaine is as constructive as it is idyllic. In Giverny, through Miranda’s conscientious

stewardship and Veerle’s productive questions, I was able to pull together the many strands of

this project through extensive discussions with Terra senior scholars and my fellow fellows.

Kellie Jones and Jean-Philippe Antoine offered especially perceptive comments, and I treasured

the opportunity to devote significant time to the final stages of the writing process. Long talks

with Alex Taylor and Catherine Spencer, whose dissertations also grapple with commercial and

artistic performances, helped me to clarify my own thinking on those topics and to identify

continuities and crucial distinctions between historic and more recent practices.

Several other scholars also offered helpful advice as my chapters took shape. I have

benefited a great deal from stimulating discussions with Eric Rosenberg, Robin Kelsey, Henri

Zerner, Sarah J. Moore, Keith McElroy, Genoa Shepley, Jonathan Weinberg, Rebecca Schneider,

and Seth Rockman. I could not have completed this project without the assistance and

argumentation of a great many peers. Among the numerous colleagues whose work and friendship I cherish, I am especially grateful for extended conversations with Michelle White,

Sarah Hulsey, Rebecca Dubay, Lisa Cherkerzian, Jason Hill, Christina Rosenberger, Shana Garr,

Katie Samson, Mary Statzer, Erin O’Toole, James Swensen, Clarissa Ceglio, Yi Gu, Gosia

Rymsza-Pawlowska, Michelle Liu Carriger, Sally Caithness, Nathan Walker, Nathaniel Stein,

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Divya Rao Heffley, Amanda Lahikainen, Isaac Wingfield, Mike Mergen, Jordan Baumgarten,

Sara Beth Levavy, Liz McGoey, Bridget Gilman, Lacey Baradel, Maggie Cao, Kim Sels, Austin

Porter, Russell Lord, Jacob Lewis, Shana Lopes, Sally Tuckett, Birte Christ, Cornelius Ludwig,

Alex Geringer-Sameth, Miri Kim, and Tatsiana Zhurauliova. Each has contributed greatly to my work.

On a more personal note, I will be eternally grateful to the many friends who have provided emotional support during the long doctoral process. Diana Adamczyk and Marie-Claire

Ording were among those who offered generous assistance in trying times. Lisa Tom, Allison

Stagg, Joanna Karlgaard, Ben Charland, and Meredith Brown have each been considerable sources of strength and much needed comic relief. My family has been steadfastly encouraging. I cannot fathom getting to this point without the assistance of Jeannette Johnson, Paul and Erica

Harris, Kate Lenell, Elaine Phillips, and Julie and Larry Casey. I dedicate the project to Julie

Johnson Casey, with immense gratitude for her fortitude and optimism.

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TABLE OF CONTENTS

v Acknowledgements xiii List of Illustrations

1 Introduction

19 Chapter 1 Face Value: Photography on Paper in the Daguerreian Era

68 Chapter 2 To Promote the Progress: Photography and Patent Law

149 Chapter 3 ‘The phantasmagoria of inventions passes rapidly before us’: Photography on Trial in Mid-Nineteenth-Century America

174 Chapter 4 Fancy Photography: Painted Backdrops and Copyright Law

231 Epilogue Then in Now: Contemporary Intellectual Property Cases and Nineteenth-Century Photographic Precedents

240 Illustrations

281 Notes

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LIST OF ILLUSTRATIONS

Figure I.1: Unidentified studio, Portrait of an unidentified sitter, ambrotype, c. 1855. Detail of casing embossed “Cuttings Patent//July 11, 1854” American Antiquarian Society.

Figure 1.1: John Adams Whipple, Edward Anthony, crystalotype frontispiece, Photographic Art Journal, April 1853. Harvard Fine Arts Library.

Figure 1.2: Root & Co. Daguerrian Gallery, 363 Broadway, copper merchant token, 1850s. Smithsonian Institution, National Portrait Gallery.

Figure 1.3: Mathew Brady’s New York Daguerrian Miniature Gallery, 207 Broadway, studio advertisement in the form of a banknote, 1844-45 or 1848-53. Matthew R. Isenburg collection.

Figure 1.4: Langenheim Brothers studio, Frederick Langenheim Looking at Talbotypes, daguerreotype, c. 1849-51. Metropolitan Museum of Art.

Figure 1.5: Whipple blind stamp. Smithsonian Institution, Dibner Library, National Museum of American History.

Figure 1.6: John Adams Whipple, Hancock House, crystalotype frontispiece, Homes of American Statesmen, 1854. New York Public Library.

Figure 1.7: John Adams Whipple, Hancock House, crystalotype frontispiece, Homes of American Statesmen, 1854. American Antiquarian Society.

Figure 1.8: John Adams Whipple, Hancock House, crystalotype frontispiece, Homes of American Statesmen, 1854. Library of Congress.

Figure 1.9: John Adams Whipple, Hancock House, crystalotype frontispiece, Homes of American Statesmen, 1854. Boston Athenaeum (copy 1).

Figure 1.10: John Adams Whipple, Hancock House, crystalotype frontispiece, Homes of American Statesmen, 1854. Boston Athenaeum (copy 2).

Figure 1.11: Gurney Daguerrian Gallery, 189 Broadway, studio advertisement in the form of a banknote, 1843-1853. Matthew R. Isenburg collection.

Figure 1.12: E.B. Chase Daguerrian studio, 247 Washington Street, Boston, studio advertisement in the form of a banknote, 1848-51. Smithsonian Institution, National Numismatic Collection.

Figure 1.13: “Genuine Dies used by Counterfeiters for Manufacturing Spurious Bills,” Dye’s Bank Mirror, 1853. American Numismatic Society Library.

Figure 1.14: Langenheim Brothers studio, Henry Clay, Talbotype, c. 1849. Missouri Historical Society.

Figure 1.15: Langenheim Brothers studio, Henry Clay, Talbotype, c. 1849. Smithsonian Institution, National Portrait Gallery.

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Figure 2.1: Titian Ramsay Peale II, stereoview of Patent Office interior courtyard, undated. Smithsonian Institution Archives.

Figure 2.2: Titian Ramsay Peale II, Treasury Building, mounted collodion print, 1856. Smithsonian Institution, National Museum of American History.

Figure 2.3: Principal Public Buildings at Washington, D.C., wood-engraving, 1854. Smithsonian Institution, National Portrait Gallery.

Figure 2.4: Unidentified studio, Jonathan Wood Taft, cased ambrotype, c. 1855. American Antiquarian Society.

Figure 2.5: Detail of the “Classified Index of Subjects for Invention of March 1872,” Records of the Patent Office. National Archives and Records Administration, College Park, MD.

Figure 2.6: United States Patent 10468.

Figure 2.7: A.A. von Schmidt and William Dougal, U.S. Patent Office, Etching and engraving. Smithsonian Institution, National Portrait Gallery.

Figure 2.8: Titian Ramsay Peale II, watercolor over drawing by Charles Willson Peale, Interior of Front Room in Peale’s Museum, 1822. Detroit Institute of Arts.

Figure 2.9: Titian Ramsay Peale II, “TR Peale’s first attempt at photography, Pearce’s Mill// Rock Creek, DC.” Smithsonian Institution, National Museum of American History.

Figure 2.10: Titian Ramsay Peale II, “Collodion negative//obtained in 4 minutes (noon)// Printed on salted paper//Sept. 26, 1855//Pearce’s mill//Rock Creek, DC.” Smithsonian Institution, National Museum of American History.

Figure 2.11: Titian Ramsay Peale II, “Printed on albumen//Had to prepare the paper myself// TRP.” Smithsonian Institution, National Museum of American History.

Figure 2.12: Titian Ramsay Peale II, Self-portrait, stereograph. Smithsonian Institution Archives.

Figure 2.13: Titian Ramsay Peale II, “(St. Matthew’s Church//Washington DC)//Albumen negatives, Whipple’s process.” Smithsonian Institution, National Museum of American History.

Figure 2.14: Titian Ramsay Peale II, “Albumenized Collodion//Bayard’s formula//Sensitized Oct 28th/[18]56//Exposed 3' [minutes] "[Oct] 29th " [1856] //Taupenot’s process //Developed [Oct] 30" [1856]//Photo J[ournal] vol. 3 p—//Great falls of the Potomac//Maryland Shore.” Smithsonian Institution, National Museum of American History.

Figure 2.15: Patent application reviewed by Titian Ramsay Peale II, July 1856. Records of the Patent Office, National Archives and Records Administration. United States Patent 15336.

Figure 2.16: Titian Ramsay Peale II, Portrait of Joseph Henry, albumen print, 1865. Smithsonian Institution Archives.

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Figure 2.17: Titian Ramsay Peale II, Portrait of Joseph Henry, carte-de-visite. Smithsonian Institution Archives.

Figure 2.18: Titian Ramsay Peale II, “Albumen//12' [minute] exposure 4 pm//TRP (A drop of perspiration on the portico!)” Smithsonian Institution, National Museum of American History.

Figure 2.19: Amateur Photographic Exchange Club outing on the Potomac, stereograph, July 4, 1862. Smithsonian Institution, National Museum of American History.

Figure 2.20: Ogden Nicholas Rood, Daddy Long-Legs and his Memories, cliché-verre, 1863. Smithsonian Institution, National Museum of American History.

Figure 2.21: Attributed to John Wood, Capitol under construction, 1860. Smithsonian Institution, National Museum of American History.

Figure 2.22: Titian Ramsay Peale II, “Aqueduct Bridge, Georgetown DC.//(Raining) TRP.” Smithsonian Institution, National Museum of American History.

Figure 2.23: Titian Ramsay Peale II, “Foundation of Cabin John Bridge (Aqueduct) DC.//TRP.” Smithsonian Institution, National Museum of American History.

Figure 2.24: Titian Ramsay Peale II, “Washington Aqueduct//Bed of Reservoir.” Smithsonian Institution, National Museum of American History.

Figure 2.25: Titian Ramsay Peale II, “President Lincoln’s guard, grounds south of Presidential mansion, 1861, Trial plate (dry process), The time early morning.” Smithsonian Institution, National Museum of American History.

Figure 2.26a: Titian Ramsay Peale II, panorama view facing East. Smithsonian Institution, National Museum of American History.

Figure 2.26b: Titian Ramsay Peale II, panorama view facing West. Special Collections, University of Rochester Library.

Figure 1.26c: Titian Ramsay Peale II, panorama view facing North. Smithsonian Institution, National Museum of American History.

Figure 3.1: Antoine Sonrel studio, Louis Agassiz, carte-de-visite, c. 1862. Massachusetts Historical Society.

Figure 3.2: Mental Photographs, photography album published 1874. Metropolitan Museum of Art.

Figure 3.3: E.P. Barney, Ceres, carte-de-visite albumen print of a lithograph, 1865. American Antiquarian Society.

Figure 3.4a: E.P. Barney, Sweet Sixteen, carte-de-visite albumen print of a lithograph, 1865. American Antiquarian Society.

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Figure 3.4b: E.P. Barney, Winter Sport, carte-de-visite albumen print of a lithograph, 1865. American Antiquarian Society.

Figure 3.5: E.P. Barney, Purity, carte-de-visite albumen print of a lithograph, 1865. American Antiquarian Society.

Figure 3.6: Carte-de-visite copies of a photograph of Abraham Lincoln from a negative made by Anthony Berger in Mathew Brady’s Washington, D.C. studio. Published by E. & H.T. Anthony, New York; J. Carbutt, Photographic Artist, Chicago; unknown maker; unknown maker. American Antiquarian Society.

Figure 3.7: Carte-de-visite photograph of a lithograph of Abraham Lincoln made after a photograph, published by J.B. & H.D. Hamilton, Cleveland, Ohio. American Antiquarian Society.

Figure 3.8: Carte-de-visite photographs of lithographs of Abraham Lincoln and family made after a photograph. American Antiquarian Society.

Figure 3.9: Portrait of General Meade, carte-de-visite by C.D. Fredricks and copy photograph by an unknown maker. American Antiquarian Society.

Figure 4.1: Sarony studio, Rose Newham, cabinet card, c. 1890. New York Public Library for the Performing Arts.

Figure 4.2: Unidentified studio, Boy and Dog on Floor, sixth plate daguerreotype, c. 1850. Reproduced in Merry Foresta, Secrets of the Dark Chamber: the art of the American daguerreotype (Washington, D.C.: National Museum of American Art, 1995).

Figure 4.3: Cindy Sherman, Untitled (Artist in Her Studio), chromogenic print, 1983. Metropolitan Museum of Art.

Figure 4.4: Southworth & Hawes, Harriet Beecher Stowe, daguerreotype, c. 1850s. Metropolitan Museum of Art.

Figure 4.5: C.D. Fredricks & Co., Henry Ward Beecher, carte-de-visite, c. 1860s. Special Collections, Fine Arts Library, Harvard College Library.

Figure 4.6: Unidentified artist, hand-colored salt print, 1860s. Courtesy Charles Isaacs.

Figure 4.7: A.P. Webb, cabinet card, c. 1870. Private collection.

Figure 4.8: Sarony studio, Helene Menzeli, cabinet card, c. 1870. Private collection.

Figure 4.9: H.H. Green, Specimens of Ornaments and Printing Types, 1852. American Antiquarian Society.

Figure 4.10: Chas. T. White, Abridged Specimen Book of the New York Type Foundry, 1859. American Antiquarian Society.

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Figure 4.11: Sarony studio “after Bouguereau,” Going to the Bath from Sarony’s Living Pictures, 1894- 95. American Antiquarian Society.

Figure 4.12: Sarony studio “after Sarony,” Diana from Sarony’s Living Pictures, 1894-95. American Antiquarian Society.

Figure 4.13: Thomas Nast, caricature of Napoleon Sarony, c. 1870. Special Collections, Fine Arts Library, Harvard College Library.

Figure 4.14: Sarony studio, Sarony’s Photographic Studies No. 21, uncut sheet of carte-de-visite albumen prints, c.1866. Courtesy Lee Gallery.

Figure 4.15: Napoleon Sarony, Adah Isaacs Menken, carte-de-visite, 1866. National Portrait Gallery, Smithsonian Institution.

Figure 4.16: Sarony studio, Sarony’s Photographic Studies No. 17, uncut sheet of carte-de-visite albumen prints, 1866. Metropolitan Museum of Art.

Figure 4.17: C.D. Fredricks & Co., Cyrus West Field, carte-de-visite, c. 1866. Special Collections, Fine Arts Library, Harvard College Library.

Figure 4.18: Sarony studio, John Newton, cabinet card, c. 1885. Special Collections, Fine Arts Library, Harvard College Library.

Figure 4.19: Sarony studio, Edwin Booth as Richelieu, cabinet card, c.1870. Harvard Theatre Collection.

Figure 4.20: Sarony studio, Edwin Adams, cabinet card, c. 1870. Harvard Theatre Collection.

Figure 4.21: Sarony studio, Frank Bangs in Julius Caesar, cabinet card, c. 1870s. Harvard Theatre Collection.

Figure 4.22: Sarony studio, OlivermDoud Byron, cabinet card, c.1870s. Harvard Theatre Collection.

Figure 4.23: Sarony studio, P.T. Barnum, cabinet card, c. 1870s. Harvard Theatre Collection.

Figure 4.24: C.D. Fredricks & Co., Robert E. Lee, carte-de-visite, © Minnis & Cowell, 1863. Special Collections, Fine Arts Library, Harvard College Library.

Figure 4.25: “Oscar Wilde, The Apostle of Aestheticism—From a Photograph by Sarony,” Frank Leslie’s Illustrated Newspaper, January 21, 1882.

Figure 4.26: John H. Bufford & Sons after Sarony, lithographic sheet music cover, c. 1882. Boston Public Library.

Figure 4.27: Lithographic trade card for Straiton & Storm cigars, c. 1882. Library of Congress.

Figure 4.28: Sarony studio, Oscar Wilde, cabinet card, 1882. Library of Congress.

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Figure 4.29: Sarony studio, Oscar Wilde, albumen print mounted on 12 x 7 ¼ in. card, 1882. Metropolitan Museum of Art.

Figure 4.30: Burrow-Giles after Sarony, lithographic trade card for Ehrich Brothers, 1882.

Figure 4.31: Sarony studio, William Cullen Bryant and Peter Cooper, cabinet card c. 1870s. Special Collections, Fine Arts Library, Harvard College Library.

Figure 4.32: Sarony studio, Chief Justice and Associate Justices of the Supreme Court of the United States, cabinet card, 1890. Special Collections, Fine Arts Library, Harvard College Library.

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Inventors and Manipulators: Photography as Intellectual Property in Nineteenth-Century New York

Who is the rightful owner of a photograph of a face? The person who conceived of it?

The person who took it? The person who developed the technology to make the image possible?

The person depicted in it? The people who possess the picture or copies of it? Today’s anxieties surrounding the creation and circulation of photographs echo the complications that accompanied the earliest efforts to grapple with photographic representations. In the United

States in the nineteenth century, manipulation of photographic portraits and processes became grounds for rights to them.

The history of photography is generally recounted as a quest for quicker, faster, cheaper, and easier ways to duplicate images. Yet as photographic portraits proliferated in the mid- nineteenth century, legal developments in the United States contributed to several efforts to curtail photographic reproducibility. This dissertation considers individual and institutional efforts to manage photographic ideas and images by attending to early American reluctance to adopt processes of photographic replication and patent and copyright regulations devised to check duplication of chemical and formal compositions. The following chapters explore the extent to which photographic portraits and legal developments were mutually informed, detailing how American conceptions of photography, photographers, and photographs were consolidated in relation to banking, patent, and copyright regulations—institutional practices likewise forged in the mid-nineteenth century. By tracking relationships between photographic and legal concerns, the dissertation demonstrates that a deeper understanding of the business of photography offers greater insight into its visual forms. Real and rhetorical manipulations became crucial in efforts to stake claim to studio portraits and techniques.

1

Photographic rights

In the fall of 1859, after recording steps for the “Lukacsy Manner of Ivorytype” in his notebook, James Brown, a photographer with a studio on New York’s bustling Broadway corridor, jotted the suggestions of a Dr. Nichols for improving the process, in which a photographic portrait covered with glass served as a guide for a painted portrait.1 A few months later, in February 1860, following a transcription of Dr. Nichols’s instructions for a variant technique, Brown is careful to note which aspects of the formula were disputed by Samuel F.B.

Morse. On the facing page, a formula labeled “Morse’s Method” is supplemented by more tips from Dr. Nichols. Finally Brown scribbled: “Nichols insists that his method is all that can be desired and it superior to that of Morse. Whose’s right?”2 The possessives hint at the tension between collegiality and competition that animated a great deal of mid-century photographic discourse. By November 1860 Brown updated his notes on Nichols’s and Morse’s processes with notations on improvements of his own devising, crafting his own concept of how best to achieve a successful likeness. Like others of the period, Brown attempted to differentiate which techniques were right for portrait production, but also which photographers had the rights to use them.

The following chapters look to several different photographers as case studies, but

Brown’s notebooks of the mid-nineteenth century are a useful introduction to the interrelated artistic and proprietary concerns of early American photographers. Within the pages of his notebooks, Brown sketched scenes of daily life alongside notes on artistic practice, French phrases he might have occasion to use, business appointments and accounts, physiognomic interpretations, and photographic instructions. Brown’s career was fairly typical of studios of the period. Portrait photographers had to balance technical, aesthetic, and entrepreneurial investments. In jockeying for clients, Brown was praised for his photographic manipulations,

2

struggled to maintain a steady practice as photographic processes rapidly developed, took pains

to patent what he felt might be a marketable idea, and debated how best to compose his portraits

to most adequately capture the character of sitters. These issues, faced by Brown as well as his

many Broadway colleagues and competitors, are addressed in the following chapters as a means

of sketching a more complete picture of American photography.

Broadway

Brown was immersed in artistic and scientific traditions which were deeply engaged with

the propagation of ideas. He studied as a painter at the National Academy of Design, and in the

1840s trained as a photographer in the Broadway daguerreian gallery of Mathew Brady, the

prominent American portraitist. “The pride of New Yorkers,” Broadway bustled with

amusements, including many of the most popular American photography studios.3 Brady’s reference to his studios as “galleries” reflects an interest among photographers in conceiving of their properties as places to view and be viewed as much as spaces in which to produce work.

Broadway was a central site of performative self-expression for both photographers and their clients.

The hub for an international roster of portraitists, an origin point for significant

American photographic publications, and a nexus for the circulation of commercial and aesthetic ideas, Broadway is a crucial network through which to understand the development of photography in the United States.4 Broadway portraits, partnerships, publications, and

intellectual property claims influenced the terms by which photographic techniques were

discussed and managed by operators farther afield, offering evidence of the ways in which a

particular community sought and circulated models for managing a new visual form through

selective reference to artistic and scientific traditions.5 The following chapters discuss ideas

3

which circulated in Boston, Philadelphia, Washington, D.C., and abroad, addressing

transnational interactions while underscoring the extent to which local conditions shaped

photographic practices.

James Brown worked in a studio that Mathew Brady opened directly across from P.T.

Barnum’s American Museum in the 1840s, alongside the other portrait photographers clustered

near City Hall Park.6 In 1851 Brown established his own studio a block from his former employer, just before Brady launched a second branch farther uptown, near the National

Academy of Design, to chase upscale clients. Unable to compete with larger firms which undercut his prices, in 1854 Brown also moved his studio northward, from 181 Broadway to 535

Broadway, at that time still primarily a residential area. Although several blocks south of Brady’s second location, in his new studio near the Düsseldorf Gallery, Brown was able to trade more readily on his artistic training, a background few American studio operators were able to claim.7

His notebooks reveal an artist steeped in artistic ideals, and eager to develop a viable entrepreneurial model for his practice.

Following the migration of shops, art galleries, theatres, and hotels, many other photography studios moved uptown over the course of the nineteenth century. In 1876 a writer explained, “For thirty years past Broadway has been rapidly extending northward, and lined with

palatial public edifices, and magnificent places of business…as proceeded the march of

improvement.”8 Whether or not the changes wrought might be considered an “improvement,” the geographical redistribution of Broadway studios parallels the conceptual renegotiations in which photography was entangled in mid-nineteenth-century America. Like other Broadway

businesses, photography portraiture thrived as an admixture of craft, novelty, and branding.9 In

the late 1850s, Charles DeForest Fredricks emblazoned his studio with a sign proclaiming the

firm a “Photographic Temple of Art,” echoing the civic and self-advocacy of photography

4

journals of the period, which urged photographers to balance their desire for commercial profit

with a commitment to community responsibility. But as studios moved uptown their relationship

to commercialism became more pronounced, and photographers began more overtly crafting

their wares for the market. As photographic portraiture became increasingly performative and

commercialized, a guide to the city commented enthusiastically on the consumerism flaunted on

the avenue: “Broadway is the glittering promenade of wealth, beauty, fashion, and curiosity.”10

By the 1880s, photographers profited from performativity more directly, opening studios in the theatre district surrounding Union Square.11 Celebrity portraitist Napoleon Sarony tapped

theatrical associations between art and entertainment, crowding his studio with a stuffed alligator

and Egyptian mummy, among other artifacts intended to draw an audience. A writer in Putnam’s

Monthly explained the appeal of such spaces, remarking that “the peculiarity of Broadway consists

in its being not only the principal, but the only main artery of the city, not only the focus, but the

agglomeration of trade and fashion, business and amusement, public and private abodes,

churches and theatres, barrooms and exhibitions, all collected into one promiscuous channel of

activity and dissipation. As Paris is France, so is Broadway New-York.”12 This dissertation argues that the promiscuous intermingling of trade, fashion, business, and amusement which characterized Broadway was also crucial for American photography, photographers, and

photographs.

Portrait studios not only shifted uptown but, over the course of the mid-nineteenth

century, occupied strikingly different positions in the public imagination. Between photography’s

introduction in 1839, at a highly volatile moment in the financial market, to its increased

standardization in the 1880s, there were profound changes in definitions of the medium, its

practitioners, and its products. In the decades following the first photographic reports of 1839,

studios produced myriad forms of photographic portraiture, but by the 1880s they tended to

offer different formats rather than different processes, shifting attention from chemical to

5

compositional techniques. In the intervening years, attempts to brand processes and products

became pronounced. There has been a push in the humanities to study the long nineteenth

century, but given the rapid and radical transformations in photography between its 1839

introduction and the 1880s development of roll film and hand cameras, I find it more productive

to consider drastic photographic changes over relatively short spans. Although the introduction

of negative-positive processes was met with resistance in the 1840s and 1850s, reproducible

photography was at the core of the popularity of cartes-de-visite of the 1860s and cabinet cards

of the 1870s. This dissertation tracks formal conventions that unite varied photographic

practices across the decades, but also marks important distinctions drawn at the time, unsettling

later notions of a consistent medium-specific definition of photography.

The “ivorytype” was only one of many photographic techniques that James Brown

sought to master. To speak about nineteenth-century photography is to lump together an

incredibly wide range of disparate practices. Terms in use for photographic processes during the

nineteenth century included, among others, Alabastrine, Anthotype, Amphitype, Ambrotype,

Asphaltotype, Chromotype, Chrysotype, Chemitype, Crystalotype, Cyanotype, Calotype,

Catalisotype, Catalysotype, Daguerreotype, Energiatype, Fluorotype, Ferrotype, Ferrograph,

Hallotype, Heliograph, Lucigraph, Melainotype, Megatype, Lampratype, Opalotype, Pannotype,

Phereotype, Pagliograph, and even Email.13 Rather than catalogue differences between these processes—some home-grown and others imported—the following chapters consider the repercussions of such photographic multiplicity, and the financial and legal attempts to come to terms, and terminology, with photographic proliferation.

With the rise of digital processes, photographic definitions are once again in question, but the variety of historic processes is a reminder that technological transformations are the norm, not cause for crisis. Rather than using Eric Hobsbawm’s long century as a model, then, I

6

look to his Age of Capital: 1848-1875. The development of the business of photography is, fundamentally, the story of the rise of capitalism. But the outcome of industrial production was far from inevitable in the photographic field. This dissertation records a few of the alternatives imagined at the time, the difficulties of reconciling portraiture with corporate growth, and some of the many circumstances which came to impact perceptions of photography. Resistances to photographic reproduction challenge the relentlessly progressive model often asserted in histories of the medium. My work does trace strategies by which photographers accumulated financial and cultural capital but, in doing so, attends to the stuttering steps and negotiations through which public policy impacted private enterprise.

Chapter overview

The first chapter of this dissertation examines why it was that processes which produced

unique images directly on metal or glass remained popular in the United States in the 1840s and

1850s, even after supplanted in Europe by techniques which enabled multiple prints from a

single negative. Negative-positive processes were introduced into the United States alongside the

earliest reports of the singular daguerreotype process, yet did not catch on until the 1860s. James

Brown’s earliest extant notebook records a variety of different photographic processes, reflecting

the large number of techniques in circulation, but nevertheless his accounts of the 1850s record

only daguerreotype sales. It is not until the early 1860s that he began to actively experiment with

the negative-positive processes that photography journals had been promoting for some time.

Brown’s notebook is a reminder of the co-existence of varied photographic techniques in the

United States, but also begs the question why, given the availability of reproducible forms of

photography, the daguerreotype process—and other techniques which produced singular rather

than multiple photographic images—dominated American studio practice until the onset of the

Civil War.

7

The conception of photography as a singular rather than potentially multiple form was

so tenacious that even when Brown and others began experimenting with negative-positive

processes, they generally used them to create unique images—as in the hand-painted ivorytype

method already discussed—rather than utilizing the techniques to produce images in multiple. In

chapter 1, I call attention to financial conditions in the United States that privileged singularity,

which I argue made it difficult for operators such as Brown, and their patrons, to conceptualize

photography as a medium of reproducibility. The relatively belated adoption of negative-positive

photography in America is typically credited to the remarkable resolution of unique

daguerreotype images which, it has been claimed, was in keeping with a nativist predilection for

detail. The chapter, “Face Value: Photography on Paper in the Daguerreian Era,” instead situates

American reluctance regarding negative-positive photographic portraiture in relation to more

pragmatic concerns surrounding reproduction. I argue that the instability of paper currency in

the United States helps explain cultural resistance to potentially reproducible paper photographs.

In 1857 The New York Daily Times followed other newspapers in cautioning, “The art of

Photography has recently multiplied the dangers by which our bank-note currency is

surrounded.”14 Such articles focused on skepticism about the introduction of paper photography in America and, echoing widespread reports on the precariousness of paper currency, hinted that all forms of uncontrolled reproduction threatened national stability.

Tracking references to counterfeiting in photographic and popular literature, I have found that the lack of regulation which problematized paper money similarly plagued early efforts to introduce photographic portraits on paper. Financial and photographic forms were as interrelated in studio practice as they were in Brown’s notebooks, where technical observations and financial records mingled indiscriminately.

Just as photography was construed as a medium of singularity in 1840s and 1850s

America, photographers were increasingly situated as singular authors in the United States. In the

8 second chapter of the dissertation I study the transition from the perception of photographers as part of a collective endeavor, to an increased insistence on individuality, which I argue arose from the changing structure of American patent law in the 1850s and 1860s. In the earliest years of American photography ideas had circulated quite freely, but claims to eponymous invention intensified as shared intellectual activity came to be reframed as individual intellectual property.

Like the American photography journals of the time, Brown’s notes synthesize ideas drawn from publications, conversations, and experimentation. Throughout his notebooks Brown transcribes published forumlae in ink, recording his own experiments in graphite so that they could be easily adapted. His frustration with competing technologies reflects larger contemporary concerns regarding the wide variety of techniques in circulation. Although Brown developed what he felt to be the most viable formulas for his firm, many operators who opened studios in the United

States were ill equipped to grapple with the artistic or chemical experimentation necessary to cultivate their own methods and instead relied on journals and manuals for guidance. The tentative dabbling in which Brown engaged became increasingly rare in the field. Brown ultimately scrawled “I use” and “my own” under certain recipes, outlining the steps he formulated by combining elements from the range of available processes. The declaration of an authorial “I,” of an individual’s rights to invention, of proprietary claims to competing technologies, supplanted the atmosphere of collegiality that characterized the earliest years of photographic development in the United States.

Brown was awarded a patent in 1853 for a border which could be placed before a sitter so that a studio’s name would be included in each portrait. His desire to ensure brand recognition reflected the increased ambition among photography studios to assign authorship.

The ethics of patenting were intensely argued in the United States as photographers, and

American society more generally, weighed how best to balance public and private interests.

When a self-styled inventor was awarded a patent for a photographic technique which had

9

already been widely in use, studios employing the process began embossing his name on their

portraits [see figure I.1], transforming their clients into advertisements for his brand. In New

York, the impassioned debate surrounding patent claims signaled the significance of the struggle to determine whether photographic processes were the result of individual innovation or collective development. My chapter “To Promote the Progress: Photography and Patent Law” charts the context in which appropriation of existing ideas began to be credited over original invention.

Although an important essay on the European origins of photography concludes with

the assertion that “by the end of 1839, the word photography reigned supreme in the lexicon,

whatever the process being used or the language being spoken,” in the United States increasingly

heated arguments over naming and proprietary rights to photographic developments made any

attempt at designation of an all-encompassing term inadequate.15 Central to the second chapter is an analysis of the photographs and patent examinations produced by Titian Ramsay Peale II.

The youngest son of artist and entrepreneur Charles Willson Peale, Titian Peale was examiner in the Fine Arts Division of the United States Patent Office from 1848 to 1872, and a member of one of the earliest amateur photographic societies in the United States. In his professional life,

Peale was charged with policing the boundaries of intellectual property that he otherwise breached by sharing ideas and images with fellow amateurs. Through close study of his work, my research documents that debates over ownership of photographic ideas reflected changes in

American property law, which increasingly credited adaptation over priority.

Photographic modifications engendered by fluctuating patent laws and production methods were gradually understood as a means to assert rather than threaten the identities of portrait studios and their patrons. Manipulability was upheld by some as photography’s most promising trait. In the remaining two chapters of the dissertation I investigate pre- and post-

10 production customs embraced by Broadway operators and New York consumers to heighten the artistic and associative character of photographic portraits. I focus on two especially prevalent forms of studio photography: vignette portraits and portraits posed before painted studio backgrounds. Although seemingly contradictory practices—vignetting is a purposeful exclusion of available visual information while painted backdrops introduce fictionalized spaces—each demonstrates that mechanical exactitude was not the primary ambition of photographic portraiture. The chapters explain how such explicit interventions were felt to encourage embodied engagement, and came to be critical in the struggle to secure copyright protection for photography.

For Brown, as for other studio photographers, photography was felt to be in dialogue with other forms of visual production, not a separate field of endeavor but very much linked to traditional portraiture styles. His diary includes references to art journals and treatises as well as visits to prominent Broadway photography studios such as that of Jeremiah Gurney. Brown transcribed notes on artistic practice with the same intensity as the photographic formulae he meticulously recorded.16 Artistic manipulation was recognized as crucial to a successful photographic practice. American photography journals regularly discussed art exhibitions and reprinted aesthetic dialogues published in European periodicals.17 Few photographers operating in the United States had artistic or scientific backgrounds, but European aesthetic and scientific ideals channeled through popular and photographic literature certainly informed American studio portraiture.

Although it is often said that photography pushed painting towards a particular form of naturalism or, alternately, freed painting from the shackles of realism, the third chapter of this dissertation is concerned with the ways in which the development of photography reflected contemporary understandings about the capacity of imagery to evoke rather than simply capture

11 experience. For Brown’s studio, as well as for others along Broadway, the business of photography was as much about an ability to capture a likeness perceived to be accurate as in relying on the camera’s capacity as a record-keeping device. Recent histories often emphasize photography’s alignment with instrumental applications of portraiture, but the popularity of vignetting—in which the background of a portrait is sheared away to emphasize a sitter’s facial features—demonstrates an interest in tempering mechanistic vision. Popular in daguerrean studios, vignetting remained prevalent in the 1860 and 1870s as reproducible card photographs such as cartes-de-visite and cabinet cards monopolized the portrait market. Crayon-style portraiture, a form of photographic vignette, was among the popular products listed in Brown’s receipt books, and his patent mentioned the usefulness of employing a scrim to produce a gauzy vignette effect. Echoing portraits in other media, vignette photographs offer the opportunity to re-frame discussions of indexicality and iconicity, which have often been more reflective of modernist agendas than nineteenth-century attitudes.

The third chapter of the dissertation, “‘The phantasmagoria of inventions passes rapidly before us’: Photography on Trial in Mid-Nineteenth-Century America,” addresses the possibilities and problems associated with photographic reproducibility. As vignetting—popular in wood-engraved and lithographed illustrations which seem to dissolve at their edges—was embraced by portraitists in photography studios, the involvement demanded of readers in relating printed vignette images to surrounding texts was transmuted into an imaginative engagement between viewers and subjects. Study of photographic portrait vignettes addresses the affective implications and cultural forces that propelled interest in such visual erasures.

Vignette cartes-de-visite focus attention on photographic portraiture as a practice contingent on a maker, rather than a process of facile mechanical documentation. I examine how the strategic elision of photographic backgrounds was felt to ease conceptual relationships between consumers and the photographic portraits they acquired, but came to complicate attempts at

12

copyright regulation by expediting piracy of photographic portraits and blurring the legal

categorization of media.

In his description of the ornamental frame he used to produce a vignette effect in his

photography studio, Brown had suggested it “may be and will be mostly used in conjunction

with a background such as is now sometimes used illustrative of the character of the person or

subject represented.”18 Indeed, Broadway photographers increasingly employed painted

backdrops to establish the mood of a sitting and to more fully control portrait compositions.

The fourth chapter of the dissertation, “Fancy Photography: Painted Backdrops and Copyright

Law,” traces the increasingly engaged use of backdrops—referred to as “fancy backgrounds” in

the mid-to late-nineteenth century—as another means by which photographers asserted their artistry. My research has found that backdrop artists often supplied paintings to theatres as well as to photography studios. Categorizing their work as “fancy” implied not only an association with fancy pictures, fancy dress, and domestic handicraft, but also hinted at the flights of fancy they hoped to catalyze by their efforts. Scholarly focus on photographic products often neglects the important experiential aspects of studio photography, but my work ties portraiture to broader concerns surrounding paratheatrical spaces of popular entertainment and performativity.

The self-fashioning demanded of studio operators and their clients was integral to claims that photography was more than merely mechanical.

Focusing on the work of celebrity photographer Napoleon Sarony, I assert that increased use of painted backdrops not only echoed their use in theatres and other media, but also served as studio branding, securing specific legal and commercial protections. Backgrounds were thrust to the foreground in a landmark United States Supreme Court case in which copyright protection was secured for photographs which were demonstrably composed. The court found that, through arrangement of setting and lighting, Sarony authored a portrait of

13

Oscar Wilde “entirely from his own original mental conception.”19 Decided the same year that

patents for roll film began to make amateur photography more widely available, Sarony’s 1884

case revisited an 1865 United States copyright law which had attempted for the first time to

legally differentiate photography from other visual media. In the intervening years American

courts struggled to determine copyright eligibility for paintings and sculpture, laid the

groundwork for legally differentiating ideas from their physical manifestations, and began to

entertain arguments in favor of adherence to international copyright. Legal decisions moved the

country and its visual artists toward a markedly different perspective on the protection and

privileges afforded creative expression than that which prevailed in the earliest years of

photography in the United States.

Attending to studio claims as well as studio portraits, my project examines the

manipulation, for rhetorical ends, of both photographs and conceptions of photography.

Although lawsuits and technical manuals in the nineteenth century focused on the labor of

photographic portraiture, articles for public consumption frequently referenced the medium’s

autogenic reputation. I hope that study of metaphorical and manual negotiations and the types

of portraits they enabled will balance scholarly pre-occupation with the nineteenth-century’s

supposed fealty to photographic truth.20 Many modernist histories of photography looked back

to the nineteenth century from the perspective of the hard-won battles of the twentieth, and

manipulation—a given in nineteenth-century studio portraiture—became burdened with

negative connotations. In an effort to establish the medium as a cohesive set of practices

separate from but equal to other arts, photography was situated as a form of direct

representation, unsullied by the intervention of the hand, a conviction in keeping with the claims

of some nineteenth-century rhetoric but hardly relevant for the actual operations of nineteenth-

century photographic portraiture.21 This dissertation offers a revised assessment of nineteenth- century American visual practices by suggesting that the creation and circulation of photographic

14

portraits, patents, and copyright claims was based not in mechanical exactitude, but in the

manual and conceptual malleability of photography in its early iterations.

Intellectual touchstones

There are several notable exceptions to deterministic accounts of photographic

developments. The Photographic Experience 1839-1914, and companion books on painted photographs and photographic humor by collectors Heinz K. and Bridget A. Henisch, for example, incorporate an incredible range of vernacular photography. Although they often elide decades and continents, only briefly touching on any number of photographic manipulations, their books remain a refreshing contrast to photographic histories invested in a rarified lineage of artistic genius. Like the Henischs, I am interested in the study of social art history and, in that regard, have benefited immensely from efforts by Robert Taft, Richard Rudisill, and Alan

Trachtenberg to situate photography in the United States in relation to wider concerns in nineteenth-century America. Histories of photographic technology by William Welling and Reese

Jenkins also productively position the medium at the confluence of American social issues.

Among more recent texts, essays by Allan Sekula and Geoffrey Batchen inform my interest in unraveling nineteenth-century photographic perceptions from later accounts. I am similarly appreciative of John Tagg’s study of the transactional and institutional formation of photographic discourse, but my research has shown that for many in nineteenth-century

America, skepticism about photographic potential was as pervasive as instrumentalism.

Nineteenth-century operators and consumers were captivated by photography because of its blend of accuracy and artistry, traits not imagined to be mutually exclusive. In that regard, I particularly appreciate Joel Snyder’s nuanced challenges to assertions of photographic ontology.

Following Charles Sanders Peirce, who originally coined the notions of indexicality which have been adapted by later scholars, often in quite widely construed forms, I am interested in the ways

15

in which both iconic and indexical capacities were exploited at different moments and for

different purposes.22

In attempting to account for both production and reception of photographic imagery, I build on scholarship in material and visual culture. Bruno Latour’s efforts to outline an actor- network theory which accounts for multiple forms of agency has been influential on my work, as have theories of everyday life by scholars such as Henri Lefebvre and Michel de Certeau. In the field of photographic history, François Brunet’s study of interactions between photographic and literary practices underscores that cultural influences are rarely unidirectional. I am especially indebted to the work of scholars such as Geoffrey Batchen and Elizabeth Edwards, whose essays offer compelling reminders that photographs are objects—never merely images—with particular material forms and associations which must be taken into account. Most significantly, my project is modeled on studies of studio photography by Elizabeth Anne McCauley and Steve

Edwards. Although they approach the business of nineteenth-century photography quite differently, McCauley’s analysis of French commercial photography and Edwards’s account of

British photography journals were crucial paradigms for my project. In carefully teasing out the class-inflected rhetoric of photographic publications, Edwards establishes the importance of untangling discourses of professionalization. McCauley’s thorough research reveals that although political interests and photographic concerns diverge as often as they intersect, they constantly, and often strategically, interact.

Drawing from the important work of these and other scholars, this dissertation situates photography within the field of American legal history. The first chapter considers the tenacity of the definition of photography as a medium of singularity. The second chapter charts the assumption of photographers as singular authors. The third and fourth discuss efforts to create singular photographs which served as individualized portraits of a sitter as well as marking a

16

photographer’s creative capacities. In analyzing resistance to photographic reproducibility, the

project demonstrates that discursive and technological transformations were often inextricably

linked. Complications surrounding the positioning of photography as intellectual property in the

late nineteenth century have had a lingering impact on American visual production. The

dissertation epilogue explores how precedents established by nineteenth-century litigation

continue to influence American artistic and legal discourse.

By looking to the period between 1839 and 1884, in which Broadway studios shifted

from production of unique daguerreotype images to rampant portrait production and

appropriation, my dissertation examines the consequences of attempts to control rather than

revel in reproduction. Bias towards ostensibly unmediated imagery has been loosened in the

wake of post-modern conceptual photographic interventions, opening a place for histories of

everyday photographic manipulations. Yet although excellent texts on many aspects of American

photography have recently been published, there is no study of photography in New York

comparable to those which have measured the medium’s immersion in political discourses elsewhere. By exploring photography’s entanglement with other forms of mid-nineteenth-

century expression and regulation, this dissertation provides a more nuanced understanding of

the ways photographic procedures influenced and were influenced by legal developments,

offering a localized study of transnational attitudes.

Like many photographers, Brown had a hard time adjusting to the transition from daguerreotype to negative-positive production, eventually leaving New York to work as a colorist in a photography studio in St. Louis.23 Such moves were common for operators of the

era, who often parlayed knowledge gleaned in New York into careers elsewhere. Small firms

frequently closed, giving way to larger establishments more easily able to navigate changing

technologies and legal regulations. In outlining a history that positions photographic practices

17

within the larger field of nineteenth-century processes of production and reproduction, I seek to account for the crucial role of manipulations—before the lens, in the darkroom, within the parlor, on the printed page, and in the courtroom—in determining the course of American photography.

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CHAPTER 1

Face Value: Photography on Paper in the Daguerreian Era

Introduction

In 1853 the New York Photographic Art-Journal featured a photographic portrait on paper as its frontispiece [figure 1.1]. Fourteen years after the introduction of photography into the

United States, and nearly a decade following the inclusion of a photographic print in a European publication, it was the first time a photograph—rather than a printed reproduction from a photographic source—appeared in an American publication. The photograph, a modest portrait of prominent photographic supply dealer Edward Anthony, seemed to some a harbinger of photographic revolution. Developments in processes that enabled photographic reproduction prompted the editor to predict that “the year 1853 will commence a new era in the art of photography, far excelling any other that has gone before.” 1 Yet this did not prove to be the case. The daguerreotype, and other processes that produced one-of-a-kind photographic images, continued to dominate the United States market until the 1860s. This chapter argues that the

America’s unconstrained counterfeit culture can help to explain the resistance to photographic reproducibility in the United States between 1839 and 1863.

The potential for increased dissemination offered by photographic reproduction might be assumed to be a crucial driving force of the medium. Given the strikingly different materiality of early and contemporary forms of photography, the popularity of reproducible forms could be recognized as an important link between past and present practices. But American taste for the daguerreotype, and alarmist reports of negative-positive techniques, are evidence that the potential for reproduction was only gradually incorporated into an understanding of the medium.

Even as New York’s Photographic Art-Journal called for a new era of reproducibility, Daguerre, the originator of the popular process for producing unique positive photographic images, was shown on the journal’s cover being crowned with laurels.

19

This chapter argues that reluctance to adopt negative-positive photographic techniques

stemmed from financial conditions in the mid-nineteenth century United States. Previous scholarship on the daguerreian era has discussed aesthetic, social, and technological explanations for the tenacious hold of the daguerreotype on the American imagination, but this chapter considers those issues symptomatic of deeper structural concerns wrought by the United States economy.2 My argument is speculative, but draws connections between concerns voiced about

the dangers of photographic reproducibility and larger anxieties regarding replications detached

from their originary source of value. During what was termed the “free banking era,” so-called

because banks were privatized and subject to free market forces that economic liberals hoped

would circumvent financial monopolies, the United States moved decisively towards systems of

monetary abstraction, attempting to structure a secure means through which hard specie gold

and silver might be securely represented by paper money. Political economist Eric Helleiner has

identified the years between 1837 and 1863, a period roughly coincident with the daguerreian

reign, as a crucial transition from commodity money, in which there was felt to be some intrinsic

equivalence between monetary and material value, and fiduciary money, in which value was

recognized as social convention.3 I contend that the difficult conversion to a fiduciary economy

profoundly impacted the development of photography in the United States. This chapter

outlines how economic turmoil influenced the adoption of photographic processes on both a

pragmatic and conceptual level, fostering an environment in which photography could only be

conceived of as a process of singular production. As in the following chapters, I examine the

discursive formation of the medium, explaining how the volatility of American regulatory forces

came to affect perceptions about photography. Not only did economic conditions affect

photographic practice, but ideas about photography came to materially impact American

currency.

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Free banking

Andrew Jackson dismantled the federal banking system in the 1830s, just before

photography was unleashed on the world. In his account of the financial instability that ensued

after Jackson eradicated the Second Bank of the United States, historian Heinz Tschachler

explains “not even the federal government would accept paper dollars for the payment of debts,

though paper dollars were plentiful, if worthless.”4 By the time of photography’s introduction into America, two years after an 1837 financial panic that further rattled public confidence in paper money, private banks—newly operating under guidelines determined on a state by state basis—had come to take the place of a national banking system. Under these new financial regulations, each bank issued its own currency. Private banks quickly came to have a reputation for insolvency, but in lieu of a national authority communities had no choice but to rely on local institutions. By the 1860s, around three thousand different banks were in operation.5

Accordingly, thousands of different types of paper currency circulated, the value of a note decreasing with distance from its bank of issue. Historian Stephen Mihm describes the visual confusion which resulted, “By the 1850s, with so many entities commissioning bank notes of their own design (and in denominations, sizes, and colors of their choosing), the money supply became a great confluence of more than ten thousand different kinds of paper that continually changed hands, baffled the uninitiated, and fluctuated in value according to the whims of the market.”6 Banknotes were regularly referred to as “worthless paper” and “paper promises” were

derided.7 In this climate, attempts to introduce commercially viable negative-positive processes failed both because economic conditions made it difficult to introduce new technologies without establishing new models of distribution, but also because the very notion of reproducibility, particularly reproductions associated with the new medium of photography, became suspect.

The unreliability of paper money undermined efforts to introduce paper photography.

21

The conflict over local versus federal control in the financial sector rattled photographic development to an extent which has not been addressed in art historical scholarship. The lack of centralized authority that resulted in each bank issuing its own currency—precipitating a counterfeit rate that hovered above forty percent—contributed to a culture in which reproducibility was perceived as enabling fraudulence.8 European banks were more centralized and had developed solutions to combat counterfeiting, but American private bank bills, now referred to by historians as “obsolete notes,” were among the most forged documents in fiscal history.9 In 1853, the same year of the ecstatic prediction about paper photography in the

Photographic Art-Journal, an article in the New York Merchant’s Magazine and Commercial Review, one of the first weeklies in the United States to focus exclusively on economic concerns, fretted about a new securities law:

There still remains a formidable obstacle to the use of our present paper currency…the confidence of the people… when there are counterfeiters at work in every town, thriving in their lawless occupations, and when each issue of the press announces a new and still more ingenious result of their workmanship; there would certainly seem to be danger that the whole system of bank paper for currency may yet have to be abandoned.10

The lack of confidence in paper representations, and awareness that the entire monetary system was little more than an elaborate confidence game, helps to explain American allegiance to the daguerreotype process, which produced images on metal rather than on flimsy, and increasingly disreputable, paper.

Tracing the development of monetary systems in The Order of Things, Michel Foucault insists:

Through the mercantilist experience, the domain of wealth was constituted in the same mode as that of representations. We have seen that these latter had the power to represent themselves with themselves as the basis of that representation: to open within themselves a space in which they could analyse themselves, and to form substitutes for themselves out of their own elements,

22

thus making it possible to establish both a system of signs and a table of identities and differences....From one representation to another, there is no autonomous act of signification, but a simple and endless possibility of exchange. Whatever its economic determinations and consequences, mercantilism, when questioned at the level of the episteme, appears as the slow, long effort to bring reflection upon prices and money into alignment with the analysis of representations.11

Photographic studios found themselves tied up in this problem of differentiation and attendant

conceptions of circulation and exchange. The turbulence of monetary systems in the United

States had deep repercussions in American culture, undermining trust in what were felt to be

inadequate abstracted representations and instilling preference for solidly tactile forms which

could be construed as bearing some connection to their point of origin. Foucault mused,

“Money is a material memory.”12 It is critical to consider the extent to which monetary

materiality informed photographic sensibility, and the degree to which photographic memories were felt to inhere more directly in daguerreotypes than in paper prints. Money is, of course, always an important register and regulator of culture, but took on a particular reputation in antebellum America. Depictions of money or monetary exchange and the impact of the market on artistic success have come to be an interest of historians of American art, and the financial climate of the 1840s and 50s was a particularly influential aspect of the cultural conditions in which American photography was conceived.13 It is important that we recognize that money was

not merely the subject of representation, but also profoundly impacted perception of

representation at a fundamental level.

Advertisements in the form of money were popular among businesses along Broadway, and elsewhere in the United States, throughout the 1840s and 1850s. The scrutiny demanded of any interaction with currency made them a particularly effective form of promotion. Ads for any number of different products and services, including banks and counterfeit detectors, masqueraded as bank notes or coins. But although photography studios capitalized on the

23

fashion [figures 1.2-1.3], relatively few studios had advertisements printed as paper currency.

Photographic entrepreneurs tended, instead, to produce ads in the shape of tokens.14 One of the

firms most prominent in production of daguerreotype plates, the Scovill Manufacturing

Company, issued a number of tokens for photographic studios in addition to minting tokens for

a range of other businesses. The number of advertising tokens in circulation suggests that

photography studios preferred that their wares be associated with specie rather than bank notes.

There have been few studies of relationships between photography and economic

history in nineteenth-century America. Historian Alan Trachtenberg astutely noted that “the

panic of 1837—a financial collapse triggered by wildly inflated paper money issued by local and

state banks, and the frenzy of speculation it produced—had shattered confidence, slowed

investments, and brought in its long wake chronic hard times and unemployment…Itself a form

of ‘hard’ currency—a copper plate coated with silver, guaranteed to hold its value as a picture of

a real, ‘hard’ subject—the American daguerreotype flourished in just these years.”15 But few other scholars have recognized the importance of the financial conditions into which photography was introduced in the United States. In fact, the photograph thought to be the first extant daguerreotype made in the United States is a view from the Philadelphia Mint. Scrambling to follow recently published instructions, the photographer, Joseph Saxton, crafted a camera from a cigar box and eyeglass lens, using a laxative powder container as a sensitizing box and silver coin blanks as daguerreotype plates.16 Saxton was employed by the Mint to standardize the

purity of the nation’s coinage and his experiments make the links between daguerreotypes and

specie in the United States explicit.

It has been calculated that in America, “The mid-1850s was the peak era of daguerreotype production. In 1857, a year of intense financial crisis, the annual output of daguerreotype portraits was estimated at three million for the United States.”17 Yet if we

24 consider Trachtenberg’s description of the daguerreotype as hard currency, it is understandable rather than shocking that daguerreotype popularity surged during a financial panic that precipitated a run on banks. It is reasonable to suppose that anxieties surrounding paper money in the mid-1850s, and the country’s reliance on bimetallism, stimulated enthusiasm for photography on metal, that literally, however minimally, incorporated precious material, and undermined the introduction of negative-positive photographs that resulted in photographs on paper. Economist Bray Hammond underscores the importance of sensory impressions in coming to terms with the disreputable character of paper money in mid-nineteenth century

America:

Each note, though conventionally the equivalent of a certain number of dollars, might be in fact the equivalent of anything more or anything less, depending on the reputation of the bank that issued it. And, what was of less substance but seems to have made the worse impression, the notes were neither uniform in size and style nor readily replaced with new ones, with the result that counterfeits abounded and the aged paper, circulating till worn away in powder, was so repulsively soft and filthy that a fastidious person might rather be without money than have to handle bank notes and put them in his clothing.18

This visceral reluctance to handle physically and monetarily unstable paper currency created a challenging environment for photographers attempting to adapt their studios to practices of photographic reproduction.

If at first

Although photography later came to be assigned an important role as a keeper of family and cultural memory, at its earliest introduction it was little more than the latest in a stream of novel social entertainments. Photographers faced the challenge of starting untried businesses in a tenuous economic period, as well as the difficulty of positioning their products within existing markets. The connotations of the medium had to be culturally constructed, and at the time singularity was prized.

25

There were two notable commercial attempts, both outside of New York, to introduce

processes of photographic reproduction into the United States. Neither John Adam Whipple’s

firm in Boston nor the Langenheim Brothers studio in Philadelphia was able to launch

commercially viable negative-positive technologies in New York, the city at the epicenter of the

movement to privatize banking.19 Without a foothold in New York, both firms found it difficult to market their technologies elsewhere. In economic rhetoric of the time, decentralized banking was imagined as a means of enabling easier credit to small business entrepreneurs. Yet the result in most communities was rampant speculation and reliance on unsecured financial assets, undermining public interest in many new enterprises. In trying to remedy what was perceived to be the evil of monopoly, the free banking system ultimately failed to disperse wealth as had been hoped. “Success is not the rule in New York. Indeed, it is the rare exception,” noted a city history in 1872.20 The fraught financial environment helps to explain the many photography studios which opened and, almost inevitably, quickly went bust, undercutting the reputation of the medium as a stable and secure investment. Far from being associated with long-term preservation, photography studios—grouped on lower Broadway alongside Barnum’s American

Museum and large numbers of lottery offices—were initially characterized as highly uncertain enterprises.21 Photography’s speculative status challenged both the Whipple and Langenheim efforts to introduce negative-positive photography. The Langenheims undertook a risky business venture and failed to establish a viable business model, falling prey to anxieties regarding financial speculation. Whipple proposed a more practical business plan, in which fiscal responsibility would be shared by a number of corporate partners, but skepticism in the public imagination about photographic reproduction skewed perception of his negative-positive process and undermined his ability to attract investors or clients. Though reproduction was later felt to be a useful characteristic, in the 1840s and 1850s its time had not yet come.

26

A portrait produced by the Langenheim Brothers [figure 1.4] illustrates the material

distinctions between the earliest photographic processes practiced in the United States. Frederick

Langenheim is shown holding several paper prints from negatives, including portraits of himself

and William, his brother and partner. But their negative-positive process is documented and

promoted by way of a single daguerreotype positive. Introduced with great fanfare from France

in 1839, the daguerreotype process produced a single, highly detailed, positive image on silver-

plated copper. As the process was improved, it was often gold toned and made all the more

precious by its encasement. Housed in velvet-lined cases and shining with the lustre of a precious metal, daguerreotypes have heft. They offer a tactile pleasure unavailable in a two- dimensional paper print which, in its earliest American iterations would have been, at its most elaborate, rather casually affixed to a paper mount with only a simple hand-drawn or printed

border to set-off an image from its mount. Although daguerreotype portraits contain an

incredible level of detail, their mirrored surfaces make them difficult to appreciate at a distance.

A daguerreotype’s remarkable resolution is apparent only through careful angling. Its value as a

bearer of wealth is realized only when individually handled. Daguerreotypes evoked the

materiality of metal specie, a connotation which should not be overlooked in period in which

financial panics regularly demonstrated the limited or worthless exchange value of paper money.

In contrast, negative-positive processes, initially associated with British gentleman-scientist

William Henry Fox Talbot, offered photographers the potential to produce multiple

photographic prints from a single negative. Europeans capitalized on photographic

reproducibility for publishing, archival, and artistic projects. But the Langenheim daguerreotype,

taken around the time of their purchase of Talbot’s patent in 1849, is a potent reminder of the

material differences that secured daguerreotype dominance in the American photography

market. Just as the Langeheims attempted to demonstrate the centrality of portraiture and an

27

operator’s handling to their project, the ease and manipulability of figural reproduction became

crucial to early negotiations regarding negative-positive photography more generally.

Long time coming

In 1852 the Photographic Art-Journal translated a book review from La Lumiere predicting that photography on paper was destined to “dethrone the daguerreotype.”22 Although that did

not prove true in the United States for another decade, the daguerreotype process was quickly

deposed in Europe, where experimentation with negative-positive processes flourished in the

1850s.23 Among the few Americans generally associated with the production of early paper

prints, those featured in photographic histories learned and practiced the process only while

abroad.24 A Parisian correspondent marveled in an 1855 report to an American paper that

photographers in the United States remained enamored of the daguerreotype, “concentrating all

their endeavors upon the perfection of that process, which is being rapidly given up altogether in

Europe. In France, at least, Photography sur plaque, or on metal, bid[s] fair to become obsolete,

and leave the field undisputed to its rival on paper and glass.”25 Although paper photographic portraits from glass negatives were slow to catch on in the United States, notices in American periodicals remarked on the appearance of photographs on campaign buttons, jewelry, fabric, wood, porcelain, ivory, and mica, among other media. We usually think of photographs as rectangular and, at least until recently, as paper products, but the use of paper as a carrier for photographic imagery was, in America at least, not a foregone conclusion.

Europeans quickly capitalized on the potential for publication of paper photographic prints to document and disseminate visual information in books and albums. Following the establishment of a photographic printing establishment in Reading, England, in 1844 by William

Henry Fox Talbot’s former valet, prints were produced in significant numbers for Talbot’s

28

publications, including The Pencil of Nature and Sun Pictures in Scotland. British business was no

doubt boosted by the inclusion of a paper print in every copy of The Art-Union in June of 1846,

which brought a wider swath of the public into direct contact with the visual characteristics, and

limitations, of negative-positive photography. By some calculations, by the time the Reading

location closed in 1847, thousands of paper prints had been produced as illustrations for

publications and as reproductions of works in other media.26 Although David Octavius Hill and

Robert Adamson produced a large number of paper print portraits in Scotland in the 1840s, they did not circulate widely, but paper prints from negatives by British photographers such as

Francis Frith and Roger Fenton were widely available in Europe by the late 1850s. In Italy, photographic views and reproductions of artworks were distributed by the Alinari brothers, whose studio opened in 1854. In France, negative-positive photography found support through government patronage of the Mission Héliographique, whose photographers documented national architecture deemed in need of preservation.27 Paper prints from negatives reached a

larger French audience through the efforts of Louis Désiré Blanquart-Evrard’s Imprimerie

Photographique and the Bisson frères Imprimerie Photographique, both of which published

significant numbers of photographically illustrated texts.28 Because varied negative-positive

techniques were so widely available, and felt to offer incredible commercial potential, distinctions

between processes were the subject of extensive debate in Europe. Critics and practitioners

advocated paper or glass negatives according to the tonal and linear aesthetic criteria they

identified as resulting from each. But such distinctions did not spill over into the United States,

where coverage rarely differentiated between negative-positive processes. Although there were a

few noteworthy instances in which New York publishers incorporated single paper prints from

negatives into issues printed before the Civil War, the few American publications to include

paper prints were, on the whole, a great deal more modest than European productions, and

printed in significantly smaller editions.29

29

At the 1851 Crystal Palace exhibition, French studios exhibited paper prints almost

exclusively and the British display included daguerreotypes and paper prints in roughly equal

numbers.30 The American installation, however, was devoted entirely to unique positive

photographic images on glass and metal. An introduction to the United States in the official

illustrated catalogue described the “moderate competency which prevails” in American industry,

focusing on the abundance of “precious as well as the useful metals.” Given interest in American

metallurgy at mid-century, the preponderance of photography on metal must not have seemed

unusual. Yet the introduction continued, “in no branch of invention or industry has the labour

of the United States been more successfully direct to what the community feels to be among its

most urgent and universal wants, than in the means and appliances for diffusing knowledge

through the press.”31 Although other forms of graphic reproduction flourished in the United

States, photography was exempted from American investment in reproducing and distributing

information in printed form.

As late as 1860, United States census figures record more than twenty-five hundred

daguerreotypists.32 Historians have tended to focus on daguerreian resolution rather than negative-positive reproduction as an explanation for American taste, cataloguing ways in which nineteenth-century writers and viewers might have perceived daguerreian detail as aligned with democratic nationalism.33 Richard Rudisill’s analysis of the daguerreotype process is

representative of most accounts of American photography: “The talbotype and other processes

were never seriously in competition with it because of the charm and the exquisite detail of its

images. By comparison the talbotype seemed muddy and crude…Talbot zealously restricted use

of his method by patents and crabby defenses….”34 The daguerreotype, he argued, offered “the

thing itself,” to “literal-minded” American audiences.35 Seeking to explain American fervor for the daguerreotype, one scholar declared in the 1990s that the sharp delineation of the medium resonated with the American spirit of “heroism, faith, and promise.”36 Perceptions regarding the

30

remarkable detail of daguerreotypes were certainly a significant factor in American resistance to

negative-positive processes, but monetary instability created an environment in which resolution,

though valued in certain contexts, was interpreted as threatening when coupled with a capacity

for potentially unlimited reproduction.

Counterfeit culture

Alternating between despair and desire, a poem printed in Putnam’s Monthly registers

some of the frustrations that accompanied paper circulation:

Bank-note—foul note! Industry’s curse; Ghost of coin, that mocks at toil; Pictured wealth, that chance may spoil, Rogues may stamp, and handling soil; Spider, weaving credit’s coil; Bank-note—foul note! Touch not my purse!37

Several forms of counterfeit detection attempted to offer some defense against the nuisances of the free banking era in the period in which photography was introduced into the United States.

Bank note tables—which posted current currency values according to distance from bank of issue—were a regular feature in newspapers. Merchants scrutinized each bill that passed through their hands against detailed descriptions of authentic and counterfeit bills.38 Bank note reports

tried to counter several difficulties faced by consumers in the free banking system. The most

fundamental shortcoming was the inability of many banks to retain metal specie equivalent to

the paper notes they issued, leading to failures when there were runs on their specie. Because

constant circulation of currency was crucial to the maintenance of the free banking system, an

individual’s right to redeem paper notes for metal species was said to undermine the community

in which a bank was located.39 Popular anecdotes in this period involve bankers, with chests of gold and silver, hurrying ahead of inspectors tasked with asset oversight. But many publishers who printed bank note reports were prominent speculators and lottery brokers. Historians have

31

noted that counterfeit detectors amplified rather than minimized anxiety about the prevalence of

counterfeits.40

Counterfeiting was so widespread that it was noteworthy when a bill had not been counterfeited. Bank note publications catalogued notes which were totally fictitious, those fraudulently raised to a higher denomination, and those altered to appear to be of a different bank. A report of 1856 found two-thirds of banks had counterfeiting problems, leading an essay on banking to begin, “The derangement of our currency has brought the subject home to every man’s business and bosom with an intensity which has made it the engrossing topic of the country.”41 It was in this climate of heightened insecurity about paper money that studio

experimenting with negative-positive technologies attempted to introduce paper photography

into the United States.

Crystal clear

Counterfeit detectors not only affected perception of bank notes, though, but also

perpetuated misunderstandings about negative-positive photography, stymying its success in the

United States. Given the necessity of counterfeit reporters in the 1850s, Boston daguerreotypist

John Adams Whipple must have imagined taking out an advertisement in the February 1857

issue of the Willis Bank Note List and Counterfeit Detector to be a smart strategy for introducing the

crystalotype, a process he claimed to have been working on for several years prior to his 1850

patent.42 Associations between the crystalotype process and counterfeiting, however, ultimately undermined Whipple’s efforts. The name crystalotype was meant to signal clarity of detail rivaling that of the daguerreotype, yet rather than suggesting that his process makes the daguerreotype obsolete, in contemporary notices Whipple remarked that his process could be used to duplicate daguerreotypes, suggesting they might co-exist in a mutually beneficial

32

relationship. “A New and Important Invention,” an 1852 notice about the crystalotype reprinted

in the Photographic Art-Journal from the New York Tribune, claimed that it rivaled the steel-plate

process in its ability to produce hundreds of copies, but given that steel plates were used to

produce currency, the association may have been treated as worrisome rather than revelatory.43

In other notices Whipple referred to the process as “daguerreotypes on paper” and posited that his negative-positive process would “supersede lithography, and wood and steel engraving.”44

Study of discussion concerning Whipple’s crystalotype process reveals that his rhetoric undermined the success of the product he sought to endorse. Given skepticism surrounding proliferation of counterfeit money, reports which accentuated both the detail and reproducibility of negative-positive photographic processes ultimately undercut rather than promoted their

development.

Early discussion of negative-positive processes frequently, like Whipple’s advertisements,

emphasized their relationship with printmaking. Noting the rise of paper photography in

Europe, a front page editorial in Humphrey’s Journal stressed that in the United States,

“Photography on Paper, in our opinion, will never supercede the Daguerreotype” but instead

assumed that “the capability of taking off [sic] a large number of copies, which are equal, and

even superior to the original photograph, renders it a formidable rival to the engraver.”45

Photographic Art-Journal editor Henry Hunt Snelling underscored the graphic potential of

photographic processes in his 1854 Dictionary of Photographic Art:

…there are no branches that will feel it so much as those of lithography and engraving. Photography upon paper has already made rapid strides towards perfection, and as it progresses throws into the shade lithography. In fact it has already attained a degree of excellence unapproachable by even the finest line engraving...we are convinced that the silver plate must eventually give way to paper in photographic manipulation.46

33

Familiar with European improvements to negative-positive processes, Snelling relentlessly

advocated development of paper photography. But although printmaking remained popular and

profitable, rather than benefiting from their liminal status between daguerreian and graphic

modes, photographic processes which conflated manipulation and reproduction suffered from

perceptions of their capacity to pass off man-made handiwork as though mechanically rendered.

In a June 1852 report on negative-positive processes, Snelling’s Photographic Art-Journal

urged New York photographers to experiment with techniques of reproducibility:

We have also received some very fine specimens of Photographs upon paper, taken by J.A. Whipple of Boston. In most respects they are far better than the French pictures we have seen, either of European or American origin. Mr. Whipple has certainly led the way to a demonstration that it is only necessary to place the means before our American photographers to cause them to excell (sic) in paper as well as in metallic photographs. The enterprise of this most energetic and excellent artist should meet its due reward. Is there none in New York to emulate him?47

Whipple himself made several attempts to introduce paper prints in New York. In 1853 a crystalotype received the highest photographic award at the New York Exhibition of the

Industry of All Nations. As noted at the outset, Snelling began including a Whipple print as the frontispiece of each issue of his journal. Each print was embossed with a studio blind stamp

[figure 1.5], a tactile indication of authenticity and authorship. Just as William Henry Fox Talbot had used The Pencil of Nature to outline a number of possible applications for his negative-positive

process, Whipple’s frontispieces demonstrated that the crystalotype process could be used for

portraiture, landscapes, scientific illustration, or to document art and architecture.48 Whipple announced his availability for instruction in New York in 1854, and mingled crystalotypes with wood-engravings translated from daguerreotypes to illustrate products featured in the World’s

Fair in a deluxe book whose binding was stamped Crystalotype World of Art.49 In the same year, a crystalotype was used as the frontispiece for Homes of American Statesmen [figures 1.6-1.10], the

34

first American book to include an original photographic print.50 Whipple’s efforts emphasized reproducibility as a great strength of his new process. But photographic reproducibility had not yet proven desirable.

The publisher’s notice included in Homes of American Statesmen, characterized the publication as an experimental warning shot to printmakers: “The frontispiece is somewhat of a curiosity…The great luminary has here entered into direct competition with other artists in the engraving business—our readers can judge how well he has succeeded.”51 Yet close study of copies of Homes of American Statesmen in different collections reveals that there are slight differences in the photographs mounted in each volume, both in the cropping and, most noticeably, in the shadows. Although prints could have been reproduced from a single negative, the choice was made to photograph the site repeatedly and produce a unique paper print for each issue. Calling attention to their singularity, each copy was inscribed, by hand, “original sun picture.” Notice of the publication suggested the crystalotype was a sort of compromise between daguerreian distinctiveness, and graphic reproducibility. “Each copy of the book contains a separate crystalotype of the house, and we understand that the number required were furnished at a less cost than engraving.”52 Originality and uniqueness were privileged over exact replication.

Negative-positive photography drew attention to Whipple’s studio, but daguerreotypes

continued to be the core of his business.53

Whipple’s process was met with alarm in the financial community, and anxious accounts of connections between crystalotypes and counterfeit currency filtered into the press. Modern commentaries tend to focus on the poor level of detail offered by prints from paper negatives, but their resolution was considered—or imagined by those who did not have first-hand experience—to be fine enough to frighten nineteenth-century consumers into believing they could easily be used to counterfeit currency. Already rife with warnings about counterfeit

35

currency, between 1854 and 1857, a wave of concerned articles about photographic banknote

forgeries flooded the American daily press.54 One oft-reprinted tale recounted that photographs of bills were received by both bank tellers and bank-note engravers without suspicion, even after they had been warned of the presence of counterfeits. Whipple’s process was drawn into the fray. A Boston paper discussing photographic counterfeiting pronounced: “We doubt, however, whether such an achievement could have been wrought but by the aid of Mr. Whipple’s crystallotype.”55 The next month the paper again referenced the dangerous efficiency of

Whipple’s process of reproduction.

An interesting discussion took place relative to the danger to be apprehended from the crystallotype process of copying bills, in which a number of prominent bank officers took part. Specimens of bills copied by this process was (sic) exhibited and it was stated that when taken carefully and by skillful workmen, they would be so accurate as to deceive nine persons out of ten.56

A Committee for the Suppression of Counterfeiting examined the work of Whipple, “the

celebrated Daguerreotypist” and concluded: “We have no doubt that, by the crystallotype

process, bank-notes can be so well copied as to be passed into the bank issuing the original note

as certainly as the original itself.”57 The very terms according to which Whipple’s process had

been advocated—daguerreian exactitude and ease of reproducibility—were turned against

themselves, fostering suspicion of the qualities modernist historians claim to have been central to

the medium since its inception. Instead, the culture of counterfeit created conditions

inhospitable to the characteristics negative-positive processes promised. Recent research has found that private banks were not, in fact, as disreputable as imagined in the period.58 Similarly, in retrospect it is easy to dismiss assertions that early American paper prints might have passed as currency. Although it might be difficult for us to imagine a nineteenth-century paper photograph that looked enough like an engraved note to fool a teller or engraver, reports of the time testify to the alarm perceived at the time and serve as a reminder of the potency of

36

discourse in shaping experience. Situated as a practice between familiar graphic and daguerreian

registers, paper prints might masquerade as mechanical rather than manmade. Given that

printmaking was prized and daguerreotype photographs were popular, it might seem that

processes which combined photographic exactitude and print reproducibility would be of

interest, yet the ability to reproduce photographic imagery troubled reports of negative-positive

techniques in the United States. Because photography was said to exhibit a level of exactitude

unavailable to printmaking, photographic reproductions held a particularly liminal status in the

early years of American photography. Even as associations with familiar print techniques were

marshaled to bolster public understanding of potential applications for negative-positive

processes, the blend of replication and manipulability employed in the production of paper

prints differentiated photographic reproducibility from printmaking in American accounts.

Little attention was paid to the fact that Whipple’s process was hardly capable of the

feats attributed to it. Bankers and bank note engravers continued to issue hysterical

proclamations on photographic developments:

When it is known that photographic copies contain every line and mark of the originals, differing from them only in distinctness of color, and sometimes being almost perfect fac-similes, and when it is remembered that the apparatus necessary to make such copies can be prepared by an expert photographer in a few hours, instead of having to work at metallic plates for months, as in the old process of counterfeiting, it will be seen that the danger from photographic counterfeits is of the most alarming kind.59

Attempting to quell anxiety they may have helped flame, bank note companies began incorporating colored inks into their designs to challenge photographic counterfeiters. Bank note detectors continued to urge merchants to be particularly wary of photographic counterfeits.60 In

an extended account of a counterfeit case in a New York paper, an expert witness testified that

although one might be tempted to differentiate between currency and a photographic counterfeit

by touch, it was not a reliable means of detection.61 Despite little tangible evidence that

37 photographic forgeries were ever produced, their prevalence continues to be cited as the explanation for the move to greenback currency—bills tinted and two-sided so as to make photographic copying more difficult.62 Not only did associations with counterfeiting incite resistance to photographic reproducibility, but photographic reports markedly influenced the design of the colorful and double-sided currency still in use in the United States.

Acutely aware of the limitations of existing negative-positive processes yet invested in their promotion, Snelling wrote to the editor of the New York Tribune in 1855:

Bank notes which are printed in black, and only on one side, may be copied with great accuracy by the Photographic process, and these copies might deceive those unacquainted with Photogenic drawing, but it is impossible—at all events, in the present state of the art—to counterfeit a Note printed on both sides and in various colors. The process will not admit of it….It will, therefore, require the discovery of some entire new process, at present little dreamed of, to enable Photography to counterfeit all Bank Notes, particularly those printed in various colors. A very slight insight into the practical workings of Photography would convince you of this fact.63

His article was undersigned by the proprietors of the prominent New York studio Gurney &

Fredricks, among the few Broadway operators to attempt to introduce paper prints into the city alongside their daguerreian practice. Snelling’s letter was printed next to a short piece by a New

York bank note engraving firm recommending the addition of color printing to protect against forgery. But given that most private bank bills were uniface and printed predominately in black ink, and photographic advertisements persisted in their claims to perfect transcriptions of their pictured subjects, Snelling’s remarks failed to dampen rampant anxieties. Reports of photographic counterfeits continued to circulate for several years.

Americans were not alone in worrying that negative-positive processes fed the country’s counterfeit culture. One of the earliest references to the United States in the correspondence of

William Henry Fox Talbot mentions the issue of photographic counterfeits. Talbot’s mother

38

wrote: “The forgeries in America which are laid on the Daguerreotype must really be done by

your black art, for how could they imitate a bank note &c &c on a stiff hard substance?”64 Her

letter pinpoints the fear that—unlike a daguerreotype—a paper photograph might pass as paper

currency. In 1857 a Georgia newspaper registered the anxiety radiating from New York’s

financial community. “Bank notes, counterfeited by the photographic process, are multiplying

fast, says the New York Times, and the daily increase in their circulation has become an alarming

evil.”65 Yet during the 1850s only one New York firm, the Meade Brothers, was specifically

mentioned in connection with photographic forgery.66 By 1865 a treatise on counterfeiting

devoted only a half-page to “photographed bills,” finding that:

The number of counterfeits produced in this manner is as yet not sufficiently great to demand special attention. Many statements have been put forth by scientific men, respecting the danger of photography when applied to the counterfeiting of bank-notes, but fortunately it has thus far proved a failure. Some counterfeits by this system have been palmed on the unwary, yet no judge of bank-notes need have any fear of being deceived.67

As this dismissal hints, it is problematic to reconcile alarmist reports on the ubiquity of

photographic counterfeits with the scarcity of extant material. Adequate photomechanical

technologies are not thought to be developed until somewhat later in the United States but

perhaps counterfeiters were, as usual, ahead of the game.68 It is possible that the photographic forgeries produced in the mid-nineteenth century were so remarkable that they foiled and continue to evade detection but my research, and discussions with curators of large American numismatic collections, has led me to believe accounts photographic counterfeits were exaggerated, fears of technology frequently reported but rarely experienced.69 Accounts of

photographic technologies were, more often than not, predictive rather than descriptive,

imagining what might one day be commonplace rather than what was actually manageable at the

time. In the case of negative-positive processes, the rhetoric surrounding their accuracy and

potential for multiplication proved an obstacle to their widespread adoption.

39

As imagined

Although it took more than a decade for negative-positive processes to hold American attention, they were certainly more well-known throughout the United States than has been noted in modern accounts of the medium, though they were generally known by reputation rather than firsthand experience.70 The ways in which negative-positive processes were reported initially undermined their success. Because New York’s three photography journals—the only periodicals devoted to the medium in the United States in the 1850s—were culled primarily from

European sources, negative-positive processes were regularly recounted alongside daguerreian

information.71 Manuals imported from Europe and those published by and for American

photographers similarly outlined a variety of photographic techniques. Yet Daguerre’s process

remained more prominent in the American popular press and public imagination. Well-

publicized efforts sought to raise money for an American monument to Daguerre, and the word

daguerreotype—despite wildly variant spellings—remained synonymous with photography.

Conflation of currency and prints from photographic negatives was made possible by

the confusion rampant in the earliest reports of photography in the United States. Writers were

generally careful to explain that the necessary steps for Talbot and Daguerre’s processes differed,

but visual distinctions between the processes were rarely differentiated. It might seem to the

uninitiated that they diverged only in substrate, not in surface appearance. A few months after

the initial announcements of photography, an American magazine described them as equivalents,

reporting that “Mr. Fox Talbot, an English gentleman, perfectly unconscious of Mr. Daguerre’s

operations, made the same discovery, and, after some years experiments, had succeeded in

bringing it to even greater perfection than the other.”72 Usually, though, Daguerre’s process

received more, and mostly more favorable, attention. Negative-positive processes were not

perceived as being of poorer resolution, but were imagined to offer the daguerreotype’s degree

40 of clarity combined with the potential for reproduction. In the United States, the processes of

Daguerre and Talbot were initially described procedurally rather than perceptibly different.

In the period in which the daguerreotype process was the gold standard for photography, the medium was not yet situated as a process of wide circulation but, instead, regularly characterized as a form of direct record shared through intimate connection. As Martha

Sandweiss explained in her 2002 study of the role of photography in exploration of the

American West, photography was perceived as a medium for individual viewers rather than collective experience. She observed “before wet-plate photography could win wide acceptance it would have to establish its usefulness. And its utility would be determined less by something intrinsic to the process, than by the human imagination of those who used it.”73 Few beyond the photographic community perceived a need for photographic reproduction beyond that already offered by printmaking techniques.

The American reception of varied photographic processes was shaped by advance publicity rather than direct experience. Initial notice of Daguerre’s process certainly sparked a great deal of attention, but because the French government delayed in releasing its steps, the earliest accounts of photography in the United States described only Talbot’s technique in detail, providing merely cursory description of Daguerre’s method.74 Accounts of Talbot’s technique, because meticulous, made the effort seem more difficult and time-consuming, while references to Daguerre’s process could only catalogue hearsay about its wondrous results. Samuel F.B.

Morse’s notes of his visit to Daguerre’s atelier became fodder for a great deal of discussion, while Talbot’s process remained saddled with the baggage of a seemingly more labor-intensive procedure.

41

Photographic histories have tended to focus on the amazement which greeted the

reception of daguerreotypy, and histories of American photography have well documented news

of the daguerreotype which reached the shores and spread, yet in fact early accounts of

photography in the United States often referred to both processes. The first American article on

photography mentioned both Daguerre and Talbot, but conflated their processes.75 Because

Talbot’s procedures were made public immediately, his process was in fact the first attempted in the United States. Early American experimenters, predominately scientists, did not rely on muddled accounts in the U.S. press, however, but utilized reports from European scientific contacts.76 Early adopters struggling to follow the steps of each process would have recognized the crucial material distinctions and distinctive visual characteristics between Talbot’s and

Daguerre’s forms of photography, but in second-hand American accounts there was a great deal of confusion about the differences. For those who had no first-hand experience of negative- positive processes, who had heard only that they combined the potential for reproduction with visual exactitude, it is no wonder the danger of photographic counterfeiting would have seemed acute, and distinctive from the benefits of the graphic arts more generally.

The second reference to photography in an American publication began by misinforming its audience that Daguerre’s process produced an image on paper. “There has been published an account from a French paper of a wonderful discovery made recently by M.

Daguerre—that of transferring the picture of any object to paper….and thus a perfect copy from

Nature may be produced.”77 Acknowledging “there is a very considerable difference” between

the processes of Daguerre and Talbot, the article located it “in this, that Mr. Talbot reverses the

natural effect—representing dark objects light and light objects dark…He copies from

engravings, by first getting them with the lights and shades reversed, and then again copying

from the reversed impression.”78 The inversion necessitated by Talbot’s process remained a

frequent topic of discussion. Reliance on a negative was often described as a perversion of reality

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and, more crucially, underscored the manual interventions required to produce prints in multiple.

Talbot was quoted in the article as exclaiming, “THE PICTURE MAKES ITSELF!” but, eager

to stake claim to his process as an invention rather than a discovery and thereby eligible for

patent protection, in ensuing reports he reformulated his characterization, insisting upon rather

than denying operator involvement.79 In the United States, Talbot’s process became associated

with the labors of photographic operators, while daguerreotypes were granted a special status,

and imagined to be unmediated. The resulting conceptual formulation of negative-positive

photography—of processes which were superficially exact yet the product of intense concealed

labor—contributed to anxiety at its potentially compromising applications.

Talbot struggled to patent his process, both in the United States and abroad, so

continued to emphasize his handiwork alongside the agency of the sun in his later descriptions

of his process. In a letter to the British Literary Gazette written soon after his British patent was

registered, Talbot stressed that in his process, “there is ample room for the exercise of skill and

judgment.”80 Recent scholarship on negative-positive photography in Britain has noted Talbot’s insistence on distinctions between his process and that of Daguerre. “In a period when machines were revered for their capacity for endless replication, Talbot suggested that photography was predisposed to human intervention, a welcome alternative to the idea of the camera as merely another mechanical contrivance.”81 But in America in the 1840s and 50s a predisposition to intervention was hardly welcome. Negative-positive processes which followed from Talbot’s were thus doubly burdened—reported as appearing to perfectly register the world yet subject to manipulation. In reputation, Talbot’s images were hand-made without seeming so. While this was later construed as an advantage of negative-positive photography, it was not initially

perceived as beneficial.

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Outside the United States, some practitioners delighted in the soft tone of paper prints,

which allowed suppression of details which the camera might otherwise register. French authors

in particular, many of whose texts were reproduced in American photography journals,

differentiated between the linearity of the daguerreotype and the tonality of photography on

paper, but the artistic connotations operative in French accounts did not register as imperative in

the American press.82 Notable instances of crossover abound but for the most part, in France and Britain glass negatives became associated with commercial developments while paper negatives remained the choice of elite amateurs. Such distinctions were not retained in the

American journals devoted to photography, which reprinted commercial, artistic, and scientific texts indiscriminately.83 New York journals generally focused on the technical complications of

varied processes rather than their aesthetic effect, working doggedly to bring as many different

formulas to their readers as possible.84 Differences critical in the European press were

collapsed in their re-presentation within the United States. Disputes were de-contextualized,

reprinted and circulated by New York publishers to photographers avid for commercially viable

improvements. Distinctions regarding the appearance of photographic processes were reckoned

of less importance than market potential in American photography journals, and reproducible

images were felt, by many, likely to undercut the market for singular photographic products.

The daguerreotype’s commercial status, deemed crass by more artistically minded

European practitioners, was subject to a different mindset in the America, where financial

exigencies trumped scholarly ambition. Complaints about commercial rather than intellectual

motivations certainly riddled the American photographic press, as is discussed in the next

chapter, but did not offer a consistent standard for practitioners scattered across the United

States. Because they recognized the commercial potential of photographic multiplication, the

editors of the American photography journals continued to reprint a variety of European and

domestic negative-positive techniques, and harangued daguerreotypists who refused to accept

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that daguerreiean procedures might give way to new modes of photographic production and

display.

Conflation of early forms of photography has been repeated in secondary scholarship.

Existing histories of photography in the United States focus almost exclusively on daguerreotype popularity in the period before the cartes-de-visite craze of the 1860s finally made negative- positive photography profitable, consistently overlooking or eliding early experimentation with paper photography. Frequently, nineteenth-century accounts which referred to both Daguerre and Talbot have been excerpted in secondary-literature in a manner that makes it seem as though the daguerreotype was the only form of photography in the United States. Quoting a report which began with the phrase “‘Wonderful wonder of wonders!,’” a 1995 book described “the daguerreotype’s exuberant welcome in America…”85 But the “wonder of wonders” article

actually referred to both photographic processes, and was, in fact, a reprint from a Scottish

journal, which was printed in at least two American journals in slightly different forms.86 That the phrase, itself a citation of a Jonathan Swift satire published in 1721, was used and re-used for notably different purposes, both in the nineteenth century and more recently, is a fitting encapsulation of the issues of appropriation—and manipulation couched as reproduction— which remain foundational to the study of early American photography.

Inconsistent use of language by nineteenth-century photographers is among the most basic difficulties in attempting to grapple with the range of photographic processes. At times, words such as daguerreotype and calotype were used to refer to specific processes, while elsewhere they signaled a wide range of photographic techniques. The proliferation of names for varied photographic processes will be discussed in the following chapter, but even the earliest mid-nineteenth-century American reports made clear that “photography” was no more a

cohesive set of practices then than it is now. Confusion about the earliest photographic

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techniques practiced in the United States has proven as problematic for modernist critics as it

was for nineteenth-century writers.

Negative reactions

Initial press references to Talbot described his photogenic drawing process, a technique

in which sensitized paper was printed out rather than developed from a latent image. The

process required an investment of time, but once the paper was sensitized, the photographer

need only wait for the image to appear, in reversed tones, after which it could be copied. As has

already been noted, the use of an inverted image was disparaged in some American accounts:

“The processes and the results of M. Daguerre and Mr. Talbot, are totally different. The former

is said to obtain light for light, and shadow for shadow in the most perfect manner; whereas in

the process of the latter, shadow is substituted for light, and light for shadow.”87 The author went on to explain how Talbot “rectifies” the reversal, but the process of inversion continued to trouble American writers. By 1841, Talbot patented his calotype technique, in which a latent image was brought out through chemical development. Talbot’s correspondent John Herschel was the first, in 1840, to use the words “negative” and “positive” in relation to Talbot’s process.88 Until then the images had been referred to as reverses, re-reverses, transfers, copies,

inversions, or fac-similes, each of which signals a distance between a subject and its

representation. The terms “negative” and “positive” were incorporated into Talbot’s 1847 U.S.

patent, but remained unfamiliar to Americans for several years. An article of 1849 in the Daily

National Intelligencer explained, “the picture thus produced in what is termed a negative…from

this…positive pictures are taken at will…If this seems, at first glance, a disadvantage, it is really

the contrary.”89 A decade later, the negative remained a novelty, and a deficiency. Oliver Wendell

Holmes explained photography to his Atlantic Monthly readers using information gleaned from

“Mr. Whipple, one of the most successful operators in this country.”90 He described the

46 daguerreotype in a breezy half-page column, but took two pages to describe the seemingly more laborious process of producing a paper print:

The picture is reversed…Everything is just as wrong as it can be, except that the relations of each wrong to the other wrongs are like the relations of the corresponding rights to each other in the original natural image. This is a negative picture. Extremes meet. Every given point of the picture is as far from truth as a lie can be. But in travelling away from the pattern it has gone round a complete circle, and is at once as remote from Nature and as near it as possible….This negative is now to give birth to a positive, --this mass of contradictions to assert its hidden truth in a perfect harmonious affirmation of the realities of Nature….Out of the perverse and totally depraved negative,--where it might almost seem as if some magic and diabolic power had wrenched all things from their properties, where the light of the eye was darkness, and the deepest blackness was gilded with the brightest glare,--is to come the true end of all this series of operations, a copy of Nature in all her sweet gradations and harmonies and contrasts.91

Holmes’s description of the negative as “perverse and totally depraved” marks the extent to which racialized interpretations filtered into everyday experience, coloring even reception of photographic reproducibility. He continued, “Mr. Whipple tells us that even now he takes a much greater number of miniature portraits on metal than on paper…”92 Writing at a moment in the late 1850s when stereoviews on paper began to overtake the daguerreotype in production,

Holmes notes that nonetheless portraiture remained almost exclusively the province of daguerreotypes rather than paper prints.93 Given his insistence on the merits of stereographic reproduction, Holmes’s description of a negative as diabolic should be measured against his praise for the quality of resulting positives. Nonetheless, his tirade demonstrates that negatives were considered negatively in the United States, a hurdle which had to be overcome by studios which attempted to processes of photographic reproduction.

A particular concern was that photographic duplication could invert not only pictorial tone but power structures more generally, enabling replication of signatures which were otherwise imagined to be unimpeachable marks of legitimacy—thereby granting power to those

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who might otherwise have none. One of the many articles on photographic counterfeits worried

“It is not only our currency that is assailed by this art, but everything depending on the human

pen is liable to counterfeiting. One’s autograph may be at any time affixed to…any document

the author may please—the autographs being so perfect, that the writer himself could not detect

an error.”94 As the vogue for autograph collecting intensified, and urban centers increasingly

teemed with citizens who were strangers to one another, handwriting analysis gained some

credibility as a means of authentication. Indeed the mark of a bank note’s validity was the

signature of a bank’s treasurer, which was hand-written on each note as it was issued.95 Anxiety

concerning distance between a representation and its point of origin was not only one of the

most basic problems of the free banking system, but impacted perception of photographic

processes as well. As evidenced by the reputation of wildcat banks, notes decreased rapidly in

value as distance from their source increased. In the American economic climate of the mid-

nineteenth century, proximity had value. Signatures were felt to bridge, if not eradicate, the

distance between an object and its representation. Early paper prints from negatives often

utilized an autograph to try to harness the connection between a photograph and its subject.

Early paper print portraits, in particular, often bore the signature of their sitter. Whipple

and others combined paper portraits with handwritten autographs and quotes into class albums,

not unlike contemporary yearbooks and online albums which combine images and commentary

as a signal of immediacy. Congressional portraits by McClees & Vannerson similarly included an

autograph beneath each portrait.96 Such collations served frequently as autograph albums, in which portraits were inserted to supplement anecdotal or aphoristic narratives. In such contexts, paper prints were authenticated by the hand of their sitter. Multiplicity and intervention, perceived as anathema to photography in its earliest years in the United States, seems to have been moderated in paper prints by inclusion of an autograph as a compensatory gesture of proximity.97 In the “Wonderful wonder of wonders!” article reprinted from a European

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publication, the author fretted, “How difficult to prove the representation of a forgery, if nobody

has a hand in it!”98 Insistence on a signature as a mark of a sitter’s presence—an endorsement of their representation—calls to mind Walter Benjamin’s meditation on reproducibility, in which he categorized authentic works as those which were made in the presence of an original rather than produced by independent technological reproduction.99 The prominence of signatures on early

American paper prints suggests that nineteenth-century photographers, and perhaps their

consumers, ascribed an aura of authenticity to daguerreotypes which they were unwilling or

unable to extend to prints reproduced from negatives without supplemental connection. The

potency of daguerreotypes, in contrast, was said to spring from their immediate registration of

the world, a singular ability to capture a unique and unmediated likeness. The author of an 1857

manual reminded readers that, unlike photographic prints, “Ambrotypes and Daguerreotypes are

produced directly from the model.”100 This distinction has been reinforced in recent scholarship.

In detailing the large numbers of daguerreotypes that circulated by mail, historian David Henkin recently concluded that daguerreotypes were “more like signed holograph letters and less like printed documents than they would later become, once the face recorded on film could be endlessly duplicated and promiscuously circulated.”101 Sitting for a daguerreotype portrait

became a familiar ritual, but the production of prints from a negative, which would have

required delayed gratification for clients as operators undertook the time necessary for sun

printing, took place outside the realm of everyday experience. Benjamin asserted that the gesture

with which technological reproducibility disassociates art from ritual is emancipatory. “From a

photographic plate, for example, one can make any number of prints; to ask for the ‘authentic’

print makes no sense.”102 But in the era before reproducibility was commonplace, the imagined

authenticity of daguerreian immediacy was demanded. Claiming daguerreotypes were associated

with an auratic potency denied to negative-positive photography would seem to suggest

consumers were aware of their distinctive mode of production, but in lieu of extensive

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discussion of photographic procedures, readers of advertisements were certainly given the

impression that paper prints were both photo-based and graphic, that is photographically derived and multiple. Those who saw rather than read about paper prints would have felt this distinction. Given the associations between paper and fraudulence, a signature would have offered some assurance of connection between sitter and portrait.

In reviewing early photographic portraits on paper, what is not apparent in reproduction,

or even at first glance, is the significant retouching in most prints. Whipple’s crystalotypes, like

the early paper prints of his peers, often involved extensive hand work. Alarmist reports of

counterfeiting and insistence on signatory endorsements suggest that the problem of

photographic forgery, and of negative-positive photography more generally, was not only an issue of mimetic threat, but of alteration and unchecked circulation. An image that was the product of intervention might seem to be an exact transcription. Manipulation was believed to be particularly problematic for portraiture, so signatures served to endorse portraits as correct likenesses. Although alterations came eventually to be welcomed, as is discussed in chapter 3, the potential of photographic manipulation to skew perceptions of its subjects was unsettling in the free banking era.

Editors of the Photographic Art-Journal discussed these issues in an article bemoaning the public perception of links between fraudulence and the introduction of new forms of photography.

And why is it that Americans do not add to their reputation as inventors as well as manipulators in the art?….‘because there are so many knaves who are constantly practising upon the credulity of the more simple that an announcement of a discovery by any connected with the art in this country is synonymous with “humbug”...’ In short it appears to be considered, now, by the daguerrean community, that discoveries and rascality go together. Now what is the remedy for this state of affairs? We answer, well organized Photographic Associations, both National and State. From these associations can emanate all

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inventions and discoveries impressed with the seal of truth, and the designing men who suck so assiduously at the bunghole of credulity—to use a homely expression—will be deprived of their occupation, while the talented and simple minded but honest artists will be protected in their inventions, and secured against imposition.103

The question of organization was central to early photographic discourse, and is detailed in the

following chapter, but given public skepticism regarding the merits of techniques billed as

innovations, in attempting to introduce negative-positive processes, studios risked their

reputations as well as their profits.

Counterfeit presentment

As with currency, the absence of a consistent seal of authentication fostered suspicion of

the unreliability of photographic portraits on paper. The phrase “counterfeit presentment,” from

Hamlet, initially appeared in photographic literature as description, not criticism. A visitor to the

Langenheim studio recounted seeing “a ‘counterfeit presentment’ of ourselves, which we should

have known any where, and which some good friends were kind enough to pronounce almost as

homely as the original.”104 In his 1964 photography manual Marcus Aurelius Root remarked,

“No artist needs to be told that expression constitutes the chief beauty and power of the human face, both in the living original and in its ‘counterfeit presentment’ by art.”105 Spurred by the ongoing popularity of Shakespeare in the United States, the phrase also found its way into speeches, newspaper articles, and novels.106 But as counterfeiting became an especially pressing

problem in the United States in the 1840s and 1850s, the phrase often took on strikingly negative

connotations. Edgar Allan Poe used it to refer to counterfeit currency in his 1843 Diddling as

Considered One of the Exact Sciences, a set of humorous anecdotes about being swindled which

circulated in popular periodicals throughout the 1840s. In May of 1844, the artist Henry Inman

sketched a subtle portrait of the journalist William T. Porter, inscribing the drawing with a

handwritten note that read: “please accept this leaden counterfeit of the genuine coin, which

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never rings false to any test of its metal, as a feeble token of esteem, from his attached

friend…”107 Inman’s inscription not only literally underscores the freighted inadequacies of resemblances which do not register as authentic, but links his representation to a mere token, a non-transferrable form of exchange. Reproduction of photographic portraits likewise became associated with inadequate representation.

It seems counterintuitive that the vogue for printed portraits would not have translated into interest in reproducible photographic portraits. But given the financial and conceptual constraints fostered by the culture of counterfeit in the United States, and the negative connotations of photographic negatives, there was little financial or ideological incentive for photographic reproducibility in New York. In his discussion of the profound impact of bank note circulation on American visuality, historian David M. Henkin stresses that “Manhattan was the headquarters of the three largest banknote manufacturers in the country, and remained the material and symbolic capital of counterfeiting activity throughout the nineteenth century.”108

Like other forms of portraiture, early photographic portraits benefited rather than suffered from

their singularity. Art historian Margaretta Lovell has reiterated that family portraits did not, for

the most part, circulate widely in the United States, but were instead treated as an important

inheritance within a tight domestic circle.109 In the third chapter of this dissertation I discuss the change in photographic culture as portrait mobility escalated, but in the 1840s and 50s portraits produced for a family tended to stay in the family. The market for portraits of political figures and celebrities was fed by well-established print publishers. And, as been amply demonstrated, printed translations of portrait photographs fulfilled the desire for honorific and repressive representations of public figures.110 But for most clients—those neither famous nor infamous—

there was not yet a market for multiple prints from a single sitting.

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Unlike daguerreotypes which, in their uniqueness, were imagined to capture the

singularity of their subject, photographic reproduction was linked to a capacity for counterfeit

presentment. One of the earliest articles on photographic bank note forgeries observed

“Counterfeiting, in social life, is, however, as rampant as the financial....Counterfeiting seems to

prosper in these latter days, the world over. Knaves counterfeit honest men, and despots

counterfeit a love of liberty.”111 Historian Karen Halttunen documented the ways in which sincerity was posited as an antidote to the superficiality and skepticism which reverberated throughout antebellum culture. “In an open, urban society, the powerful images of the confidence man and the painted woman expressed the deep concern of status-conscious social climbers that they themselves and those around them were ‘passing’ for something they were not.”112 The obverse of social mobility was the possibility of artificiality, of manipulated

appearance. Although specious circulation is central to Herman Melville’s 1857 Confidence-Man:

His Masquerade, Halttunen does not consider the degree to which counterfeit currency informed

the texts she discusses. But photography was implicated in the culture of sentimentality

described in her work. Daguerreotypes, in particular, became associated with the rituals of

mourning she describes. It would seem singular daguerreotypes were felt to be the most

appropriate medium for sitters felt to be similarly singular. Paper portraits were occasionally

produced for mourning in the 1850s, but they were generally over-painted and thus transformed

into unique images. Whipple’s class albums similarly served a commemorative function. In such

cases, signatures served to curtail the proliferation of positive prints, constraining multiplicity by

insisting on a tactile connection between a sitter and their representation. Yet, as Halttunen

explains: “After mid-century, the American middle classes learned to embrace the art of social

performance as a mark of cultural dominance in the age of consolidation.”113 Following the Civil

War, reproducible photographs, often highly performative portraits, became wildly popular. But although many processes of the 1850s were founded on negative-positive technologies used in

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Europe to produce paper prints in large editions, for the most part American photographers

resisted using them to create positive prints in multiple. Instead, imported techniques were often

utilized to produce singular positives. Tintypes and ambrotypes are, in essence, negatives backed

so as to appear as positives. Although their processes might easily have been used as matrices for

reproduction, in the United States they were instead presented as singular objects.

That the phrase “counterfeit presentment” was often used in quotes or italics,

presumably to reference its Shakespearean source, is a reminder of the culture of quotation in

the nineteenth century. Just as positive references linking counterfeit presentment and

photography dwindled in the mid-1850s, so too ads made to resemble currency waned in

popularity.114 Paper money in mid-nineteenth-century America was in essence little more than

an advertisement for a bank, an attempt to visually insinuate a sense of security. The vignette

iconography on notes referenced regional and national identity as means of re-assuring skittish

customers to invest in their reputation.115 But the imagery on paper money aided counterfeiters as much as legitimate banks. Likewise, advertisements for the Gurney and Chase photography studios [figures 1.11-1.12]—among the few studios that publicized their wares using

adverstisements in the form of bank bills rather than the tokens more frequently used by

photography merchants—included the alluring vignette of a robed woman to draw attention to

their wares using an image later linked to counterfeit currency [figure 1.13].116 One scholar has calculated that a large percentage of forgeries included scantily clad women to distract from the shoddy workmanship of the counterfeit.117 As long as one was able to pass the buck, they were

able to benefit regardless of its authenticity. In an 1853 counterfeit detector the author urges

detectors to look first to “see if there are any human figures on it….the human countenance is

the hardest of all things to do well; the least alteration in …the eyes would change the expression

of the countenance; and this, a man that had the likeness of Washington or Clay fixed into his

mind by frequently handling the bills, would know in a moment that it was not a genuine

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likeness.”118 Given the importance placed on the human countenance on a site of detection, the issue of passing—of an artifice or representation masquerading or mistaken as the real—was as fraught in photographic portraiture as it was in other mid-century arenas. As Melville’s Confidence

Man and other literary references reminded nineteenth-century Americans, mere resemblance of one thing to another offered no guarantee of authenticity.

The notion of passing was obviously particularly fraught in a period in which race, or species, was as contested as specie.119 In the case of photography, as in banking, there was no national governing body to control or check reproduction and circulation. Once portrait reproduction had become commonplace, a writer for the Fireside Companion commented, “When a man is once photographed, he loses the copyright to his own features. He can be duplicated indefinitely, and circulated like greenbacks everywhere. Daguerreotypes were not so bad.”120

Whereas daguerreotypes and printed images had distinctive visual characteristics that signaled at

once what they were, the perception of paper photography as mutable bore an uncomfortably

close relationship to counterfeiting, hardly an appropriate association for cherished images of

loved ones, perceived then as now to be almost invaluable. Historian Alan Trachtenberg, with

his deep familiarity with the period, explains: “Itself a piece of real tangible property, the

daguerreotype was thought to stand guard against the constant danger, in the rapidly expanding

urban-market society, of falsifications of identities and ownership.”121 Paper photography was

not felt to offer such assurance. The reluctant adoption of negative-positive technologies

demonstrates that it was not photography as a whole, but only a particular branch of the craft,

which was identified with intrinsic value in the antebellum period.

Historian Stephen Mihm notes of the transition from a barter to a monetary economy

that “the counterfeiter implicitly raised questions that cut to the core contradictions of an

emergent commercial society—a society where commodities, currency, reputations, and flesh-

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and-blood people increasingly floated free of custom, tradition, and place.”122 Because of its concentration of small businesses, New York was particularly susceptible to counterfeiting.123 In

a society in which monetary transactions were no longer between familiar faces but a chain of

interactions amongst strangers, the power of issuing paper promises was dispersed. While many

lauded private banking for opening economic gain to greater numbers of people, a

countervailing impulse gripped those wary of the ways in which distance undermined security. A

number of coping mechanisms were developed during and after the Civil War to come to terms

with the role of photography in bridging conceptual and geographic distances, but in the

antebellum era daguerreian photography was associated with proximity and singularity.

Daguerreotypes were only once removed from their source; the plate and the person had been in

the same place at the same time. But that was not necessarily the case for paper money or for

paper photographs, which were re-presentations rather than the result of a close relationship to

the source from which their value derived. Gold and silver, visually aligned with the

daguerreotype, though also granted value through cultural consensus rather than intrinsic worth,

were perceived at the time as real rather than representative currency.

If, as historian of material culture David Jaffee suggests, “the meanings of

daguerreotypes and other parlor furnishings reinforced domesticity, abundance, artifice, and

ultimately, cultural cohesion,” the notion of a potentially easily reproducible self might rend the

comforting notion of cohesion towards which middle class subjects strove.124 Whereas negative-

positive photography would seem to be the culmination of the desire for abundance, it was not

until the fragmentation of the Civil War, and the ensuing consolidation of nationalistic rather

than localized financial interests, that a notion of photographic portrait multiplicity would find a

market.

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Speculation in New York

Despite New York’s importance as a center of American publishing, reproductive

processes potentially useful to the print industry did not gain a foothold along Broadway.

Information gleaned in the city’s competitive climate regularly paid dividends elsewhere in the

country and materials were as readily available as technical instruction. In the 1850s New York

had the largest number of paper mills in the United States, and therefore photographers would

have access to affordable supplies, yet the most advanced attempts to introduce negative-positive processes occurred in Philadelphia and Boston, cities in which photographers were more experimental than those in the commercially driven studios of Broadway.125 There were significant negative-positive projects undertaken in New York, most notably Victor Prevost’s urban views and Mathew Brady’s portraits, which were used most frequently in the 1850s as the basis for heavily hand-painted images.126 The New York Times reported in 1857 that “Brady’s

magnificent ‘Imperials,’ which, until closely inspected, are taken for elaborate line engravings, are

everybody’s envy.”127 Yet although Brady’s large-scale paper portraits were popular as unique images, they were not printed in significant editions until the carte-de-visite craze of the 1860s. A center of the country’s experimentation with free banking, New York served more as a mouthpiece for negative-positive production than a proving ground.

As the country struggled to adjust to the free banking system, Americans engaged in intense debates over oversight of economic systems. The photography community wrestled with its own disagreements regarding fiscal management as practitioners attempted to navigate the flood of imported techniques, trying to balance development of new ideas with the costs of maintaining their existing services and products. Unlike merchants in other fields who banded together in efforts to control the market for their products, individual photographers constantly faced decisions regarding which processes in which they should invest energy and capital. For

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most studios, daguerreotypes seemed the most stable product. Although daguerreian

improvements were regularly developed, the basic materials needed did not vary as wildly as it

did in negative-positive techniques. Speculating on untried photographic products was too great

a risk for most small-scale New York studios.

In the months in which news of photography first began to filter into the United

States—a year after the free banking act—private banks sprang up throughout New York City.

Because New York law only required banks to back circulating notes with twelve and half

percent specie, economists have found that more than one hundred banks were charted in the

state within the first year and half. Commentators remarked that the statute must have been

drafted by speculators, so thoroughly did it undermine consumer security.128 In 1862 a reporter for The New-York Times seethed:

All the New-York City notes are counterfeited except three, and of these two are closing institutions, and one does not issue any notes! ...Of the two hundred and ninety-five banks in New York State, the issues of only forty-five are not counterfeited, or six-sevenths of the banks in this State have had their notes counterfeited…..The extent of the evil is apparent from the many publications devoted to the exposure of counterfeit money; and hardly an issue of the daily press is without some record of new devices of the counterfeiters.129

The article includes photographic counterfeits in its categories of types of fraud but also

mentions that photographic copies of genuine notes circulated to aid in detection, adding “but

the photographic ‘detector’ is expensive…It is simply a question for the merchant or tradesman

to consider—which he can best afford to take—the Detector or the ‘queer.’”130 Clearly the role of paper photography in perpetuating fraud was perceived to be a real problem but, even more fundamentally, the article hints at the wariness of merchants in determining what levels of risk their businesses could sustain. For most New York photographers, experimentation with negative-positive processes was not merely a conceptual gamble but, more pragmatically, a financial speculation they could not afford.

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Wariness about negative-positive processes was compounded by publication of a letter

from William Henry Fox Talbot to the Royal Society, which became the most frequently

reproduced early account of his process in the United States. In it, Talbot remarked on the force

of light harnessed in his process. “It is sufficiently singular that the same substance which is used

in giving sensibility to the paper, should also be capable, under other circumstances, of destroying it;

but such is, nevertheless, the fact.”131 To a population skeptical about paper as a carrier of value,

and already struggling to import enough rag to re-purpose as paper pulp, Talbot’s confession

about the possible impermanence of paper prints provided little incentive to New York’s

photography studios to incorporate negative-positive processes into their business plan.132

Production of paper prints required an extensive investment in paper stock, a space with good

light for printing, and—as the profit for many daguerreians was made through sale of

accessories—new systems for the display and circulation of products. Many photographers

allowed other studios to take the lead in introducing novelties, waiting for a product to prove

itself in the marketplace before gambling their enterprise on what might be only short-lived fads.

Business models

Thus although the relative rarity of early paper photographs in the United States is

typically attributed to the sharper detail of the daguerreotype or patent constraints restricting the

practice of negative-positive processes, arguments about the clarity and ownership of techniques were merely symptomatic of a culture de-stabilized by financial insecurity. Speculation about the

perils of reproducibility impacted Whipple’s process at a conceptual level undermined its

financial potential. But Whipple had proposed a business plan to carefully control dissemination

of his process. Publication of his first paper print in the Photographic Art-Journal marked the

launch of his scheme, a system in which stakeholders would share financial and intellectual

investment. Studios in different regions could buy in, learn the crystalotype process, contribute

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to its improvement, work together to popularize it, and, perhaps most importantly, protect

themselves from encroachment by securing the market in their territory. That Edward Anthony

was the subject of the first paper print in an American publication was strategic. Anthony was an

astute businessman with a trustworthy reputation. A manufacturer and distributor of daguerreian

supplies, he was famous in the period for promoting photography studios by awarding a lavish

trophy featuring Daguerre’s beatific profile. Whipple listed Anthony, as well as Samuel Morse, as

trustees of his venture.133 Anthony had a knack for vertical integration. The editor of the

Photographic Art-Journal, Henry Hunt Snelling, was an Anthony employee.134 Whipple’s proposal

registered an important shift in the mid-1850s America photographic industry from a free and

relatively open sharing of ideas to an increasingly privatized economy. Other approaches to

incorporation are discussed in the following chapter, but creation of a joint stock company

seemed one useful strategy for balancing experimentation and profit. Despite proposing a model

which might have weathered the tumultuous financial climate of the 1850s, however, Whipple

was ultimately unable to compensate for accusations that his process was being used to

counterfeit currency. The two key components to a successful studio practice in mid-nineteenth-

century America were, first, staking claim to an idea that captured the public imagination and,

second, proper management of the circulation of that idea. Whipple was not able to manage the

former, and therefore his grasp of the latter remained untried.

The challenge of surmounting both forms of speculation—conceptual and corporate—

would not have been lost on Anthony, who had earlier considered investing directly in the

introduction of negative-positive photography into the United States. Anthony observed, in the

1849 introduction to the book History and Practice of the Art of Photography published by his

employee Henry Hunt Snelling:

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The art of taking photographs on PAPER, of which your work treats at considerable length, has as yet attracted but little attention in this country, though destined, as I fully believe, to attain an importance far superior to that to which the Daguerreotype has risen. The American mind needs a waking up on the subject, and I think your book will give a powerful impulse in this direction.135

Even before his affiliation with Whipple, Anthony tried to ensure his company would profit

from what he assumed would be the country’s eventual embrace of paper photography. In the

year leading up to the 1847 registration of Talbot’s patent in the United States, Anthony

attempted to license the process.

The earliest American experiments with Talbot’s process were primarily scientific rather

than commercial ventures, but there was certainly some interest in trying to develop a financially

viable negative-positive technique in the United States before Whipple’s effort.136 The first attempt to secure commercial rights for Talbot’s process was initiated in 1842 when an American merchant, Richard Kip Haight, contacted Talbot about his process.137 Their correspondence

documents that Talbot photographs made their way to the United States by the summer of

1846.138 Soon after, with Haight serving as an intermediary, Edward Anthony sought to obtain rights to Talbot’s process.139 Haight introduced Anthony as “a gentleman well qualified to

extend to the New World the beautifull (sic) invention with which you have endowed the Old

World.”140 The word “extend” makes it clear that Anthony anticipated a connection with Talbot,

a linkage with the European process rather than the establishment of a rival American off-shoot.

Their negotiations failed, however, because neither party was willing to take the risks necessary

for a partnership. Talbot’s lack of confidence in Anthony, and Anthony’s refusal to invest money

in an enterprise of which he was not fully informed, repeatedly stalled their discussions.

Given that there was no secure market for negative-positive techniques, Anthony hoped

for some assurance from Talbot that he would not be held responsible for costs associated with

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the patent should the process prove unpopular. Ultimately Anthony decided the gamble was not

worth the risk, given the general skepticism which greeted daguerreian alternatives at the time.

The Broadway location of Anthony’s supply firm, though it assured proximity to photography

studios, did little to dispel perception of his wares as mere amusements. P.T. Barnum’s

establishment anchored the portion of Broadway where early photography studios gathered, in

an area in which gambling was particularly pervasive, contributing to the reputation of

photographers as hucksters.141 Photographers doubtlessly benefited from their location along

Broadway’s vital commercial corridor, but struggled to maintain credibility and garner legitimacy.

The Langenheim brothers

The next attempt to introduce negative-positive techniques into New York was made by

the Langenheim brothers. Although based in Philadelphia, they opened a New York branch less

than a block from P.T. Barnum and sought to brand their efforts as effectively as he managed

his curiosities. The American financial situation compromised Whipple’s project conceptually,

but impacted the Langenheims’ on a more practical level. In the 1970s historian of technology

Reese Jenkins outlined three phases of market behavior: “an initial phase of imperfect

competition, a second phase of perfect competition, and a final phase of oligopolistic

competition.”142 The Langenheims took the gamble Anthony was unwilling to assume, and pursued the rights to Talbot’s process for the United States, but there was not yet enough interest in reproducibility to convince photographers to invest in the licenses the Langeheims hoped to hawk. Realizing they would have to create a market rather than respond to an existing demand, they wrote to Talbot in February 1849 of the importance of advertising in their strategy, should he entrust them with the patent. They promised Talbot his process would be embraced

“with the enthusiasm of true Yankees” but only provided he designate an agent “able and willing to create by means of the press and otherwise that degree of publicity, which, here more than

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elsewhere, leads to success.”143 They offered themselves for the job, noting familiarity with “the character of Americans and with all the levers which must be set in motion with them in order to awaken their interest and even enthusiasm for anything that is great or good.”144 By April 1849

they posted notice of “the new art of taking portraits from life on paper” in Philadelphia, where the

main branch of their firm was located.145 They stepped up their Philadelphia campaign in the late

summer of 1849 with longer advertisements insisting “the advantages of the ‘Talbotypes’ or

Portraits taken from life upon paper, are obvious and manifold.”146 Photographic prints on

paper, the promotion continued, “have not the glare of a polished plate and can be seen in any

light, like an engraving or painting...” Correspondences between disparate media were reiterated

throughout the advertisement, but similarities with engraving were especially reinforced:

Copies, all as good as the first one, may be procured at any time...Oil paintings can be copied by this new art to a surprising degree of perfection, and any number of copies furnished; also, copies of Engravings...copies of models and machinery...also views...can be taken on paper to a high degree of perfection, and multiplied to any number, at the same time cheap, durable and true to nature....these portaits do not occupy more space than so many sheets of paper...portraits once ‘Talbotyped’ may be repeated from the negative impression remaining in our possession, at any time afterwards.147

Their continued sale of daguerreotypes was relegated to no more than a sentence within the lengthy ad. Notices in 1850 and 1851 offered portraits on paper, glass, and ivory, which they insisted, “combine the minuteness and exactness of Daguerreotypes” and could be “finished to any degree of perfection by competent artists.”148 By way of the Langenheim advertisements, consumers would be given to imagine that the unfamiliar Talbotype process was subject to artistic improvement yet offered sharp daguerreian resolution coupled with intaglio reproducibility. The Langenheims created series of landscape views, paper photographs of politicians, reproductions of prints, intimate portraits of family members, and paper stereoviews.

Strategic in their selection of subject matter, they photographed popular sites and public figures which they marketed in groups, but also sold individual prints with elaborate over-painting.149

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Their portrait of Henry Clay [figure 1.14] exemplifies the studio’s attempt to identify subjects

with a wide market appeal as well as their recognition of the need to present reproducible images

as unique [figure 1.15]. Like Whipple, they often used a blindstamp [see detail of figure 1.14] to

mark their products. Their insistence on foregrounding their brand, however, ultimately

inhibited its growth. Unwilling to share any potential profits which might accompany the spread

of interest in negative-positive processes, and determined to retain monopoly rights to Talbot’s

patent, they decided to sell only one patent license per state. Yet by too tightly controlling access

to the technique, positioning themselves as singular purveyors, there was little chance of

stimulating competitive commercial interest in the potential of photographic reproduction.

Ultimately they were able to convince only one other firm to purchase licenses.150 The ideology of free banking proved consequential to their enterprise just as the predominance of counterfeits had to Whipple’s. In advocating unfettered competition, lax governmental regulation encouraged rivalry rather than diffusion of ideas. As a result, photographic information—like other technical information in the period—became increasingly proprietary. Photographic privatization is the

subject of the next chapter, but it is crucial to acknowledge the extent to which economic and

governmental interests impacted perceptions of photography in its earliest iterations in the

United States. The Langenheims quickly realized that stress on unique photographic images was

more efficacious then an insistence on the potential of reproduction. By 1851, only two years

after acquiring rights to Talbot’s patent, they diverted their attention to products which

capitalized on negative-positive technology while suppressing their potential for reproducibility, and began circulating photographic images on glass as singular positives for lantern slide projection.151

Although he does not address the deeper economic conditions in the United States which affected the Langhenheim project, David Hanlon carefully analyzes their venture and concludes: “Had the initial cost to customers and studios been less, with photographic

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periodicals available to bring the information to more potentially interested people, the venture

may have had a chance.”152 But, as this chapter has shown, negative-positive processes did have

the support of photographic publications. Word of negative-positive processes had spread

widely by the 1850s. A Texas photographer wrote to the Photographic Art-Journal in 1852 of his

sense of anticipation about reproducibility. “Heliography on both glass and paper, especially the

former, are both destined I believe to effect a greater revolution in genuine taste for art in this

country than is generally anticipated…”153 Hanlon, in his reference to the Langenheim project as a “gamble” and a “speculation,” touches on but does not fully account for the widespread cultural conditions which hampered interest in negative-positive processes. Whipple conceived of a de-centralized profit-share enterprise but the Langenheims were not able to conceive of a corporate model capable of capitalizing on the reproduction of photographic processes. Instead, in trying to tightly control an innovation and prevent its unlicensed replication, they ultimately stifled adoption of Talbot’s negative-positive process before it had the opportunity spread and

thrive. In 1850s America, singularity was prized.

Conclusion

Early reluctance to adopt negative-positive processes demonstrates that the development of photography in the United States cannot be attributed to a model of technological determinism whereby innovations drive change. Rather, cultural conditions engendered particular definition of photography, fostering certain photographic practices and troubling others. The following chapters similarly address the regulatory environments in which definitions of photographers and photographs were forged. Media theorists André Gaudreault and Philippe

Marion have argued that a medium is always born twice.154 Initially aligned with existing

technologies, a new technology is only gradually attributed unique defining characteristics. The

constitution of photography as a coherent medium was not entirely consistent with the steps

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identified by Gaudreault and Marion, but in the 1840s and 1850s links between photography and

printmaking advanced notions of reproducibility which only later came to be thought of as

inherent to the medium.

Legislation in the 1860s returned the Union to a system of government issued currency.

Copper, gold, and silver were hoarded, forcing a turn to paper money and advancing acceptance

of paper as a viable bearer of photographic value. As the United States began to issue Demand

Notes, ads for photographic studios were again made to resemble paper currency in large

numbers. The National Banking Act of 1863 levied prohibitive taxes on private bank notes,

making the free banking system fiscally untenable, and in 1865 the secret service was created to

police counterfeiting, further stabilizing American paper currency.155 In the same years, cartes- de-visite and stereographs, hand-held photographic prints on paper, overtook unique photographic positives in production. A correspondent to Humphrey’s Journal in January 1862 remarked on the change that had taken place in photography: “What we talk about to-day was, in the practical art, almost a novelty only a year ago—the card photograph.”156 The fluctuation of

federal regulations influenced the development of photography in the United States to a degree

that is rarely recognized. In July of 1863, Oliver Wendell Holmes wrote of the increasing

popularity of “card-portraits, which, as everybody knows, have become the social currency, the

sentimental ‘green-backs’ of civilization, within a very recent period.”157

Today, as money and photography are increasingly dematerialized, it is worth thinking through the ways in which monetary materiality in the nineteenth-century impacted photographic materiality. In the 1850s the United States economy was based on bimetallism, or what was referred to as a “double standard,” in which gold and silver were said to be treated as equivalent, yet were not accepted as such in practice.158 Study of the complications of that economic system enables us to consider a photographic double standard as well, in which the

66 capacity for reproduction and circulation privileged by other communities in other countries was not—in the United States—granted the same credit.

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CHAPTER 2

To Promote the Progress: Photography and Patent Law

France, England, and America have shown The bright invention has succeeded well. Go on, young brothers, in your great career, With others in the art, joined heart and hand; Be all improvements given with friendly cheer, ‘DIVIDED ye may fall—UNITED ye must stand’ –The Photographic Art-Journal, May 1852

Introduction

The first chapter of this dissertation describes how the lack of a centralized regulatory

authority in banking in the United States contributed to the notion of photography as a medium

of singularity in the 1840s and early 1850s. This chapter tracks the consolidation of another form

of regulatory authority—the Patent Office—as an important force in the 1850s and 1860s in

similarly defining a photographer as singular, a figure increasingly characterized as a unique

author-inventor. As the number of photographic techniques continued to proliferate in New

York City, challenging the dominance of the daguerreotype, the critical decision for Broadway

photographers was not which process they would employ, but rather whether they would work

collaboratively for the development of the field, or work in competition. Study of

transformations in the American patent system elucidates how and why photographers began to

position themselves as individuals of creative vision rather than as fellow laborers in experiments

designed to advance the community as a whole.

In debates surrounding the progress of photography in the United States, few arguments

were more intense than those concerning whether the medium would advance through solidarity

68 or individual achievement. As definitions of photography shifted in the 1860s from an understanding of the medium as one of singularity to acceptance of capacities for reproduction, promotion of singular rather than group authorship intensified. Credit to individuals replaced reference to partnerships—previously common among the most well-respected of American photography firms—echoing more widespread cultural rhetoric regarding the role of individuals and governmental regulation within the economy. The patent system became a particularly contested forum in which differing ideologies regarding social, national, and individual advancement were instituted and measured. Historians have long referenced the 1860s as the period in which photographers first came to identify as artists, but it is important to recognize that such claims were tied to patent protocols which credited individual rather than group intellectual activity. This chapter discusses the degree to which changes in patent policies came to influence the course of photography in the United States, shaping understanding of photography as an individual intellectual activity, a model which continues to dominate scholarship on the field.

I consider, in particular, the most prominent intellectual property cases in mid- nineteenth-century American photographic discourse, and a series of photographs by the examiner tasked with reviewing photography patent applications. The photographs, produced by

Titian Ramsay Peale II (1799–1885)—the examiner assigned to review photographic developments between 1848 and 1872—manifest tensions between collegial and competitive attitudes which animated debates about intellectual property in the United States. Peale’s time in the Patent Office coincided with a period of frequent and highly politicized patent policy revision. The resulting adjustments came to narrow considerably the avenues of advancement available to American photographers. Peale’s work, as both a photographer and patent examiner, exemplifies the perspective of photographers who sought to advance the medium through

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collaboration as well as that of entrepreneurs whose proprietary claims nudged the field towards

a doctrine of corporate personhood.

Peale’s stereoview of the Patent Office [figure 2.1] registers the formidable, enveloping

presence of federal consolidations of authority, which I will argue fundamentally structured mid-

nineteenth-century photography around commercial rather than collective interests. The image

is, on one hand, a reflection of Peale’s personal life. It documents his place of employment, and

was stored in a family album. But Peale made the image using a process gleaned from his work in

the Patent Office in the hope that a series of photographs of civic institutions would prove

profitable. For Peale, as for American photographers more generally, notions of intellectual

property established the groundwork on which photographic profitability came to be

determined. As in his image of the Treasury [figure 2.2], which imitated popular prints of

government buildings [figure 2.3, the Treasury is at top right], Peale’s photographic practice built

upon pre-existing perspectives and ideas, probing the boundaries of proprietary rights. As a

patent examiner, Peale produced photographs to test applications against existing processes and

regularly denied efforts to stake claim to photographic ideas, but as a struggling federal

employee, he, like other photographers, was eager to identify ways to profit from technical

developments. Mid-nineteenth-century attempts to reconcile federal authority with liberal artistic

and scientific legacies came to profoundly impact the business of photography in the United

States.

Among the earliest entrepreneurs to capitalize on the burgeoning protection of the

patent office was James A. Cutting (1814–1867), whose attempts to claim rights to photographic processes already widely in use rattled peers striving to develop an environment of collegiality.

Cutting’s efforts catalyzed the most contentious photographic debates in mid-nineteenth century

America and continue to complicate understanding of photographic invention. Cutting is best

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known today for his association with what came to be known as an ambrotype [see, for example,

figure 2.4], an underexposed negative that was backed to appear as a positive. Although Cutting

did not invent the technique, in 1854 he was able to patent modifications to the process, which

had been developed earlier in Europe and had already been published in the United States.1 His patents undermined a decade of attempts in the photographic community to form mutually beneficial associations, but also demonstrated that licensing inventions offered the opportunity for profit beyond what might be normally anticipated for a studio operator. The patent system, like an ambrotype, could be seen in positive or negative light depending on how it was framed.

In his history of photography, Robert Taft, a chemistry professor attuned to models of scientific co-authorship, channeled the frustrations of many nineteenth-century photographers,

commenting on Cutting’s claims: “it is remarkable that the patent was issued.”2 But study of

Titian Peale’s photographs and correspondence, as well as careful review of the patent

applications he examined, clarifies the conditions in which Cutting’s patents were issued and

helps to explain the intensity of the response from the American photographic community.

Attention to the controversy surrounding Cutting’s claims, and to intellectual property regulation

more generally, enables assessment of the environment in which New York photographers, who

had shied from the mercenary business models proposed by the Whipple and Langenheim

studios, moved more decisively towards a competitive mode of entrepreneurship.

President Lincoln famously referred to the patent system as adding “the fuel of interest

to the fire of genius,” but in the years after he was granted his own 1849 patent—for a

contraption designed to lift boats over sandbars, which was never manufactured—and served as

legal counsel in patent cases, financial security became a prerequisite for innovation rather its

reward.3 In the 1840s, in the photographic community and beyond, creativity was understood to

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be founded upon an intellectual inheritance. It was in the 1850s that a notion of genius as

coincident with a singular individual came to be institutionalized in the United States.

The increase in American patents over the course of the nineteenth century was not the

result of a burst of innovation, but of changes in federal regulations which encouraged greater

numbers of applications. When Peale started in the United States Patent Office in 1848, patent

reviews were handled by a staff of only four examiners. By 1872, Peale’s final year in the office,

there were twenty-two principle examiners, plus staff for each [figure 2.5].4 The Fine Arts

Division, under Peale, examined photographic formats and formulas as well as crinolines, fishing equipment, and umbrellas, mirroring the world of goods in which photographic developments were marketed. Reviewing the patents Peale examined offers the same queasy mix of brilliance and ridiculousness of late-night infomercials. Sometimes thrillingly innovative, but often quite useless, patents register the best and worst of American ingenuity and reveal the degree to which applicants sought to create as much as respond to market demands. A patent for “Affixing,

Securing, and Viewing Likenesses in Monuments” [figure 2.6], for example, provides instructions for what might seem to be a self-evident technique for inserting a photograph into a tombstone.

The accompanying drawing, in which a rudimentary image of a loved one is wedged beneath a skull and bones, offers a fitting metaphor for the effect of the Patent Office on photography.

Corporate interests resulted in the demise of several studios, burying aspirations for community benefit and enshrining individual legacies. Many scholars have assumed the rise in patents in mid-nineteenth century American signals an upsurge of invention, but recent statistical analysis confirms the numbers were linked to changes in patent policy.5 Because staffing could not keep up with applications, thresholds for approving applications were, in certain periods, briefly relaxed, enabling larger numbers of patents to be granted. Such regulatory shifts had a critical effect on the course of photography in the United States, yet have not been addressed in scholarship on the medium. Study of Peale’s examinations in the Patent Office reveals not only

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how photographic improvements were measured and granted authority, fundamentally

influencing the technical development of the medium, but also demonstrates the extent to which

debate surrounding intellectual property shaped the business of photography, fostering the

consolidation of larger studios while inhibiting access to information for small firms and

amateurs. The rise in photographic patents marks not an efflorescence of innovation, but the rise

of the idea of individual authorship.

A survey of the wide range of patents registered in the nineteenth century makes clear that technological developments do not drive culture, but that social forces determine which ideas are pursued and which are abandoned. Just as the preponderance of nineteenth-century

patents related to burial suggests anxiety surrounding death, study of photographic patent

applications provides insight into photographic concerns. In the introduction to her compilation

of photographic patents, Janice Schimmelman addresses a few of the more controversial claims

of the nineteenth century, but it is important to understand photographic privatization in

relation to the larger politics of territorialization in the era.6 Given the diverse terms applied to

processes that might be loosely lumped together as photographic, patent searches are

cumbersome and Schimmelman’s effort to catalogue photographic patents is commendable.

This chapter contextualizes the increase in patents her book charts, addressing the rising number

of patents not as evidence of a sudden spike in ingenuity, but as rather the product of a

particular set of circumstances—some legal, some corrupt, but all fundamentally politically

driven—which re-framed the criteria for photographic invention.

The inconsistency of government regulation discussed in the first chapter, which I argue

perpetuated the idea of photography as a medium of singularity, similarly bolstered a notion of

singular photographic authorship. Management of the circulation of photographic techniques

became subject to national debate rather than being monitored at a more local level by peers

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within the photographic community. Patent revisions instituted in 1836 were intended to

encourage dissemination of ideas by instituting publicly available step-by-step instructions and

limited patent terms. Even more significantly, thorough examinations were initiated to restrict

patents to truly novel ideas. But during Peale’s tenure, a number of patent commissioners

lessened the intensity of the examination process which, by enabling more patents, resulted in

the establishment of greater proprietary restrictions. Increased allowance of patent extensions

likewise inhibited access to ideas beyond the temporary terms envisioned in the United States

Constitution. Though availability of information was central to the rhetoric of the Patent Office,

in practice Peale was increasingly urged to designate as authors those who did little more than

stake claim to pre-existing concepts. Today, as debates over proprietary technologies continue to pre-occupy the courts and individuals still struggle against corporate interests, it is instructive to look to the formation of individualistic notions of authorship at a period in the United States in which a utopian notion of creative commons exerted a strong pull in the photographic community.

Photographic associations

Although in Europe there was ongoing debate about which photographic process might

supplant all others, American photographers argued less about the character of various

techniques, instead focusing attention on how best to manage the sheer proliferation of ideas in

circulation. Many photographers, especially those whose techniques were featured prominently in photographic publications, urged their brethren to band together and form associations to share techniques. Increasingly, however, processes began to be exchanged for profit rather than shared freely within the photographic community. Advocates of open exchange of information bolstered calls for collegiality by evoking scientific and artistic traditions.

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The general tenor of conversation changed radically between the early 1850s, when liberality was central to the expansion of the photographic community in the United States, to the 1860s, when individual entrepreneurship began to seem inevitable. By referencing the historic importance of artistic and scientific societies, organizers chastised those who imagined they might develop the necessary technical skills and chemical knowledge in isolation. A writer in the Photographic Art-Journal challenged:

Would not a man be looked upon as the most arrant numskull in the world were he to assert that the Academy of Science of Paris, the Royal Society of London, or any of the American Societies of art and science were “humbugs” and worthless to the community? What has tended more to the dissemination of useful knowledge among the people than these societies and their publications? What has tended to elevate the mind of man more, even among the lowest mechanics? What has filled our workshops with powerful and beautiful machinery, our rivers with steam boats, our seas with exquisitely modeled and swift flying vessels? What but a free interchange of scientific knowledge between man and man.7

Operators drew on the language of art and science to distinguish their practice from the widening pool of unabashedly commercial entrepreneurs. While in Europe a great deal of experimentation was carried out by gentlemen amateurs with the time and capital to invest in untried techniques, in the United States financial necessity allowed little time for research and development. Americans generally took up whichever photographic processes and formats had already proven commercially viable. But some insisted experimentation would lead not only to greater renown, but to greater profit. An article in The Charleston Mercury observed:

The art of photography in this country has been hitherto almost exclusively in the hands of a professional class, who have applied it, with every limited exception, to the production of portraits. In Europe it is otherwise. In England, France, and Germany, photography is the recreation and accomplishment of a large circle of amateurs, far outnumbering the professional class...To the energy with which this class have devoted to the art, leisure, wealth and high scientific attainments, it is mainly indebted for the perfection at which it has arrived.8

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Balancing amateur experimentation and professional profit increasingly became a central preoccupation of American photographers. New York’s photography journals reported on meetings of amateur societies in major cities and far-flung locales. The formation of local and national American associations promised differentiation, clout, and perhaps even the opportunity to rival—rather than continue to follow—European innovation.

Nationalistic competitiveness was regularly deployed in arguments for associations.

Nathan Burgess, a photographer who worked on Broadway as early as 1843 and in partnership in different Broadway firms throughout the 1850s, couched his plea for collegiality in terms designed to spur photographers weary of European primacy.

In England, as soon as an artist has made any valuable discovery, he forthwith goes to his neighbor and gives him the benefit of his discovery, and then publishes it in some Journal, solely for the purpose of having the same favor bestowed upon him when that neighbor shall have made any improvement. By that means, all the Photographic Artists in England are immeasurably ahead of us in their production.....It has been suggested by some to form a Photographic Society in this country, on the plan of those in London and Paris; and it would indeed become a valuable institution...9

However taunting and reductive Burgess’s claims, photographers often lamented America’s tertiary status in relation to British and French progress. Promotion of free interchange was typical of American photographic journals in their earliest years, but by the 1860s complaints about proprietary claims signaled the failure of attempts at organization. By the 1870s, studios with patents to uphold jockeyed for position, reinvigorating pleas for mutual protection associations.

In photography’s earliest years, however, it was argued that group organization would not only improve the reputation of American photographers abroad but simultaneously boost the professional reputation of its practitioners more locally. Because in photography’s earliest years practitioners transferred from other fields, or simply added photography to a long list of

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other services offered, the medium did not have an established status as an artistic or service

industry. The threat of charlatanism that hindered the adoption of negative-positive processes in

the 1840s continued to challenge the reputability of photographers in the United States. In lieu

of an established system of training or registration, individual reputability was central to a

photographer’s ability to attract clientele and secure capital. Credit reports characterizing the

Meade Brothers, owners of a New York studio, as “fast men” or asserting that Mathew Brady

“likes to live pretty fast, enjoys life and spends his money freely, but is prompt and punctual, puts by sufficient funds every year for his business engagements” were crucial to the ability of those studios to secure financing.10 Peer review, and peer respect, became more and more

essential to a photographer’s livelihood. Associations would allow smaller firms to boast of

affiliation with more widely known larger studios, and enable bigger studios to benefit from the

photographic experiments of scattered individuals. Societies offered the promise of sharing the

costs and benefits of research and development, as well as the opportunity to build and spread

public esteem.

Studios expended a great deal of capital attempting to convey a widening distance from

humbuggery. Moving uptown, away from Barnum’s museum and closer to arts establishments,

studio owners also invested in architectural upgrades, imposing more stately and purposefully

designed spaces. As the medium aged out of its novelty phase, the formation of societies was

imagined to offer the next step in legitimization of photography as a distinctive art-science.

Photographers hoped the establishment of a governing institution might provide a

means of vetting practitioners. In 1854 a correspondent urged readers of the Photographic Art-

Journal to consider the value of certification:

It will be impossible to keep quacks out of the daguerrean business; but the qualified artist and gentleman might be distinguished from the stable-boy or

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shoe-black and pretender, by a properly constituted body….Incorporate a body of such men as Anthony, Gurney, Lawrence, Root, Harrison, Whipple, &c., and I, and hundreds of other respectable, educated men, of gentlemanly deportment and moderately good artists, will gladly undergo the necessary examination, and pay $100 for a handsomely executed Diploma, fit to put in a frame for exhibition.11

An examination or systematized education in the mode of artisanal or academic traditions could offer credentials and might ensure a more consistent product for consumers but would also, not incidentally, provide a forum for intellectual exchange. In her recent book on the mid- nineteenth-century photographic community in Philadelphia, Tanya Sheehan argues that adoption of medical metaphors was a strategy of legitimization. Sheehan insists that calls for education were a means of aligning photographic practice with established means of professionalization.12 But among the many pleas for photographic education in New York, more pragmatic desires are often voiced. Entreaties for education were generally financially motivated, referencing the practical benefits of shared information and an ability to fix prices. Ultimately, licensing became a matter of commercial rather than pedagogical sanction. Regulatory authority and a declaration of merit would come to be provided not by a peer-group of photographers, but by the Patent Office.

Sheehan’s project focuses on the 1860s as a period in which photographers in

Philadelphia became cognizant of the importance of attending to their mutual self-interests, but calls for American photographic schools and associations intensified in the preceding decade.

Throughout 1852 and 1853 the Photographic Art-Journal reported on efforts to assemble a New

York State Daguerrean Association and the Daguerreian Journal pled with each photographer to join “and put his shoulder to the great wheel of universal interest (emphasis original).”13 Ideas

exchanged at and in the lead-up to meetings of New York state photographers were published in

the journals, but editors urged the formation of a larger, national body. A constitution was

drafted for an organization to be known as the American Photographic Institute or Association

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“for the purpose of attaining a higher degree of excellence and artistic skill in Photographic

Science; of promoting a more genial union among its votaries; and of acquiring all improvements and advantages connected with the art....”14 Intended to apprise its members of local as well as international improvements, the organization was nurtured by New York’s photography publications, until the 1860s the only journals devoted to the medium in the United States. The editor of The Daguerreian Journal gushed “how beneficial to the whole body, to have a point of meeting, when jealousy would cease to exist, a good feeling be established, and a happy esprit du corps to crown the final result.”15 Recalling the rhetoric used decades earlier in proposals for the

National Academy of Design, the photographic journals insisted association would not only benefit photographers but, by extension, the nation as a whole.16

The push for photographic associations was in keeping with widespread interest in mutual benefit societies in the United States. Reporting on his time in the country, Alexis de

Tocqueville marveled:

In America I encountered sorts of associations of which, I confess, I had no idea, and I often admired the infinite art with which the inhabitants of the United States managed to fix a common goal to the efforts of many men and to get them to advance to it freely….Sentiments and ideas renew themselves, the heart is enlarged, and the human mind is developed only by the reciprocal action of men upon one another. I have shown that this action is almost nonexistent in a democratic country. It is therefore necessary to create it artificially there. And this is what associations alone can do. 17

Foreseeing the implications should federal authority replace associations, de Tocqueville emphasized that “in democratic countries the science of association is the mother science; the progress of all the others depends on the progress of that one.”18 Yet advocacy of photographic associations never coalesced into an active forum for national participation. Commenting on the popularity of a British Photographic Society which reportedly enrolled more than three hundred members, the editor of the Photographic Art-Journal remarked, “What a comment upon a like

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movement in this country. After ten years labor, but one Photographic Society is in existence,

and that does not number more than twenty members. For shame America.”19 The journals

regularly featured reports on other organizations for American advancement, such as the New-

York Sketch Club, American Artists’ Association, and American Association of the

Advancement of Science. Broadway was rife with various societies and libraries. Nearby, Peter

Cooper’s “People’s Union,” replete with lecture halls, exhibition spaces, and a library culled from

the recently dissolved Mechanics’ Institute of the City of New-York, was constructed to benefit

those who “thirst for Useful Knowledge” while the Mercantile Library Association offered

inexpensive reading room access.20 Such organizations were the most recent in attempts to

circulate practical knowledge, along the lines of the mechanics’ institutes which bridged

mechanical and manual labor in the preceding decades. Photographers, invested in both the head

and the hand, would seem obvious beneficiaries of associations based on such models.

An association calling itself the American Photographical Society formed in 1859 when

affiliates of a New York mechanics’ club began holding meetings at the Cooper Institute.

Founded by John Draper, an English-born professor of chemistry, botany, and medicine at New

York University, and later the first president of the American Chemical Society, the group included chemists and lens makers who presented papers in the manner of European scientific societies.21 Their mission was decidedly scientific, rather than commercial, and members tended

to contribute studies on the action of light rather than practical improvements to aid working

photographers. Moving along Broadway over the next few years, the organization never strayed

from the vicinity of the Cooper Institute and International Art Institution, publishing reports of

their meetings in a new periodical, The American Journal of Photography, the third American journal

devoted to photography.22 Published under the direction of Charles A. Seely, a chemist and photography who had previously written for Scientific American—the magazine which soon came to be the most vocal advocate for Patent Office reform—The American Journal of Photography

80 assured potential subscribers: “Its Editor has never seized upon formulas entrusted to his charge for publication—or received by him in any way—and scoured the country selling it to practitioners.”23 But although technical information was freely disclosed in meetings and within the pages of the journal, the theoretical interests of its most prominent members alienated more practical-minded participants. A great deal of the society’s time was expended devising solutions for problems related to astronomical photography, techniques which did little to contribute to or sustain the business of most working photographers, whose profits came from portraiture and landscape views.

The utopian photographic society hoped for, in which commercial, artistic, and scientific interests might be merged, failed to materialize. Articles in Humphrey’s Journal attacked Seely for the elitism of his group and journal, in which amateur and scientific experimentation became increasingly divorced from the needs of studio photographers. Rather than rallying photographers in the United States behind a common cause, the American Photographical

Society cleaved speculative experimentation from practical application. In photography’s earliest years in the United States a photographer was, by necessity, involved in chemical as well as compositional manipulation. Increasingly, however, photographic techniques could be acquired by those who had no part in their development, but a great stake in their success.

The splintering of the American Photographical Society followed a common trend of the period, in which pleas for education often stemmed from cautious ideologies about information access. Societies often served as a means of regulating entry into a field, vetting those deemed worthy of apprenticeship rather than enabling open sharing. Of mechanics’ institutes, a historian of technology observed:

These groups tended to evolve into organizations of, by, and for the elites in each field. In part this was a straightforward attempt to put experienced and

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successful people in leadership positions so that standards would be not only high but also credible. In part it grew out of the fact that New York City members and those independently wealthy or supported by large corporations had the resources in time and money to devote to society business. One result was that the larger New York-based societies tended to take quite a conservative approach to political and economic issues affecting both their membership and the nation as a whole.24

That wealthy members generally had more time to devote to societies certainly plagued attempts

to form photographic associations. The focus on science in Draper’s organization, to the neglect

of practical application, underscored the difficulty of establishing a governing body to benefit

commercial as well as amateur photographers.

In many ways photography journals became surrogates for photographic societies. They

provided a forum for shared public discourse, but did not necessitate travel or significant time

taken out of the work day for attendance at meetings. Wary of ceding authority to government

review and mindful that the market did not reward costs associated with experimentation,

editors of the photography journals unstintingly praised those who shared information.

Following a letter promising details of a new process, the editor of the Photographic Art-Journal

cajoled, “We cannot refrain from commending in the highest terms the liberality evinced by this

truly excellent Photographer in thus giving to his fellow artists the results of his own

experiments, without compensation. We must at the same time express our regret that there are

to be found so few who emulate his example.”25 Despite the complaint, the journals regularly included procedural advice and tips for making techniques more efficient. The spirit of sharing evinced in an 1853 letter to the Photographic Art-Journal was not uncommon: “Perhaps a general description of my mode of operating may interest some few of your readers...All of my apparatus, except my camera, I invented myself; none of it is patented and all are at liberty to meddle or build after it, if it is worth so doing.”26 Requests for assistance were a regular feature,

and—besides editorials—were among the only items not lifted from European journals.

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Although the majority of articles on processes continued to be drawn from European

publications, each of the American photography journals insisted on the critical importance of

photographic collegiality in developing processes more locally.

Called to toast American photographic publications, Photographic Art-Journal editor Henry

Hunt Snelling urged camaraderie: “The Photographic Art in America: may the necessity of its

further improvement and elevation as a Fine Art, be impressed upon the minds of all who

practice it, and may unity of purpose, be daguerreotyped upon their hearts, and indelibly fixed by

those golden attributes, friendship, charity, and harmony.”27 He toasted the prosperity of

Humphrey’s Journal at the same event, suggesting the editors conceived of their journals as

complementary rather than competitive.28 Each editor expressly stated their investment in information exchange. The first line of the first issue of the Photographic Art-Journal pronounced,

“experience has taught the world that secresy is the great bar to all earthly well-being...”29 Samuel

Dwight Humphrey founded his journal with the objective of sharing information for which less

scrupulous parties might charge unwitting practitioners. He assured readers that profit would

come by way of, not in competition with, the experience of others:

Daguerreiean Artists! we hail you as brothers...Let us talk, and write upon our profession, freely and in concert, and lend our aid to everything that has a tendency to elevate and perfect it...we know your liberality...we now offer you a medium from which you may obtain such information as you most need, believing that we have only to present it to your notice to secure at once your hearty cooperation.30

American editors had a financial stake in encouraging liberality. American copyright law enabled them to draw freely from European publications, so they had little incentive to pay for contributors. Historian Adrian Johns has argued piracy was central to the enterprise of crafting the nation: “How could the need to create new knowledge be reconciled with the need to appropriate old?”31 Contributions from American photographers allowed photography journals

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to supplement European reprints. Although they did not hesitate to complain about the costs

and labors associated with their publications, editors benefited from those who shared the results

of photographic investigations. Self-interest characterized even the most insistent calls for fraternity. The driving question for photographers, as for others invested in commercial endeavors, was whether self-interest was best served through collegiality or competition.

Despite the vehemence and space devoted to arguments in favor of cooperative practice

in photography journals, the public attention and political protection afforded by the Patent

Office came to play the role photographers had hoped they might themselves provide.

Photographers referenced traditional models of artistic and scientific practice in a period in

which such models were being abandoned in favor of praise for individual authorship. America’s

photographic journals urged studios to fashion themselves as workshops or laboratories in

which innovation was the product of shared effort, but collective contributions were increasingly

collapsed into proper names. As historians of science have noted, “Experience tells us that our

creative practices are largely derivative, generally collective, and increasingly corporate and

collaborative. Yet we nevertheless tend to think of genuine authorship as solitary and originary.”32

While photographers strove to institute collective action, investment in unique authorship intensified in the arts and sciences, a process which has been re-inscribed in subsequent histories of photography.

Because they drew so heavily from European publications, American photographic periodicals were steeped in a strain of academicism in which ties to the work of predecessors and peers was foregrounded. In an essay on the cult of originality, art historian Richard Shiff notes self-conscious distancing from precedent is a relatively recent phenomenon. He cites Jean-

Auguste-Dominque Ingres as remarking: “You don’t get anything from nothing.”33 Recognition of precedent was a foundation of training and criticism. A catalogue of art exhibited at the

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Lyceum building on Broadway in 1849 quoted John Vanderlyn’s concern that “the whole system

and discipline of Art, the collected results of the experience of ages, might...be swept away by the

rage of fashion, or lost in the glare of novelty.”34 Included to buttress efforts to establish a

National Gallery in the United States, Vanderlyn’s remarks were echoed in the insistence of

American photography journals that innovations were built on the foundations of prior experimentation. Yet novelty came to be increasingly privileged in the Patent Office.

Although New York journals maintained that it was only through recognition of and experience with the works of others that American photographers might excel, academic thought was giving way to a new standard in which individuality was privileged. Writing on intellectual piracy in the nineteenth century, Robert Macfarlane, a scholar of Victorian literature, reminds his readers that the “myth of ‘Romantic’ originality...crystallized afterwards, notably during the late 1820s and 1830s, when the Romantic doctrine on the subject of originality was simplified and mythified.”35 This ideal of singular invention was taken up by proponents of

American intellectual property laws, with significant effect on the push for photographic alliances.

Just as artistic innovation came to be credited to individuals, scientific authorship shifted to an amplified assertion of singular accomplishments. In a comparative study of British and

French invention in the nineteenth century, Christine MacLeod notes that with only a few exceptions, “no British inventor or engineer had been the individual subject of a monograph before the 1850s.”36 But, she continues, as a result of the patent system’s glorification of individual achievements, which tapped into the Romantic cult of genius, hagiography swelled in the third quarter of the nineteenth century, establishing both a pantheon of subjects and a heroic, biographical approach to the history of science. So although photographers had, briefly, the opportunity to consider individual and collective models of authorship, American

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photography developed in the very period in which artistic and scientific paradigms increasingly

fostered the notion of individual innovations and downplayed collective developments.

Photographers sought to form associations just as the models for doing so narrowed.

The very notion of the individual

In an article on the collaborative nature of early modern artist studios, Anthony Hughes

suggests a laboratory is a more useful model for thinking about artistic production than the

auteur principle has proven to be. Tracing the rise of a proprietary attitude he notes that “the

very notion of the individual is itself created and sustained by a community and its language.”37

Few histories of photography review the laboratory environment in which ideas were cultivated.38 Usually they reiterate the model of singular authorship that coalesced in the

nineteenth century. As changing models of artistic and scientific creation increasingly deterred

photographers from positioning their work as the product of group effort, the discourse of the

Patent Office further constricted definitions of photographic authorship. The characterization of

intellectual property as the product of individual achievement has so pervaded understanding of

creative expression that histories of photography continue to elide the processes and players

from which individual claims were distilled.

The intersection of attribution and legal expropriation described by Michel Foucault, in

which authorship is identified so that it can be more easily regulated by the state, was critical in

establishing the “sovereignty of the author” which retains a stronghold on the critical

imagination.39 Patenting, the system of cordoning off the boundaries of a particular invention, and thereby assigning restricted credit to an individual, came to constrain understanding of photographic developments. Rather than allowing for simultanaeity of invention, or studying the many claimants to ideas, histories generally record a litany of individual inventors. Art historical

86 canonization further naturalizes the designation of authorship which began in the mid- nineteenth century. Proper names are generally plucked from the swampy circulation of ideas to stand in for vast arrays of iterations and claimants. If, as Foucault insists, “the modes of circulation, valorization, attribution, and appropriation of discourses vary with each culture and are modified within each,”40 then it is critical to study how patent discourse played out in the history of American photography, establishing a formulation of individual authorship to such a degree that the viable community alternative initially proposed has been effectively overlooked.

An author, Foucault continues, is “a certain functional principle by which, in our culture, one limits, excludes, and chooses; in short, by which one impedes the free circulation, the free manipulation, the free composition, decomposition, and recomposition of fiction...The author is therefore the ideological figure by which one marks the manner in which we fear the proliferation of meaning.”41 The construction of authorship drafted in the mid-nineteenth century, which delimited definitions of both photography and photographers, has been rehashed in a variety of subsequent histories.42 The path to success opened by the patent system was often founded on entrepreneurial rather than artistic or scientific innovation. Following Thomas

Kuhn’s The Structure of Scientific Revolutions, it becomes apparent that the paradigm shift that most affected photography arose not from a revolutionary new scientific or artistic idea, but a radical re-conception of how such achievements were marked. Designating ideas as property fundamentally re-structured how creative endeavor was understood, promoting an idea of individual achievement and suppressing the contributions of others which enabled innovation.

Kuhn’s account underscores the fallacy of technological determinism. Technical developments in photography were not causative agents in a progressive model of history.

Rather, as the first chapter has shown, cultural conditions enabled some photographic processes and conceptions to flourish, while undermining the adoption of others. Patents, and the desire to

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protect intellectual property, should be understood as part of a larger drive towards privatization.

As Lewis Mumford noted in Technics and Civilization, “attributing to mechanical improvements a

direct role as instruments of culture and civilization puts a demand upon the machine to which it

cannot respond...the machine itself makes no demands and holds out no promises: it is the

human spirit that makes demands and keeps promises.”43 The promises and demands of the

Patent Office contributed to the perception of the human spirit as a motive force. Photographic

developments are not the result of technical changes, but of legal maneuvering to garner

recognition for certain developments and sideline others.

In the first sentence of The Making of English Photography: Allegories, Steve Edwards

declares, “1861 was a decisive year for the making of English photography: it was at this point

that professional photographers decided to call themselves artists.”44 But in American that decision, if it was in fact a choice, was incredibly fraught, and certainly in large part linked to patent criteria which demanded photographers identify as producers of ideas rather than manual laborers. Edwards cites Walter Benjamin’s assertion that “photography’s claim to be an art was contemporaneous with its emergence as a commodity.”45 It is well worth, then, tracing the

institutionalization through which photographic ideas became commodified. Although the

business of photography ultimately followed the course of capitalist development in the United

States, it did so by way of a particular set of legislative circumstances. The rhetoric of liberalism,

initially wielded in efforts to secure open dialogue and reciprocal exchange, began to be used in

advocacy of corporate interests.

Study of American credit reports demonstrates that business partners, common in

photography studios, began to be increasingly registered as silent partners as studios took on the

persona of individuals. Nearly every recognizable name in early American photography operated

initially in partnership with others. An ampersand, signalling joint enterprise, was a ubiquitous

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feature in the names of early studios. Given the intellectual and financial strain of managing new

technologies, partnership was essential in securing necessary creative and monetary capital.46

Many who became proprietors began as employees, parlaying saved salaries into partnership positions.47 But by the 1860s, with the rise of limited liability corporations, “& Co.” began to

take the place of specifically named partners.48 Individual names began to emblazon the largest

studios, especially those in which there was little likelihood of a customer meeting the proprietor.

Among the most well-known examples is the firm consolidated under the direction of Mathew

Brady. As owners became increasingly removed from day-to-day business, their names became a

brand. Studios began to insist on single names even as their process of production became

increasingly delegated among larger staffs.

To promote the Progress of Science and useful Arts

In the years leading up to the Civil War the patent system became tasked with filtering

intellectual activity, a consolidation of governmental authority which had the effect of collapsing

group development and assigning credit to individuals. Article I of the United States

Constitution granted the government power “to promote the Progress of Science and useful

Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their

respective Writings and Discoveries.”49 The clause—in the article on legislative powers

regulating taxation, commerce, and military organization—granted temporary monopolies in

order to incentivize innovation. Benefits to individuals were deemed beneficial to the larger

public good. Although initially lumped together, patent regulation came to be distinguished from

copyright. In the mid-nineteenth century the government initially did little to centralize copyright protection, as will be discussed in subsequent chapters, but the patent system received increased political attention in photography’s early years. The vagaries with which the patent system was administered came to have a profound impact on the course of the medium in the United States.

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As both a conceptual and physical space, the Patent Office became a central site of

American cultural production. Samuel Morse’s telegraph, Isaac Singer’s sewing machine, Cyrus

McCormick’s reaper, and William Morton’s anesthetic were among the most publicly contested

patents issued in the United States, but Samuel Colt’s revolver, Gail Borden’s condensed milk,

Charles Goodyear’s vulcanized rubber process, and other significant patents were similarly

embroiled in contentious debate. Study of patent applications for photographic devices and

techniques demonstrates that photographic development was not an easy or natural evolution,

but was battered by changes in property law, and ensnared in the stormy nationalism represented

in a mid-nineteenth-century print of the office [figure 2.7]. The Patent Office became the gatekeeper of intellectual property in the United States, and its protocols perpetuated the notion that technical developments could, and should, be claimed as private property, rather than shared. It was under the auspices of the Patent Office that certain photographers became affiliated with potentially lucrative ideas in circulation, while others were banished into the dark shadow of un-profitability. In the Patent Office intellectual activity became characterized as intellectual property.

American patent protocols, as refined in the years before the Civil War, were cobbled from European models, but were said to offer more consistent and inexpensive steps to enable larger numbers of citizens to secure rights to ideas.50 Acquiring a British or French patent required skillful negotiation and, often, a great deal of capital for applicants as well as for those seeking information about existing claims. The introduction of the daguerreotype process, famously, initiated a flurry of intellectual property disputes. The steps taken by Louis Jacques

Mandé Daguerre and William Henry Fox Talbot, and the protections awarded to each, provide some insight into issues the American patent system attempted to circumvent.

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Opinion in the American press about Daguerre and Talbot framed the intellectual

property philosophies of their respective countries as individual personality traits. Henry Hunt

Snelling’s History and Practice of the Art of Photography, published by the Broadway firm of his

brother-in-law G.P. Putnam, declared of Daguerre:

To this gentleman—to his liberality—are we Americans indebted for the free use of his invention....He was not willing that it should be confined to a few individuals who might monopolise the benefits to be derived from its practice, and shut out all chance of improvement. Like a true, noble hearted French gentleman he desired that his invention should spread freely throughout the whole world.51

An 1859 photography manual published by a self-designated “practical” Broadway photography similarly voiced the general perception communicated in New York photographic journals:

Mr. Talbot has been very justly censured in England for his long persistency in the claims to his patent...he always brought upon himself the deserved censure of the photographers in Europe.

M. Daguerre himself, very reluctantly, however, yielded to the wishes of some of his friends, and secured a patent in England, by taking advantage of a peculiarity in the patent laws of that country, yet it has been said he often regretted it.

Wherever any patent has been secured for any peculiar detail of the Photographic Art, it has always tended to bring discredit on its projectors, and render them odious in the eyes of the fraternity, as grasping and over-reaching in their endeavors to gain a few dollars and cents out of this beautiful process, which seems to belong to a higher race of discoveries than most others, partaking almost of things spiritual.52

Although there was glancing acknowledgement of the “peculiarity” of national patent laws,

photographers persisted in assigning distinctive intellectual property ideologies to Daguerre and

Talbot themselves rather than to the protocols of each country. Talbot was criticized in

American photography periodicals for hindering progress by patenting his process, yet he was

simply adhering to the patent procedures of his country. Daguerre, on the other hand, was

lauded for his liberality in giving the daguerreotype freely to all countries—except Britain—but it

was not Daguerre who did so, but the French government, and for decidedly political reasons.

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The elasticity of the French system—which granted variable protections for variable periods with variable geographic scope—enabled the French government to privilege certain ideas and applicants. Anne McCauley explains that Daguerre’s pension was the result of a particular set of political circumstances in which Republicans found it ideologically imperative to push for state, rather than free market, support of invention.53 Early American photography patents were, similarly, the result of a particular political moment in the United States, in which there was intense concern regarding the role of government in support of innovation.

American political factions disagreed about whether incentive for invention should come through government subsidy or market competition. Although after several years of lobbying

Samuel F.B. Morse inaugurated his telegraph line with funds allocated by Congress, the appropriation failed to usher in large-scale government sponsorship of the sort awarded to

Daguerre. Congress shied away from designating telegraphy a national utility, unlike European countries which nationalized Morse’s process and underwrote his work. Morse’s relentless push for government subsidy made Congress wary of taking on the responsibility of assessing inventions on a case by case basis. Reforms enacted in 1836 attempted to strengthen the authority of the Patent Office as ultimate arbiter of American innovation. The institution of consistent protocols was intended to remove the burden of adjudication from the courts and provide a democratic system whereby applicants were gauged on the quality of their ideas rather than their political connections.

Daguerre’s pension, indicative of the pliability with which the French government processed intellectual property claims, exemplified the individualized treatment against which

American regulations were formulated. The French system granted local or national monopolies for differing amounts of time, depending on the invention and the capital investment supplied by an applicant. Securing a patent involved several stages of review by local officials, rather than

92 a centralized body, and approval was dependent on an assessment of the resources of the applicant and of the region for which they sought to register the claim. Lack of systemization was intended to enable flexibility so that patents were granted on the basis of their feasibility and perceived potential. The goal was to encourage large-scale manufacture, not to foster the advancement of individual inventors. Although French patenting was ostensibly free and open to all, navigating the patent system was costly and time consuming. Because the government did not guarantee the validity of patented processes, information about claims could be circulated, but was difficult and expensive for citizens to access, did not necessarily offer viable protocols for production, and was not meant to be divulged to non-residents. There was an attempt to establish greater consistency through a simplified registry in 1844, but the French system offered little incentive to inventors to circulate accurate, reproducible steps for public review. In making

Daguerre’s process widely available, the French government staked claim to the general idea, but subsequent developments were required to make daguerreotypy practical. Given the limited manufacturing potential initially imagined for Daguerre’s process, it is unlikely the daguerreotype would have been eligible for an individual patent in the French system. By granting a national pension, Daguerre’s name and the French reputation became affiliated with the larger concept in the public imagination, while the experimentation subsequently required was left to others.

In contrast, revisions to the American system in 1836 demanded practical application be explicitly outlined in patent applications and the full details of patented processes were made available to petitioners by mail for a nominal fee or at patent repositories. In addition, patent models were on display in the Patent Office and regularly exhibited elsewhere. Such accessibility contrasted dramatically with public perception of Talbot’s patents. Rather than criticize the

British patent system as a whole, the New York photography journals focused on Talbot, characterizing him as a wealthy gentleman who purposefully choked photographic progress by restricting access to his ideas through needlessly complicated procedures and excessively high

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licensing fees. The author of an article reprinted in the Photographic Art-Journal from The Art-

Journal of London complained, “We cannot but regret that this gentleman should continue to

clog the improvement of an art, of which we must in justice allow him to have been the chief

originator, by patent restrictions. The honorable distinction of being a discoverer should, we

imagine, satisfy the true philosopher, particularly when placed beyond the necessity of becoming

a commercial speculation.”54 The British patent system, which operated as an open registry rather than gauging applications through a review process, ostensibly enabled a wide swath of the population to claim patent rights. But the registration fee was high, and doubled if an applicant requested protection in Ireland and Scotland as well as England. Additional funds were required to navigate the burdensome bureaucracy of the registry filing. The patent application fee in the United States was, for American citizens at least, a tenth of Britain’s. American insistence on low costs and open access to information were publicized as crucial differences from the secrecy of the British system, which required disclosure of procedures only if a patent was later contested, rather than pre-emptively as part of the registry process. Because the British system did not offer much protection from infringement, it was in an inventor’s best interest to closely guard their ideas.55 As in the French system, specifications were not tested, and were often

purposefully misleading. The many steps of Talbot’s process were construed as purposefully

confusing in the American press, but in fact he was a great deal more forthcoming about his

early technique than the French government was in outlining the procedures required to produce

a successful daguerreotype. Broadway studios were thus faced with two models of managing

photographic ideas. On one hand, open sharing—as seemed to be exemplified by Daguerre—

allowed photography to flourish. On the other hand, assent to government-enabled

monopolies—as demonstrated by the slow spread of Talbot’s process—seemed to hinder

development. Talbot operated within the parameters of British property law, but his reliance on

the patent system was circulated as a cautionary tale in the New York photographic press.

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The features that distinguished the American patent system from its European

counterparts—a process of rigorous examination, lower application fees for citizens, and

enforced public disclosure—came to impact understanding of photographic innovation, but

criteria for their implementation shifted radically in the 1850s. Examination of Talbot’s

American patent application illustrates the standards deemed important in the United States in

the decade following patent revisions instituted in 1836. Although the application fee for U.S. citizens was only thirty dollars, alien applicants—who had previously been denied the right to

American patents entirely—were charged several hundred dollars. At the time of his application in 1847, Talbot paid $500 to have his claims reviewed, atop whatever fees were charged by his attorney.56 In addition to higher fees, non-resident patentees were also required to put their patents into production, a caveat not applied to American patent holders. It is possible that

Talbot’s acceptance of the Langenheim’s licensing agreement—discussed in the previous chapter—was in part an attempt to meet the demands of American patent regulations.

Correspondence in the United States patent archives suggests two issues nearly interfered with approval of Talbot’s application. First, the examiner, Charles Page challenged the originality of the application, concerned that Talbot’s application merely reiterated the claims of his British patents. Page insisted in 1847 that American patents could be granted only to purely novel claims. Patenting a device or process already patented elsewhere, or already in use, was disallowed.57 Ultimately it was found that Talbot’s American claims differed from his British patent, but strikingly different definitions of novelty came to be operative in subsequent years, enabling approval of patents which would not have previously been eligible for protection.

The second bureaucratic obstacle that threatened Talbot’s application was the discretionary power of the Patent Office Commissioner in interpreting patent regulations. In the

1840s, manifestation—a physical realization of one’s claims—was deemed absolutely essential.

Talbot’s patent was initially withheld because his lawyer failed to forward specimens of his

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process for review.58 The lawyer grumbled that patent provisions demanded a specimen only in the case of products, not processes, but the Patent Office insisted on tangible proof of his technique’s feasibility. Although American patent provisions were theoretically more standardized than European protocols, varied interpretations by Patent Office commissioners resulted in significant differences in implementation. In practice, applicants often found it necessary to hire agents for guidance, undermining the publicized rhetoric of ease and affordability. Talbot’s agent was crucial in securing his client’s American patents, arguing that the delay in waiting for specimens unduly cut into the term of Talbot’s monopoly rights. Term limits and lengthy application examinations frustrated those who felt monopoly protection encouraged innovation as well as those who worried that monopolies unduly restricted the free market.

Tensions simmering at the time of Talbot’s application intensified in the following decade.

The demand that Talbot submit specimens was in keeping with the American aim for democratic accessibility. When Talbot wrote of his patent specimens that “such pictures can be made by my process by persons altogether ignorant even of the rudiments of drawing” he was probably less concerned with underscoring the ease of his process than with meeting the standards demanded by the United States Patent Office at the time.59 An 1847 Patent Office

report insisted the required description, specifications, drawing, and manifestation of claims were

demanded “not only to distinguish the invention or discovery from other things before known

and used, but also to enable a workman or other person skilled in the art” to reproduce it.60 Lists of issued patents were released annually and made available in public libraries such as the Cooper

Institute. Patent models were prominently displayed in the Patent Office and regularly exhibited in institutes and fairs in New York and elsewhere. Those unable to review models firsthand could request copies. Unlike the European patent systems which allowed or encouraged secrecy, disclosure was foundational to the American system. The language of the patent clause required full documentation “to enable those skilled in the art” to replicate a patented idea. Once the

96 temporary monopoly of patent protection ended, reproduction was unhindered. Prior to the

1850s, reproducibility and the temporary term of patents were perceived as central to the operations of the Patent Office and the stimulation of the American economy, but in the 1850s and into the 1860s the practice of granting patent extensions came to restrict the replication of patents, enforcing an affiliation between ideas and singular ownership.

It has become commonplace in photographic histories to back-date the invention of the medium to earlier experiments with light on which the processes of Talbot, Daguerre, and their predecessors capitalized. Photographers in the nineteenth-century were similarly attuned to photography’s pre-history, and regularly reminded each other of the precedents which enabled the development of the medium. A British historian who reported on American photography reminisced in 1890:

1839 has generally been accepted as the year of the birth of Practical Photography, but that may now be considered an error. It was, however, the Year of Publicity, and the progress that followed with such marvellous rapidity may be freely received as an adversely eloquent comment on the principles of secresy and restriction, in any art or science, like photography, which requires the varied suggestions of numerous minds and many years of experiment in different directions before it can be brought to a state of workable certainty and artistic and commercial applicability.61

Writing in a period when patent battles had become routine, the author lamented that trade secrecy was increasingly a matter of course. His sentiments echo those of the 1840s and 1850s, when photographers heaped shame on those who sought to capitalize on the liberality of their predecessors. But changes in the administration of the United States patent system turned the attention of American photographers from collegiality to competition.

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Titian Ramsay Peale II

Examination of patent applications was central to the revised American patent system

and came to be a means through which Titian Ramsay Peale, an amateur photographer and the

patent examiner assigned to review photography applications, tried to reconcile traditional models of gentlemanly associations with a new regime of individuality. The examination system ratified July 4, 1836 was intended to test applications for originality and utility.62 Applicants were

tasked with detailing their claim and examiners were appointed to ensure the scope of each

application was legitimate. The examination process indicated an investment in identifying and

protecting true and original authors, thereby strengthening the authority afforded patent holders.

A patent was a form of certification that an idea was original and reproducible. The wide range

of literature Peale referenced in his patent reviews demonstrates his command of a wide range of

fields but also, more fundamentally, signaled the commitment of the Patent Office to ensuring

novelty by vetting applications against pre-existing work in any related fields.63

A few months after the patent statutes of 1836 were signed into law, the Patent Office

was destroyed in a fire. The new Patent Office building and interpretation of the revised patent

policies were crafted in tandem. Just as the neo-classical design of the new Patent Office

reflected the democratic ideology of the 1836 statutes, the 1848 appointment of polymath Titian

Ramsay Peale II as an assistant examiner was in keeping with the rigorous patent philosophy of

the period. Named after an elder brother who passed away before his birth, Titian, the youngest

son of Charles Willson Peale—the famed naturalist, portrait painter, inventor, and founder of

the Philadelphia Museum of art and natural history—was immersed in the worlds of art and

science. With deeply rooted connections to intellectual communities in Philadelphia and

Washington, D.C., he fit the profile of exacting intellectualism proposed in the statutes of 1836.

The careful categorization exemplified in Titian’s fastidious hand-coloring of a museum view

98 drawn by his father [figure 2.8] hints at the legacy of attention to relationships between man and the natural world he channeled in his work, as well as the sense of almost limitless inquiry with which he pursued investigations, and the organization and mobilization of received knowledge that characterized his pursuits, first as a naturalist and later, as a United States Patent Examiner and amateur photographer.64 A member of important scholarly societies such as the Academy of

Natural Sciences, Franklin Institute, and American Philosophical Society, Peale benefited from the wisdom of his elders and his peers, and sought to contribute his own findings to the expansion of shared knowledge. Although Peale’s name does not appear in photographic histories, he had his hand in every development in the medium in the mid-nineteenth century, playing a pivotal role in the transition from photography as community practice to photography as a commercial product.

Peale applied to work in the Patent Office in 1848, at age 48, from financial necessity.

He had worked as a naturalist since his teens, but reports he produced as chief naturalist for the

Wilkes Expedition had been wrested from him, and declared governmental rather than private property.65 He tried repeatedly to block the publication of an 1852 volume that included color plates based on his drawings and field observations. Prevented from profiting from publication of his drawings, Peale was forced to sell the collections of his father’s museum and establish a new career. He parlayed his skills of close observation and careful categorization—as well as his interest in ownership of intellectual property—into his patent work and photography.

Over the course of his time in the Patent Office, from 1848 through 1872, Peale not only reviewed patents for formative and trivial photographic processes, but also made hundreds of photographs throughout the Washington, D.C. area.66 His work in photography and in the

Patent Office offers insight into investments in knowledge as open territory as well as the drive to designate ideas as carefully demarcated terrain. Peale regularly used a range of techniques to

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produce multiple prints from a single negative and stored them in different albums. In some

cases, Peale assigned his photographs only descriptive titles [figure 2.9]. Sequenced in an album

of family portraits, they mingled with photographs he received as part of a group of amateurs

who exchanged images and ideas. But various prints from the same negatives [figure 2.10-2.11, for example] are labeled in another extant album as experiments, carefully labeled with data about processes and exposure times. The captions of Peale’s photographs record the location in which they were taken, but also map the struggle between fellowship and finance in the mid- nineteenth-century photography community.

A stereographic self-portrait [figure 2.12] captures Peale’s efforts to situate himself as an estimable participant in an environment of intellectual exchange. Peale poses as a gentleman surrounded by evidence of his artistic inclinations. It is also, however, a portrait of a property holder surrounded by his possessions. When viewed properly, through a viewer, the stereograph creates the impression of three-dimensional space. Similarly, a more holistic representation of mid-nineteenth-century photography demands juxtaposition of Peale’s personal and professional

pursuits. In a recent publication on the American Civil War, Alexander Nemerov refers to Peale

as a “skilled practitioner of the new medium,” but to ignore Peale’s day job in the Patent

Office—like looking at an individual photograph originally intended as part of a stereographic

pair—diminishes his strategic position.67

The difficulties of Peale’s career are evidence of the changes wrought by nineteenth- century efforts at professionalization. Peale was the product of a time in which advancement was often achieved through personal connections, but he frequently found himself denied promotion because he was not academically trained. In his original application to the Patent Office, and in his many subsequent attempts at promotion, Peale requested recommendations from every eminent scientist he could muster. Over the course of his employment in the Patent Office,

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Peale wrote directly to the President of the United States at least three times on his own behalf,

while he and his wife begged letters of support from every connection available.68 Peale fancied

himself a gentleman, and sought promotion as such, but did so in a period in which professional

certification was increasingly becoming the norm for accreditation, as the photographic

community’s attempts at association recognized. In one push for promotion, Peale’s fellow

examiners signed a petition on his behalf, characterizing him as a man of “the most gentlemanly

deportment...”69 But the Secretary of the Interior—the government division charged in 1849 with administering the Patent Office—responded, “I have heard much in favor of his character as a gentleman...but these qualifications are not at all that are necessary to constitute an examiner.”70 He concludes, underscoring each word, “Mr. Peale was not competent to discharge

the duties of the office” and, the Secretary continued, Peale “had given no practical evidence of

his qualifications.”71 Peale was promoted to Principal Examiner in 1853 but never achieved the

commissioner appointment he felt he deserved. Patent Office positions were increasingly

restricted to professionally educated scientists or lawyers. Many of the friends who frequently

wrote recommendations on Peale’s behalf, such as Joseph Henry and Alexander Dallas Bache,

were the very men calling for professionalization in the scientific community. Aware he might be

considered unqualified despite his extensive training, Peale admonished a reference “nothing but

strong political backing can secure my rights.”72 Despite the push for professionalization,

political influence came to impact the administration of the patent system more broadly, with

heretofore unrecognized effects on the burgeoning field of photography.

In the 1860s, Peale shared his photographs as part of an amateur exchange group, but

they seem initially to have been created as a means of assessing whether to grant or deny

property rights to individual photographers. His captions [see, for example, figure 2.13]

frequently reference processes by the names of the individuals with whom they were associated

in the photographic literature. Many record experiments with European processes [as in figure

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2.14], probably as a means of testing whether American applications truly differed from precedents elsewhere. Reliance on European texts in his examinations and photographic techniques underscores the entanglement of European and American photography in the 1850s, and highlights the difficulty patent examiners faced in assessing originality.

Peale treated the process of examination for originality quite seriously. The 1836 Patent

Act made the duties of his office clear:

Whenever, on such examination, it shall appear to the Commissioner that the applicant was not the original and first inventor or discoverer thereof, or that any part of that which is claimed as new had been before invented or discovered, or patented, or described in any printed publication in this or any foreign country as aforesaid, or that the description is defective and insufficient, he shall notify the applicant thereof, giving him briefly such information and references as may be useful in judging of the propriety of renewing his application, or of altering his specification to embrace only that part of the invention or discovery which is new.73

In a fairly typical Peale review [figure 2.15], he left only one-and-a-half pages of a seven page

1856 application, for “Improved Collodion for Photographic Pictures,” unedited. Peale paid close attention to the details of submitted procedures and made thoughtful reference to published precedents which would have invalidated applications. As examiner, he initially rejected what came to be the most prominent, and eventually profitable, patents of the era, including the tintype patent, the first commercially successful apparatus for making photographic enlargements, early photomechanical processes which came to dominate the field of illustration, and watermarks used in the production of currency. Because the foundations of each process had been tried by others, Peale sent back pages and pages of correspondence referencing prior experiments. He often rejected patents twice with entirely different sets of references.

Applicants who merely proposed new uses for existing processes or products were not, in Peale’s strict assessment, entitled to patents. Even those applications Peale did not reject, he

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often returned for corrections demanding specificity. In his review of Victor Griswold’s

application [see figure 2.15], for example, he asks repeatedly for “separate and definite claims” in

an attempt to differentiate innovation from improvement.74 But references to improvement began to take the place of discussions of invention in patent claims and in the press. Peale tried to check the flow of patents granted, but changing protocols in the Patent Office overrode

Peale’s insistence on originality, with profound consequences.

The rigor of Peale’s examinations gained him notoriety, but not of the sort he had hoped. Corruption was rampant in the Patent Office and Peale seems to have been one of the few who refused to supplement his meager salary with bribes. Or, at least, did so less than his peers. He wrote to a friend, “I’ve been tried, and remain at least half as honest as when my experience commenced, which proves in the estimation of Patent Attorneys & Solicitors, the weakness of my intellect.”75 Bribery was so pervasive that it is not far-fetched that Peale’s

relative honesty would have been understood as a folly. Memos regularly reminded examiners

and clerks not to meet with applicants or their representatives.76 In one memo the commissioner found it necessary to note that examiners were not to “borrow” money from applicants or their lawyers.77 Although there were attempts to limit bribery and personal influence, no restrictions prevented staff from benefiting more overtly from their experience in the Patent Office. During

Peale’s term examiners and commissioners regularly shuffled between employment in the office and private practice as patent agents.78 Many guided clients through policies they had themselves devised, or examined applications they had helped to prepare.

Peale also exploited his position in the office. Although in most instances his review period steadily increased as the office became inundated with applications, claims submitted by

Coleman Sellers II, the son of Peale’s sister Sophonisba, moved quickly through the examination phase and were regularly patented within days, rather than the weeks or months typical of other

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examinations. In his correspondence with Sellers, Peale consulted on eligibility and helped craft

the language of applications to pass examination scrutiny. Nepotism and carefully parsed

language were interwoven into the history of the office; the first patent issued under the

reformed patent system was granted to the head of the committee that had drafted the

legislation. Inconsistency was not merely a problem of individual discretion, however, but of

institutional protocol. Photographers had hoped for a review board of peers to assess new

techniques, but visions of self-regulation were supplanted by the protocols of government

regulation and the influence of political factions.

As patent commissioners appointed by different administrations came into power, focus shifted from assessing the originality of a concept to crediting novelty in application. At the same time, applicants were increasingly allowed to register more expansive claims. Coleman Sellers’

Kinematoscope patent, often said to be the first practical technique for presenting moving images, concluded “I do not wish to limit my claim to any of the special devices above described

(some of which I shall make the subject of patents for devices)” but instead declared rights, more generally, to any combination of successive arrangement of pictures so as to suggest motion.79 Viewing images sequentially could hardly qualify as an original claim. The patent,

granted in 1861, would have been judged overly broad only a decade earlier. Whereas Peale

usually insisted on incredibly narrow claims, during periods of relaxed oversight applications

encompassing potential future developments were registered for monopoly protection under the

patent system. It was in one such period when Peale’s rejection of James A. Cutting’s

applications—which so incensed the photographic community—was overturned.

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Pandora’s patent box

Conversations regarding access to and use of information in today’s digital age rehash

nineteenth-century debates. Both advocates of creative commons and protectionist proponents

then, as now, claim public good in equal measure. Refusal to participate in the patent system

could imply a desire for free exchange—as was urged by Peter Cooper and Joseph Henry, both

of whom declined to patent important technical innovations—but could also signal a plan to

withhold an idea from circulation, enabling profit without the requirement for disclosure. Before

Cutting’s patents were issued, controversy surrounding the declarations of Levi Hill—who

claimed to have invented a process of color daguerreotypy but delayed public disclosure—

convinced the photographic community of the importance of protocols for vetting and

disclosing photographic innovations.

Reverend Levi Hill’s claim to have developed a process for producing daguerreotypes in natural color was introduced in The Daguerreian Journal as “the greatest and most valuable discovery that has been presented since the announcement of the Daguerreotype by Daguerre and the Telegraph by Morse.”80 The article assured readers of Hill’s disinclination to monopolize the process, emphasizing: “Let this be distinctly understood, that this process will not be monopolized, but be placed with the reach of all worthy Daguerreotypists and Artists.”81 Hill wisely

signed his journal correspondence, “Fraternally yours.”82 Two years later, however, Hill was

reported to have presented his process to a Patent Office Committee appointed by the United

States Senate.83 His reluctance, or inability, to patent the technique for producing daguerreotypes in color allowed him to keep his process private, threatening the collegiality advocated by the photographic community.

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Nationalism certainly played a part in the enthusiasm with which rumors about Hill’s

process circulated. On the cover of the second volume of The Daguerreian Journal, Daguerre’s

image was replaced by a full page portrait of Reverend Hill, and he was invited to serve as co-

editor of the journal. Fervor over his alleged discovery was kindled over the course of previous

issues of the publication: “America can safely say she has presented to the world one of the most

invaluable discoveries that has been imprinted upon the pages of history.”84 A few weeks later,

color daguerreotypy was described as “the great object which has so recently awakened the

minds of the world.”85 In the battle for photographic supremacy being waged between British and French inventors, Hill’s process was envisioned as securing a place for the United States.

Descriptions of Hill’s daguerreotypes in color—referred to as Hillotypes—give some flavor of

the desire to catapult American invention into the realm of global recognition: “The Hillotype

surpasses in magnificence any discovery appertaining to our art...Could Raphael have looked

upon a Hillotype just before completing his Transfiguration, the pallet (sic) and the brush would

have fallen from his hand, and this picture would have remained unfinished.”86 As in descriptions

of photographic developments cited in the the first chapter, reputation preceded experience.

Assertions of Hill’s potential to unseat Raphael were based on rumor alone. Descriptions—often

misconceptions—about processes continued to circulate in lieu of specifics or specimens.

Whereas the patent system guaranteed disclosure, the photographic community was unable to

secure access to Hill’s technique, and was forced to rely on his assertions.

European writers on photography recognized that claims to invention frequently

obscured an invention’s source. A French article on the necessity of disclosure, translated in a

New York journal in 1852, urged Frenchmen to disclose the process upon which Hill’s

technique was presumed to infringe, insisting the “secret should be communicated to the whole

world before it becomes the whole world’s secret.”87 Attempts at retaining full control seemed impossible given the rapid and inevitable circulation of information. It was best, the author

106 concluded, to share one’s idea to ensure proper credit. The American editor who published the translation made no comment on the French jab at American piracy, instead asserting that Hill’s system would prove “a most wonderful discovery, which we think will—through the liberality of the public—soon be made known.”88 The article and accompanying editorial commentary made clear that once specimens were made available, it was inevitable that technical steps could be replicated. In light of the paths taken by Daguerre and Talbot in attempting to secure claim to their processes, government support and disclosure began to seem to offer the best chance to benefit individual inventors while ensuring the larger photographic community had access to the latest technical developments.

As criticism of Hill mounted, a subscription system was proposed, but some photographers held out hope that a solution more amenable to wider access would prevail.

Marcus Root, referenced earlier in this chapter as among the most vocal proponents of photographic schools, wrote to the manager of the Scovill supply company worrying that Hill’s decision might undercut his ability to open a new Broadway studio. He reported that Hill, who claimed to be too ill to perfect and disclose his process, “says he shall give his process up for some Company, Government, or the Community, in the Spring if he lives, hope he may.”89 Root suggested Scovill might offer Hill compensation so that the process could be made commercially available. Success of the photographic community depended on the participation of innovators.

As the extent to which the unavailability of Hill’s process endangered the market became clear, The Photographic Art-Journal re-asserted the need for community solidarity:

Why is it that Americans do not add to their reputation as inventors as well as manipulators in the art? The answer is given in the remarks made to us a very short time since by one of our most succesful artists, ‘Daguerreans in this country are not a scientific set of men; they are merely imitators not researchers.’ This is unfortunately too true...Others are ‘deterred from making their discoveries public’ because ‘there are so many knaves who are constantly

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practising upon the credulity of the more simple’...No what is the remedy for this state of affairs? We answer, well organized Photographic Associations, both National and State. From these associations can emanate all inventions and discoveries impressed with the seal of truth, and the designing men who suck so assidiously at the bunghole of credulity—to use a homely expression—will be deprived of their occupation, while the talented and simple minded but honest artists will be protected in their inventions, and secured against imposition.90

Secrecy was felt by many to threaten photographic progress even more drastically than

privatization. Playwrights in this period often refused to publish their work, in order to protect it

in perpetuity as private property rather than for the limited term guaranteed by intellectual

property law. In the late eighteenth century, print and book publishers formed coalitions to fix

prices, regulate interstate commerce, and resolve disputes rather than abdicate authority to

government interference. Similarly the railroad industry began to operate outside the bounds of

government oversight in the years following the Civil War, developing cooperative organizations

to side-step government authority and establish internal controls on proprietary claims.91

Samuel Morse weighed in on the Hill issue with typically zealous self-interest. Having

fought for years in support of his own patent, Morse found the limited monopoly term did more

harm than good. He implored Hill to monopolize the color daguerreotype process as private

property to be sold at Hill’s own discretion:

The discoverer or inventor creates (in a modified sense) that which never before existed; and, therefore, belonged to no one. To whom does it then rightfully belong, but to him who gives it existence? Yet this is a property that society, by its laws, confiscates...But the evil stops not at the robbery of property; it is the least evil that flows from Pandora’s patent box. 92

Morse hoped Hill might be “saved the mental torture which a sensitive mind like his is sure to

suffer in being compelled to leave the delightful fields and flowers of scientific research, to

encounter the thorns and tangled thickets of self-defence.”93 In this formulation, associations were imagined to offer an opportunity for self-regulation that might protect its members in the face of the litigation and financial limitations propagated by the patent system. Morse’s

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references to invention “in a modified sense” marks the shift from originality in conception to

novelty in application—as well as his own exploitation of pre-existing technology—but also

underscores the degree to which photographers in New York and beyond were beholden to

decisions made in D.C. Between 1800 and 1860 thirty percent of patents were granted to

applicants based in New York, yet New York patents comprised almost fifty percent of patent

litigation.94 As Morse predicted, struggles to protect patents came to be a central aspect of a

photographer’s professional life. When an 1858 ambrotype manual referred to Cutting’s

ambrotype patents as a “capital joke,” the author encapsulated the monetary and governmental

interests at stake.95

The New York photography community sought to bypass the Hill problem by incentivizing shared information. Edward Anthony’s supply company offered a prize similar to

European awards, which granted financing and prestige. The company promised a five hundred dollar reward for “the most important improvement in practical photography” each year.

Gurney commended Anthony for “this truly liberal prize.”96

But the growth of the patent system undermined attempts at coordination outside of its

parameters. Commercial gain from a process prior to application was grounds for patent

rejection.97 Those who profited from a secret process were therefore ineligible for subsequent patent protection should the information be revealed. In fact, in a provision enacted in 1839, anyone who had purchased an invention before it was patented not only had the right to continue using it, but could also vend and profit from it. Inventors were thus encouraged to entrust their ideas to a “secret” archive in the Patent Office. According to the 1836 Patent Act, a record could be filed with the archive and if within the year a similar claim was filed, an applicant had three months in which to produce a full claim for review. The secret archive, in effect, enabled applicants to stake claim to an idea before they had taken the steps to fully realize it.98

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By undermining inventors who attempted to operate outside the purview of the Patent Office,

the government encouraged competition and subverted attempts at organization.

Intensive rights

Questions concerning ownership of ideas which were debated in photographic literature

echoed wider American property debates. Strengthening of intellectual property in the mid-

nineteenth-century was in keeping with intensification of American ownership laws more

broadly. Photographers often spoke of invention in the language of more familiar forms of title.

An 1852 article, for example, drew an analogy between photography and the gold rush: “No

individual or number of persons can substantiate a just claim to a field so fertile, and worked by

so many laborers. As well might a single man claim a right to the entire gold diggings of

California or Australia.”99 But profits, and other benefits, were increasingly understood as

appropriate reward for costs and labor associated with custodial responsibility. In The

Transformation of American Law, 1780-1860, Morton Horwitz tracks the promotion of economic growth in the American legal system. He explains, “Legal relations that had once been conceived of as deriving from natural law or custom were increasingly subordinated to the disproportionate economic power of individuals and corporations.”100 But, as Horwitz’s case studies outline, moral authority did not give way to commercial imperative. Rather, ethics were increasingly construed in light of financial gain. He describes the ways in which financial and political influence were given a veneer of inevitability and neutrality. But for photographers in the nineteenth century, the transformations of patent law brought about radical upheavals which, though smoothed away in a long view of history, were keenly felt at the time. Legal protocols re- defined what could be considered property, and structured processes for claiming and vending seemingly abstract assets. While the first chapter of the dissertation argued that abstracted forms of currency contributed to the tenacity of definitions of photography as a medium of singularity,

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increased respect for abstract forms of property also led to the designation of photographic

developments as a singular enterprise. Study of patent protocols clarifies how singularity and

eponymous invention, though considered antithetical to scientific advancement early in the

nineteenth-century, came to be naturalized.

Whereas control over real property, such as land, traditionally prevented its use by

others, intellectual property laws were meant to compensate an individual owner while enabling

use by many. Patents were treated like turnpikes or canals, privately funded infrastructure

improvements used for community benefit. Horwitz insists on the central importance of such

sites for understanding the fundamental shift in legal thought which occurred in the antebellum

era. He explains, “the idea of property underwent a fundamental transformation—from static

agrarian conception entitling an owner to undisturbed enjoyment, to a dynamic, instrumental,

and more abstract view of property that emphasized the newly paramount virtues of productive

use and development.”101 Competitive free enterprise was increasingly perceived by the courts as a means of social progress. In the designation of water rights critical for mills, dams, and bridges, for example, legal doctrine shifted from recognizing priority of claims to consideration of economic benefit. Although use rights—known as intensive rights—might benefit an individual at the expense of another’s prior land claims, potential financial profit was taken into account in calculating the greater good to the community. As came to be the case in patent decisions, utility rather than priority became a guiding criterion for judgment of property cases.

Focus on intensive rights highlights compelling analogies between water rights and intellectual property. In both arenas, use by a single individual does not preclude use by others.

Property law, and the Patent Office, sought to balance the rights of individuals who had direct claims with the interests of those who sought to tap into the same source. But courts increasingly favored investments in development over what had previously been recognized as

111 natural rights accorded to priority. Decisions tended to benefit those who contributed money to making a resource available for wider use, rather than the individuals who may have assumed some rights to the water on their property. Similarly, implementation of patent law rewarded those who made ideas practical, developments generally deemed “improvements,” rather than those who may have had the initial idea.

Promotion of improvement over priority intensified in the Supreme Court in the early nineteenth century. Land improvements, for example, were understood as conferring rights and profits on the improver, as in homesteading legislation that extended ownership options to those who had modified property.102 Just as enclosure laws enabled individuals to demarcate and claim rights to property if demonstrable improvements were made, so patent regulations granted property rights to those who supplemented or modified existing ideas.

Early in Peale’s time in the Patent Office, the Department of the Interior oversaw both patent and land laws, as well as Indian Affairs, thus determining the boundaries of both real and intellectual territory. The Patent Office was responsible for issuing agricultural reports and distributing seeds until the Department of Agriculture was formed in 1862. In the United States, property management of all kinds was ideologically linked.

In the period leading up to the Civil War and in the era following, as European countries sought to loosen or eradicate their patent systems to encourage innovation, American investment in patent centralization intensified. Britain’s Patent Law Amendment Act of 1852 made the British system more affordable, at least partially as an attempt to compete with

American developments exhibited in the Crystal Palace. Fear of trade secret revelations prompted a temporary law, rushed through review, to strengthen protections for patent holders as the exhibition opened and the British government retained the authority to revoke patents or

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keep specifications secret, as deemed in national interest.103 Backlash about the empowerment of

patent holders facilitated by the revised policies prompted debates in the United Kingdom in the

1860s about abolishing the patent system altogether. Reformers insisted innovation arose from incremental—and liberally shared—experimental developments rather than individual accomplishments and ownership. French politicians meanwhile decried the inequalities promulgated by patent laws. The United States Patent Act of 1836 had attempted to institute consistency in reviewing patent applications, but although the policies were not officially modified, changes in perception regarding intensive rights characterized Peale’s time in the

Patent Office.

Liberal lobby

Property law transformations also impacted the America scientific community.

Competing attitudes about ownership of scientific ideas had far-reaching effects. At the

Smithsonian Institution Joseph Henry considered himself a representative of a community devoted to the pursuit of pure science. The editors of Scientific American insisted on the importance of translating theoretical science into practical, commercial application. Scientific

American unrelentingly promoted the argument that intellect property could, and should, be converted into real property while Joseph Henry struggled to garner recognition for the importance of theoretical science pursued by men for whom commercial interest was not a necessary incentive.104 Scientific American critiqued pure science as unproductive, expressing frustration at the appointment of theoretical scientists to positions in the Patent Office. Echoing criticism of the American Photographical Society by commercially minded photographers,

Scientific American criticized elitist scientific groups, and urged pursuit of applied science. Whereas

Henry’s colleagues accrued cultural capital, the editors of Scientific American insisted to their readers that material capital would follow from their research and development. The journal

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regularly argued that concepts should be translated into commodities. Its editors urged a

streamlining of the patent system, complaining of difficulties applicants faced in attempting to

steer proposals through the examination process.

Sympathy towards Joseph Henry’s position is conveyed in photographs made for the

Henry family by Titian Ramsay Peale. Henry was a vocal supporter of Peale, frequently writing letters of support and urging others to pull their weight on Peale’s behalf. When Peale was pushed from the Patent Office in 1872, Henry accompanied Peale’s wife for a meeting with

President Ulysses S. Grant to request a pension. Peale’s 1865 portrait of Henry [figure 2.16] captures the scientist’s commanding presence, but a companion image [figure 2.17] of the back of Henry’s head nods to the experimental interests of both men. A sort of physiognomic investigation, it attempts to give a comprehensive portrait of Henry. Similarly, stereographs Peale took of Henry’s residence in the Smithsonian castle depict Henry as a family man, and above all, a gentleman for whom science was a higher pursuit. Alexander Nemerov has made much of the light flooding Henry’s apartments in Peale’s photographs.105 Indeed, Henry conceived of science as a pervasive potential which educated men were responsible for tapping but which could not, ultimately, be partitioned into limited notions of property.

But despite the respect granted Henry in intellectual communities, the rhetoric of

Scientific American came to have more widespread influence. With offices in New York just off

Broadway, south of City Hall Park, Scientific American came to have profound impact on the development of science, and of photography, in the United States. As the organ of an agency created to guide patents through the examination process, Scientific American proposed greater access to existing patents, less restrictive review, and demanded the Patent Office hire additional examiners—preferably practical mechanics rather than scientists. The Patent Office sent copies of specifications and drawings for each patent, along with a gazette that included a subject index,

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to each state, territory, and judicial district, as well as to public libraries in larger cities for ease of

access. But Scientific American, and journals published by rival patent agencies, disseminated

patented designs even more widely. The journal included patent claims until 1869, when doing

so became too unwieldy, and thereafter issued lists with short descriptions of patents perceived

to be of particular interest. In 1857 the journal contended: “Examiners in the Patent Office are

public servants, and they are bound to show a liberal discrimination in their official acts. No man

deficient in this spirit of liberality is qualified to fill a public station of this character...”106 An

1869 Scientific American subscription form which promised “all subjects relating to the Arts and

Sciences in plain, practical, and popular language, so that all may profit and understand.”107

Photographic journals adopted the rhetoric of liberalism, demonstrating the extent to

which photographers conceived of themselves as engaged in larger debates regarding scientific

activity. In the years immediately following Cutting’s contentious 1854 patents, arguments for

liberality became vehement. Chastising the selfishness of American photographers, in January of

1856 a New York journal expressed concern about the prospect of collegiality in the new year:

We almost despair, however, of bringing the members of the Photographic Art in this country to a sense of their true interests, or to instill into their breasts that manliness of feeling, that true principle of benevolence and nobleness that characterizes those of Europe. Yet we will strive on—the meaner sentiment of selfish aggrandizement that is the bane of the Art in this country may in time be overcome, and we may yet see a more manly and liberal spirit takes its place.108

Although the photography journals took on a more aggressive tone following the issuance of

Cutting’s patents, early in the decade The Daguerreian Journal lectured: “Let a generous spirit be

manifested by every lover and professor of the Art, and whenever he shall make any real

improvement, however small...let him make it known to all the brotherhood. No honorable

brother would hesitate to reciprocate, and in the end he would receive favor from a thousand

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sources, far more valuable than the paltry gold he could have made by selling a few receipts.”109

But entreaties for liberalism were unable to counter the onslaught of patent litigation.

Under pressure from the liberal lobby, and hampered by the incredible amount of time required for strict examinations, in the mid-1850s the Patent Office attempted to relax the criteria for originality to which Peale’s examinations conformed. Peale’s decisions were increasingly overturned by patent commissioners who gauged improvements sufficient grounds for approval. In 1857 Scientific American praised a new commissioner for overruling the “narrow- minded practice” of his examiners. Commissioner Joseph Holt subscribed to the idea that improvements upon and combinations of existing ideas were eligible for patent protection, whereas Peale tended to judge them derivative. The journal commended Holt’s pronouncement that “very slight changes often produce the greatest and most valuable results.”110 When Peale was charged with reviewing the work of his fellow examiners in a period of resumed strict review, writers to Scientific American voiced concern. A letter to the editor declared Peale and his fellow Revising Board member “retrograde” because they were “educated in the illiberal old school practice of the Office...when terror to the inventor reigned triumphant.”111 Their

concerns were well founded. Within a month of Peale’s appointment to the Revising Board the

percentage of patents granted dropped to only around ten percent of applications.

The Revising Board was abolished under the commissioner appointed by President

Lincoln in 1861, and strict scrutiny was discouraged, leaving adjudication to interference court.

In effect, the change transferred the examination process from a pre-emptive test to a matter of

commercial competition. As a result, those who could afford to defend their patents used

litigation, or the threat of litigation, as deterrent. Historian Robert C. Post charts the transition

from a corps of “scientists to whom basic physical analogies were obvious and who were

relatively impervious to claims for novelty” to “a victorious effort by patent solicitors to induce

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key politicians and administrators to weed out those examiners who apparently assessed novelty

on the basis of what they ‘read in books.’”112 Referencing the threat of political pressures in a letter confessing fear that a rival might have been made commissioner, Peale quipped “if he had been our head, I would feel for my neck.”113 The frequent adjustment of policy under

commissioners appointed by different administrations forced applications to rely on agents to

guide their claims through the Patent Office.114 Scientific American not only lobbied on behalf of

relaxed examinations but was well placed to help applicants navigate the personalities and

politics of the Patent Office.

Patent pending

Thus although in theory the Patent Office offered protection “for limited Times to

Authors and Inventors the exclusive Right to their respective Writings and Discoveries,” the

criteria for identifying inventors were inconsistent, as were the term lengths during which their

rights were secured.115 As the process of gauging contenders for priority became increasingly

perceived as an inconvenience rather than a strength of the American system, attention shifted

to the utility of novel applications. Most famously, in the dispute between Samuel Morse and

Joseph Henry regarding credit for the telegraph, after lengthy debate, it was decided “Henry was

the ‘discoverer’ and Morse, the ‘inventor’...Many minds have wrought the Electric Telegraph,

like every other great discovery and invention.”116 In conceding the degree to which every idea built on those which came before, it was imagined assessment of potential application might offer more concrete criteria for assigning credit. Debates between Morse and Henry regarding applied and theoretical science were founded on differing beliefs about whether ideas should be managed in the market or amongst peers. United States laws promised patents would be granted on merit rather than social position, but increased reliance on patent agents necessitated capital investment.

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The Patent Act of 1836 assigned “for any term not exceeding fourteen years, the sole

and exclusive right and liberty of making, constructing, using, and vending to others to be used,

the said invention or discovery.”117 But the act also provided for the possibility of a seven year term extension. In 1848, the year of Peale’s appointment, a Remonstrance By Many Inventors And

Others Interested In Inventors Against The Bill for Altering and Amending the Patent Laws publicized complaints about the frequent changes in the patent process. The author fumed:

It may be well to observe that there is always a disadvantage in an accumulation and frequent alteration of established statutes. It breaks up and throws into a state of confusion the law, as defined and settled by a long course of adjudication and decisions of courts. It not infrequently happens, that by the exertion of a few individuals, and to subserve their own individual purposes, alterations in existing laws are procured, which render inapplicable principles as previously settled...producing new obscurities and doubts, and giving rise to innumerable new questions and controversies, and involving the country in much unnecessary expense, vexations, delay and litigation.118

The pamphlet went on to complain of the influence of politicians and wealthy individuals on the

Patent Office, and was especially critical of the increased power of the Patent Commissioner and

of machinations in Washington over national interests.

Those able to exploit changes in the Patent Office benefited from an overworked staff

and shifting protocols. The first year of Peale’s appointment, the commissioner issued a directive

that after a dinner break staff members were expected to resume work from 5 to 9 pm.119 Lag

time between submission of a patent application and issue steadily lengthened. Just as Thomas

Jefferson had loosened his policy on patent review when faced with an influx of applications,

patent commissioners sought to speed examination by implementing relaxed notions of

originality. The 1848 remonstrance mentioned above suggested examination for originality was

nearly impossible because “when a patent is requested for a thing claimed to be new, how, in the

name of common sense, is the corps of the Patent Office to know how many of the twenty

million inhabitants of the United States have known and used the same thing before? This

118 would, indeed, require clairvoyants instead of those learned in science to fill the office.”120

Shepherding innovation into the market “to promote the progress” remained the guiding principle of the Patent Office, but arrangements about how best to do so shifted.

As in the court cases tracked by Morton Horwitz, utility—one of the criteria for patent eligibility—came to be measured in economic value rather than social usefulness. An 1849 pamphlet praised the Patent Office for its part in ensuring “the policy of the world has become more utilitarian...Now inventive genius has seized the reigns of society, and commands its progress....”121 But, the author—a New York lawyer—challenged that American inventors, particularly those who “devised a combination of thoughts, not known before” had not been justly compensated for their liberality, and had been punished because of examination delays in the Patent Office.122 By granting patents for new combinations, rather than assigning credit only to entirely original ideas, the Patent Office reinforced a notion of technology as progressive.

The large number of extant patent models innovative only in the addition of wheels to an existing product is evidence of the extent to which small changes were deemed eligible for protection, and is a fitting metaphor for strategies used in the Patent Office to set the wheels of progress into motion. Crediting improvements and new combinations of existing ideas updated academic notions which esteemed adaptations of traditional ideas. While insistence on the degree to which the present drew from the past lingered, the Patent Office’s efforts to “promote the progress” of the useful arts began to stress utility as measurable economic good, rather than a moral imperative. By extending patent terms, the office, like the courts, extended a developmental bias towards corporate interests.

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Cutting edge

Peale’s initial rejection of applications submitted by James A. Cutting, and the patents which were ultimately issued, provide a point of access for considering the vexed issue of priority in the nineteenth century, and its impact on photographic practice. Reactions to

Cutting’s patents by the photographic community in New York and beyond reveal different conceptions of what it meant to be a photographer in the 1850s and 60s. Those who fought the patents hoped to preserve a sense of camaraderie, while those who bought a Cutting license were reconciled to the concept of photographers as businessmen, invested in a bottom line rather than in chemical or artistic experimentation. As the idea of what constituted photography became consolidated, so too did the idea of what it meant to be a photographer.

One of the extant Peale albums includes a print of Cutting made using a photomechanical process Peale had rejected “for want of novelty,” but which had been eventually approved with heavy amendment. Cutting’s early photography applications had been similarly rejected by Peale, but as with so many other photography patents in the period, his examinations were overturned the Patent Office commissioner. Cutting’s patents, which played a large part in unraveling aspirations for photographic collegiality, were the result of timing as much as ingenuity.

Cutting was granted three patents in July of 1854.123 The first, examined and issued only days after the application was submitted, claimed the use of camphor in combination with collodion for photographic preparations. The second claimed the employment of bromide of potassium in combination with collodion. The third claimed the use of balsam of fir as a sealant for two pieces of glass. It was the second and third patents which most incensed the

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photographic community. As finally patented, they were written so openly as to claim right to

the use of processes already widely in use in other photographic techniques.

It would be hard to overstate the anger Cutting’s patents provoked among

photographers. The addition of bromide to enhance light sensitivity had been used in

daguerreotype processes and was already common in a number of techniques for sensitizing

collodion on glass. Because collodion on glass was being used to produce both positives and

negatives, there was concern that almost any photographic process then in use might be

vulnerable to litigation. Likewise, the use of balsam was felt to be little more than a variation on

commonly used sealant techniques. Enraged letters flooded the photographic press.124 Cutting’s

$1000 licensing fee, roughly equivalent to $27,000 today, was referred to as “not only exhorbitant (sic) but extortionate.”125 Even though the foundational idea of Cutting’s process produced a glass negative and was therefore potentially reproducible, ambrotypes were instead backed to appear as singular photographic positives. Representative of the course of the medium in the period, and of positioning of ideas about the medium, the ambrotype process copied ideas in circulation yet was positioned as the product of a singular author.

Although the few photography scholars who discuss Cutting’s career in detail usually gloss over the patents he was awarded earlier in his career, in light of the politics of the Patent

Office at the time they take on greater significance. Each of Cutting’s prior patents strove for greater efficiency within existing processes. In addition to patenting a beehive design in 1844, between 1846 and 1851 Cutting patented four railroad components—not two as has previously been stated—and served as witness for another.126 The protective pact of the railroad companies prevented patentees from holding the industry ransom but the inability or unwillingness of photographers to form a similar coalition made them easier targets for Cutting’s proprietary incursions.127

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In the period in which Cutting’s patents passed, an inventor became defined not as one

who developed an idea, but the person who thought to claim it and could afford to defend it. In

his thorough account of the business of American photography, William Welling noticed the

frustration voiced in an1858 American Journal of Photography article that fumed

The practice of the Commissioners granting to almost all who apply, patents for the products of other mens’ brains, because of some trifling, and perhaps, valueless variation, is becoming of so serious a matter, that it almost necessitates a ‘Vigilance Committee’ to examine into the various claims. No branch of industry has suffered more than the photographic, and it is really worthy of consideration whether its members should not subscribe to a general fund for mutual protection in keeping open all the various channels of improvement in the art.128

Cutting’s legal threats prompted photographers to finally form loose associations in order to fight his claims.

In his review of the Cutting patents Peale argued thoughtfully against the scope of the application eventually conferred for the use of bromide, writing repeatedly to undermine the evidence to which Cutting’s witnesses had testified. Their willingness to backdate claims to respond to Peale’s insistence on priority reflects the importance of origin stories in the world of intellectual property into which photography came into existence. Examination of Cutting’s bromide patent took several months, unlike the other two Cutting applications ultimately patented in the summer of 1854, which were issued within a month of their receipt in the Patent

Office. The initial bromide petition was witnessed in December of 1853, but the application was not received in the Patent Office until late March. In early April Peale rejected all four of the claims in the original application, which broadly asserted rights to collodion prepared with ether and alcohol, bromide, or ammonia, all of which were already standard in chemical composition.

He dismissed Cutting’s use of alcohol as “commonly practiced in most chemical laboratories.”129

Referencing a formula published in Humphrey’s Daguerrean Journal, he remarked that the mixture

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of alcohol and ether claimed by Cutting was “common” for photographic purposes. Of the

bromide claim he was even more dismissive, stating simply, “Collodion with bromide bases is

not new.”130 He summarily referenced remarks in the Photographic Art-Journal on collodion which

had been republished from a French journal, concluding that the ammonia claim was similarly

“anticipated, rendering further referrences (sic) unnecessary.”131 It was, perhaps, because the techniques were already in such wide use that Peale did not offer more extensive rebuttal, assuming that the application was so blatantly unoriginal as to be unworthy of further attention.

But Cutting refused to accept Peale’s initial rejection. He replied two months later, in

June of 1854, agreeing to strike his claim to alcohol and ether immediately, but making clear his intention to fight for rights to the use of bromide: “I am prepared to show that I had it in successful use in the month of April 1853 and if the circumstances require legal proof of the same it will be furnished, though at some expense of time and money to me; and as the question is only between the public and myself I trust the office will see fit to grant me a patent for the same.” 132 Cutting’s objections demonstrate an assumption that the Patent Office should serve as

little more than a clearing house, and that the question of patentability should be settled by

public opinion rather than government discretion.

Peale was not persuaded by Cutting’s complaints. The same day that he received

Cutting’s letter, Peale responded testily, “You say that if necessary proof can be given that you

had in successful use, in the month of April 1853, collodion prepared with a bromide basis. On

referring to the Journal of the Photographic Society of London...you will see that Sir John

Herschel used bromine for the same purpose previous to the year 1840.”133 Having dismissed the bromide claim with reference to one of the most preeminent scientists of the period, and a precedent of more than fourteen years, Peale similarly challenged the ammonia claim.

“Ammonia in various combinations has long been in use for the preparation of sensitive

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collodions.”134 Peale not only referred to three separate bibliographic references “all regarded as equivalents” to Cutting’s claim, but also mentioned the process and compositions of a British chemical engineer active in amateur circles in Britain, Scotland, and France.135 Peale’s references

demonstrate both his familiarity with the range of New York and European publications that

referenced photography, but also signal his insistence on examination as a process of recognizing

analogies. Rather than limit the scope of his findings to purely photographic applications, he

denied rights to equivalent processes in other fields.

Peale wrote again to Cutting only three days later, offering more specific references to

challenge new assertions of Cutting’s priority submitted by Isaac Rehn, a business partner of

Cutting who had conveniently testified to having seen Cutting’s process in use months prior to

the date initially stated in the claim. Cutting subsequently solicited additional witness testimony

to backdate his claims even further.136 Less than a week later, Peale’s repeated rejections were

overturned by Commissioner Charles Mason who during his time as commissioner declared

Scientific American an arm of the Patent Office and collaborated with the journal to publicize

extension applications.137 Within a few years Mason left the Patent Office and became an

employee of Munn & Company, the patent agency founded by the journal’s editors. That

Cutting’s patents were granted, despite Peale’s objections, should be credited in no small part to

the influence of the liberal lobby.

According to Mason’s rulings, analogies should not be regarded as prohibitive so long as

not previously applied to the particular process claimed. Restricting claims to a specific field

ostensibly lessened the liability of examiners, as they would be responsible only for testing for

originality within a single category of knowledge rather than having to gauge priority across

diverse patent classifications. Yet it proved to be a significant change in assessment. Increasingly

liberal interpretation of the patent provisions deemed it permissible that bromine patents might

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be issued for any number of uses, however equivalent in practice. Cutting made it clear in his

revisions that he was using alcohol and bromine for photography. Under the commissioner’s ruling

the specifics of the claim to novel application were thus credited over the demand for absolute

originality.

Cutting’s application was pushed through in the wake of an 1852 staff shake-up in the

office that had resulted in the appointment of Mason as commissioner and the promotion of

Peale to a position as full rather than assistant examiner. Of the period between 1852 and

1857—a span that includes the issue, and re-issue, of Cutting’s patents and roughly coincides with the tenure of Commissioner Mason—Robert C. Post explains that the Patent Office,

“underwent a transformation nothing short of revolutionary. This transformation represented the fulfillment of demands by the patent lobby that applications be treated more liberally, and that examiners who would not conform be thrown out.”138 In the years immediately preceding

Cutting’s applications, the number of photographic patents was low, hovering between four to six issues each year. Under Mason’s direction the Patent Office issued fifteen photographic patents in 1854, almost doubling the number which been patented in the entire history of the office.

Cutting’s lawyer, the controversial scientist Charles Grafton Page, had served as examiner of photography applications before Peale’s promotion and, after several years in private practice, eventually returned to Patent Office employment.139 Page was the examiner who had sparred with Talbot’s lawyer over the issue of originality, but as the agent hired to guide

Cutting’s application through the examination process, he helped Cutting to edit his applications strategically.140 Whereas Peale had moved to strike Cutting’s reference to the use of alcohol entirely, the final patent explicitly disavows rights to the specific uses Peale had mentioned without withdrawing the more general claim. Page authored several articles reprinted from

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Silliman’s Journal in The Daguerreian Journal and so was, like Peale, conversant in photographic

developments. As his biographer noted, “For a time the [patent] office was dominated by

examiners who had a very stringent concept of novelty. Initially Page was their philosophical

leader, but he later switched his precepts completely—with quite profound consequences both

for himself and for the operation of the patent system.”141 Page’s experience as a Patent Office employee enabled him to guide Cutting’s applications through the system at a time when the system was particularly amenable to broad claims and novel rather than original applications.

In the years following Cutting’s patent, restrictive examinations were sporadically reintroduced. The history of photography, indeed of mid-nineteenth-century technology, was swayed by the office’s phases of liberalism. Peale evaluated—and rejected—on priority whereas his superiors often judged on whether an idea offered convenience. Patent changes seemed to offer democratic potential, yet when pulled from the realm of community development, philosophical speculation became tied to financial speculation.

Securing for limited times

In the 1850s the temporal scope of patent protection was modified as radically as were

its conceptual parameters. Per the 1836 Patent Act, patents were eligible for extension from 14

to 21 years if an invention was deemed particularly valuable. To be granted, an applicant had to

prove he or she had not been adequately remunerated for the time and costs associated with a

patent’s development.142 Extension reviews attempted to determine appropriate compensation and tally relevant costs. Notices of extension proceedings were posted in The Daily Intelligencer and New York Tribune over the course of several weeks so that those opposed to the petitions could submit testimony. Extensions for McCormick’s reaper, Morse’s telegraph, Goodyear’s vulcanized rubber patents, and the Singer Machine Company, were among the many intensely

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debated and highly publicized extension cases of the nineteenth century. Each prompted

numerous press and pamphlet campaigns. Complaints regarding the lack of originality in the

extension justifications of McCormick and Morse were comparable to objections about Cutting

voiced in the photographic press at the time of his patent re-issue. The second time Morse’s

patent was granted extension, in 1860, the Patent Office commissioner re-affirmed that a

“combination of old devices producing new and useful results, is patentable.”143 Extensions,

generally granted to the most sought-after properties, overrode what were intended to be

temporary monopolies, thereby re-defining the liberality of America’s intellectual property

policies.

The same month in which Cutting’s patents were issued, attention to the 1854 Supreme

Court decision upholding Morse’s patent and its extension contributed to the photographic

community’s frustration regarding monopolies. Morse’s counsel in the extension hearings was

Charles Mason, who overturned Peale’s rejections of Cutting’s application. The expansion of

monopoly power in the United States, as in the case of the American Telegraph Company, might

be understood as the triumph of American business or, alternately, as an erosion of community

interests. In his careful account of reactions to the Cutting patents, James S. Jensen references

the vituperative remarks of a photographer who found the patent a useful threshold for weeding

out photographers unable to develop their own techniques:

Why should I and others be taxed to sustain a host of pretenders in the art?— men who... have mistaken their calling, going into the ‘face making business’ because they thought there was money in it, and who know not the first principles of art...with no eye for colors, no knowledge of chemistry….I... have come to the conclusion that this Cutting patent must be a kind of Providential interposition to boil over the scum of the profession….144

The description of monopoly as salvation was couched in the very same terms which had been used, only a few years earlier, to argue for associations.

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In May of 1854, just months before Cutting’s applications were approved, William

Henry Fox Talbot announced his intention to wage yet another infringement suit. Press reports

of the suit incurred a great deal of resentment among photographic communities in the United

States and Europe, priming photographers for the hostile reception which greeted Cutting’s

litigation. Talbot’s suit, and vow to apply for extension of his claims to the use of collodion for

negatives, was reported extensively in the American photographic press, as was the December

1854 verdict against him. British photographers were elated by Talbot’s choice, in January 1855,

not to appeal the ruling, and to forgo application for extension. Within the year it was reported

that the business of photographic portraiture in London had exploded since Talbot’s patent

restrictions had been lifted.145 But Talbot was not willing to let the matter go entirely, and in

February of 1855 prepared to sue over any use of collodion for positives—which he referred to

as his Amphitype process—the same technique which became known as ambrotype in the

United States. Whether or not Talbot’s expansive claims and willingness to fight for them

spurred Cutting to stake claim to similar popular but unclaimed techniques, reports of Talbot’s

litigation certainly provoked American photographers to be on guard against curtailment of

information already in use.

Re-issue

Although historians of American photography have blamed Talbot’s patent for the

extended popularity of daguerreotypes in the United States, anxiety surrounding Cutting

litigation was likely a formidable deterrent to the development of negative-positive processes in the United States. Small studios banded together to raise funds for court costs incurred by those fighting the patent, but operators of the more prominent studios, such as Mathew Brady, simply bought the license.146 Big studios shouldered a great risk, as infringement fines were increasingly

levied based on scale of production. While smaller firms could chance the costs associated with

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small-scale infringement, larger operations needed to protect their interests by buying in to

cutting-edge processes. The patent system allowed for reproduction of photographic ideas, but ensured governmental control over how and when replication occurred.

The practice referred to as re-issue, which provided for a patent holder who might need

to “make additions to his original claims, as though it had been embraced in the original

description and specification,” offered further opportunity for proprietary expansion.147 A

commentator characterized the considered the allowance for re-issue as:

most unjust and oppressive, tending to absolute legalized robbery, both upon individuals and the public...By it, and the use of like means, he is enabled to expand his old patent and swallow up, not only what others have since invented and put into use, but even what they have patented and sold long before he ever conceived or dreamed of the existence of such a thing....Thus it is, that old relics of patents, by this system of re-issues, are converted into nets to surround and gather up for the benefit of their owners the rich fruits of others’ skill, genius and labor.148

The 1871 Report of the Commissioner of Patents found that “the privileges granted by this

section are, perhaps, more often misused than those of any other section in the patent

law….Almost all applications under this section are for the purpose of obtaining broader claims

than were originally asked for or granted…thereby giving the patentee a monopoly of what is

really the invention of another.”149 Cutting’s balsam patent was re-issued in 1856 with a

significant amendment. The original application stated, “The nature of my improvement consists

in the application of a coating of balsam of fir” but the re-issue added “or its equivalent, or

varnish,” enabling Cutting to claim rights to any sealant.150

Cutting’s re-issue reinvigorated efforts to create a photographic society. When Cutting’s

sealant patent was re-issued in 1856 a correspondent vented in New York’s Photographic Art-

Journal:

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What proud American watches the advancement of scientific researches and results in Europe, but that when his eye falls upon the picture of his own country, he does not blush with shame. Where are our American discoveries in the photographic art? Hillotyping, Ambrotyping, and humbugotyping, to a fearful extent is the grand ultimatum of American discoveries…The time has come when American photographists are in every way prepared to form a scientific congress or club of some sort, and the general advantages that would be derived from it, would be felt and appreciated by the whole world.151

The journal used Cutting’s re-issue as a rallying point in its renewed push for associations:

Never was there a time when it was more incumbent upon members of the art of photography to unite in a body for self-preservation and the improvement of the art. Trammeled by the false secrets of individuals, the art is constantly kept at an inferior grade in position as to art in general, and it requires more than individual interest and exertion, and the influence of the publications devoted to it, to elevate it to a high standard....Had the American Daguerrean Institute, or the N.Y.S.D. [New York State Daguerrean] Association been in active operation...Every valuable and reliable improvement would have been brought before our artists in a legitimate manner—the gold would have been separated from the dross, and the present state of the art would have been advanced far beyond its present position. What is more strange than all, experience does not seem to be a teacher among photographers. The ideas of utility, progress and availability, make no progress.152

The editor concluded, “Individual effort can accomplish much, but united effort a vast deal

more.”153 At several times over the course of Cutting’s patent monopoly, licensing litigation

prompted photographers to band together to fight his claims.

William A. Tomlinson held rights to Cutting’s patents in New York City and began filing

injunctions against prominent New York photographers in 1858. Larger firms, including those

operated by Abraham Bogardus and Jeremiah Gurney, determined it was easier to settle and buy

a license than to face court time and costs.154 Their acquiescence seemed to embolden Cutting’s

license holders, who began threatening other studios with litigation. Small studios pledged to

contribute funds to support Charles DeForest Fredricks, who signaled his willingness to fight

the legitimacy of Cutting’s claims. Fredricks was defended in court by a member of the Amateur

Photographic Exchange Club, and president of the Photographic Society of Philadelphia.155

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While William Langenheim and Frederick DeBourg Richards, among others, submitted motions

on Fredricks behalf. Jeremiah Gurney, a licensee of Cutting’s patent and formerly a business

partner of Fredricks, spoke for Cutting.156

Editors of two of the photography journals, Charles A. Seely of the scientifically minded

American Journal of Photography and Henry Hunt Snelling, who contributed to the American Journal

while editing the less highbrow Photographic and Fine Art Journal, convened meetings in 1860 to

forge an alliance to dispute Cutting’s claims. In 1865, when Fredricks announced his intention to

settle the case after six years of costly litigation, New York photographers gathered at the

Cooper Institute to again attempt to protect their mutual self-interests. When the patent was up

for extension in 1868, photographers again traveled to New York to rally behind a common

cause. An article in Frank Leslie’s complained of the scant attention paid to the gathering,

insisting that “the objects the convention met to accomplish were important, not alone to the

large class of photographers and manufacturers of photographic materials, but to the public, on

whom the cost of all unjust exactions must ultimately devolve.”157 The authors explained that although Cutting secured the patents, it was his licensees who “wrung from the Children of the

Sun,” much as Elias Howe’s assignees were seeking to monopolize sewing machine manufacture.158

In his thorough article on litigation surrounding Cutting’s claims, James Jensen concludes that given the extensive evidence of prior use, “It is difficult to understand how the

Cutting bromide patent had ever gotten as far as it did.”159 But by situating photographic pursuits in the larger battle between collective and individual intellectual property, it becomes clear that the Cutting patents proved to be the issue around which photographers were forced to consider how to position their labor. Photographic authorship came increasingly to necessitate managing, if not attempting to totally curtail, reproducibility.

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By the book

The Cutting patent, and the drive for photographic patents more generally, made it

conceivable that technology could be acquired, rather than developed by or amongst individual

studios. The number of photography manuals imported and printed in the United States in the

wake of Cutting’s patents signals the degree to which photographers were relieved of the

responsibility of experimentation, and increasingly able to follow pre-established steps to

produce successful portraits. Between the announcement of photography in 1839 and Cutting’s

patent in 1854, the only three manuals published in the United States were reprinted from British

sources.160 Photographers were therefore responsible for adapting or working within the parameters of existing processes. But two manuals were written and published in the United

States in 1855, the year after Cutting’s patent, and four new American manuals appeared in 1858, in the wake of publicity surrounding the patent’s re-issue. By designating Cutting’s process an improvement upon previous efforts—a named technique—American photographers seemed at last to have a reason to publish their own instruction manuals. Glass positives were available in

Europe, but are not thought to have been as popular as in the United States. Although little more than a variation on pre-existing European techniques, as a supposedly American process— ostensibly the first—ambrotypes began to outpace daguerreotypes in popularity. In the same period more than twenty manuals were published in the United Kingdom, many in multiple editions. American manuals in the technique would seem to open the field to those unwilling or unable to learn the necessary chemistry to read, much less attempt, the profusion of techniques for the wide variety of photographic processes re-printed from British, French, and German scientific and photographic literature. Although Cutting’s patents instituted financial restrictions, they eased intellectual restrictions by making photographic knowledge a commodity rather than an experimental endeavor. Perhaps circulation of the ambrotype process could get all American photographers on the same page. A push for a singular photographic process, and a process that

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produced singular images, captivated the American imagination, as did the image of singular

American inventors. Cutting’s patents propelled photography into the marketplace of ideas.

Photographic manuals were dedicated to the dissemination of ideas to the widest possible audience, regardless of intellectual engagement. Whereas associations had been motivated by a desire for certification and reputability, popular manuals reduced photographic practice to a set of steps available to all. The Ambrotype Manual, published by Nathan G. Burgess, a photographer who opened several studios along Broadway between 1843 and 1860, was issued in both first and second editions in 1856, with a third edition printed the following year. In 1858 he revised the book under the title The Photograph and Ambrotype Manual, which was reprinted in a seventh edition by 1861. A copy of the original manual owned by a photographer who operated studios in Newport, R.I., was floridly inscribed in pencil with a single word, “Mankind,” encapsulating the anticipated beneficiaries of the patent system and photography manuals.161

Burgess fostered the idea that his instructions benefitted mankind:

A desire has often been expressed that a work written by a practical operator, and of a practical nature, might be within the reach of those who wish either to begin the study of the art and the outset, or to modify and improve the practice in which they might already be engaged....It is designed to present the result of a long practical experience, and of a uniform series of experiments in all the details of the art, together with receipts by the most skillful and successful operators of the present day.162

He promised the book to be “divested, as much as possible, of technical expressions, which may tend to mislead the inexperienced artist.”163 Although patenting is referred to as “odious” within

the text, Burgess insisted on the appeal of a uniform process felt to improve on all existing

practices. Coordination of a single well-established sequence for producing photographs

promised to curb the profusion of techniques which stymied untutored photographers, spread

thin the resources of studios, confused patrons, and complicated the growth of photography as a

large-scale business. The patent system artificially de-limited photographic practice, but in doing

133 so opened the field to a larger pool of practitioners who were commercially rather than experimentally inclined.

The Ambrotype and Photographic Instructor or, photography on glass and paper, by M.H. Ellis was also published in 1856. Although dismissive of Cutting’s priority, both manuals included reprints of his patents in their entirety. The lure of a standardized process was so appealing that Ellis recommended buying prepared chemicals from dealers, further undercutting any need for training in chemistry. The author expected such minimal knowledge of his readers that he felt it necessary to mention the explosive nature of many photographic chemicals, lest an uninformed reader set fire to the materials they had purchased. Unlike Burgess, Ellis gives Cutting credit for bringing the ambrotype process into general use and for the improvements which made it practical. The next year Charles Seely, editor of the scientifically minded American Journal of

Photography, published his own Ambrotype Manual in New York. Photographers came gradually to look ahead to the potential which might come from improvements of a single branch of photography, attending—like the Patent Office—to practical improvements and to disclosure of established procedures rather than to more theoretical pursuits.

The shift in attitude—from multiple photographic ideas shared in a spirit of collegiality to a narrowing of techniques available at a cost—is evident in American photography journals as well. The name of the editorial and correspondence column of the Photographic Art-Journal was changed from “Gossip” to “Personal and Art Intelligence,” marking the transition from knowledge easily traded to information guarded and only judiciously exchanged. Correspondents increasingly dropped hints in the journal of the superiority of their patented processes, and referred to their proprietary material for further investigation. Resigned to the patent regime, the journal’s editor began weighing in on priority in patent claims, acceding the inevitability of assigning ownership to important new developments but insisting that rights should go to those

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who first communicated their work to others.164 Offering alternatives to Cutting’s bromide formula in an 1866 article, the author scolded, “I hope these patent impositions will put the public on their guard, and that everything used in like occupations will be put upon record.”165 A

Chicago photographer wrote to a London journal requesting a formula pre-dating Cutting’s

which he might freely use. The author noted that the frequency with which Cutting had settled

his cases against New York studios had emboldened his licensees to push westward in their

litigation.166 Litigation proceedings were an intimidating business strategy but could only be sustained by wealthy firms. Even as patent licensing and manuals promised more democratic access to vetted information through the commercial market, in practice the need for financial capital inhibited patent applications among those unable to hire agents to secure their claims or lawyers to defend against infringement.

Alternative techniques for producing collodion positives were circulated in attempts to circumvent Cutting’s hold over the market. An anonymous writer urged American photographers to “avoid being led astray by high-sounding words and threats,” and instead continue to develop other methods of producing collodion positives “to open a wider field for the practice of this beautiful branch of Photography. If the fear of an injunction is constantly before the mind of the Photographist, he cannot pursue his experiments with any degree of satisfaction. Witness the retarded progress of the daguerreotype when the patent reigned in

England, and how much it has been improved since that incubus has been removed.”167 It was

often suggested that photographers skilled in manipulations of the art could easily devise their

own formula variations, but the issue of branding became problematic. A recipe book compiled

by an Ohio man in 1858 includes the formula for Hardwick’s collodion positive, one of the

many substitutes recommended by the photography journals to circumvent Cutting’s licensing

fee.168 As public recognition was drawn to the ambrotype, photographers producing similar

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portraits using modified formulae struggled to capture the interest of clients. One studio wisely

proposed putting advertising dollars behind an alternative:

Wouldn’t it be better to call all positive pictures put upon single glass, some other name (Collodiotype, for instance); let it be adopted throughout the whole country, advertise it as an improvement on the Ambrotype, or drop the mention of the latter entirely, in this way the Ambrotype would lose the importance which a constant quarrel gives it...as it is now, he has a decided advantage in the prestige of a patent, and being able to call his pictures the genuine, yours the spurious, which has great weight with some people, notwithstanding yours may be much the best.169

As photographers struggled to adapt to the Patent Office’s authorship regime, they still sought

means of banding together to control the market. But the language instituted by the patent

process complicated attempts to coin alternative photographic language.

A war of words

Branding was crucial to the ability of studios to capitalize on the popularity of new

techniques. “Patent” became a commonplace adjective in advertisements, offering the mark of

certification photographic associations had been unable to muster. A few blocks east of

Broadway, John Stock & Co. on Bowery offered “patent camera boxes, patent plate holders,

patent silver baths, printing frames, &c., &c.”170 The word “patent,” even when not used to refer

to a particular item, was generally understood to signal quality and innovation. Commissioner of

Patents M.D. Leggett, who followed Commissioner Mason, complained in particular about

design patents, which could be issued simply on the basis of superficial changes in color or form,

without any substantive change to the function of an apparatus: “Patents have greatly increased

in popularity within the last few years, and manufacturers regard it as an advantage to have the

right to affix the word ‘Patented’ upon the products of their shops and factories.”171 A correspondent to the Photographic and Fine Art Journal objected to the power the word “patent” held over studios:

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It requires, in order to introduce any thing to the American photographer, that some speculative genius should patent the process, or announce it as a new German, or a new French process known only to himself, charge fifty or one hundred dollars for the secret, and all rush after it like pigs to a trough of hot swill—no matter how severely the first who dips his nose in gets burned, the rest must dip theirs in also to the same tune. Thus, by the illiberality of the knowing ones and the folly of the green ones, the majority of American photographers are fleeced out of thousands of dollars annually.172

Confronted with the inescapability of the patent system, the attention of the American photography journals shifted from advocacy of liberalism to more emphatic attacks on perceived abuses of legal privilege. Discussions of building on tradition diminished as a focus on futurity intensified. Decisions made by Peale’s office stimulated subscription to a notion of invention as progressive, a series of new and improved advancements. Of the Patent Office’s mission to

“promote the progress of the arts and sciences,” emphasis came to fall on promotion, with an assumption of progress. To promote American progress was to promote patenting as progress.

Though informed by a democratic ideal, adherence to patent protocols necessarily rewarded individuals as the expense of majority interests.

Improvement claims became so ubiquitous that even Samuel Dwight Humphrey, who had founded a photography journal with the idea of circumventing individually-held information, applied for an improvement in 1856. Such was the complication and sluggishness of the application process that Humphrey’s published specifications claimed improvement on a patent not officially issued until a month after his application.173 By granting patents for improvements rather than demanding originality, the Patent Office opened a space for American claims in the face of extensive pre-existing technology elsewhere, rewarding those who thought to, and could afford to, stake claims, rather than those who may have made an original investment of research and development.

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In a 1993 essay that outlined the politics of labeling ideas as discoveries rather than inventions, Geoffrey Batchen concluded: “By the end of 1839, the word photography reigned supreme in the lexicon, whatever the process being used or the language being spoken.”174 But the word “photography” did not reign immediately in America, where a plurality of terms continued to circulate in reference to a range of photographic processes. Alan Trachtenberg notes in the prologue of Reading American Photographs that in the United States the word photography “had been in limited use since 1839.”175 Instead, as in the case of the so-called

Hillotype, proprietary terms were used in place of generic categories of production, inextricably linking a singular name with an idea. Following the lead of Daguerre and Talbot, American photographic inventors often branded an patents eponymously.

There was a great deal of confusion about whether words such as “photograph,”

“daguerreotype” and “ambrotype” were proper names which should be capitalized or could be used generically in lower case. Spelling, punctuation, and capitalization were certainly more fluid in the nineteenth century, and photographic terminology was of course no exception. But

“ambrotype” was capitalized erratically not only because it was a new word, but because rights to the process were the subject of debate among photographers. Correspondents to New York’s photography journals argued over whether the word referred only to Cutting’s process, or could be applied more generally to any form of glass positive. Ensuing patents for photographic improvements generally used the lower case word “ambrotype” without referencing Cutting specifically. Yet Cutting’s reputation gained such market recognition that most firms, whether or not they actually used the techniques he patented, began marketing ambrotypes. In an 1860 commercial register E. Anthony advertised “Photographic, Ambrotype, and Daguerreian

Materials,” while Scovill and other firms sold “Daguerreotype, Photographic, and Glass processes.” A few blocks off Broadway R.A. Lewis, like Anthony, advertised “Photographs,

Ambrotypes, and Daguerreotypes” but also mentioned his own brand “Lewis & Holt’s positive

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and negative collodions.”176 There were, in other words, other words. New York operators and their clients had a great many choices, and an overwhelming amount of terminology, available.

To add to the lexical confusion, the word ambrotype was not used by Cutting in his patent application, but was proposed later by another photographer. In his original American application, Cutting referred to his process as “mezzogiaphic,” perhaps to evoke the rich tones of mezzotint prints. It was Marcus Aurelius Root who coined the term ambrotype, from the

Greek “ambros,” or imperishable, to suggest the permanence of the process. American consumers would have understood the connotations of intoxicating immortality. An 1856 abridged edition of Webster’s Dictionary lists Ambrotype (“A daguerreotype taken on a plate of glass covered on the back with iodide of silver”) immediately under Ambrosia, Ambrosial, and

Ambrosian.177 Cutting used the term ambrotype in the English patent issued July 26, 1854, and

in his 1856 American re-issue. Because of his connection with the naming of the ambrotype

process, Root has been linked to Cutting’s position in the patent debates. But in fact he came to

argue against the claims to invincibility the name denoted. Root had initially defended Cutting’s

patents. Of the balsam sealant, Root argued, “Whether others may have discovered and put it in

practice is nothing to him...He found this ground also unoccupied; he obtained a patent, which

covers it; and that patent is as valid and stable as the government which issued it....Let me,

therefore, counsel those who have fumed, and talked loudly, and pronounced ex parte

decisions...to ‘cool down’...This advice is gratis.”178 Root’s reference to territorial occupation hints at the contested terrain of Cutting’s claims. After only a few months Root voiced a changed opinion of Cutting’s annexation. He had become convinced that Cutting’s “‘inventions’ appear now to be mere modifications of pre-existing processes” and felt assured that a more thorough denunciation would receive “the thanks of all who have at heart the success of our profession, and who desire to see fair, open liberality triumph over grasping emprycism [sic].”179

Root followed-up with a lengthier condemnation of Cutting’s assertions, cautioning that “the

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whole question of patent monopoly, is of too much importance to the profession generally to be

slightly passed over.”180 Just a few months later, while Cutting’s application for re-issue was

pending, Root wrote directly to Peale inquiring about the status of the Cutting patent.181 There is

no record of a response, but certainly Peale was similarly frustrated by the decision, as his

rejection of Cutting’s claims demonstrated.

The case of the ambrotype is one of eponymous self-invention. Cutting changed his

name to that of his invention, rather than naming his invention after himself. Although

photographic histories typically refer to Cutting as James Ambrose Cutting, geneaological

research reveals his birth name was in fact James Anson Cutting. The name Ambrose became

associated with him only as the glass negative process became popular.182 The year of the

ambrotype re-issue the editor of the Photographic Art-Journal complained of Cutting’s claim to the

word: “One man naming his son John, does not give him an exclusive right to that title; or if he

invent an entirely new name for him, he cannot prevent another father from using the same for

his hopeful.”183 But patent law did, in fact, endow naming rights and grant exclusive privilege. An oath of singular authorship was central to the patent process.184 As applications became

standardized, the language used became routinized so that every claim began “Be it known that

I.” The assumption of an “I,” of a single author responsible for the idea claimed, became

inescapable.

Perspiration on the portico

Although he was charged with empowerment of individual photographers, Titian Peale

became increasingly invested in the notion of a photography community. Peale’s earliest

photographs are dated to 1855, the year after Cutting’s patents were granted. While Cutting’s

application for re-issue was pending, Peale labored over a photograph [figure 2.18] of the White

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House, labeling a spot on the image “A drop of perspiration on the portico!” His exclamation captures the desire among members of Peale’s amateur photography exchange club to honor experimental labor.

As a member of one of the first photographic exchanges in the United States, Peale was one of a group of photographers who shared their work and ideas for the betterment of the medium.185 He produced stereoviews for exchange as early as 1859, just as Charles DeForest

Fredricks decided to settle with Cutting. An 1863 stereograph [figure 2.19], with Peale at its center, documents the group’s interest in working in tandem, offering the sort of mutual support network that Fredricks’s case had been unable to rally. Every other month club members circulated their images to each other and, via correspondence and a newsletter, engaged in dialogue about different types of photographic processes.186 The splayed tripod legs of the cameras they used, as seen behind the man in white, were caricatured in a cartoon [figure 2.20] for club members featuring an ungainly Daddy Long Legs. The scattered prints at the periphery of the cartoon suggest the casual experimentation, abundance, and circulation celebrated by the exchange group. For its members, as for advocates of photographic associations more generally, there was no singular notion of what photography was, could, or should be.

The Amateur Photographic Exchange Club in which Peale participated began in the summer of 1855 when, amidst the heated discussions of Cutting’s patents, a correspondent proposed organization in the Photographic and Fine Art Journal as “an appeal to photographers, professional and amateurs (why should not all pull together?).”187 Peale’s access to and familiarity with technical information may have contributed to his central position in the club. Writing in the British Journal of Photography, his nephew Coleman Sellers referred to Peale as “the leading amateur in Washington.”188 The many exchange photographs Peale received which depict

Washington under construction [figure 2.21, for example] demonstrate investment in the city’s

141 infrastructure, of which the construction of the new Patent Office was certainly an important component. Peale’s albums include photographs by colleagues including Montgomery C. Meigs, superintendent of the Washington Aqueduct, and John Woods, who photographed the Capitol extension. The photographs are not merely documentary, but encapsulate the group’s belief that by working together, from the ground up, club members could strengthen the foundations of

American photography, building an institution that was more than the sum of its parts.

A member of the club wrote about his strategy for preparing exchange prints in The

Photographic and Fine Art Journal, remarking that he did not claim “ ‘patent’ for the above plan, but give it out among the fraternity, that they may improve and perfect it.”189 The comments make clear that club priorities contrasted sharply with those of the patent lobby. But Exchange Club reports were printed in Seely’s American Journal of Photography, the periodical considered the most elitist of the New York photography journals, and thereby circulated to amateurs most engaged in theoretical rather than commercial pursuits.

Yet Peale’s work was also made with profit in mind. His many photographs of Meigs’s

Washington Aqueduct [figures 2.22-2.24] are evidence not only of the friendship between the two men, but of a core preoccupation of Peale’s photographic output: that shared ideas were not only socially beneficial, but also potentially a source of income. As an important large-scale public works project, the aqueduct was the subject of many marketed views, and tapped into a conception of property upon which Peale hoped to capitalize. The canal craze in the United

States enabled flow of material across wide geographic expanse, but did so through group investment and shared profit. Whereas in the Patent Office Peale was tasked with isolating individual rights, in his photographs he sought to develop a model of mutually-beneficial intensive rights, much like those used to manage shared access to water.

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In Coleman Sellers’s 1888 history of the Amateur Photographic Exchange Club he

suggested that members shared information to prevent each other from wasting money on

novelties, but he also remembered the period of the club as “the heroic days of photography” in

which “most processes were in the experimental stage; very little material was in the market

ready prepared; everything in the apparatus crude and imperfect. We worked for what we got,

and worked harder testing and perfecting processes than for pictures.”190 He concludes, “As to

the good that can be obtained from the practice of photography by amateurs, apart from the

pleasure it gives to the operator and his friend, some may in time find it to their advantage to

turn the art into profit by following it for a living.”191 It is tempting to think of the club, founded under Henry Anthony—of the manufacture and supply firm E. & H.T. Anthony—as a think- tank through which the company could test ideas, a sort of research and development arm.

Peale’s club served, in effect, as a means of circumventing the restrictions his day job increasingly instituted.

Peale withdrew from active participation in exchanges in 1865. His biographer suggests his involvement became curtailed when he moved into a smaller space without room for a studio, but the move was precipitated by financial hardships which doubtlessly depleted resources for photographic experiments. In 1864 Peale had written his nephew that depreciated currency forced him to sideline his photographic pursuits.192 Peale and others unable to afford

patent licenses were unable to profit from their practice, thereby making it increasingly difficult

for individual photographers or small-scale firms to thrive. At the Patent Office Peale was

charged with policing the very boundaries he otherwise sought to open.

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Conclusion

Having housed soldiers wounded in the Civil War, the Patent Office served as the site of

the 1865 presidential inauguration, further cementing the affiliation between intellectual property

and governmental demands. American photography was forged as the country was in the

process of development, and the Patent Office was a crucial aspect of the general re-formulation

of property laws designed to incentivize development. Handwritten applications gave way to

standardized printed forms and increased costs associated with the legal representation necessary

to navigate patent bureaucracy and infringement. As the patent process became regularized, it

became financially prohibitive for all but the largest studios. Peale, and the many New York

photographers who urged collective resistance to the patent system, envisioned photography as

an Art and as a Science, an heir to a tradition of aristocratic societies. But the Patent Office

regulated photography as a business in which ease won out over originality. Patent litigation

became so heated that a photographer mentioned in the 1870s that his greatest rival had

approached him “to put my patents with his and go in with him and crush out all parties.”193

The model of community advocated in the 1850s was, by the mid-1860s, pushed aside in favor

of commercialism.

Other professions continued to debate how best to manage intellectual property.

Scientific societies expanded exponentially in the United States in the very years photographers

abandoned association.194 There are many photographs of and for scientific societies in the ensuing years, yet there was little renewed effort to work together for community development of photography until the growth of amateurism that followed Kodak’s rise. Photography for science took the place of photography as science. Competition and incorporation also won out over collaborative models of development. In her study of patent statistics historian Carolyn

Cooper explains that patent management overtook individual inventive activity in the United

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States more generally.195 Cutting turned over all business related to his patents to agents, as did

other patentees who quickly assigned their patent rights to managers.196 Companies in other fields increasingly banded together in patent pools to protect their interests.197 Formation of the

Associated Press and other so-called “combination” groups in businesses as diverse as those devoted to sewing machines, shirt collars, and theaters began consolidating patents and sharing litigation fees to defend against infringement, making business more difficult for smaller firms and individual inventors.198 An article in the Photographic-Art Journal reprinted from the Illustrated

London News had argued for the creation of protective combinations as early as 1852:

The Smithotype, Talbotype, or any other of the human types, may affect to possess a unique claim to all future developments of photography, and may, backed by the lawyer, alarm timid investigators with notices not to trespass or poach on their domains; but we would earnestly recommend a combination amongst the large class of photographists, for the purpose of opposing and exposing this attempt at monopoly.199

But in the American photographic community, the scramble to secure rights to chemical and mechanical combinations was ultimately more successful than attempts to coordinate combinations.

The intensified importance of managerial skill is evident in a survey of photography patents granted at mid-century. Although the numbers of patents issued rose over the course of

Peale’s tenure, the number of recognizable names did not. Fewer and fewer widely known photographers received patents while two New Yorkers, William Henry Lewis and John Stock, accumulated large numbers of patents. Perhaps the influence of the Patent Office has been overlooked because we do not necessarily associate the important names in photographic history with their patent activity, which may not have been as inventors, but more often as license holders. The expanded power of the Patent Office did not determine who we study in photographic histories, but rather how we study photographic history. The definition of what it

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meant to be a photographer was established as one who managed ideas, rather than merely chemical and mechanical manipulations. The effect was not that particular claimants became well-known, but that individual efforts came to be rewarded over community practices. Artistic and scientific academic theories were important to early American photographers, but legal considerations became particularly crucial to commercially viable definitions of authorship.

Adaptation, rather than invention, was the true ingenuity of nineteenth-century

American photographers. When the assignee of the Cutting patent won his case in United States

courts, he insisted that he would not only protect his investment moving forward, but would

also seek retrospective payments. Recounting the prominent publication of bromine formulas

well before Cutting’s claim, the editor of London’s Photographic News insisted “that such a patent

ought not to have been granted must be clear to any one really familiar with the history of the

art. The use of bromine in collodion was the most obvious thing in the world....” 200 The

observation gets to the crux of the patent trend which came to characterize photographic

developments. The move towards priority of claims to even the most seemingly obvious ideas—

rather than priority of use or invention—continues to impact today’s intellectual property

system. Cutting’s patents are a marker of the power of the idea of the author in the United

States. Collapse of generally shared ideas into name-brand products is evidence of an

increasingly concentrated and competitive photographic market. Patents reinforced exclusivity

even while forging the rhetoric of reproducibility.

In 1861, Peale photographed the presence of mounting Civil War militarization [figure

2.25]. His image captures a motley formation as haphazardly authoritative as the governmental

regulations with which he worked.201 With consolidation of the patent system intensifying along

with federal authority more generally, the ethical question for photographers, as for the nation,

was: union or disunion? Ambrotyping and other singular positive processes were popular

146 because clients thought of photographic portraits as unique representations. Similarly, photographers exploited or inadvertently benefited from Patent Office changes which enabled them to position themselves as unique. Modernist focus on a photographic eye is an extension of a photographer’s “I,” a declaration of autonomy facilitated by changes wrought in the mid- nineteenth century. The development of any particular photographic process was not as important as the development of a particular idea about what constituted a photographer— increasingly one who managed ideas rather than one who formulated processes.

The notion of information as commodity helped large firms survive the property battles that followed Patent Office consolidation. Developed to protect individuals in the free market, the patent system was increasing used to control the market. In 1868 Albert Southworth wrote to his sister, the wife of his partner Josiah Hawes, regarding testimony she was scheduled to give in the extension of his 1855 patent. He instructed: “will you look on the questions and copy them off verbatim and have them in your hands when you answer....”202 The resulting trial transcript documents her exact recitation of information he had included in the letter.

Southworth won the case. Southworth & Hawes are appreciated as American photographic icons yet it is important to recognize that they were not only great photographers but, perhaps more crucially, great at working the system. Of their case, a correspondent remarked: “How the affair will turn out we know not, but … the Cutting Patent case was nothing in comparison to what this new dispute will prove to be.”203 Indeed Cutting’s case opened the floodgates for patent claims. Collectivity could be preserved only as long as there was mutual investment in the idea of alliance. When Cutting broke ranks, the fragile community trust was broken. The entrepreneurial spirit previously said to be a threat to community was reframed as clever business maneuvering.

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The rhetoric of liberal collectivity which spurred America’s early photographic journals

has been re-animated in discussions of open-source access and file sharing. Alarm at government attempts to develop internet regulations recall the difficulties with which the patent system attempted to arbitrate ideas as property. As monopolies consolidated in the 1870s, there were attempts to institute controls on corporate growth.204 Whereas monopoly had once been

perceived as facilitating economic and therefore public good, there were increasing attempts to

curtail monopolistic scope, especially as 1880s claims to roll-film reinvigorated proprietary

claims. In 1872, the year of his demotion and resignation, Peale looked out into the

photographic landscape, and did not like what he saw. He wrote to a friend on Patent Office

stationery, complaining, “at present having to sit in judgement on people’s inventions at the rate

of 1102 … this year, you will perceive my thoughts … are well bound to learn ingenious

contrivances and decide justly in favor, or against monopoly. It is a relief to get home & be quiet,

or get away from home from the same reason.”205 Peale’s efforts to balance competing interests

embody the lurching momentum of photography in the period. In 1863, from the tower of the

Smithsonian Castle, Peale photographed the District of Columbia in panorama. He took in the

different vistas: the political [figure 2.26a], the natural [figure 2.26b], and the corporate [figure

2.26c]. In a view looking north, just below the horizon line at the right, Peale bird’s eye view

includes the Patent Office. Likewise it is important to keep patenting within frame in any picture

of the development of photography in the nineteenth century.

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CHAPTER 3

“The phantasmagoria of inventions passes rapidly before us”: Photography on Trial in Mid-Nineteenth-Century America

Introduction

Photography is often said to be either a window onto the world—a direct register of what was—or it is understood as a product of human action. In the mid-nineteenth century, however, a willingness to consider artistic as well as evidentiary aspects of photography permeated American thought. This chapter looks to images and ideas which acknowledged, even delighted in, the elasticity of photography as a both/and proposition rather than an either/or condition. Vignetting, a ubiquitous compositional style of American photographic portraiture in which the background seems to dissolve at the periphery of the sitter, is a particularly compelling example of the fertile indeterminacy of nineteenth-century American photography. By shearing potential visual information from the body of a sitter, vignetting focuses attention on the capacity of photography to register the world while, simultaneously, highlighting a photographer’s involvement in achieving an evocative likeness. Encapsulating both the archival and artistic aspects of photographic production, vignetted portraits point to the insufficiency of attempts to categorize photography as either fully mechanical or entirely man-made. In the

United States, as excitement surrounding the introduction of unique images produced without an intervening negative began to subside, and forms of photographic reproduction and manipulation were becoming commonplace, vignetted portraits demonstrate one strategy through which a medium propelled towards mass production recuperated individual agency.

Photographic portrait vignettes echo the stately isolation of statuary, painted, and printed busts and portrait medallions. A wide band of empty space encircles the sitter, absenting and activating the borders of the image. Half-length and miniature painted portraits are other visual precedents, as were forms such as silhouettes, coins, bank notes, drawn sketches, and

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copper or wood-engraved and lithographic illustrations. Oval painting frames mimicked in the preservers used to house daguerreotypes and ambrotypes were transmuted into portrait photographs which seem to dissipate at their edges. An 1862 New York Times article praised

photographs in which “there is no object to attract the attention from the interesting, wondering

face.”1 In isolating a sitter from their environment, the photographic vignette both differs and

draws from other forms of portraiture, exaggerating the action of selectivity. Photographic

vignettes might be constructively understood in relation to nineteenth-century devices historian

John Tresch has characterized as “romantic machines,” technologies that promised “emotionless

objectivity” yet encouraged “a new understanding of nature, as growing, complexly

interdependent, and of knowledge, as an active, transformative intervention in which human

thoughts, feelings, and intentions—in short, human consciousness—played an inevitable role in

establishing truth.”2 Nineteenth-century debates concerning relationships between nature and

human ingenuity are an important context in which to situate photographic practices.

Like vignetting, the American court system similarly positioned photographs on a

continuum of taking and making from the world, establishing a critical discourse in which the

identity of photography was deliberated. Chapters one and two detail how powerful institutional

forces—the banking system and the Patent Office—influenced perceptions of photography in

mid-nineteenth-century America, both enabling and suppressing particular notions of the

medium, thereby impacting the ability of portrait studios to sustain their practice. This chapter

argues that the evidentiary and artistic claims of studio photographers were a necessary aspect of

attempts to legally, and thereby financially, protect their work. Analysis of lawsuits citing

photography sheds light on the status of photographs in the third quarter of the nineteenth

century, illuminating the productive conceptualizations of photography which resulted from the

courts’ refusal to treat all photographs as though created equal. Both vignette photographic

practices and court cases involving photographs demonstrate the productive liminality of the

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medium in the United States during the 1860s and 1870s, offering useful precedents for coming

to terms with photography more generally. This chapter looks at how and why nineteenth-

century vignette portraits and contemporary legal discourse drew attention to the boundaries of

the photographic.

Mind the gap

Study of the popularity of a photographic format that willfully masks possible visual

information and explicitly displays the intervention of its maker can help to correct

misconceptions about the aspirations of mid-nineteenth century photographers, while at the same time exposing adjustments in perceptions concerning photography in the United States.

Consider a carte-de-visite double portrait of Louis Agassiz [figure 3.1] by Antoine Sonrel, a studio photographer better known as the illustrator of Agassiz’s natural history treatises.3 In it, a

seated Agassiz stares in rapt attention at another version of himself within a space vignetted so

that the two bodies appear to float within the card. A well-appointed table hints at an

environment of scholarly inquiry, but the slight smile on the face of both portraits injects a note

of humor into what at first glance seems to be a serious conversation. Irregular in shape,

appearing to fade at its edges, the vignette frame encapsulates only as much of the image as is

necessary to highlight the self-possession of the figures. The setting retreats so that the

observant glance of the seated figure and bemusement of the other are thrown into focus. The

doubled appearance of the pre-eminent scientist makes the manipulation foundational to all

portraiture overt. Vignetting exaggerates the action of all photographs in focusing attention and

obscuring periphery concerns.

In most discussions of Agassiz and photography, attention has rightly been drawn to a

series of daguerreotype portraits he commissioned which seem to support nineteenth-century

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subscription to an evidentiary notion of photography. Produced by J.T. Zealy, the

daguerreotypes—haunting images which disconcertingly register the pained expressions of

objectified African-American slaves—were compiled in support of Agassiz’s theory of

polygenesis. Gauging the repressive and honorific repercussions of such direct photographic

portraiture, historians have forcefully argued the instrumental exploitation of photography,

tracing a lineage in which nineteenth-century naïveté segues smoothly into modernist assertions

of photography’s visual truth.4 Such arguments run the risk of suggesting that although we, in

hindsight, recognize that photographs were crafted in the darkroom and created in

contextualization as much as in the camera, in the nineteenth century putatively unmanipulated

images were privileged and relied on as incontrovertible fact. More recently, scholars interested

in material culture have told a messier story in which nineteenth-century interest in photographic

handling is brought forth.5 The vignette format, and other popular techniques such as re-

touching, hand-coloring, and the use of painted backdrops, demonstrate that photographic

portraiture, rather than purely manifestations of a nineteenth-century impulse towards documentation, also exemplify the acceptance, even elevation, of management. Recognition of the promiscuity of nineteenth-century photography is crucial in understanding the unwillingness of the courts to accept any reductive approach to the medium. In toying with photographic doubling, Sonrel’s portrait of Agassiz is a reminder that each portrait is a composite of appropriation and creation, and that the varied aspects of photography were in constant, often self-congratulatory, conversation.

Vignetting highlights the interest in photography’s malleability as well as its capacity for mechanistic exactitude. Nineteenth-century clients increasingly appreciated the degree of manipulation necessary to craft images, delighting in the potential for radical reconfiguration of reality. Though slightly more expensive, vignette variants of sittings were quite popular.6 Perhaps

because they were highly valued, photographers vied to formulate their own vignette techniques.

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Between May 1863 and April 1864, The American Journal of Photography published at least nine

different techniques for producing vignettes while The Philadelphia Photographer published six from

August 1864 to August 1866.7 Some called for achieving the desired effect during exposure.

Others outlined techniques for vignetting at different stages of development. Despite the

attention to vignette equipment and discussions over vignette patents, the author of each article

makes clear—with more than a little self-interest at stake—that it was the control of the artist,

not their equipment, which was invaluable in achieving desired effects. Marcus Aurelius Root, a

photographer and writer who considered himself a voice of authority, pronounced: “A vignette

portrait, i.e. the head and shoulders in the crayon style, I generally find more pleasing to the true

artist and connoisseur, than either full-length or half figures…a vignette portrait may be

rendered more truthful, life-like, and artistically effective…”8 Photographic manipulation

ministered sitters dissatisfied with unflattering portrayals, who deemed fidelity a shackle from

which the medium should, and could, be freed. But whether the role of the photographer was

one of liberator from—or of—fact, photography was generally regarded as neither merely

mechanical nor entirely fabricated. Rather, the skill of the operator was recognized to be a crucial

factor in the transcriptive aptitudes and liabilities of the medium. This intermediacy influenced

efforts to define the legal status of photographs.

Modifications such as vignetting not only served sitters eager for a satisfactory likeness

but also aided viewers in their embodied reception of photographic portraiture. Vignetting,

sometimes presented in small-scale “gem” formats like painted miniatures, excised loved ones

from mundane reality and offered them up as precious objects for reflection.9 Described as a

“fancy” form of photography, in contrast to “plain” portraits, vignettes populated a space, alongside fancy goods, between hand-made and manufactured products.10 Like eighteenth- century “fancy pictures,” fancy photography—vignetted or hand-painted portraits and those that incorporated painted backdrops—catalyzed the imaginative agency of viewers.11 Just as vignette

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illustrations in texts and on currency prompted viewers to bring extravisual connotations to bear

on an image, vignetted photographic portraits were activated by printed or handwritten captions and their inclusion in cases or albums.12 Vignetted portraits make visually manifest a significant

and pervasive aspect of photographic perception in the nineteenth century more generally, the

understanding that a portrait was not simply the image presented by the camera, but its manner

of presentation and the degree to which external experience of the subject fused with the act of

viewing. Vignetting not only demonstrates the involvment of the photographer, but was also felt

to prompt that of viewers. Photographic images were understood as links in associative chains of

meaning, not autonomous objects in which meaning inhered. The ease with which photographic

images could be appropriated impacted perceptions regarding their ownership.

Little has been made of the integration of the vignette format into photography, but it

was a critical signal of the operation of the medium in the mid-nineteenth century, hovering

between mechanized and manual interventions. Painter and critic Jeremy Gilbert-Rolfe observed in 1997 that in the nineteenth century blankness had “stood for withholding or obliteration, potential or loss” but “it is now the sign of an invisible and ubiquitous technological presence.”13

It would seem that with the threat of technological encroachment, blankness signifies a

resistance to potential territorialization, an empowerment on the part of a maker to withhold and

that of a viewer to perceptually fill in the blanks. Rather than extend a sense of horror vacui,

vignetting makes explicit the space of participatory involvement in the completion of the

photographic.14 Unlike Gilbert-Rolfe, I am less concerned with pinpointing a pivot towards

modernism than with the extractability and mobility of photographic forms between contexts.

Literature scholar Susan Williams references “freed” images which—available for removal at the

back of nineteenth-century periodicals—could be excised for reconfiguration and were therefore

open to interpretation.15 This seems also to be an apt description of photographs in general,

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which were easily liberated and re-framed, exploiting blankness, as Gilbert-Rolfe describes, as a

space of potential rather than a void.

Mutability complicated integration of photographs as either entirely artistic or

uncompromisingly evidential. If the completion of a photograph was ultimately in the mind of

its beholder, then its validity as proof and its eligibility as a product of singular authorship were

called into question. Courts had no choice but to remain mindful of the variability of

photographic practice. The 1860s were a period in which studios regularly advertised, often

within a single notice, sale of daguerreotypes, ambrotypes, heliographs, collodions, tintypes,

album and stereograph cards, and any number of other terms for the varied processes competing

for consumer attention. It is no wonder categorical ambiguity prevailed. Although we are fond

today of referring to “alternative processes” as though a normative standard might somehow be

identified, in the nineteenth century a range of disparate techniques achieved what is now

referred to by the all-encompassing label photography.

Vignetting appeared in daguerreotypes, ambrotypes, and stereographs, but the visceral

visuality of vignetting was heightened by its use in tintypes, cartes-de-visite, and an album culture that fostered their recontextualization and embodied reception.16 Photographic portraits were

easily excised from carte-de-viste bases and reconfigured in photomontages and albums. One

example, Mental Photographs, an album published in different editions in the late 1860s and 1870s,

explicitly encouraged its participants to connect a portrait with extravisual background

information [figure 3.2].17 In the album, cartes-de-visite portraits, often vignettes, were removed

from their backing and affixed alongside a series of questions the sitter was asked to complete.

Distinguishing characteristics and cultural interests (the gentleman in figure 2 identified his as an

“inordinate love for ladies”) were thus combined with the vignette image to flesh out a portrait

of the sitter. Photographs were understood to be performative, fleeting representations that,

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though they hardly captured the essence of their subjects, nonetheless offered viewers a

touchstone from which to imaginatively re-create presence.18 Anecdotes, rather than

phrenological taxonomies, animated the album. A writer in 1862 eloquently captured the

sensation of sentimental attachment aided by photography:

When our friends leave us, they leave with us these precious images which we can always and everywhere carry about with us, to feast our bodily eyes with their graphic representations, as memory is able to treasure up and to pass in mental review incidents that the past has taken with it, and words whose echoes have long ago died away.19

The writer makes clear that photographs were felt to aid viewers in the process of re-membering.

It is likely that as the vignette format was popularized during the Civil War, the disembodied

heads of the genre took on a particular resonance.20 As Jordan Bear has recently described in an article on manipulation in British photography, “Decapitation was perhaps the most extreme form of self-annihilation, but it focuses attention on the degree to which the oscillating presence of the photographer’s agency was an enormously consequential enterprise.”21 The softened

edges of vignette portraits suggest bodily dissolution rather than beheading, but during the Civil

War advertisements for photography studios often appeared near notices for prosthetic limbs,

teeth, and eyes, a reminder that bodily dispersal was as viscerally powerful as it was

metaphorically potent. Like phantom or artificial appendages, photographs were understood as

supplements rather than substitutes. Debates concerning the constitutionality of photography

were dependent on an understanding of its constitution.

Grappling with a few of the innumerable mid-nineteenth-century examples of

reciprocity across media in the United States, Michael Leja recently insisted that notions of

medium specificity impede an understanding of American graphic production. He put aside

“hybridity,” the catchword lately favored by scholars, in favor of “double images, having the

identity of both photograph and print, each fortified by the other.”22 He also proposes

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“transmedial fortification and consolidation” as a potentially viable characterization of the

relationships of visual forms. Yet the term intermediality might more effectively acknowledge

that images were not cobbled from established media, but were instead fashioned in spaces

between media definitions.23 Vignetting, hand-painting, the use of studio accessories, and other blatant expressions of operator involvement, offered clients the opportunity to stage representations that accorded with their sense of self, but also provided an opportunity for studio photographers to stress their artistry. Studio labels, emblazoned with palettes and boastful slogans identifying the studio owner as a “photographist,” were intended to sear into consciousness a notion of photography as a form of conceptualization beyond the merely mechanical stratagems of the camera.24 The intermediality of photographic practices invigorated the flourishing studio trade and stimulated a great deal of speculative proprietary debates.

Art historical scholarship tends to characterize the artistic claims of photographers as a play for legitimization through which portraitists worked to accumulate cultural capital, but the drive for economic capital was perhaps a more pressing motivation for photographers eager to protect and build their businesses. An ability to craft flattering portraits was certainly commercially driven, and the rhetoric of artistry became a forceful legal tactic. If photographers attempted to align their work with that of artists, they did so not only for aesthetic legitimization, but also with financial security in mind. It was only if their work was categorized as authored that photographers might claim copyright protection and attempt to defend themselves against piracy. Just as assertion of the claim of singular invention was a necessary step in the privatization of ideas about photographic processes, declaration of authorship was necessary to establish rights to photographic products. Yet recognition of photographs as authored works complicated their assimilation as documentary evidence. The selective attention of vignetting visualizes the complicated issues involved in the integration of photographs into the courts.

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Best evidence

Like the focused yet dreamy quality of vignette portraiture, the American court system

honed in on the specificities of photographic production even while imaginatively constructing a

more expansive conception its character. The most consistent photographic preoccupation in

the court system in nineteenth-century America was projections for its futurity. Legal language

often envisioned an imagined destiny in which photography would not require the involvement

of an operator. One of the earliest reports of photography reprinted in the United States turned

quickly from description to prediction:

Where are we going? Who can tell? The phantasmagoria of inventions passes rapidly before us—are we to see them no more?—are they to be obliterated? Is the hand of man to be altogether stayed in his work?—the wit active—the fingers idle? Wonderful wonder of wonders!!...What would you say to looking in a mirror and having the image fastened!! As one looks sometimes, it is really quite frightful to think of it; but such a thing is possible—nay, it is probable— no, it is certain. What will become of the poor thieves, when they shall see handed in as evidence against them their own portraits, taken by the room in which they stole, and in the very act of stealing!…now every thing and every body may have to encounter his double every where, most inconveniently….25

As evidence of the often unbridled excitement surrounding the announcement of photography, the quotation is certainly compelling. But it is crucial to note the anticipatory character of the imagery, as well as the undercurrent of prophetic concern. Similarly imaginative characterizations seeped into any number of other nineteenth-century writings.26 Dion Boucicault’s 1859 play The

Octoroon famously dramatizes a scene in which a murderer is caught in the act by a camera

functioning independently of its operator. Wielding “a photographic plate,” the murderer’s

accuser squeals “ ’Tis true! the apparatus can’t lie. Look there, jurymen—[showing plate to

jury]—look there. Oh, you wanted evidence—you called for proof—Heaven has answered and

convicted you.”27 These and other similar remarks have been pulled into the scholarly record to

assert a reliance on the evidentiary claims made for photography. But in Boucicault’s staging the

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murderer laughs off the idea of photographic admissibility, scoffing, “What court of law would

receive such evidence?”28 Although he is convicted, and the time when photography might be freed from the taint of operator involvement was eagerly anticipated by some, in non-fictional courts of law it was routinely decided that photographs were more or less tethered to their makers. The stage direction, “[going],” which followed the murderer’s jeer, not only describes the actions of a perpetrator attempting to flee juridical confines, but underscores distinctions drawn between photography as it was and as it might be. Interest in photography’s future— where it might be going—had to be held separate from its current condition.

A predictive conception of photography similarly animated proposals for establishing rules to assess photographic evidence. Legal scholars prophesied that once freed of human intervention the medium would—since usually the language was one of inevitably—serve as evidence. An 1869 law review article forecasted that “when the art of photography is perfected, the streets and alleys of our great cities will be swept by photographic batteries, so located as to take, from many points of view at once, the likenesses of persons engaged in disturbing the peace, for use in subsequent legal examinations.”29 In the rest of the essay, though, the author tried to focus on the current state of the medium, rather than an imagined prospective perfection. He brooded, “the principal object of this paper, however, is to determine the evidentiary rank of the products of the photographic art. Is a photograph, considered as a narration or delineation of facts, a piece of hearsay, or of original and direct, evidence?”30 His conclusion, which discussed photography in terms of “best evidence,” requires some clarification. The phrase “best evidence” prompted photographic historian Joel Snyder to wonder, in his study of nineteenth-century discussions of the truth-claims for photography,

“What was it about notions of photography then in circulation that ruled out the photographer as the picture maker?”31 But the law review article was referring to “best evidence” in its legal sense, which assesses the legitimacy of potential evidence in lieu of direct testimony.32 The “best

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evidence” doctrine does not assert that a piece of evidence is the best possible in a superlative

sense. Instead, it is an expression of a more moderate understanding, that courts were to make

what they could of the best evidence available in a particular situation.33 Although federal rules of evidence were not yet codified in the United States, common law treatment of best evidence situated all documents on a spectrum of admissibility in which no testimonial was understood as unbiased or disinterested, and each required external authentication.34 Credibility was not

assumed as a given; its degree was, in theory, gauged on a case-by-case basis.

An 1868 probate trial dramatized legal debates surrounding photography in a manner

that would have made an appealing plot for a Wilkie Collins novel. Louis Agassiz, Oliver

Wendell Holmes, and Albert Sands Southworth were called to testify as to the authenticity of the

signatures on which the case hinged. Charles Sanders Peirce was dispatched to gather

handwriting statistics. James Wallace Black was employed to provide photographic copies of the

signatures. Testimony both for and against admissibility of the photographs was intensely

contested, resulting in an insistence on careful analysis of conditions pertaining to their

production and use in order to determine the degree to which they might be considered accurate

reproductions of handwriting.35 The next year a court observed, “Those who are familiar with

the details of photography are aware of the many circumstances that would have to be made

subjects of affirmative proof…the skill of the operator and the method of procedure, would

have to be investigated to insure the evidence as certain.”36 In an 1877 case, lawyers for both

sides again argued vehemently for and against the legitimacy of photographic evidence, but it

was held that accuracy of photographic “copies” was a question of fact. According to the court’s

interpretation of best evidence, photographic copies “can only be used as secondary evidence.”37

Referencing an 1873 decision, the court decided a photographic copy might be satisfactory “but

certainly the exactness of the photographic copy of a writing depends on the instrument and

materials used. Like a letter-press copy, it is a copy, and may be more or less imperfect. However

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superior to other copies, it is certainly a question of fact whether any particular photographic

copy is exact or not, for ‘photographers do not always produce exact fac similes.’”38 The concerns of the courts were understandable. Photographs bear, and bare, the benefits and run the risks associated with all acts of transmission. Dependency on “the instrument and materials used” would also come to be the focus of copyright cases debating whether photographs were produced by man or machine.

Isolated legal briefs and decisions could doubtlessly be dusted off to demonstrate any number of conceptions of photography, but the courts refrained from establishing any specific rule for photographic evidence, instead relying on assessment of photographs as a question of fact on a case by case basis. However much a general perception of photographic truth may have permeated public imagination, courts were rarely programmatic in their dealings with photography. Refusal of the courts to delineate photography as a strictly defined category and insistence instead on consideration of photographs on an ad hoc basis offers a model for how we might today come to terms with what seems to be a dissolution of established practices.

As legal evidence, photographs were, and are still, treated with the same scrutiny as other documents, specifically as other recordings, and deemed open to interpretation rather than automatically held to be factually established.39 Consideration of certain photographs as

intellectual property does not necessarily invalidate the use of photographs as evidence.

Photography might thus be productively thought of alongside other recording devices, which

have the capacity to both document and shape perception. As with other recordings, we must be

attuned to elisions and the interference of background noise. In a transcript, declarations are

followed by parenthetical explanation of inflection indicating how the words are meant to be

read, likewise photographs were not understood as autonomous statements. Rather than

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attempting to wrench photographs into strict categories of production, we might be better

served to imagine them as points in a field of practices.

Consideration of photographs as demonstrative evidence does not imply that

photographs offer proof of information, but that they might be perceived as doing so. Legally,

demonstratives are propositions. The act of presentation is as important as what is being presented. To consider photographs as intermedial rather than hybrid forms is to encourage consideration of the contexts into which they are interjected.

Despite recent art historical scholarship declaring a post-medium condition, as Matthew

Witkovsky recently observed “the drive persists today to reestablish medium specificity.”40

Photographic criticism has not taken the lesson from its object of study. Constructed

photographs should not lead us to re-define all photography as purely constructed, shutting off

entirely the possibility of photography as a window onto the world. What the work of

contemporary photographers enables us to understand, what judicial consideration facilitates, is

that we should not forsake study of how photographs have been made, their varied uses, and the

frames through which they are perceived.

Copyright

Although historians generally discuss nineteenth-century uses of photographs of

property, it is productive to also consider the insights offered by debates over photographs as

property. If, on the one hand, the participatory engagement necessary in photography challenged

the status of photographs as evidence, on the other hand the mechanical stages of photographic

procedure problematized the assignment of creative authorship. American and European courts

not only debated whether photographs could be used as evidence, but also deliberated their

eligibility as authored works.41 If photography could be understood as merely transcriptive, it

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would have been difficult for photographers to assert ownership of their production. As

American copyright law was being formulated in the 1860s and 1870s technological

developments did not slot easily into existing frameworks for designating ownership over

creative expression. Far from offering a stable context in which the work of photographers was

understood, copyright laws were in a near constant process of adjustment in the mid-nineteenth

century as legal regulations originally intended to protect the written word were modified to

accommodate new modes of visual production.

As outlined in the previous chapter, intellectual activity was designated potential property in Article I Section 8 of the United States Constitution, which pledged “To promote the Progress of Science and useful Arts, by securing, for limited Times, to Authors and

Inventors the exclusive Right to their respective Writings and Discoveries.”42 Just as the Patent

Office struggled with how best to promote the progress of inventors and their discoveries, it was

difficult to determine the most effective means of balancing public and private interests when

granting temporary copyright monopoly to authors and their writings. Establishing in what ways

photographs, other imagery, and performances might be situated as authored writings proved

challenging.

Until photography was granted a separate category of federal protection in 1865,

photographers in many districts were able to apply for copyright only by registering their works

as prints.43 The first image registered as a photograph in the Southern District of New York under the newly established system of classification was a photographic reproduction of an allegorical lithograph, Ceres [figure 3.3], as was the second, Sweet Sixteen [figure 3.4a], a copy photograph vignetted from a lithographic image [figure 3.4b]. The third image registered as a photograph under the revised copyright amendment, Purity [figure 3.5], was also a photographic vignette from a lithograph.44 Like the subjects of the images initially registered, Photography was

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in a stage of adolescent potential. Catalogues circulated by photography studios in this period

advertised far fewer images from life than from the imagination. Series devoted to important

figures often included portraits of people long dead by the time of the introduction of

photography, yet photographs of their printed or painted portraits were advertised alongside

photographic portraits of living subjects with no differentiation. Inventive images were as

prevalent as portraits and landscape views in photography outlets. The majority of what was

thought of as photographic production in the nineteenth century would not now be recognized

as photography in many accounts.45 Biological metaphors are of limited use in understanding technological developments, but it is important to remember that photography had been introduced just over twenty-five years prior and was still very much a youthfully uninhibited set

of practices and affiliations. Ceres, Sweet Sixteen, and Purity are apt metaphors for photography’s

fecundity. In the 1860s and 1870s photographic purity was not to be found in artificially

delimiting its prospects but in celebrating, or at least acknowledging, its abundance.

Several complications followed the 1865 amendment that granted “photographs and the

negatives thereof which shall hereafter be made” a separate status of copyright protection, but

little fanfare accompanied the initial congressional vote.46 Courts avoided explicitly defining

photography by instead charting the ways it might be thought to differ from printmaking. An

1866 decision found that because photographers did not physically apply pressure in the creation

of an image, their work could not be thought of as printmaking, and therefore photographers

who had followed pre-1865 regulation and dutifully registered their works as prints were no

longer protected.47 Once the new category existed, images made from negatives rather than print

matrices had to be re-registered as photographs to be protected. Yet it remained unclear what,

exactly, photographic copyright protected. The courts, and photographers, strained to come to

terms with how photography might fit into the existing forms of categorization but hesitated to

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put forth a strict definition of the medium. It took some time for photography to register as a

distinctive set of practices.

The courts struggled to determine whether photographs were translations of or merely

conduits for their subjects. Given that it had been determined that photographs from negatives

were not prints, photographers argued their copy images should not be considered infringements

because the language of violation was restricted to printed copies. Yet an 1866 case found

reproduction of an engraving by photography was an infringement in that the word copy, “if it

covers anything, should cover the photographic method, which, more nearly than any other,

produced a perfect copy.”48 Like the evidentiary discussions of copying, the ruling was not that

photographs should be considered perfect copies, but that they may be truer to an original than

other forms of reproduction by degree. This left photographers in the peculiar position of

producing work that was not legally categorized as printmaking, yet was perceived not as

radically different in kind, but only in measure.

In reviewing images marked with copyright registrations it is often difficult to assess

whether the subject or its reproduction is being protected. Painting and sculpture were not

covered by American copyright until 1870, so some artists registered photographs of their

paintings or sculptures as a means of attempting to control circulation of their compositions.

Once paintings and sculptures were granted protection, the deposit requirement was satisfied by

submitting a photograph of the work, further contributing to confusion regarding the status of

photographic reproductions.49 Frequent changes to copyright statutes left potential applicants unsure of how best to guarantee protection. A copy of the handbill Directions for Securing Copyrights in the archives of the Prang lithography studio is inscribed and underscored “Don’t lose this,” a

reminder of the difficulties faced in securing protections.50

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In the 1860s and 1870s the process of applying for copyright involved few

administrative steps. Although they were implemented differently in each district in different

periods, federal statutes required a relatively straightforward registration in which the name of

the applicant and the title of their work would be entered into a ledger, after which the applicant

was expected to deposit a copy of the work to finalize the process. 51 But because deposit of a sample of the work to be protected was not consistently enforced, registration was for all practical purposes in many districts based on title alone, making it unclear whether registration protected the concept of a work, or merely its specific manifestation. Immediately after Lincoln’s assassination, for example, in the Southern District of New York, title to “President Johnson” and several different Lincoln memorials were registered well before the photographs were produced.52 For a time, then, applicants held a monopoly on the idea of the work and were granted a period in which to follow-through in producing the image. According to copyright protocol, therefore, the work of the author was in the conceptualization of an idea, not its realization. Like cybersquatters or patent trolls, individuals or firms could rush to stake claim to conceptual spaces. Although there were attempts at restriction in the 1870s, in the 1860s speculators were granted temporary monopolies to concepts, rather than medium-specific compositions.53

The idea-expression divide, foundational to modern copyright law, was only beginning to be formulated in the mid-nineteenth century. Assessment of the originality was not a part of the registration process. Whereas now copyright is generally assigned to the person who can prove they first fixed an image, in the nineteenth century, copyright was statutory, not naturalized.54Copyright was granted to the party who registered an idea, not necessarily to the

individual who first conceived of it.

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Vignetting proved to be an effective means for photographers to take advantage of the space between idea and expression.

The associative potential of photographs—the ease with which they could be re- contextualized—was readily exploited. Vignette processes, which made portraits particularly open to interpretation and imaginative embrace, also served as an efficient copy strategy.

Although it accentuates the role of an artist, vignetting—like the studio system more generally— masked the work of the, or a specific, artist. Vignette techniques easily obscured the copy process, enabling photographers to profit from the studio work of others. Any perusal of nineteenth-century photography collections underscores the extent of reproduction. Surveying representations of Abraham Lincoln, for example, reveals the rampant proliferation of copy photography [figure 3.6].55 For every carte-de-visite with a studio label, many more bear no marking whatsoever. In his study of cartes-de-visite William Culp Darrah notes that although

some cards without studio stamps were produced by small-town photographers, “by far the

greater number of cartes without an imprint are copies, usually pirated. Any portrait of a

celebrity or other popular subject without a logo is, beyond reasonable doubt, a pirated copy

issue.”56 Popular photographic images were copied, and re-copied, then copied again. Copy photographs were also often translated into prints with additions and re-photographed [figure

3.7]. Translations were also regularly copied and re-copied [figure 3.8]. Compressed into carte- de-visite format, it is often difficult to differentiate between printed and photographic likenesses.

In figure 3.6, for example, the image second from left is a photograph of a lithograph, while the others are copy photographs. Just as prints from photographs are often rendered borderless, appearing as dreamy refractions of their source, photographers regularly sheared away the context of portraits to usurp an image [figure 3.9]. Vignetting both masks and evokes the act of transmission, as though an image was pulled from one realm into another with some loss in translation.

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Given the remarkable amount of what we would today call piracy, it might seem baffling

that so little reference is made to the problem, or the issue, in the photographic literature of the

period. Yet as Meredith McGill explains in her scholarship on literary copyright, because the

American legal system did not enforce prohibitions against many forms of copying for much of

the nineteenth century, the word “reprinting” is more appropriate than accusations of theft. Just

as abridgements of Webster’s dictionary and translations of Uncle Tom’s Cabin were declared fair

use, so vignette reproductions—themselves forms of abridgement and translation—were not

necessarily illegal.57 William Culp Darrah’s familiarity with the range of carte-de-visite production

again offers some insight into the particularities of American photography. His observation that

“the vignette head was enormously popular in the United States in the 1860s, but seldom

appeared in Europe until the early 1870s,” might be explained by the tighter copyright

restrictions enforced there.58 Even as attempts to enforce copyright protection intensified, the

rewards of a decision in one’s favor were so minimal that lawsuits were generally not worth the

associated costs.

A notable exception to the general silence on the matter of photographic copying can be

found in study of the E. & H.T. Anthony firm, which instituted several strategies to protect the

images they published. Study of copyright registers for the Southern District of New York

demonstrates that for the most part the firm deposited their images the same day they were

registered. In the mid-1860s they also began blindstamping both vignette and plain portraits.

Mathew Brady had long included his printed signature prominently within each image but the

Anthonys, ever business-minded, went so far as to warn in an 1864 catalogue: “None genuine

unless stamped with our trade mark, EA in a circle, on the front of the photograph. Beware of

spurious copies made from engravings, &c. The Negatives of these exquisite pictures were made

for us by Brady.”59 The language on the verso of each image in a Civil War series they published was even more direct: “The photographs of this series were taken directly from nature, at

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considerable cost. Warning is therefore given that legal proceedings will be at once instituted

against any party infringing the copyright.”60 Such markings indicate the helplessness some firms

must have felt at their liminal legal position.

The generative intermediality of mid-nineteenth century visual culture certainly

complicated attempts to define photography as either machine- or man-made, and frustrates the

desire of historians to pin down medium-specific traits in the hope of charting a clear lineage in

the development of photographic industrialization. Publishers, to be sure, printed large numbers

of images from individual negatives, but the secondary market was a more widely dispersed form

of re-production. Although E. & H.T. Anthony sought ways to guard against copying, for most

of the nineteenth century publishers advocated minimal copyright restriction in the name of

consumer access.61 Loose copyright regulation favored distributors over authors, which may explain the tenacity of the Anthony firm in the long term. As distributors they achieved financial security through licensed replication. Their warning did not dismiss copies in general, but rather

“spurious copies.” It was in their interest to find ways to profit from the culture of the copy.62

Branding themselves protectors in the fight for freedom of information, corporations

argued that attempts to secure the rights of content producers would interfere with public

access. American publishers proved to be a strong lobbying force, and the United States did not

acknowledge international copyright until 1891.63 American publishers flourished under this

arrangement, profiting from reprints of texts and images taken freely from European

publications. In the case of photography, arguments for relaxed regulation to encourage market

access proved viable. Unlike the restrictive patent licenses discussed in the previous chapter,

affordable images circulated relatively freely within the public domain, fostering rapid expansion

of the field.64 Creativity in photographic entrepreneurship was often in the act of copying an

image or idea rather that expending the capital to produce it in the first place. Although some

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photographers did complain about piracy of their images and took steps to try to protect the

expression of their ideas, photographers were not able to consistently organize to enforce

copyright protection any more than they were able to band together to resist patent claims.65

Whereas in the twentieth-century it was a strategic move to argue for photographic medium specificity in order to make a place for photographic practice in the art world, in the nineteenth century toying with both the mechanical and manual aspects of the medium was, at least for some, good business.

Since photographs were not easily protected, photographers did try different means of safeguarding their efforts, arguing that their work should be protected as mental rather than manual labor. Instead of presenting photography as distinctive from other media, it was through demonstrating similarities with other forms of artistic activity that photographers were able to fight for protection. In 1857 Charles DeForest Fredricks sued Jeremiah Gurney for attempting to lure an employee hired from France during the time of their partnership. The New York

Superior Court remarked that an operator in a photography studio might be thought of as a performer who plays varied roles and therefore, unlike mere artisans, their services “involve the exercise of powers of the mind.”66 As in a playbill in which an actor is identified “as” his or her

character, we can look to the court system to help us think about the roles photographs and

photographers are asked to play. Thus, although courts refused to pin down the status of

photographs, it was judged conceivable that photographers were potentially eligible for creative

protection. In the 1850s Fredricks regularly referred to a “corps of Parisian artists” in his

employment but in the late 1860s began instead to stress his own supervisory role.67 In the famous case involving the “spirit” photographs of William Mumler, Fredricks avowed that he had “never been able to produce a picture of a person that was dead, nor does he believe that it can be done by anybody; he does not work practically; in making photographs he employs others to do the dirty work.”68 As was discussed in chapter two, Fredricks had rebuffed Cutting’s agents

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in their attempts in the 1850s to curtail access to technical information—arguing for a creative

commons approach—but by the late 1860s he argued on the side of restricted rights to

intellectual property. Much as they had negotiated a space for themselves as inventors,

photographers fashioned themselves as authors. They were not granted either status

automatically any more than photographs were accepted unquestioningly as un-authored

documentation. Although scholarly stress has been on photography’s exceptional nature, in

practice in the 1860s and 1870s courts in the United States refused to grant photographs set

status as either purely mechanical or fully authored, but understood the work of photographers

on a continuum of practices from performativity to detachment.

Conclusion

The 1875 American edition of Hermann Vogel’s The Chemistry of Light and Photography

asserted, “Photography can, in fact, when properly applied, produce truer pictures than all other

arts; but it is not absolutely true.”69 A few years later, just after the first U.S. patent for roll film was issued — enabling amateur access to what had been primarily the province of professionals, and spurring a significant step towards standardization of photographic practices— the issue of whether photography was production or merely reproduction, was brought to the United States

Supreme Court. In the next chapter I look carefully at that case, which is still regularly cited in contemporary copyright litigation, to argue that photographers began to introduce painted backdrops and more elaborate postures in their work as de facto forms of copyright protection.

Decided in 1884, the case established an important precedent in categorizing certain types of photography as “ordinary production,” thereby moving the courts towards articulating medium- specific tendencies.70

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In the United States, during the 1860s and 1870s legal wrangling was able to side-step

the essentialist focus of art history. The findings of the courts did not declare that all

photographs must henceforth be considered imaginative constructs, nor did they exclude

evidentiary potential, rather they allowed that photographs operate between those poles.71 But

the model of photography as both document and construction is rarely matched in social

commentary or photographic criticism, which often continues to insist on an either/or

dichotomy. To move past truth claims, a great deal of scholarship simply pivoted from a

documentary to a directorial storyline, extending rather than re-thinking the project of

essentializing by viewing all photography through the lens of construction.72 If we instead consider nineteenth-century photographs and legal precedents as a case study, we might be better equipped to accommodate a “photography as” model rather than attempting repeatedly to resurrect “photography is” claims. We may not always approve of the decisions of the courts, and the American legal system certainly has its flaws as a system of regulation, but as a method of inquiry it offers an opportunity for art historians to think through dialogues between visual production and conceptions of entitlement.

Afterimage recently noted an increase in conference panels interrogating photography’s identity crisis.73 But changes in photographic technology are not cause for panic. To imagine an identity crisis is to subscribe to a fixed and stable notion of identity which is perceived as being under threat. Just as vignetting helps us to consider attitudes surrounding an interest in selective attention, so too, court procedure can help us to focus on photographs to understand conceptions of photography. What the law offers in the case of photography, or at least offered in the past, is

the chance to acknowledge a multiplicity of practices. It has been said that a medium is always born twice, and we should accordingly appreciate the potential, as well as the transformations, accompanying photography’s many reincarnations.74 By looking at historic responses to

172 photographic developments, art historians and the courts might tread carefully as the most recent phantasmagoria of inventions passes rapidly before us.

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CHAPTER 4

Fancy Photography: Painted Backdrops and Copyright Law

Introduction

Portraits in front of artificial backdrops crowd photography albums, and remain a

regular feature of studio portraiture. Yet backdrops have been all but pushed from the frame in

photographic histories. In this chapter I argue that far from being merely incidental, or a kitschy

distraction from the documentary purpose of photographic portraiture, increasingly elaborate

poses and backdrops became an essential feature of American studio practice following the Civil

War. By making the participatory engagement of sitters and photographers explicit, painted

backdrops and contrived poses helped to qualify photography for copyright protection.

Backgrounds became an increasingly useful means of more resolutely demonstrating the act of

selection fundamental to all photographic production, and inhibited the excisions facilitated by

vignetting.

Among our most valued forms of personal possession, photographic portraits can

simultaneously be conceived of as the property of the photographer who made the image, the

property of the sitter who participated as subject, and the property of anyone who possesses a

print from the sitting. There was recently a flurry of outrage when it was noted that the terms of

agreement regulating a popular website granted the parent corporation rights to reproduce

images uploaded to the site.1 The controversy is merely the latest iteration of debates over whether the keeper of an image holds rights to a photographic likeness, or if rights are instead retained by its maker or subject. The convergence, or divergence, of photographs as intellectual and physical property is foundational in this chapter. I contend that the commonplace appropriations and excisions discussed in the preceding chapter prompted photographers to more explicitly assert control over their images. Just as the elisions of vignetting were felt to spark the imaginations of viewers, the engagement of sitters was fostered by more involved

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posing and use of props. Backdrops thus served a dual purpose. First, backdrops and poses

offered greater participatory agency to clients who increasingly perceived of studio visits as an

event as much as a product. The experiential character of photography was essential in

designating photography intellectual property, rather than simply real property for which control

changed hands after point of sale. And second, staging served as a form of corporate branding to

protect the proprietary efforts of a photographer in achieving a specific image by more resolutely

identifying photographs with a particular studio, thereby curtailing unlicensed reproduction. The

self-fashioning demanded of studio operators and their clients became integral to claims that

photography was more than merely mechanical. Like a posing stand re-touched so as to seem to

disappear [figure 4.1], backdrops and other studio contrivances offered strategic, though often

obscured, support to the social positioning of photographers and their sitters. Backdrops set the

stage for photographers and their clients to present themselves to the world.

Although there has been very little written about the use of painted backdrops in

photographic portraiture, modernist accounts of nineteenth-century photography generally

consider portraiture a realm in which individual identity was subsumed by social convention.2 A

1997 exhibition, From the Background to the Foreground: The Photo Backdrop and Cultural Expression, is rare in its critical examination of the trope.3 The authors who contributed to a printed forum on

the exhibition do not address scholarly inattention to backdrops, but the historiography

recounted in A.D. Coleman’s thoughtful essay on the “directorial mode” in photography alludes

to the extent to which twentieth-century notions of medium specificity demanded photographic

purity by advocating images that were, ostensibly, unmanipulated.4 The rhetoric of straight photography suppressed commonplace practices such as staging, retouching, cropping, and selective framing. But it is the very prevalence of these constructions and their status as studio customs that make such practices important visual evidence of nineteenth-century systems of

belief.

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The 1997 exhibition marked an important shift from reductive modernist concerns yet

the authors of the accompanying essays nonetheless situated photography as a detour, however

ubiquitously taken, from documentary motivations. Lucy Lippard begins her essay by

characterizing backdrops as a “step away from daily life.”5 Arjun Appadurai refers to backdrops as a form of “counter-realism” that “allow for the documentary claims of photography to be resisted or suspended.”6 Appadurai notes colonial photography contains “an ambivalence about its documentary authority” yet he treats the images as positivist records. In this chapter I argue that the ambivalence Appadurai identifies operated locally as well as colonially. Backdrops challenge photographic documentation of the self as well as unsettle representations of the

“other.” They do not serve as invitations to suspensions of disbelief but rather as entreaties for suspension of belief in the authority of the medium. The essayists seem unwilling to allow that the desire for, or at least acceptance of, mediated photographic images is the reality to which scholars must attend. Backdrops do not counter realism, but do challenge a particular version of it.7 The backdrop edge [figure 4.2] frequently visible in studio portraits indicates that seamless illusionism was not the objective of studio portraiture. Shannon Jackson has noted that the revelation of supporting apparatus—as in the work of Bertold Brecht or Minimalist artists—is crucial in catalyzing reflection on links between social and aesthetic concerns. She remarks of

Brecht that “debate about the supporting apparatus of society occurred in a theatre that was explicit about its interdependence upon its own supporting apparatus—its lighting systems, its backstages, its stage managers.”8 Her discussion of the importance of social props, which

support the perception of autonomy, is a productive means of considering photographic props

as well. She remarks that in certain contemporary art practices “the exposure of the aesthetic

infrastructure that supports the aesthetic object coincides with the exposure of the social

infrastructure that supports human publics.”9 In photography studios, exposure of the edges of

painted backdrops likewise foregrounds the act of staging and, on closer reflection, draws

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attention to the margins of photographic portraiture, which can offer a valuable glimpse into the

cultural and legal structures that undergird compositional developments.

A self-portrait by Cindy Sherman [figure 4.3] calls attention to the extent to which studio

portraiture is performative practice and serves as a reminder of the role of backdrops in staging

the subject. While Sherman and other contemporary artists thematize the performativity of

photographic portraiture, as noted in the first and in the previous chapter, nineteenth-century

patrons and operators also regularly deployed techniques to subvert or supplement the

mechanistic capacities of the camera. Painted backdrops both frame and displace the space of

the studio.

Backdrop background

Increased inclusion of painted backdrops has been naturalized in photographic histories,

their appearance treated as an obvious evolutionary step in the development of studio

portraiture. In The Daguerreotype in America Beaumont Newhall mentions backdrops only

parenthetically, as if to explain their absence in his account, in a chapter on the profusion of

photography studios on Broadway: “(Elaborate painted backdrops did not come into general use

until the time of the Civil War.).”10 Indeed the history of backdrops has been treated as parenthetical to the proper history of photographic portraiture despite the fact that for much of its history portraiture was dependent on the backdrop device. There has been no work on why backdrops came to prominence in the United States in the mid-nineteenth century, nor discussion of what sorts of purposes they served for sitters, viewers, or photographers. This chapter argues that the prevalence of painted backgrounds can be understood in light of the development of American copyright law which, following the Civil War, increasingly demanded

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intellectual property demonstrate its service to the community and overtly mark its authorship in

order to qualify for federal protection.

In the earliest years of photography, backdrops were used primarily to reflect light into

studios illuminated only by skylights and windows. Early photography journals insisted that

backdrops should serve only to emphasize the features of the sitter. An 1859 dictionary

described their purpose as: “giving the proper tone to the surface of the plate behind the

picture.”11 Writers shared instructions for creating backgrounds with subtle changes in tone that would enhance rather than distract from the photographic subject. An 1857 manual insisted:

“Consult good taste and you will discover the background is only secondary to the figure—that its purpose is to better display the figure.”12 Referred to as backgrounds in the nineteenth century, backdrops were meant to stay in the background, as a blank slate against which the picture—the portrait—was thrown into relief.

In the 1860s backdrops became more elaborate, integrating scenic elements. Compare, for example, a daguerreotype portrait of Harriet Beecher Stowe [figure 4.4] made in the 1850s, which is enlivened only slightly by a plant and table covering in the foreground, with a carte-de- visite portrait of her brother, Henry Ward Beecher [figure 4.5], from the 1860s, which includes hints of a landscape beyond a balustrade. Frequently pastoral or occupational, backdrops were also often aspirational, suggesting an environment sitters could only hope to enjoy in their daily lives [figure 4.6]. An 1857 manual encouraged photographers to look to paintings for inspiration when adding scenic vistas into finished portraits by hand: “The backgrounds of some of our own artists, such as Sully’s, Waugh’s Inman’s, and many others, although in oil, will afford fine models for the student in watercolour.”13 But an 1861 editorial mocked photographers who

relied on background effects and studio props:

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It is somewhat amusing to study the paraphernalia with which some photographers...ornament their Cartes de Visite. First there is the inevitable column and pedestal. That is well enough. It is very proper sometimes to represent a person thoughtfully contemplating the ruins of ...Nineveh....But our ambitious photographer is not satisfied with that alone. There is room in the background to introduce a view on the Hudson, and hence it appears. But he is not yet content. A curtain with a long cord and tassels can be put in by the side of the column aforesaid...Should there by possibility be any space left, our ingenious photo [grapher] is not without resources to fill it. A chair or table and some panel-work can be perhaps introduced spontaneously.14

Many scholars have noted that average patrons assumed the posture of eminence and

respectability embodied by illustrious Americans in popular images.15 Studio clients stood before

representations of status such as grand architectural structures or a synecdochic stand-in such as

a fluted column or ornate chair. Although it is easy to find exceptions to any generalization

about the incredible range of card portraits, for the most part backdrops in this era remained in

the background. There was little interaction between the depicted scene and the attitude, pose,

or dress of the sitter. Gestures were those of the space of the studio, rather than the space of the

backdrop.

Photography manuals and journals only gradually accepted the incursion of accessories,

worrying that disparate props impinged on photographic craftsmanship. Instructions in an 1870

issue of Anthony’s Photographic Bulletin recommended a plain backdrop finding that “by a little

good judgment and management, it is made suitable for every kind of complexion.”16 The key to successful compositions was felt to depend on management of, rather than reliance on, studio equipment. Only a few months later, Anthony’s regular “Suggestions for Posing” feature, which previously included vignette wood-engravings of figures on an undifferentiated page or before cursory suggestions of a natural setting, began depicting characters in front of scenic backgrounds. As backdrops increasingly became perceived as integral to studio compositions, photographic journals reiterated that disciplined use of studio effects was crucial:

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The importance of this question—how to arrange the light and shade so as to bring out the qualities which need to be insisted on, and disguise those which require what may be called management—Is one which, considerable as it is in relation to every sitter who comes before that relentless and uncompromising machine, is especially so in the case of ladies and children. The ordinary effect in a photographic studio is very unbecoming to both.17

A successful likeness demanded management both of equipment and of sitters. In a short section titled, “Note It!” Western Photographic News encapsulated the admonitions frequently voiced elsewhere: “We believe in accessories, but would have the photographer use them with judgment, taste, and with some little knowledge of art rules.”18 However much posing and choice of accessories were felt to bolster the individuality of a sitter’s self-presentation, they also made explicit the role of a photographer in choreographing a portrait.

With the introduction of the cabinet card format, photographs increasingly suggest a relationship between the subject and the represented space of the background, a transition from passive accessories to active pictorial agents.19 By the 1870s studio production was increasingly consistent across widespread geographic distances. Although New York remained a bustling photographic center, it was simply one hub in a growing network of photographic discourse in the United States. The Philadelphia Photographer joined the ranks of prominent New York photographic voices in 1864, offering another forum for photographers to share their ideas and concerns. In 1880 the journal’s editors began publishing replies to a subscriber questionnaire on the use of backdrops. The reply of one photographer encapsulates the opinion of many: “Fancy backgrounds and printing are good to make up a variety, and to use for a picture, but for a likeness of a person, which they wish to keep as such, it will be appreciated better in five years, if the fancy work and ornamental part is mostly left out; for too much gets to be tired and stale. It detracts from the face, which is to be the one object sought for.”20 We recognize in this quotation a familiar, though typically modernist, disdain for kitsch or excessive details that might soon appear dated. But it also demonstrates the recognition of a distinction between representation

180 and likeness. In both cases the image is an approximation of something else, whether a picture or a face. Role playing was understood as such, it was not a naïve pretense of social elevation but a participatory fantasy.

Portraits made using elaborate painted backdrops were, like vignette likenesses, categorized as “fancy” as therefore marketed as a slightly more expensive choice. In the case of portraits with backdrops, the category would also have born other associations, with “fancy dress” a marker of social status, “fancy goods” which crowded shop shelves and adorned parlors, and “fancy” behavior, a synonym for loose reputations. Like “fancy pictures” which incorporated imaginative background spaces, and traditions of portraiture more generally, photographic portraiture was often idealized. Theatre was at the crux of this tangle of “fancy” associations, as it incorporated staged inclusion of class markers, but was beginning to shed its illicit connotations and began to thrive as an increasingly acceptable diversion. The move of theatres uptown to the Union Square area, and the trail of photographers who followed, marked the geographic and ideological distance from the sordid connotations of the past. Labeling photography “fancy” inserted it into traditions of both high art and commerce as photographers sought to artistic and market investments.

In an article on the popularity of fancy portraits, a newspaper columnist notes sitters clamored for photographic manipulations: “there is almost a mania just now among a certain class for fancy photographs…They want their hair parted, a necktie put on, the style of the coat changed, and really expect it can all be done by the retoucher.”21 Sitters were eager for the hand of an artist to control their portrait, to show them to best advantage, to improve on, or at least modify the capacities of the camera. Broadway photographers were happy to capitalize on the vanities of their sitters and promoted their work as a service as much as a product.

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The coordinator of From the Background to the Foreground noted the conflation of

commercial and aesthetic engagements suggesting “perhaps the human desire to be

photographed amidst painted scenes, props, or constructed environments emerges less out of

photography’s technological evolution and more out of the theatrical, dioramic, panoramic and

pedestrian-mall experiences…”22 I take this insight as an important point for my study, but its

author juxtaposes technological developments against theatricality, while my research

demonstrates their mutual investment. The experiential process of photographic portraiture was

in many ways as important as the resulting product.

“The credit, or the blame”:23 Lafayette Seavey and the backdrop of theatricality

Insistence on the separation, or even more drastically opposition, between technology

and theatricality is undermined just sentences later in the From the Background to the Foreground

publication when a significant link between the two is noted. Quoting from Robert Taft’s 1964

reference to several nineteenth-century articles on backdrops, James B. Wyman, states “to [L.W.]

Seavey, in large measure, must go the credit, or the blame, for the introduction of the painted

background. He rose to fame during the seventies, making a specialty of manufacturing

accessories for the photographic gallery.”24 Although several contemporary accounts of Seavey’s reputation in photographic circles are noted, the author seems not to have recognized Seavey’s deep ties to the theatrical community. In fact, Lafayette Seavey was as well-known as a theatre designer as he was a supplier of photographic accessories, though none of the literature in either field references the other. Reference to Seavey’s culpability in popularizing painted backdrops reveals a bias against theatricality that helps to explain the avoidance of scholarly engagement with interrelated theatrical and photographic strategies.

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Judicious use of backdrops was increasingly recognized as crucial to a photographer’s

ability to position their practice as conceptual rather than merely manual. An 1880 article

advocated purchasing painted backdrops from a supplier such as Seavey: “Now, with the present

styles of full-length portraiture, the backgrounds and accessories form a very important part of

our work, becoming, as they do, a part and parcel of every picture we deliver to our patrons….In

conclusion, then, if we would style ourselves photographic artists, let us employ the artist to make

our backgrounds.”25 Even as photographers came to rely on backdrops as a mark of their artistry, they distanced themselves from their production, arguing their role was in management of studio elements rather than in manual labor.

Lafayette Seavey cannot be credited with the earliest introduction of painted backdrops in America, but as their popularity increased in the years following the Civil War his name and reputation were increasingly referenced in photographic literature. Wyman quotes, loosely, some of the laudatory references to Seavey which had been published in The Philadelphia Photographer:

To L.W. Seavey undoubtedly belongs the honor of successfully introducing and making the scenic background an indispensable accompaniment to any well- equipped gallery. His grounds combine the color and touch that make him prominently without rival. To him also belongs the honor of making it possible to introduce into the photograph accessories of every description necessary to complete a composition of almost any character, by actually manufacturing the reality of a light and durable material, which admits of easy and safe transportation and long use without injury. His is familiar to all; his reputation is not alone national, but world-wide.26

The quote not only underscores Seavey’s stature, but reveals the extent to which practitioners relied on his products. However exaggerated the author might be in claiming Seavey’s wares

“necessary to complete a composition,” backdrops and other studio accessories were increasingly integral to studio practice. Seavey himself chastised, “If you, reader, have never used anything but a plain background, don’t ever tell anybody of it…What would you think of a

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professed artist who painted landscapes with flat skies, same strength at the top as near the

horizon, and no clouds?”27

Mention of the durability of Seavey’s materials during transport hints at the connection between Seavey’s photographic work and his theatre designs. There is no mention of Seavey’s theatrical career in the many photographic articles he authored or those in which he was featured, but a theatre design reference text identifies him as a “scene painter whose well recorded efforts contributed notable effects to productions during the last three decades of the nineteenth century” for Augustin Daly’s theatres in New York, the National Theatre in

Cincinnati, the Park Theatre in Boston, and other New York establishments.28 He collaborated with well-known scenic designers such as Richard Marston and James Roberts, who made and rented models of his stage sets as guides for touring productions. It is not known whether

Seavey turned to production of photographic supplies as a supplement to his theatre income, as had James Roberts, or whether his theatre designs were a natural outgrowth of his photographic work.29 Theatre sources note that Seavey was active starting around 1869 but advertisements in photographic literature claimed his photography supply business was founded in 1865. An 1880 ad for studio supplies written as a missive from Seavey “to all active, earnest, progressive photographers” declared “I am devoting, more closely than ever, my time and energies to the production of Backgrounds and Accessories.”30 Nonetheless he remained active as a theatre

designer up until his death. In fact, his designs were used for a tour that lasted until 1911.

Interest in his photographic production remained similarly vigorous. Division of his

photographic holdings by a New York and a Boston firm at a “spirited” auction of his estate in

1903 testifies to continued demand for his products. 31 Despite the fact that studio and stage are

rarely considered in relation to one another in modern critical literature on the nineteenth

century, Seavey’s ties to photographic and theatre communities are evidence of their

interrelationship.

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Analysis of discourse surrounding Seavey’s work, and painted backdrops in general,

demands that any account of nineteenth-century studio practice acknowledges the relationship

between portraiture and popular entertainment. Portraits were, to be sure, commodities, but the

ubiquitous use of painted backdrops demonstrates that nineteenth-century sitters acknowledged,

at times even embraced, the performative character of portrait photography.32 As Lori Pauli notes in a study on photographic staging, “It seems likely that in the earliest years of photography, viewers would have been relatively untroubled by this staginess. In fact, all early photographs were arranged by the photographer…”33 Although integration of painted backdrops would seem the manifestation of an impulse quite contradictory to that which motivated vignetting, as one is additive while the other resolutely subtractive, the popularity of both “fancy” practices reveals that superficial likeness was not the primary, or exclusive, ambition of studio portraiture.

Integration of painted backdrops, and other technical intrusions, establishes that photographic performativity is not merely the product of post-structuralist hindsight.34

Nineteenth-century patrons delighted in photographic manipulations, which were not imagined

to be in contradistinction to record-keeping motivations. Neither nineteenth-century

photographic subjects, nor photographic viewers were naively unaware of the staged character of

self-representation. Indeed, devotion to backdrops and accessories suggests a greater

acknowledgement of mediation than today’s snapshot culture readily admits. Present-day

paranoia about digital manipulation reveals a deeper attachment to the rhetoric of indexicality

than that of nineteenth-century patrons who were eager for painted backdrops that referenced

imaginary spaces, props that aped transformative social status, vignette techniques that sheared

away potential visual information, and captions or other supplementary texts to temper the

insufficiency of mere physical representation. Although we may look back at studio images as

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utterly conventional over-determined instruments of homogenization, it is important to

recuperate the agency imagined by sitters as they engaged in the collaborative act of portraiture.

It is unfortunate, if not surprising, that despite the geographical proximity of New York

theatres and photography studios, little work has been done to chart their affinities for the

benefit of both photographic and performance studies. By 1866 the carte-de-visite was

succeeded by the larger cabinet card format photograph just as, after the end of the war, actors

replaced politicians as the most popular photographic subjects.35 The increased use of theatrical

strategies parallels the shift in attention from statesmen to stars.

Management of light and shade was as crucial to theatrical spectacles in the postbellum

period as it was to photographic studios. Seavey characterized the backdrops then in vogue as

“elaborate and realistic” but cautioned that lighting had to be masterfully controlled to enable

them to register as such.36 In the same period theatrical settings became increasingly illusionistic,

with an attention to historical detail enabled by greater control over lighting.37 An 1879 New York

Times article on upcoming social festivities commented on the importance of calcium lights in illuminating a vast mythological design by Lafayette Seavey that would form the backdrop of a ball at Gilmore’s Garden. The curtain, 36 feet high by 128 feet long, depicted silver and gold dolphins from whose open jaws a procession of two thousand costumed participants would issue and within which “tableaux of extraordinary magnitude” would be staged.38 Seavey’s concept was characterized as “a very happy hit of the imagination” and the writer maintained that “the impression made upon the spectator on entering will be something like that of being transmuted from the world of the commonplace to a new world of color and music, of strange forms and stranger costumes.”39 The article goes on to describe a 46 foot wide by 36 foot high

scenic painting by Seavey of Federal Hall which would be used for another ball, the Martha

Washington Reception, to stage a tableau of the inauguration of George Washington. The

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“facsimile” was managed so that “where the old balcony was the canvas will be cut away, and a

real balcony erected for the reception of ladies and gentlemen taking part in the tableau.”40 The

railing of the balcony where Washington took his oath had been preserved and would “renew its

ancient glory in a mimetic presentation of the scene that rendered it historic.”41 Wooden horses would be lit to “multiply and deepen the shadows of these until they seem like real things.”42

These instances of intermingling the real with the staged for the purpose of entertainment are

the cultural background against which photographic backdrop practices must be thrown into

relief.

Descriptions of the spectacles in which Seavey’s work was featured force realization that,

for nineteenth-century audiences, the real and the enacted were mutually informed. Seavey’s

painted backdrops, in grand balls as in photography studios, set the stage for participants to

delight in the fluidity of self -presentation. Whereas in the early years of photography the

capacity for dissimulation was a cause of concern, in the years following the Civil War

changeability was often the source of pride, or at least frisson. Christopher Kent, one of the few

scholars to identify historic links between theatrical and photographic spectacle argues, following

the scholarship of Jonathan Crary, that “the privileged place of photography in the history of

visual realism should be challenged.”43 Kent takes up the challenge by noting Daguerre’s early career as a scene painter and his importance as a diorama designer in order, remarking on the extent to which spectacular productions catered to and controlled engaged observers rather than merely accommodate passive consumption. He argues photography was ultimately displaced by theatrical spectacle but it is worth considering photographic backdrops as similar form of catalyst and control for active viewership. In his discussion of panoramas Kent is careful to note their tie to theatrical melodramas in which scene changes propelled the plot: “As much as the visual splendor of each tableau, the test of a transformation of a scene was the management of the changes themselves. Instead of being completely excluded by a lowered curtain, the audience

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was drawn into a tantalizingly controlled view of the changes…”44 It follows then that

management, pivotal to the success of theatrical experience, would similarly structure

photographic experience. Operators were able to assume the role of artists only to the degree to

which they were able to control the productions staged in their studio.

Seavey was active in the photographic community, serving as secretary of the

New York chapter of the Photographers Association of America. In an 1880 speech at

the National Photographic Association Convention in Chicago he assumed the role of

an artist among fellow artists: “A trained eye, with cultivated taste, enables the

photographer to see more clearly the possibilities, and he seizes upon and elaborates

many thoughts but partly expressed in the background, thus continuing the process of

invention after the painter has finished his labors.”45 After establishing portraiture as a collaboration between photographers and suppliers, Seavey preaches, “In reference to your manner of using backgrounds and accessories, I would urge consistency. The practice of making poses with an inappropriate background, presuming on the ignorance or want of taste of your patrons, is dangerous. Pray do not use landscapes with base- boards, carpets, and chairs; or interiors with grass mats and rustic fences. Be reasonable.”46 Seavey’s plea marks an increasingly contingent relationship between

backdrops and the pose of the sitter.

Contributors to photographic journals discussed how best to convince their clients to

embrace the extensive management needed to achieve an accurate, much less flattering,

photographic portrait. One photographer observed:

We are sometimes asked why the portraits of actresses are generally so much better than those of sober citizens…the reason is, they bring with them to the studio a collection of toilet paraphernalia (veils, flowers, curls, &c.), by means of which we may arrange and decorate them at pleasure, throwing up any points of

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beauty and hiding unwelcome blemishes. Thus, instead of being able to busy ourselves with the artistic and technical branch of our duties, we are often compelled to devote the little time at our disposal to combating the crotchets of our models.47

This issue of control became paramount in American intellectual property debates of the

1870s and 1880s. References to management were crucial not only for aesthetic control

or artistic legitimization, but important markers for legal considerations. To situate

themselves as authors, and their photographs as written texts for copyright protection, it

was necessary that photographers assert their agency in the completion of the

photograph, but also that the photographs themselves serve as a catalyst for experience

rather than circulate as mere commodities ineligible for protection as intellectual

property

“A poseur in the grand tradition”:48 Napoleon Sarony and artistic poses

Unsurprisingly, photographers known for their portraits of theatrical celebrities were

particularly adept at the deployment of props. Seavey’s advertisements highlighted his most well-

known clients: Abraham Bogardus, J.M. Mora, and Napoleon Sarony. Mora and Sarony, in

particular, exploited celebrity cache to propel their careers, staging portrait sittings in keeping

with theatre roles for which their clients were known. A photography journal in 1879 suggested

work such as theirs was the source of the vogue for painted backdrops “embellished with the

portraits in character costumes, of the then living celebrities of the dramatic profession.”49 The

circulation of celebrity portraits facilitated acceptance of more engaged backdrop interaction

among non-celebrity clients.50 With the popularity of theatrical cabinet cards, in the 1870s, everyday studio portraiture became even more explicitly a site of theatricalization.

Sarony’s biographer refers to “his highly profitable symbiotic relationship with the

American theatre, and indeed his celebrity clientele fostered his reputation and participated in the

189 establishment of late nineteenth-century portrait conventions. A cabinet card of a small girl

[figure 4.7] by A.P. Webb of Youngstown, Ohio, for example, echoes Sarony’s portrait of

Helene Menzeli [figure 4.8] , who seems to wander a snowy path, managing to cloak herself while emphasizing the shapely legs for which she was known. Menzeli’s gesture, gaze, and pose are carefully crafted to suggest a tableau. The roughly contemporary portrait of the young girl offers none of the narrative subtlety of Sarony’s image. Dressed for winter with snow appearing to fall onto her muff, the girl stands atop what is clearly gathered cloth. The edge of the winter scene ends abruptly near the edge of the card to her right. As the seam makes clear, studio portraiture was a form of social contract between operators, subjects, and viewers in which visualization was subject to various forms of pre- and post-production management. The staging, rather than its success as illusionistic deception, was central to the pleasure of portraiture. By the time of the Menzeli portrait in the 1870s, a photographer could easily have situated a subject out of doors, in a snowstorm if so desired, to capture an image of wilderness.

The choice, then, to instead set up a scene in the studio, to craft a backdrop, and add foreground effects, was to not only insist on but delight in photographic management. Studios and their clients were invested in ritual and entertainment rather than concerned merely with commemoration.

Napoleon Sarony’s craftsmanship was especially well promoted. A columnist in Frank

Leslie’s Illustrated Newspaper shilled “It is no disparagement to Brady, nor Fredericks, nor any other of the disciples of the Sun, to say that in the art of photography, wherein the artist himself takes part, with the right feeling and true capacity, no photographer surpasses Sarony, 630

Broadway.”51 The author continued:

An ordinary photograph is just such a likeness as one’s worst enemy would take if he were the sun. There is no such liar under the sun as the sun, but by some legerdemain Sarony has got the upper hand, and is master of the situation. Why?

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Because he is an artist….He is an admirable draughtsman, and now that he has turned his attention to photography, New York realizes for the first time that it can be made an art. Sarony’s photographs are not only finely executed and good as likenesses, but they are pictures. He seizes whatever is picturesque in his subject, and turns it to the best advantage, so that very plain people are astonished to find out how many good points they possess. ‘I never knew I had such a good-looking wife until Sarony took her photograph,’ said a solid man of New York, the other day.52

But public recognition of Sarony’s elevation of photography to the status of “pictures,” that is images made rather than merely taken—though in theory protected by the courts—garnered renewed legal debate in the 1880s. The theatricality of the portrait experience became an increasingly important strategy for Sarony and other photographers to differentiate their portraits from “ordinary” mechanistic images.

Sarony’s self-presentation was as well-crafted as that of his sitters; his presence in his

Union Square studio was as much an attraction as his products. In a chapter on celebrity portraiture Barbara McCandless mentions that Sarony seems to have modeled his Broadway parlor on the nearby Barnum’s museum. Indeed his reception room included a mummy, taxidermy animals, suits of armor, art gallery, and various exotic souvenirs.53 Like the nearby ornate studio of William Merritt Chase, Sarony’s space was a showcase of artful accumulation.

An 1882 city directory described his studio in great detail:

The premises occupied are very spacious and commodious, and comprise five floors 80 x 30 feet in area, admirably arranged and fitted up tastefully and elegantly. The impression on first entering one of these spacious and lofty apartments is one of grateful surprise, many rare, beautiful, and interesting objects being arranged in it in extraordinary profusion and harmony. It would be impossible to mention a [tenth] of the many wonderful curiosities here so admirably grouped, but they include Toltec and Aztec pottery and antiquities, perhaps the finest extant, that were saved from the ruthless hands of the Spaniards under Cortez, when in 1520 he invaded the distant home of the Aztecs on the lofty and elevated plateau of Anahuac. This collection numbers some two hundred and fifty pieces and consists of idols, vases, jugs, cups, etc., alone worthy of study and contemplation for hours, readily recalling the social life and customs of that peculiar people, their sanguinary rites and religious ceremonies, and also that terrible immolation of human life for which they were

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so remarkable. One jar in this collection is valued at over two hundred dollars....54

The author goes on to mention weapons from the South Sea Islands, Eskimo fishing hooks, an

Australian war-cleaver, African water jars and Peruvian slings, and Zulu assegai, a Chinese bell, a

Buddhist idol, Etruscan vases, and an Egyptian mummy. Portraiture was mentioned as the culmination of this litany of diversions:

In addition to the above, and besides some few frames containing less pretentious cabinet portraits, the attention of the visitor is attracted by several noble works in pastel, charcoal, watercolors, and oil. The former, excellent of their kind, portray many of the leading public characters and first society personages of America. The name of Sarony is well known from Maine to California and from Canada to Texas for the unexcelled finish, beauty, and lifelike fidelity of his portraits, and his fame has likewise spread to South America, Europe, and Australia. Mr. Sarony makes a specialty of life-size portraits in oil, crayons, pastel, and the various smaller sizes in water-colors and india-ink.55

The absence of photography in the account demonstrates the extent to which Sarony attempted

to position himself as an artist. Photography studios were not merely places to buy photographs

or to have them made, but, as were other popular entertainments, spaces in which to see and be

seen. A Harper’s author mused “life on Broadway is pretty nearly every thing. It is the broadest

farce, the heaviest tragedy, and the most delicate comedy; it is tender, severe, sad, and joyous—

an available text for the satirist, the moralist, the humorist, the preacher, and the man of the

world.”56 Far from a diversion from the serious business of photographic documentation, portrait studios offered a service to their communities which went well beyond simply buying and selling likenesses.

Photographic studios should be classified as spaces of paratheatricality, part of the circuit of popular entertainments that captivated New Yorkers. Although the photography studio is not counted among the spaces of ritual drama and public display that historian Peter G. Buckley catalogues in his study of prominent urban recreations, he does list Mathew Brady’s gallery

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among the “general expansion in the visual exhibition business….”57 An 1870 writer for The

Galaxy had no trouble linking the spaces of photography and theatre when he noted, “A

photographer’s operating room is always something between a barn, a green-room, and a

laboratory.”58 As in a green-room, the photographic studio was a space for staging performance, a site for transforming, rather than fixing, identity.

The Galaxy account allowed that mechanical and chemical manipulations were important but insisted that the aesthetic control of the operator was the ultimate creative force. The author records a conversation between Sarony and a client of fifty-five who hopes to look younger in his portrait. Sarony responds that he could make him look twenty-five. They settled on forty- three. The writer explained, “art should represent objects rather as they seem than as they are…Of what value is a portrait, for example, which, although it represents exactly every line and tint of a face, does not produce on the beholder the effect which the face itself produces? It fails in attaining the highest and most essential point of faithfulness.”59 Marcus Root had said as much in his 1864 treatise, insisting a portrait is “not a mathematically exact reproduction of the features and form” but an expression of “dominant character.”60 This notion of experiential rather than visual

fidelity has been prevalent in the history of photography yet not in photographic histories. It is

worth noting, however, that the Galaxy article was published the year of an important move

towards centralizing American copyright authority into a federal rather than locally controlled

system. Studio management techniques were an increasingly necessary aspect of legal protection

as the market for celebrity portraits grew.

Sarony managed to satisfy his customer and his reputation in the Galaxy report, but

negotiations between the desires of the client and the capacities of the medium continued to be a

frequent topic in photographic literature. The expectations of clients were often the subject of

ridicule in written caricatures.61 These phonetically spelled texts forced the reader of the journal

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to voice the role of the foolish client. One column reproduced, in gasping run-on sentences, the

letter of a customer requesting photographs of Marquis Lafayette from 1824, some fifteen years

before photography was announced.62 The appeal is understandable given the frequency with which photography catalogues offered photographs of historic subjects reproduced from portraits in other media, but such articles drew photographers together into a community in which the requests of their clients became fodder for humor, as well as for self-congratulatory dissociation. The Western Photographic News ran a frequent column by “Carl Pretzel,” whose

German dialect is illegible and must be read aloud to be translated for the gist of the story, which is usually a sort of comic account of a Pretzel’s musings about the medium of photography and studio practices. In one installment Pretzel realizes the business of photography was more difficult than he had initially assumed:

A x-eyed friend of mine ish in der pishness, and I called on his house, one day- times, to got ackwainded mit der vay dot de vas dook pigtures. I oney shtop so long vat I could saw how it vas done, und so gwick I got me introduced to der chemicalities, I yoost shtart me right away gwick der pishness in. I found me pooty gwiick out, dot der “bath,” vas for der pigtures, not for mineself, und dot afder I had dook me one shwim in dot bath, I found me out, I dhen vas not cut out for a pigture dooker I vas learn…63

Such coerced ventriloquism operates as subtle social control indoctrinated in readers the

complexities of the trade, encouraging them to stress rather than suppress the difficulties of their

work. Even as a subscriber might be baffled by Pretzel’s pronunciation or laugh at a young boy’s

hopes for a pre-photographic photograph, a reader would be made self-conscious of the demands of the medium. Forced to play the fool, the reader is encouraged to voice an opinion they might hold or have considered, but are made to understand it as ignorant or simple-minded.

Through Pretzel’s experience, readers were made to appreciate the many levels of staging controlled by a photographer. Those who thought the photography business was as simple as mere chemical manipulation were meant to recognize their misconception through Pretzel’s

194 buffoonish attempt to enter the business. If Carl Pretzel was set up as a naïve viewer, the moral of the anecdotes was to encourage knowing viewership, in which the nod to illusionism of painted backdrops would be gratifying rather than bewildering. The premise of narration, of differentiation between what is said and how it is said, informed photographic practice. Rather than a corruption or disruption of photography’s transcriptive potential, the role of creative action in staging a scene should contribute to appreciation of nineteenth-century photography rather than undermine it. Client caricatures encourage one to appreciate the skills of the operator, not the mechanics of the instruments.

Card photographs are generally studied as products of industrialization, of subsumption of the individual to convention, yet the presence of backdrops and the related dialogue of management suggests a resistance to mechanization, an attempt to individualize and control representations, however schematically. Historians tend to reference studio photography, if at all, as evidence of social status and photographs have frequently been exploited to fix social positioning throughout the nineteenth and twentieth centuries. But studio photography has also long made explicit the artifice of such status, the staged quality of identity. These histories of the medium, the instrumental and the self-aware, must be recounted in tandem. Despite the mimetic aptitude of photography, nineteenth century patrons had little trust in its facility either because the many pre- and post-production rituals of the photography studio undermined easy acceptance of the authority of the apparatus, or increasingly, because accurate though superficial representations were not felt to adequately encapsulate the core of identity. In the postbellum period, photography’s limitations were recognized even as its potential was praised. Subscription to a notion of an unavoidably causal link between a scene and its photographic representation, which continues to hold sway in modernist medium-specific accounts of photography, would not have been understood as technically feasible or, if accomplished, would not have been relied on as a trustworthy register of photographic subjects.

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Scholars David Green and Joanna Lowry have attempted to salvage the notion of

indexicality by attending to not only the physical trace and its causal origins to which most

scholars turn, but also to Charles Peirce’s interest in the act of taking a photograph, which they

characterize as “a kind of performative gesture which points to an event in the world, as a form

of designation that draws reality into the image field.”64 Their use of J.L. Austin’s notion of performativity allows for an understanding of the social contracts involved in making and viewing a photograph. Though I find the historical baggage of the too-often misapplied term

“indexicality” so overly burdensome as to wish to discontinue its use, their work, though marshaled for a discussion of post-modern practice, is readily applicable to the use of backdrops as a gesture, “an indicator that declares that the event is taking place.”65 The idea of the index

most familiar in the nineteenth century was that of the index finger [figures 4.9-.10]. Manicules,

the icon of the hand with the pointing finger, were ubiquitous in the nineteenth century as

markers which served to draw a viewer’s attention.66 Adjacent to rather than coincident with its subject, an index finger or a book index gesture towards information rather than conflating a subject and its re-presentation. The commonplace usage of the index in the nineteenth century is a reminder that the power of editors, advertisers, and authors was in directing attention through a performative action, not necessarily supplying a transcription. It was in performative action rather than transcription that photography was granted eligibility as intellectual property.

Portrait photographs announce themselves as artifice. Their staging is made overt by ritualized poses and by backdrops which functioned in photography studios, as in theatres, as a marker of production and an invitation for viewer participation. As deictic designations of a transaction rather than seamless or illusory re-presentations of a visible reality, on the cusp between standardized commodities and individualized objects, studio portraits allow us to attend to recognized rituals of subject, operator, and viewer performativity in late nineteenth-century

196 photographic practice. Painted backdrops are a background against which we can study the attitudes of nineteenth-century photographers, their subjects, and their audiences.

Living Pictures

Theatricality should be understood in the larger frame of the commercial exigencies of the era, not an end in itself but crucial in a larger cultural shift in definitions of intellectual property in the late nineteenth century. Emphasis on the studio experience, on photography as a service rather than simply a product, was not simply a commercial strategy to attract clients, or a rhetorical flourish for aesthetic legitimization, but an important means in legally staking claim to photographs as made rather than taken. In meticulously staging his studio and portraits, Sarony simultaneously staged himself in the position of author. The images in Sarony’s Living Pictures

(1894-95), a series he circulated later in the century, typically reference their source material, crediting “After Bouguereau” [figure 4.11] for example, to situate the photographer in a prestigious artistic lineage. But Sarony also included a stern warning, “The following pictures are copyrighted in the United States and in Europe, any unauthorized reproduction of same is positively prohibited.”67 Sarony’s recognition of the importance of property claims is apparent within the magazine’s pages as well. The heading “After Sarony” [figure 4.12] on many of the images was not mere hubris, but an overt declaration of authorship. Some of the images are photographic reproductions of paintings, and a gallery is credited at lower left in a printed inscription. But the majority of the images are photographic reproductions of paintings which were re-staged with live models for the publication. With their extensive retouching, many of the images included are far from what might today be recognized as “photographed from life,” as indicated at the lower left of the images, yet when paired with the reference to authorship, the images are declared to be made as well as taken, both from life and from the mind of Sarony himself. The increased attention to crediting source material is crucial in understanding the shift

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in American copyright protection late in the nineteenth century. Although many pictorialist

photographers were less overt in acknowledging the commercial implications of their overt

interventions, visible manipulation was critical in establishing protection over photographs,

which might otherwise be deemed the work of a camera rather than an intellectual pursuit.

Manipulation was not only a strategy to aesthetically elevate the medium, but had significant

legal, and therefore financial, ramifications. Sarony’s elaborate stagings and explicit registration

of authorship reflect an important shift in intellectual property law in the years following the

1865 amendment to include photography as a protected classification.

Popular reports commonly referred to Sarony’s artistry. An article in the New York Times enthused:

The judicious use of shade, the artistic pose, the careful attention to detail, the skillful use of accessories—such as books, curtains, and picture—in all these essentials Mr. Sarony is without a competitor….He is an artist himself—some of his own crayon sketches and water-colors in his gallery are deserving of very close attention—and hence he brings to the exercise of the photographic art a master-touch which those who ordinarily practice it never dream of.68

Sarony supported this artistic vision by distancing himself from the manual labor of the studio.

“If I make a position,” he said, “my long-time assistant…is able to catch my ideas.”69 Although

many of his most well-known portraits were of actors, Sarony insisted on choreographing their

photographic image. Thomas Nast remarked “With that class of persons who wished to be

allowed to pose themselves he would have nothing to do. He knew his own profession, and

insisted upon having absolute liberty to do his work as he thought best.”70 Historians Heinz and

Bridget Henisch refer to Sarony as “a poseur in the grand tradition,” yet it is his unrelenting

visibility, his insistence on posing his sitters and positioning himself, without doubt maintained

the commercial viability of his studios, and guaranteed his legal status as an author of the

portraits produced in his studio.71

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Recognizing the importance of his brand, Sarony was unflagging in his self-promotion.

In an advertisement for photographic studies, Sarony included himself twice in the list of thirty

pictured subjects, a group otherwise populated by stage actors and actresses.72 More than ten

Sarony portraits were available in card form; each featured the photographer in a bravura pose donning a dramatic outfit. A caricature of Sarony, published by his studio [figure 4.13], shows him in one of his signature costumes posed before a painted backdrop, leaning insouciantly on the tasseled arm of a sofa piled with other props. Sarony’s investment in his own celebrity persona was not dissimilar from those of many of his contemporaries, who carefully crafted their artistic presence in a struggle to balance credibility and commercialism.73 Yet Sarony’s

flamboyant self-presentation should be recognized not only as an effort at artistic legitimacy, but

also crucial in his efforts to protect his portraits from infringement by photographers and artists

in other media.

Sarony was familiar with copyright regulations from his time as a lithographer. After working with Nathaniel Currier, Sarony founded a lithography firm with Henry B. Major in the mid-

1840s. Joseph Knapp joined the firm in 1857.74 Prints produced by Sarony, Major, and Knapp were among the most iconic images of New York in the period and consistently included copyright registration. He is said to have learned the photographic trade from his brother Oliver, who ran a successful firm in Scarborough, a British coastal holiday retreat. Following the 1865 amendment to protect photography as a legal classification for copyright purposes, images produced by Sarony’s studio once he returned to the United States in 1866 regularly included copyright registration [see figure 4.14]. As had Mathew Brady, Sarony also frequently signed his name within the image itself [see figure 4.15], to even more visibly stake claim to an image.

Originally located at 630 Broadway, he relocated to Union Square in 1871, within proximity to several Broadway theatres. Building on his earlier career as a printmaker and publisher, Sarony remained invested in both creating and meeting demand for widely circulating imagery.

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The success of the studio was not only in crafting successful portraits, but in marketing their products to other studios and photography dealers. In 1868 he patented an improvement on the patent granted to his brother in 1866 for a photographic posing apparatus, which he advertised by circulating uncut cartes-de-visite of sitters in various poses [see, for example, figure 4.16].75

An advertisement for the “posing machine” referenced its dual utility to both photographer and client: “while it gives the photographer more power, it gives to the sitter greater ease and consequently the pictures are more pleasing and graceful.”76 Yet Sarony began an advertisement

for albumenized papers with the phrase “CAUTION TO PHOTOGRAPHERS,” asserting that

he “will have every sheet stamped with name and address to counterfeit which will be felony.”77

His attention to proprietary concerns was entwined with his insistent self-promotion.

Sarony began incorporating more elaborate elements into his fancy photographs in the

1870s. Theater historians often use Sarony’s staging of actors as illustrations of their roles, but

Sarony was also staging himself in the position of author to strengthen protection of his intellectual property. Compare an 1866 carte-de-visite of Cyrus Field by Charles DeForest

Fredricks [figure 4.17] with a Sarony cabinet card of John Newton [figure 4.18]. Field, an important figure in efforts to lay the transatlantic telegraph cable, is shown with some cable, boats, and a globe to reference his task—the impotence of the portrait inadvertently referencing the difficulty of his project. Newton, famed for blowing up New York’s Hell Gate Rock in 1885, stands before a backdrop of an explosion, a detonator at hand—undoubtedly a more effective portrait of power than Cyrus Field with his limp prop. In the years between the portraits, backdrops became so distinctive, the staged scenes so much the fancy of a particular photographer, that they could not easily be copied without blowing an infringing photographer’s cover. Fancy photography became an intellectual property safeguard.

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Just as Newton cleared New York harbor for navigation by removing obstacles with one extravagant gesture, by dramatizing his subjects, Sarony attempted to create a path by which he might plot a course through the commercial currents of New York. In both cases government intervention engineered the route through which financial interests could more easily be steered.

Fancy was not only a means of asserting aesthetic control, but in its highly crafted individualized portraits, served also as a commercial strategy to curb duplication. The backdrop was no longer a background, but an environment with which subjects engaged. It would have been difficult to extract Newton from his setting, as vignette portraits were so easily excised from staid poses and plain backgrounds. Such amplified gestures of individuality were manifestations of both sitters and photographers attempting to make a space for themselves in an increasingly mechanized society. Backdrops, and the gestural strategems which accompanied them, served as a de-facto form of copyright protection.

Few backdrops used by Sarony were as individualized as that created for John Newton.

Though actors were sometimes positioned before backdrops reflective of particular theatre roles, usually his sitters were posed before one of a small selection of backdrops painted to appear as ornate interiors. Collectors have come to rely on backdrop consistency as a means of identifying portraits and it is not unreasonable to suppose clients at the time would also have recognized the distinctive spaces suggested by Sarony’s backdrop selection. The settings were vague enough to work in variable scenarios, yet for the most part idiosyncratic enough to register as his. A backdrop painted with a window radiating light into a refined room, for example, was used for any number of sitters [figures 4.19-.23] Sarony’s backdrops were as iconic as the stamp of his

signature, emblazoned on the mount of each card image.

An advertisement for Lafayette Seavey’s wares referenced backgrounds according to the

photographer who had “introduced” them into public use, so mail-order service allowed small

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firms to utilize backdrops modeled on those commissioned by larger studios. But though they

might be categorized as “a new forest background” or “a rich interior, with elaborate tapestry on

walls,” backdrops were hand-painted and remained the idiosyncratic property of particular

studios.78 Elizabeth Siegel’s book on card albums notes “mass-produced props and

backgrounds were reused in portrait after portrait, with little regard for the sitter’s character or

social standing.”79 While it is undoubtedly true that backdrops rarely referenced a subject’s daily life directly, they did signal the studio’s identity. However conventional we now find card portraits, their standardization allowed photographers to profit while continuing to offer sitters unique representations. Their highly staged character is the manifestation of a struggle among photographers to individualize the sittings of clients off the street, while guarding against unauthorized reproduction of the celebrity images which were a great source of income for larger studios and distributors.

Legal standing

The 1860s culture of reprinting was in many ways an issue of local versus federal

authority. Although the 1865 decision to declare photography a category eligible for copyright

protection, it remained unclear under what conditions and to what extent a locally registered

piece could be more widely protected. As was shown in the previous chapter, this liminal

condition fostered a culture of reprinting. But despite the fact that the copyright system was

ostensibly national, because registration was entered by district, claims proved difficult to

enforce. In the 1860s, litigation was simply not worth the associated costs. After a southern firm

registered their portrait of Robert E. Lee in the Confederate states, Charles DeForest Fredricks

re-shot it, blurring the copyright registration beneath Lee’s feet [figure 4.24] , and sold it along

Broadway with his studio’s imprint. The blur, which calls attention to the effaced registration

even as it conceals the original authors, aggressively denied that Minnis & Cowell, the

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photographers who shot the portrait, retained rights to the image once it passed into new

territory. Fredricks’s annexation makes clear that photographic portraits might, like other forms

of real property, be appropriated as their possessor wished. Unmoored from the studio in which

it was made, the image was reproduced in the Illustrated London News in June 1864, where Lee was

mistakenly dubbed General Robert Edmund Lee, and was subsequently reproduced the

following month in Harper’s Weekly. Harper’s mentioned that the photograph on which their print was based “bears the stamp of its legal registration in 1863, ‘in the District Court of the

Confederate States for the Eastern District of Virginia,’” thereby drawing attention to the

Confederacy’s brazen claim to legitimacy.80 Fredricks’s seizure similarly called into question the

scope of federal regulatory authority over individual agency.

Who is the author of Lee’s portrait? The photographers who set the scene and made initial

the portrait, or the photographers who subsequently reprinted it? The visibly ineffective

copyright registration beneath Lee’s feet manifests a more general dispute between local and

federal power, between public access and private ownership. Copyright scholar Meredith McGill

documented that in the 1860s “even legitimate property claims in printed texts were often

unenforceable…the ability of the federal courts systematically to verify property claims against

printed evidence was not in place until the act of 1870, which began to rationalize the system by

shifting authority for copyright record keeping to the librarian of Congress, funding annual

reports on copyright deposits, and providing for deposit copies to be delivered free of charge

through the mails.”81 In a period when photographs circulated within a relatively restricted

sphere of family and friends, there was little need for a photographer to aggressively protect their

portraits. But the liminal status which had proved productive for the burgeoning field in the

1860s became a hindrance as studios attempted to expand their reach beyond local markets.

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When the 1870 copyright act consolidated authority into a central administration at the

Library of Congress, photographers were more easily able to stake claims to larger swaths of territory than the system of district registration had enabled, yet protection remained difficult to enforce. As the scope of the photographic market expanded it became clear that copyright registration did not offer sufficient protection, even when prominently noted within the photograph itself. Sarony paid celebrities generously for their sittings, and sold their portraits not only in his studio, but also more widely through mail-order and street vendors. His business plan was threatened by the threat of spurious copying. An 1874 article on Sarony’s artistry protested that his work was being copied without repercussions: “original achievements are always to be preferred to imitations. The misappropriation of a signature, except when affixed to a check, is not punishable by law, and no more righteous provision is made against the theft of ideas.

Happily, where genuine creative power and talent exist, the public takes upon itself to draw the distinction between inventor and copyist. There is particularly good reason for doing so in the case of Mr. Sarony.”82 In distinguishing between an invention and its imitation, the article makes

clear that reproduction was not sufficiently policed by the courts and insisted it was the

responsibility of consumers to differentiate between artistic photographers and those who

appropriated their ideas. Photographers were thus obliged to craft visually distinctive portraits.

In the highly publicized Henry Ward Beecher adultery trial, it was found that his paramour had many Sarony portraits of Beecher in her possession, but the judge remarked that ownership of a portrait—especially by a photographer as well-known as Sarony—no longer signaled a connection between owner and sitter.83 It became the responsibility of authors to compensate for the growing rift between private and public property concerns. In his text on literary property rights Martin Buinicki argues that authors addressed the problems of America’s weak copyright regulation explicitly and implicitly in their texts. Harriet Beecher Stowe, for example,

“sought to maintain her right to control her possessions without appearing to endorse a logic of

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ownership that undermined her abolitionist beliefs. Stowe’s works reflect these challenges

through their representation of sentimental possession, an emotional obligation to purchase

objects (like books) of high quality and to protect and preserve them…she renders business

personal…a re-casting of the discourse of literary property rights in sentimental terms.”84

Similarly, Buinicki contends, a statement included in the 1888 edition of Leaves of Grass stating

that Walt Whitman personally handled each book printed by his publisher, implied to consumers

that the purchase of a lawfully editioned copyrighted text was a means of material contact with

the author.85 These manifestations of authorial claims are useful for considering photographic output as well. The inclusion of fancy goods within a photograph that was itself a fancy good indicated that portraiture was not only a valuable sentimental keepsake, but also that consumers had an ethical responsibility to participate in legitimate exchange rather than feed the market for pirated editions. Likewise Sarony’s imprint, which took the form of an ever-enlarging printed signature, signaled a tactile connection between photographer and a portrait card owner. Ethical, commercial, and aesthetic forms were deeply interrelated.

As shown in the preceding chapters, photographic compositions can be productively viewed through the lens of larger regulatory concerns. The elaborate backdrops and poses that began to occur with increased frequency in the 1870s can be understood in relation to the thresholds of copyright protection of the period. Although the amendment to extend copyright protection to photographs had passed without question in 1865, by the 1880s the constitutionality of copyright protection for photography was called into question. Copyright criteria can help us gain clearer perspective on Sarony’s compositions. Likewise his compositional techniques can, in turn, provide insight into the conditions under which visual copyright was assessed. In 1884

Napoleon Sarony won a Supreme Court case that affirmed that photographic labor was potentially eligible for copyright protection, but the benchmarks against which the eligibility of his work was measured offer insight into several features of late nineteenth-century which have

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otherwise gone unscrutinized. Although the Sarony case is often noted as the moment when the

Supreme Court affirmed the copyright eligibility of photography, that it did so, and the careful

wording of the decision, were tied to broader copyright concerns of the era. An 1886 book on

intellectual property is somewhat misleading in its synopsis of the result of the Supreme Court

case: “allowing copyright in photographs—is constitutional, so far as its application to

photographs involving such artistic labor and skill is concerned. The grant of power is not

limited to protection of ‘books’ and ‘authors,’ in the strict and limited sense; it is broad enough

to authorize a copyright law protecting photographs which embody original intellectual

conceptions.”86 The language must be read carefully, and in relation to the cases of the time, as

notions of originality in copyright were not what we might assume them to be today, though the

notion of conception was as fraught then as it is now. A different logic of ownership, and

therefore of creativity, prevailed in the 1880s than that which had impacted early American

photographic development. The Supreme Court decision hinged on the degree to which

photographic portraiture—in particular a Sarony portrait of Oscar Wilde—was understood to be

created rather than merely captured.

Did Sarony invent Oscar Wilde?

When Oscar Wilde came to the States for a lecture tour in 1882 claiming he had “nothing to declare but his genius,” Sarony had him sit for several portraits and registered his prints of the already infamous author.87 In the court cases in which his portraits of Wilde became embroiled,

Sarony too declared ideas rather than goods as his property. He captured Wilde in a variety of

attitudes, and was undoubtedly happy to have one of them reproduced in print, with his name

prominently included [figure 4.25]. Sheet music [figure 4.26] featured a lithograph of one of the

poses on a song book cover, but Sarony was again prominently credited.88 The Straiton & Storm cigar firm [figure 4.27] was careful to change the background and a few details when they

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mimicked Sarony’s portrait [figure 4.28], but Burrow-Giles, the lithography firm that translated

one of his photographs [4.29] for the Erich Emporium [figure 4.30], did little to transform—or

credit—the image and Sarony sued. The lithography firm countered that photography was

“merely mechanical” and therefore ineligible for copyright protection.

“DID SARONY INVENT OSCAR WILDE?”89 The headline in the New York Times was

skeptical that photographers could be held responsible for the conception of their images. A

note on the case that appeared in another court decision a few years later summarized the

implications of the decision in Sarony’s favor: “Photographs are included, under certain

circumstances, among the things which may be copyrighted.”90 Consideration of the “certain circumstances” under which photographs were eligible for copyright protection is essential in understanding the development of portrait photography more generally. It is illuminating to analyze the Sarony verdict in relation to other litigation of the period, American anxieties regarding monopolies, and increased international attention to copyright. Sarony’s cases—at both the district and federal level—encapsulated the legal tumult concerning the boundaries of proprietary claims. The decisions reflected contentious debates concerning private rights and public access which were contentious on both a national and international scale.

Counsel for the defendants in Sarony’s original 1883 case in the Southern District of

New York offered two arguments: first, that extending copyright protection to photographs was unconstitutional and second, that in imprinting his images “N. Sarony” instead of his full name, Sarony failed to meet the appropriate protocols for copyright protection. Although the second point might seem minor, and the district court ultimately found in Sarony’s favor, a review of copyright protocols is crucial for understanding the status of authorship in the United States and helps to contextualize

Sarony’s extravagant portraiture.

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Central to American copyright law at the time was an insistence that intellectual property was a statutory privilege rather than natural entitlement. The creator of a published piece was not assumed to have rights to the work, but was granted a temporary monopoly only at the allowance of the American government.91 Whereas rights to unpublished works were perpetual,

in the case of published works intellectual assets were assumed to be public rather than private

property. Playwrights often refrained from publishing their works so that enduring rights would

apply, but it is difficult to conceive of what might qualify as an unpublished photograph. Limited

and temporary rights to copy works were granted to incentivize production, but curtailed public

control only to a limited degree and for a limited time. Because regulations in the 1850s favored

public rather than private property, translations and abridgements were not considered

infringements of copyright. Harriet Beecher Stowe, for example, lost suits attempting to protect

against publications of Uncle Tom’s Cabin in other languages.92 The freedom to translate her text, or condense it into various forms, was felt not only to stimulate commerce, but to ensure the most expansive social value. Antitrust sentiment allowed for the briefest possible limitations to public access.

Interpretations of the intellectual property clause in the United States Constitution (“to promote the progress of Science and useful Arts, by securing for limited Times to Authors and

Inventors the exclusive Right to their respective Writings and Discoveries”) often accentuated the word progress, protecting only those writings which were perceived as contributing to national advancement. Assessments regarding which texts promoted the progress of science and useful arts can offer valuable perspective on the form of Sarony’s compositions. In general, progress was construed as that which supported the public good, whether commercially or morally. Copyright was granted primarily those works which could claim a didactic purpose, such as maps and charts. Protection was not permitted for works deemed indecent.93 Intellectual property was understood to promote progress in a manner distinct from other forms of

208 property. Whereas sale of real property involves a transfer of rights to use, copyright holders were deemed eligible for residual rights only insofar as they were trading in intellectual property which continued to generate usefulness to society as a whole after sale. Unlike real property, intellectual property could be used by multiple parties at once, and was not exhausted through use. In reviewing court decisions for her scholarship on textual protection Meredith McGill found:

Like a machine, the copyrighted text must continue to perform its service over time, thereby justifying federal protection. It must be a means of production, not a mere object of consumption. While the value of the copyrighted text is linked to its durability, this is not the endurance of the literary masterpiece which, while traceable to a moment of inspired origination, is imagined to exist outside of time. Property in a useful text is conferred not on the basis of its singularity or universality, but on its ability to perform its work through history; it must remain useful past the point at which state protection ceases.94

It was precisely because of the purported ongoing public worth of intellectual property that residual rights to control its use and circulation were limited. Works enacted in receivership, such as maps, sheet music, plays, were the first categories protected in the United States. The durational encounter of posing for and viewing photographs similarly helped to situate the medium as a service eligible for intellectual rather than real property rights. Portraits not only took time to make, but offered ongoing visual engagement. Circulated from hand to hand, cartes-de-visite and cabinet cards offered repeated reward. Like reading books, the experiences of sitting for and seeing photographs could not be used up—unlike the depletion of ordinary commodities. Theatricality, rather than occluding photography’s imagined documentary essence, was in fact the grounds on which the medium was legitimated as a form of art in the 1870s and

1880s.

The national registration instituted in 1870 in some ways extended authorial entitlement, allowing the possibility of rights to translation, derivations, and dramatization, but made the

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thresholds for claiming such rights more strict.95 Whereas photographic reprinting flourished in

the 1860s because of loose copyright enforcement, the expanded rights of the 1870s and 1880s

necessitated a higher threshold of eligibility. Recognition of a division between an idea and its

varied potential forms of expression demanded, and rewarded, overt signs of intervention. The

use of theatricality—of pose and scenic choreography as both viable and efficacious sites of

expression—should then be understood as not only related to a clientele increasingly invested in

performative self-presentation but also as a strategic legal performance.

In the United States, republican ideology undergirded an assumption of public access to intellectual property, which could be only temporarily curtailed by designation of authorial rights, and only if the appropriate steps were taken to claim an idea. Reliance on statutory protocols served to consolidate federal authority, underscoring that rights were governmental grants rather than natural or absolute. In theory, then, once a concept was published it was by default within the public domain. Public alienation in the form of private ownership was therefore granted only for a limited time and only if the proper guidelines to assert temporary rights were strictly followed. As in patent law, staking claim to an idea was critical, not originally conceiving of it.

More recently, following the copyright act of 1976, there has been a greater and greater assumption of a creator’s natural right to their work at the point of fixation rather than publication, which has served to strengthen individual rights even as they become more difficult to enforce,96 but in the nineteenth century a copyright applicant was not necessarily the creator

of the work, merely the party of registration. Publication rather than conception was the

threshold of significance.97 In the 1860s, for example, Mathew Brady frequently registered photographs not as an author but as a proprietor, as was generally the case of book publishers in the period. The Anthony firm, which held the most photography copyrights in New York City during 1860s, similarly registered as proprietors. Photographs were on occasion registered by

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individuals claiming themselves as “author and proprietor,” as was the case with E.P. Barney,

who registered several of the photographs in the previous chapter, but generally proprietors were

more invested than authors in the protocols of registration. American copyright was conceived

of as a publisher’s privilege rather than an author’s right.

Because natural or common law property rights were neither natural nor common for work

published in the United States in the nineteenth century, rights did not adhere to an author but

could be bought and sold. Title to a studio’s copyright cache became so valuable that when

Sarony’s rival Abraham Bogardus advertised sale of his company’s holdings on the occasion of

his retirement, he referenced his copyright-secured negatives before listing the studio’s camera

and lenses: “The stock of registered negatives is very valuable, containing a large line of regular

customers, and also very many of our prominent men, Presidents, Senators, etc., and for which

orders are constantly received.”98 The Gurney photography studio, another Sarony competitor, insisted they offered a service, not merely photographic products, by insisting that their card portraits were “made from our own negatives. We do not publish the name of any subject unless we have the negative of same, and therefore are enabled to supply all orders which may be made upon us from our catalogue without delay.”99 Card versos often noted that the studio retained negatives, a practice not only related to the ability to continue to produce portrait prints, but also a form of copyright security allowing studios to position themselves as publishers. When the duration for retaining negative was noted, it is often the same as the term of copyright. Such details were crucial to the business of photographic portraiture.

Like patenting, copyright did not demand absolute originality. Just as patents could combine existing forms so, too, copyrighted works could be cobbled from familiar elements. The components of a work need not themselves be eligible for protection, but compositions combining aspects which might otherwise be in the public domain could be privately secured.

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Boundaries between found and fabricated matter were only beginning to be formulated.100 In fact, the earliest copyright protections were for material which might be deemed more factual than purely creative, such as maps and charts. In an important 1991 decision, Justice Sandra Day

O’Connor opined that the Sarony case was one of the most important early steps in considering the parameters of originality in encompassing new organization of existing information.101 That

originality might be found in appropriation and administration is crucial in understanding the

flamboyant gestures and backdrops of Sarony’s portraits.

Rights to copy were credited to management rather than origination of ideas. An 1862 New

York case, following other significant decisions of the time, found that in theatrical staging—as

in the arts more generally—absolute originality might be an impossibility given the degree to

which all forms of creation stem from precedent.102 Instead, those who marshaled the resources

to compose a work into its publishable form, and followed the required steps to register and

mark a piece were granted the privilege to reproduce it. A title page is not simply a page

announcing the title of a text, but the space for declaring legal title to a text, a domain of

entitlement. The copyright registration at the bottom of nineteenth-century photographs

similarly served as a warning against trespass. Those who sought copyright protection were

responsible for internally demonstrating their work as composed and as an ongoing public

service, as well as externally marking their statutory right to temporarily control its circulation.

Wilde card

That overt manifestation of production was necessary helps to explain the blatant artificiality of Sarony’s work. Staging a presentation by calling attention to the service of its author or publisher—as in the ostentatious title pages which often enliven texts of the later nineteenth century—was critical in enforcing one’s rights to it. It was particularly fitting that Sarony chose

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to litigate reproduction of a portrait of Oscar Wilde, a character as deeply invested in

performative presentation as Sarony. The photographer shot Wilde during the writer’s first visit

to the United States, but filed the court case defending his rights to Wilde’s portrait in a period

of renewed public interest during the lead-up to Wilde’s second visit to the United States, to

stage Vera; or, The Nihilist at the Union Square Theater, in 1883.103 Given that the New York billing was the first public performance of a play by Wilde, it is unsurprising that Sarony would have been especially keen to protect his property when he sued the Burrow-Giles lithography firm for infringement that year. The play itself became a manifestation of the importance of staging in securing commercial investment. Newspaper reports clamored to detail Wilde’s costume and scenic designs, but roundly panned the play itself, the American rights to which had been acquired by the lead actress as a showcase for her own talents. That the play closed within a week seemed to underscore Wilde’s interest in production over product just as ongoing interest in Wilde’s portrait could be understood as a demonstration of the ongoing service Sarony’s productions provided to the public.

Insistence on the profound importance of presentation was critical to the success of both men. In her study of Oscar Wilde’s first American visit in 1882—during which he sat for

Sarony—Mary Warner Blanchard contends “Wilde’s flamboyant dress, his breaking of gender codes, spoke to a nation that was beginning to explore style, not to expose social nonconformity but to create alternate identities.”104 Sarony’s portraits of Wilde capitalized on and fed

burgeoning interest in the transformative potential of stylization. For many, acquisitions of fancy

goods, such as photographic portraits, were an increasingly crucial aspect of self-presentation.

Sarony’s New York clients, many from the city’s cultural elite, would have found attention to

their clothing and to the decorative arts within their homes significant forms of social

presentation, though on a scale less elaborate than that of Sarony’s own self and studio

decoration. Whereas in the earliest years of American photography there was an insistence on

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substance, surface effect was more and more a source of frisson rather than anxiety. Although

attention to dress and décor can hardly be considered purely a preoccupation of the later

nineteenth century, the forthright excesses of the period following the depression of the 1870s

marked a notable transition towards theatricality within a widening scope of the cultural sphere.

As Alan Trachtenberg noted, late in the century “the very word ‘consumption’ came to life.

From its earlier sense of destruction (as by fire or disease), of squandering, wasting, using up, by

the 1890’s consumption had won acceptance as a term designating such goods as food and

clothing, ‘all those desirable things which directly satisfy human needs and desires.’ ”105 This

positive spin on consumption is not unrelated to the insistence that intellectual property be

available for perpetual ingestion, and certainly contributed to the popularity of both Sarony and

Wilde.

Americans tracked the artful stylization of Wilde’s American visits with as much delight as

they had in relishing Sarony’s studio exploits. A reporter for Frank Leslie’s Illustrated Newspaper

commented: “With rare good tact Mr. Wilde proved delightfully condescending, and, not daring

to teach, just enchained his audience with a quaintly implied entre nous….Oscar Wilde has scored

a most palpable hit, and he is already niched and pedestaled by Society.”106 Whether effusively or derisively, New York accounts of Wilde’s visit framed his lectures as events of engagement, and characterized the man himself as contrived as a work of art. Reports of Sarony’s portraits of

Wilde circulated in advance of their public appearance, just as had tales of Wilde’s flair. A report on Wilde’s American tour mentioned “The pictures which have preceded him are so good that one feels familiar with his personal appearance, and this will soon become widely known by means of Mr. Sarony’s photograph.”107 The audience for both men was widespread. As word of their reputations filtered from New York throughout the country, the spectacle of a public persona became crucial to their financial success.

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Even those unswayed by Wilde’s charms noted that the potency of his effect was in his

persona as much as, if not more than, in his work. Reporters regularly admitted to becoming

enamored of Wilde only after experiencing his charms firsthand, but although a conversion

narrative frequently accompanied accounts of his lectures, those who remained detractors

focused on the same superficial effects which so enamored his supporters.108 Upon Wilde’s first departure from the States in 1882 a New York correspondent reported “People do not forget that he made his money as a poseur—not as a poet and an artist….He was, in our eyes, a farceur— worth seeing, but HARDLY WORTH THINKING OVER.”109 The same preoccupation in staginess—the notion of value or worth in simply seeing Wilde—drew attention to his 1883 return to the States. Narrativity is considered a useful means of understanding the various registers of literary staging and performance studies, but the power of an overt narrative presence, of an author’s obvious staging, informed studio portraiture as much as it did playwriting and other nineteenth-century fictionalizations. Recuperation of the efficacy of posing provides a more nuanced understanding of nineteenth-century photographic practice.

Dandyism, like photography, offered the possibility of transformation, even or perhaps especially, at moments of fixity. As in the larger cultural sphere, interest in presentation within photography studios was not perceived as an obfuscation of substance, but a re-imagining of surface as substantive. Whereas the possibility of one thing posing as another was perceived as threatening in the 1850s, feeding resistance to negative-positive photography, by the 1880s

affectation was treated in some social registers as a source of promise. The change is one of

attitude rather than kind. Dissimulation, when labeled counterfeiting at mid-century, suggested

an intention to mislead. Re-framed as posing in the Gilded Age, masquerade became a source of

knowing pleasure, a form of social contract in which artifice became construed as enjoyment.

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Taking credit

In the early republic debates over authenticity had fostered pleasure in trompe l’oeil— paintings in which illusionism might at first glance fool the eye—while feeding ambivalence about the truth value of visual representations more generally but late in the nineteenth century another wave of popular trompe l’oeil imagery surfaced, flaming the desire of spectators to be in on the game of representation rather than threatened by its slippage. Flagrant backgrounds are the hallmark of trompe l’oeil, distinguishing its form of representation from still-lifes much as painted backdrops in photography studios reveled in artifice rather than proferring the medium as though transparent. Just as many trompe l’oeil painters foregrounded their signatures or other marks of authorship to call attention to their skill in crafting representations, Wilde and Sarony recognized the importance of branding in garnering recognition for their mediations. Credit, used most often earlier in the century to refer to a state of indebtedness, became increasingly employed in the more active sense of taking credit, of declaring authorship.

For financial reasons most publishers registered for copyright selectively, both because it was only worth securing rights to works which might conceivably garner large profits—and would be therefore the most likely targets for unauthorized reproduction—but also because surrendering limited access helped to generate commercial interest. The first chapter explained that the Langenheim brothers held their patent rights so tightly that they undermined their own success, but later in the nineteenth century it had become clear to photographers and other businessmen that selective protection was a more effective market strategy. Samuel Clemens protected his work selectively, promoting easy access to his work as a market hook.110 Similarly,

Charles DeForest Fredricks, who brazenly circulated his own print of the portrait of Robert E.

Lee originally produced in the South, copyrighted a relatively small percentage of his cartes-de- visite.111 He did, however, register many images in his series of Hatchik Oscanyan, who lectured

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widely on “the East” and maintained a café and gift shop on Broadway. Oscanyan drew large

crowds, so protecting the images would have been worth the administrative effort for Fredricks’

studio, which could capitalize on its Broadway proximity to Oscanyan’s salon. A scholar of the

Oscanyan lectures has remarked of intellectual property in the period: “a swarm of young men

forced to try to carve a career out of the possession of some kind of knowledge rather than from

soil or craft…a large number of people for whom ideas literally had become commodities which

they tried to merchandize.”112 Indeed the issue of intellectual property—of a knowledge-based economy—animated legal discussions well beyond the photographic realm. That the constitutionality of photographic copyright would be called into question in the 1880s reflects national and international debates on the boundaries of ideas and their circulation.

“The dress in which one man may clothe another man’s ideas”: international copyright debates

of the 1880s 113

Given the variability of authorial protections over the nineteenth century, progressive

models of American legal developments should not be assumed. Photographic authorship

certainly transformed in the nineteenth century, but did not unilaterally grow. Legal conceptions,

like perceptions of photography more generally, shifted frequently, and not always in a manner

which might be considered progressive today. Expansion and contraction of American

authorship rights and claims were, and remain, tied to the importation and export of intellectual

property within local and transnational markets. Unlike the relatively strong protection granted

to patent holders, the United States granted little protection to American authors, and even less

to foreign authors. As has been discussed in previous chapters, for much of the nineteenth

century American publishers argued for inexpensive access to invention, criticizing authors and

European publishers whom they claimed prevented diffusion of information by monopolizing

217 ideas. Scholars of intellectual property regularly remark on the attenuated timeline of American observance of international copyright protections:

The United States declined an invitation to a pivotal conference in Berne in 1883, and did not sign the 1886 agreement of the Berne convention that accorded national treatment to copyright holders. It was not until 1891, when the balance of trade in literary and artistic works was swinging in its favor, that the United States reformed its international copyright laws. Even then, concessions to printers’ unions contributed to the US failure to comply with the terms of the Berne convention until 1988.114

That the States did not subscribe to reciprocal protections until a century after they were proposed might be thought to mark a shift from American consumption to production of intellectual property. But for much of the nineteenth century consumption was framed as a form of production. Protectionist policies were publicized as free trade advocacy. In her analysis of literary copyright, Meredith McGill found that “instead of viewing the burgeoning market for foreign reprints as a sign of provincialism, opponents claimed that national values were instatiated in the process of production…Their canny analysis of the structure of the market for print spoke to Jacksonian fears about the concentration of economic and political power.

Opponents argued that the uncopyrighted status of many of the most valuable texts worked to forestall the development of monopolies.”115 The ingenuity of American commercialism was felt to be in appropriation and use, rather than in original conception.

Among the most vocal anti-copyright activists in the United States was Henry C. Carey, a publisher and economic theorist whose 1853 Letters on International Copyright were reprinted in a second edition in 1868. Reiterating his ideas in response to an 1872 bill to review international copyright, Carey insisted “the right is on the side of the consumer of books, and not with their producers, whether authors or publishers.”116 Reward, he felt, was in esteem and in circulation of ideas rather than monetary compensation. Favoring benefit to the larger social body over individual financial interests, Carey referred to the Copyright League—a group of authors

218 arguing for greater rights to their writings—as a “scheme for compelling our people to pay double or triple prices for their supplies of intellectual food.”117 Should international copyright be instituted, Carey worried, the American people would be forced to diet on the meager output of domestic production. Carey’s concerns regarding international reciprocity were indicative of deeper ideological rifts concerning intellectual property rights.

The protections finally awarded to photography are not evidence of a sudden awakening to studio staging, but stem from a general strengthening of copyright in an attempt to fortify

American protocols in the face of international assertions of an author’s natural right to their work. Under threat of the Berne Convention in 1883—the same year as Sarony’s lawsuit—the

United States became even more insistent on statutory authority and requirements. Building from the French assumption of an author’s automatic right to their productions, the Berne

Convention proposed international reciprocal copyright protections between countries. Echoing the anti-copyright stance of his grandfather Henry C. Carey, H.C. Lea published letters to the editors in several New York newspapers in reaction to international copyright bills introduced

(and ultimately defeated) in the United States in 1882, 1883, and 1884. Whereas Carey characterized ideas as nourishment which, like food, should be publicly available, his grandson focused on the copyright claims which he claimed unjustly restricted access to such sustenance.

Lea described copyright assertions as nothing more than superficial and frivolous re-fashioning of substantive ideas. Differentiating between patent and copyright, he expounded “the former confers a monopoly of ideas, while the latter only covers the words or dress in which ideas are expressed.”118 Tapping the clothing analogy again a few paragraphs later, he complained: “The people at large will not be apt to trouble themselves about abstract rights so subtle as those which distinguish between ideas and the garment of words in which ideas are expressed…Public policy demands the free dissemination of ideas; but…grant[s] ‘exclusive rights’ for the dress in which one man may clothe another man’s ideas.”119 Lea argued against strict authorial rights

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which he, as had his grandfather, felt inhibited access to inexpensive literature, but he also

pushed for restrictions on foreign literature imports to encourage domestic publication. That

debates began to focus on the degree to which American dressing-up of ideas stimulated or

inhibited domestic production signaled a shift in assessments of author’s rights. Rather than

accept that statutory protocols were the foundation of copyright, American discourse

increasingly centered on how an author might most effectively demonstrate the extent of their

efforts.

Increased insistence on demonstrative rather than statutory assertions filtered into

reports of the Sarony case. A reporter consolidated the argument of the lithography firm into a

simple claim: “All that the photographer did was to put Mr. Wilde in a particular suit of clothes

and have him cross his legs in a particular fashion.”120 Sarony’s conviction was that a photographer was no mere window dresser but was, on the contrary, a composer whose orchestration should be recognized as significant enough to warrant protection beyond a standard statutory claim. His stance is manifest in his portraits. In a Sarony studio cabinet card

[figure 4.31] of Peter Cooper with William Cullen Bryant—one of the most vocal authors in the

American Copyright League’s efforts to secure stronger authorial protections—the sitting is carefully crafted, a well-choreographed composition of engaging poses and thoughtfully arranged props. The artful nonchalance of their poses is set off by the studio backdrop. In photographing the intellectual elite of New York, Sarony could not help but create portraits embroiled in the struggle over creativity as property.

Fights over authorial and international rights were foundational to American photographs of Wilde and other visiting celebrities. Sarony’s portraits allowed the United States to claim Wilde—an import from abroad—as an American commodity. While the liberty of the loose American copyright enforcement of the 1860s proved fertile, in the 1870s and 1880s the

220 question of whether it was possible to conceive of photography as a creative act took on greater resonance within wider cultural debates concerning the constitution of authorship.

“The power of Congress does not go so far as to revolutionize the laws of physical nature”: constitutional borders 121

Sarony won a judgment of six hundred dollars in his district suit in compensation for the

85,000 copies of the print produced by the Burrow-Giles lithography firm, as well as an additional ten dollars for the prints still in possession of the firm. But beyond the relatively modest monetary award, the court was reluctant to affirm the larger question concerning the constitutionality of photography’s eligibility for copyright protection. The New York decision stated, “The court should hesitate long and be convinced beyond a reasonable doubt before pronouncing the invalidity of an act of congress. The argument should amount almost to a demonstration…Were it otherwise, endless complications would result, and a law which, in one circuit, was declared unconstitutional and void, might, in another, be enforced as valid.”122

Citing contradictory recent district court cases pertaining to photography’s status, the judge found:

The result of a careful consideration of the learned and exhaustive briefs submitted, and of such further research and examination as time has permitted, is that I do not feel that clear and unhesitating conviction which should possess the mind of the court in such cases. Many cogent reasons can be and have been urged in favor of the validity of the statute. It is, however, sufficient for the purposes of this case to say that in the judgment of the court the question is involved in doubt.123

The court’s doubt could be attributed not only to changes in photographic technology which might have contributed to a perception that the medium was increasingly mechanized, but also exposes a fundamental tension between state and federal authority.

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Photography was only one of the many constitutional questions the Supreme

Court deliberated in the wake of the Civil War, as the exigencies of interstate commerce

contended with federal policies related to international trade in published goods, as well

as grappling with variable state regulations. Intellectual property discussions were

wrapped up in negotiations between public and private interests at all levels of

governmental administration. In the lead-up to the 1887 interstate commerce act, courts

clung to strict interpretations of procedural statutes to settle conflicts. Regulation

intensified apace with market expansion. Because the Supreme Court had little control

over its docket until 1891, the Court served in an appellate capacity, forcing the justices

to mediate federal and state regulations alongside commercial and individual rights.

Before 1880 the Supreme Court had reviewed less than ten copyright cases, but the

Supreme Court under Chief Justice Morrison Waite decided several, as well as

adjudicating important cases differentiating copyrights from patents and trademarks. The

court also heard interstate cases related to intellectual property, and made significant

decisions granting corporate personhood and extradition—registering acute changes in

perception of the power of federal authority to grant and restrict property claims.124 In

refusing the Berne convention assumption of an author’s natural right to their writings,

American courts were put in the position of upholding statutory authority, even as

claims to authorial entitlements were gaining currency. The New York district court had

insisted that arguments regarding the eligibility of photography for constitutional

protection as intellectual property “should amount almost to a demonstration.”125 The

Supreme Court was thus tasked, as the New York court had been, with assessing whether Sarony followed the appropriate steps to claim protection, but was also forced to adjudicate—on the basis of Sarony’s portrait of Wilde—the constitutionality of photographic copyright more generally.

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Sarony’s card mounts are often cropped when his portraits are reproduced as

illustrations in historical and art historical accounts, but the visible manifestation of copyright

registration—however sidelined in contemporary scholarship—was a core issue in the Supreme

Court case. Sarony had not only developed a signature style internally by utilizing identifiable

backgrounds and featuring florid poses, but was also careful to brand his images as the product

of his studio, imprinting them with his name within the frame of the image as well as on their

cardboard supports. Originally a simple typeset name at left on its recto, the brand morphed into

a flashy printed signature by the 1870s [compare, for example, figures 4.21–23 with figures 4.18–

20]. A similar signature was used on the mounts for his brother’s Scarborough studio, thereby

profiting from their ability to bridge American and British markets. The signature they employed

resembles that used by the Paris studio of Gaspard-Félix Tournachon, whose pseudonym,

Nadar, was emblazoned on the front of his studio as well as on his card mounts. But unlike the

synergetic brand employed by the Sarony brothers, in the late 1850s Nadar had sued his brother,

Adrien, for legal rights to use of the name Nadar. The extravagant self-presentation of studios such as those of the Sarony and Tournachon brothers underscores the necessity of assertive branding, and the legal implications of commercial promotion.

Complaining that the Sarony studio imprint did not meet the statutory requirement for copyright protection, the Burrow-Giles lawyers insisted in their Supreme Court appeal that a full name must be used “whether it is Nancy, Nora, Nathan, Nimrod or Napoleon.”126 Registration

criteria aside, their larger contention was that photography should not be recognized as a

category of production eligible for copyright protection. Outlining a history of American

copyright, counsel for the lithography firm protested that “when the Act of 1865 was passed,

Congress extended its power much further, and went so far as to protect the reproduction of

existing objects, by means which are merely applications of scientific principles, well known and

open to everybody who will devote his time to the acquirement of a little skill. And here it is that

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a halt must be called.”127 They continued, “According to Webster, an author is ‘a beginner, former, or first mover of anything; the creator or originatory; the composer or writer of a book or work.’ All the synonyms and definitions presuppose the idea of originality; the idea of one who creates something not yet in existence, one who forms by his own labor.”128 Summarizing

their position, the counsel snidely commented that “the power of Congress does not go so far as

to revolutionize the laws of physical nature.”129 Citing a case in which a re-arrangement of a musical composition was not found eligible for copyright protection, the lawyers argued “as in music, the true object sought after is a melody; so in photography, the true object sought after is a truthful representation of the subject, and putting Oscar Wilde in a new attitude does not

‘change the melody’—does not change Oscar Wilde into another person.”130 Burrow-Giles’s position, then, was that photography was focused towards the singular goal of truthful representation. In photography, they insisted:

The outlines of the figure, the face and its expression, are delineated by natural means. Not only does the photographer not produce the same in the photograph—nay, more, he cannot, by any means, change the same from the exact way in which the subject appears to the eye. A painter, however, not only can, but always does, change these particulars according to his conception of what ought to be. The product of his labor is within his control; the photographer’s is beyond his power (emphasis original).131

After launching into an extended assessment of differences between the agency of painters and powerlessness of photographers, and the similarity between photographs and trademark designs

(which require “no fancy or imagination, no genius, no laborious thought” but are “simply founded on priority of appropriation”), the lawyers concluded their string of legal analogies by arguing that although individual photographs might be eligible for protection through decisions of state legislatures, photography as a class should not be constitutionally protected as a product of intellectual labor.132

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Countering the definition of “author” offered by the plantiff, Sarony’s lawyers cited a definition included in Brande & Cox’s Dictionary of Science, Literature and Art which characterized invention as: “The choice and production of such objects as are proper to enter into the composition of a work of art. ‘Strictly speaking,’ says Sir Joshua Reynolds, ‘invention is little more than a new combination of those images which have been previously gathered and deposited in the memory; nothing can come of nothing; he who has laid up no material can produce no combinations.’”133 Yet after that citation, which was in line with the reasoning operational throughout much of the nineteenth century, Sarony’s lawyers also found it necessary to identify originality, rather than merely novel combination, in the photographer’s work. They described the Wilde portrait as “the original invention and design of Sarony, made by him entirely from his own original mental conception.”134 That both parties reference originality signals the sea change roiling the American copyright system as the country sought to reconcile the push for recognition of natural rights with a history of statutory regulation. The Sarony case was heard in a period in which the courts were beginning to consider the possibility of differentiating authors from proprietors and originality from novelty.

Sarony’s lawyers argued that it was the dramatization—the performativity—of photography that qualified his photographic portraiture for protection.

Invention may consist in an original method or form of expressing, manifesting or discovering something already known, according to certain arts. Shakespeare’s Hamlet, Powers’ Greek Slave, Church’s painting of Niagara, and Victor Hugo’s Waterloo, are all inventions, and are all expressed, manifested or discovered, according to different arts. They can, however, be readily identified as belonging to their respective authors and can be the subject of copyright protection; but there is a very important difference in the method or form of the expression, manifestation or discovery.135

Defendant’s counsel went on to itemize the methods by which Sarony made his conception manifest: “he posed Oscar Wilde before the camera, selected and arranged the costume,

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draperies and other various accessories in said photograph; arranged the subject to present

graceful outlines, arranged and disposed the light and shade, suggested and evoked the desired

expression, and from such disposition, arrangement or representation made entirely by Sarony,

produced the photograph.”136 In referencing pose, selection, are arrangement, Sarony’s team was careful to use language which might be applicable to a variety of other artistic forms, such as musical compositions or dramatizations, suggesting it was not in the categorization of a medium in which copyright eligibility should be granted, but rather in the overt demonstration of authorial involvement. Their argument suggested that critical attention should be paid not to what constituted a work of art, but to when a work of art was constituted. A work of art did not come into being, they argued, at publication or registration nor, as the Berne convention protocols insisted, at the time of conception, but through the act of manifestation.

The Supreme Court opinion, drafted by Justice Samuel Miller, conceded “the constitutional question is not free from difficulty,”137 but relied on a third definition of an author

as “he to whom anything owes its origin; originator; maker; one who completes a work of

science or literature.”138 The decision found “we entertain no doubt that the Constitution is broad enough to cover an act authorizing copyright of photographs, so far as they are representatives of original intellectual conceptions of the author.”139 Noting that the copyright

system had no provision for an examination to assess novelty, and that compliance with

protocols was the only necessity for copyright, the opinion declared “it is, therefore, much more

important that when the supposed author sues for a violation of his copyright, the existence of

those facts of originality, of intellectual production, of thought, and conception on the part of

the author should be proved, than in the case of patent right.”140 Although originality was not

required for copyright registration, the opinion insisted that it was a critical threshold for

litigation.

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More consequentially, the decision carefully refused a categorical assessment of the

medium. Justice Miller differentiated between Sarony’s image and what he termed ordinary

production. Referencing the argument that a photograph is “the mere mechanical reproduction of the physical features or outlines of some object animate or inanimate, and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in shape of a picture,” Miller allowed “this may be true in regard to the ordinary production of a photograph, and, further, that in such case a copyright is no protection.”141 But, he continued, “on the question as thus stated we decide nothing.”142 So while the decision

granted the possibility of photographic originality, the Court suggested that in order to be

differentiated from an “ordinary” photograph, for copyright eligibility a photographer was

obligated to demonstrate their conceptual responsibility, rather than rely on statutory protocols.

The decision had, and continues to have, profound impact on photography, marking a change

from a registration system to the demand that photographs visualize the selection and

arrangement undertaken by their makers.

In the years following the Supreme Court decision, Sarony photographed the Supreme

Court Justices individually and as a group [figure 4.32], and was careful to imprint a copyright

notice on each portrait. Two years after the decision in Sarony’s favor, Associate Justice Samuel

Blatchford sent a portrait of himself by the photographer to a literary and historical society that

had elected him an honorary member. Blatchford wrote “I have ventured to send to the Society,

for its acceptance, a photograph of myself, taken by Sarony, of New York, which I hope may

find a place on the walls of the rooms where the members meet, both as a good specimen of art,

and that they may know what manner of appearance of the person has whom they have thus

honored.”143 Like the Supreme Court decision, Blatchford finds a portrait’s encapsulation of an accurate likeness in no way undermines its artistry.

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Just before it became more widely available to non-professionals, protection for photographic artistry tightened. At the same time, Congress debated whether news reports— construed, like photographs, as combinations of existing material—were eligible for copyright as authored works. Legal decisions thus deserve greater attention, not as a monolithic regulatory system which exerted pressure on visual representations, but as fluctuating force which informed and was informed by popular forms of expression. Photography was embroiled in larger concerns about intellectual property which, though they cut across media, impacted studio portraiture in particular ways. The court’s refusal to insist on ontological claims remains instructive, enabling us to understand continuities and ruptures between photography and other processes of representation.

Conclusion

At the end of the 1880s there was an increased assumption of individual rights that tempered the public privileges which had previously dominated governmental regulation. Courts increasingly recognized expressivity as a criteria for copyright protection, and began to consider the rights of a sitter to control circulation of their own image.144 Whereas today copyright is increasingly perceived as an automatic right rather than statutory grant, that was certainly not the case early in the nineteenth century and only beginning to be conceivable at the end of the century.

As in the cases of changing financial and patent regulations, copyright decisions seemingly unrelated to the visual arts impacted the form as well as the perception of photography, photographers, and photographs. Fancy accessories and fanciful poses, later decried or dismissed as kitschy artifice, were the tools by which photographers fashioned themselves as artists, as “authors” eligible for copyright. The very criteria which qualified

228 photographs for legal protection in the nineteenth century were the characteristics which prevented their integration as art in many twentieth-century histories. Copyright, the signal of authorship and artistic protection, increasingly precluded studio photographers from the designation of artist.

Debates over relationships between ideas, their expression, and subsequent appropriations are ever-present in the arts. Many of the material and conceptual challenges said to characterize the most avant-garde art practices of the twentieth and twenty-first centuries— what constitutes a work of art, when it is constituted, and by whose authority—had important implications in the nineteenth century as well. Just as minimalist and conceptual artists grappled with problems of creating and controlling work, so too nineteenth-century photographers sought means of distinguishing between the ideas and forms of their production. As in the case of projects classified as post-modern, nineteenth-century courts—and studio photographers—were less concerned with originality than with the ways in which one made an idea one’s own. My point is not to backdate conceptual developments, but rather to insist on their contextual specificity. Historic and more recent projects, though concerned with what might be said to be similar issues, played out differently—visually, rhetorically, and legally. In the late nineteenth century, questions of constitutionality were more concerned with temporality than materiality.

Legal decisions attempted to adjudicate when a work was constituted, whether at moment of first conception, during gestation, upon first appearance into the world, or in circulation.

Temporal questions were not only a matter of dating a work but of its ownership and related rights. As was made clear by the Pictures Generation in the late twentieth century and Sarony’s

Living Pictures of the late nineteenth, it is important to recognize the historical contingency of issues such as originality.145

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There has been limited study of European photography in relation to intellectual property, but given the intense international authorship debates of the nineteenth century, and scholarly attention to issues of ownership in the period, the circuitous history of American photographic copyright is due attention. Literary scholars have made significant progress in assessing the impact of intellectual property debates on the forms and distribution of historic texts, but while there is important recent scholarship on legal regulations of visual culture, much can still be learned from close study of the entanglement of regulation and representation.

Today, in the scramble to accommodate new forms of photographic reproduction and distribution, contemporary American cases involving photographic copyright inevitably cite the references to posing, lighting, and choice of background central to the Sarony Supreme Court decision. Performativity remains more than merely a trope, or a convenient appeal to participatory photographic portraiture, but a legal necessity. In the ongoing struggle to define and defend photography as intellectual property, fancy photography has proven to be more than mere passing fancy, continuing to critically inform American legal and artistic decisions. Painted backdrops are a background against which we can better understand the development of portrait photography in the United States, a form of overt posing which calls attention to the pervasive poses of the medium. Sarony—tireless self-promoter that he was—would be happy to take credit.

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EPILOGUE

Then in Now: Contemporary Intellectual Property Cases and Nineteenth-Century Photographic Precedents

The preceding chapters discussed the ways nineteenth-century perceptions of photographic reproduction and circulation were tied to economic, patent, and copyright regulations. In doing so, they also addressed more fundamental questions: How does creation differ from reproduction? What rights are associated with each? When and where do those rights begin and end? How can, and how should, private property and public accessibility be reconciled? These issues—which have long faced artists, scientists, scholars, and other cultural producers—prompt renewed anxiety in our own era of technological change. In recent months

American courts have resolved that human genes cannot be patented, weighed whether a photograph uploaded to an image-sharing website can be legally republished by other sites, and decided that a lighting firm cannot claim copyright to a work because differences between the form and function of the design are difficult to assess.1 Each case considers how concepts can be differentiated from their manifestations, if at all. It is my hope that this dissertation helps to put discussions concerning ownership of ideas and things into historical perspective, to show that, whatever their ostensible subject, legal declarations concerning the boundaries of human ingenuity and property were and remain deeply important to the production and circulation of visual imagery. Struggles over rights to ideas and their expressions are crucial in scholarly inquiry, affecting as well as revealing period perceptions about representational practices. Photographic reproducibility is and was tied up in more widespread property debates. Intellectual property debates affect the medium’s forms as well as perceptions of its character.

The case studies in this dissertation demonstrate that American economic conditions, patent protocols, and copyright debates informed and have been informed by commercial photography, revealing the degree to which legal decisions seemingly unrelated to visual

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expression profoundly impact art and material culture. Just as early negative-positive claims, patent applications, vignette cartes-de-visite, and cabinet cards that incorporated fancy backgrounds combined visual precedents and commercial exigencies, contemporary American copyright law attempts to reconcile legal precedents with present-day modes of visualization and circulation. Analysis of several recent court cases that grapple with nineteenth-century precedents offers a valuable means of understanding continuities and ruptures between historic and contemporary issues of portraiture and reproducibility.

Nineteenth-century preoccupation with reproduction and anxiety regarding unchecked circulation remain pertinent, even as the manner and scope of duplication and dissemination shifts. The Sarony copyright ruling not only remains foundational in hearings involving photography, but is regularly cited in other cases gauging thresholds of creativity—in media as diverse as telephone books and radio broadcasts, among myriad others. Sarony’s case was cited, for example, when photographer Glen E. Friedman won a 2011 case against the artist who calls himself Mr. Brainwash. Brainwash claimed he found Friedman’s portrait of the rap group Run-

D.M.C. on the internet, not realizing it was copyright protected. However un-composed the portrait appeared, the court ruled that Friedman “selected and arranged the subject… made related decisions about light and shadow, image clarity, depth of field, spatial relationships, and graininess… selected the background and perspective of the Photograph, and all of these particular artistic decisions commutatively result in the Photograph.”2 As in many modern

copyright cases, in the Friedman decision the Sarony precedent determined selection and

arrangement as the criteria by which originality is measured. Like nineteenth-century patent

protocols, unique combinations are protected, even if not wholly novel in conception.

In the Friedman case, the court maintained “selection of subject, posture, background,

lighting, and perspective to be creative decisions that are protectable elements of a

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photographer’s work” but expanded on the Sarony ruling by identifying temporality as an equally

consequential component of photographic creation.3 Authorship was detected not only in the pre-production decisions of the photographer, but also in the camera’s facility in arresting a specific moment. The judge pronounced: “A photograph of a person captures a person’s expression in a particular instant of time, and will almost always possess the requisite level of creativity to warrant protection.”4 In this analysis, creativity is located not only in the photographer’s choices, but in a photograph’s unique registration of its subject. The decision thus marks a significant change from protecting artistic action to attributing some credit to the equipment used. The court concluded ultimately that the photograph is protectable “because the composition of the Run-DMC figures in the Photograph is a result of Plantiff’s originality,” but reference to the mechanics of the medium is a notable addition to standard legal analysis of selection and arrangement.5

As previous chapters have noted, legal acceptance of photographs as both crafted and captured remains rarely matched in photography scholarship. Because courts have historically considered photographs on an ad hoc basis rather than presuming an inherent character of the medium, legal analysis can offer a useful method for discussing the incredible range of photographic practices.6 In a recent case brought against art-world darling Ryan McGinley for

copying the “overall feel” of portraits by another photographer, the judge reminded the court

that just because McGinley’s photographs—many of which were shot against visibly artificial

backdrops—are not very original, does not mean they necessarily infringe legally on the work of

others.7 Like Sarony, McGinley creates work that, though hardly innovative and certainly

comparable to any number of forms of visible expression, references familiar imagery without

directly copying it. The concept of a divide between an idea and its expression, which began to

be formulated in the late nineteenth century and became crucial in intellectual property law over

the past century, insists authorship is in things rather than in their underlying conception. The

233 performative character of nineteenth-century property laws has been replaced by a focus on fixation.8 Analysis of production has given way to increased attention to products.

The most recent case involving the Sarony precedent to demand critical attention is a suit initiated against Richard Prince, infamous for appropriating commercial photographs and displaying them as his own artworks with little or no intervention. In 2007-2008 Prince used portraits of Rastafarians by the photographer Patrick Cariou as the basis of his series Canal Zone.

Reprinting the images at a larger scale, Prince made minimal additions to their surfaces without substantively changing Cariou’s compositions. Attempting to defend against charges of copyright infringement brought by Cariou’s lawyers, Prince’s counsel marshaled the same defense offered by the Burrow-Giles lawyers in the 1880s, arguing the photographic portraits produced by

Cariou are “mere compilations of facts.”9 The New York district judge responded

“Unfortunately for Defendants, it has been a matter of settled law for well over one hundred years that creative photographs are worthy of copyright protection even when they depict real people.”10 Citing the Sarony decision, the judge explained that a “photographic portrait of

Oscar Wilde was original creative work, since photographer posed the subject, selected his clothing, background, light and shade….”11 Although in the 1880s compliance with statutory protocols was the basis of intellectual property protection, the studio techniques referenced in the Sarony case have come to be the measure of artistry by which authorship is gauged. Yet as much as the issues surrounding intellectual property in the nineteenth century resonate with contemporary concerns, there have been crucial shifts in visual and legal attitudes. Just as terms such as originality were contextually contingent in nineteenth-century intellectual property debates, contemporary interpretations of the Sarony ruling often differ from historic analysis of the decision.

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Copyright cases involving prominent artists such as Andy Warhol, Richard Prince, Jeff

Koons, and Barbara Kruger, among others, have garnered art historical attention, but cases

involving commercial portraiture often more drastically impact legal analysis of photography.12

In 2006, in deciding whether copyright to a portrait of the basketball player Kevin Garnett was violated when Coors Brewing Company installed a billboard with a similar image, Judge Lewis

Kaplan of the Southern District of New York sought to add to the established categories by which photographs have been protected for the past 120 years, outlining three criteria by which a photograph might be considered an original creative act. The judge allowed that photographs might be original in creation of a subject, as in the Sarony portrait and other staged or arranged work; in timing, as was argued in the Run-D.M.C. case; or in what he termed “rendition.”13 He continued by reasoning that what has allowed certain photographs to be considered original was not the selection of pose, background, lighting, and equipment—the criteria evaluated since the

Sarony decision—but the effect produced by those selections. Kaplan opined, “I will refer to this type of originality as originality in the rendition because, to the extent a photograph is original in this way, copyright protects not what is depicted, but rather how it is depicted.”14 In addition to

originality in subject (what happens in front of the camera) and originality in timing (what

happens between the camera and its operator), Judge Kaplan insisted the court account for the

impression of a work. He acknowledged rendition to be a controversial idea, noting that

copyright is often defined as protection of a particular expression, not its effect. Yet he argued

that the distinction between ideas and their expressions, which has been central to copyright

decisions in the century following the Sarony case, is meaningless for visual arts. He commented,

“For one thing, it is impossible in most cases to speak of the particular ‘idea’ captured,

embodied, or conveyed by a work because every observer will have a different interpretation.”15

Furthermore he contended that “in the context of photography, the idea/expression distinction

is not useful or relevant.”16 Besides the practical difficulty of courts taking on the task of

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assessing the effect of images, invalidating the idea/expression divide for photography suggests

that in photography perception is more important than production.

It is understandable that timing and rendition are tempting as tools of photographic

analysis. Mechanical and perceptual definitions of photography have been undertaken in art

history as well, but strict legal categorization of photography establishes a difficult, or at least a

distinctive, precedent. The Sarony criteria—use of tools and arrangement of components as

opportunities for originality—have proven useful for a range of intellectual property claims in

other fields of production whereas timing and rendition suggest a medium-specific assessment.

The notion of treating photography differently than other media would be enormously consequential if adopted more widely. The implications of considering the effects of a photographic image, rather than the steps of production reviewed in intellectual property decisions more generally, have been discussed in law review articles, but rendition has been cited in recent rulings involving high profile photographers, including the Ryan McGinley suit cited above and a case brought by the photographer David LaChapelle against the pop singer

Rihanna.17 Whereas the effect of “overall look and feel” has long been central to judgments

concerning whether an “ordinary observer” would find “substantial similarity” between two

images, with the notion of rendition, effect is deemed as crucial as a photographer’s engagement

and an image’s use in evaluating property incursions.18 Like extraordinary rendition, reliance on

photographic rendition indicates a transfer of power: from a viewer’s to a producer’s experience

as the measure of originality. Formal analysis is familiar in art history but a challenging precedent

for the courts. Citing “rendition” the judge in the McGinley case found a difference in “pace and

pulse” between a McGinley video and the work of the photographer who sued him.19 The judge of the LaChapelle case against Rihanna declared that his photographs and one of her videos share a “frantic and surreal mood.”20 Rendition is being used to move from appraisal of

236 selection and arrangement as expressive of authorial involvement, to gauging the effect compositional details might engender.21 Along with timing, attention to rendition is another significant shift from nineteenth-century attention to photographic production towards a focus increasingly narrowed on photographic products.

In a footnote to his rendition ruling, Judge noted that copyright analysis historically attended to “traditional print photography—that is being supplanted in significant degree by digital technology. These advancements may or may not demand a different analytical framework.”22 As in the nineteenth century, today’s technical revolutions give the impression of upsetting the ability to differentiate between mechanical and human production. Because a photographer’s involvement seems increasingly difficult to determine, photographic adjudication is being transferred from the steps of production used to analyze creativity in other media to the perceptions of an imagined observer. Manipulation has always been an aspect of photographic practice but legal decisions offer insight into how perceptions of photographic mutability have shifted, as well as the ways and contexts in which attempts to strictly demarcate the medium surface. Establishing specialized protocols of judgment for photography clouds rather than clarifies the medium’s rich complexity.

The test for substantial similarity which attempts to characterize the impression of an ordinary observer is usually paired with testimony regarding the steps taken in production of a work, but in the appellate review of the recent case Patrick Cariou brought against Richard

Prince, the judge declared artist statements to be less pertinent than visual analysis. “What is critical is how the work in question appears to the reasonable observer, not simply what an artist might say about a particular piece or body of work.”23 Although the dissent argued Prince’s statements and other testimony should be taken into account, the judge who drafted the majority opinion relied primarily on formal analysis, finding that Prince’s artworks “manifest an entirely

237 different aesthetic from Cariou’s photographs. Where Carious’s serene and deliberately composed portraits and landscape photographs depict the natural beauty of Rastafarians and their surrounding environs, Prince’s crude and jarring works, on the other hand, are hectic and provocative.”24 Although he does not reference rendition, the judge’s focus on the effect he perceives in each work echoes other recent cases.

In overturning the lower court’s ruling, the appellate Prince decision reiterated the trend towards perceptual rather than procedural photographic interpretations. The dissent remarked,

“Certainly we are not merely to use our personal art views to make the new legal application to the facts of this case….It would be extremely uncomfortable for me to do so in my appellate capacity, let alone my limited art experience.”25 But the majority opinion suggests that formal analysis continues to gain traction over attention to production in recent American copyright cases involving photography. The malleability of perspective which enabled nimble assessment in nineteenth-century legal decisions is being hardened in recent litigation. Just as later nineteenth-century copyright decisions attempted to more strictly define the parameters of intellectual property at the very moment when copy rights were becoming more difficult to enforce, contemporary rulings register anxiety regarding the increased ease of photographic reproducibility. Court cases involving photography offer a valuable record of the ways in which the visual arts push the boundaries of legal analysis, impacting as well as reacting to governmental regulation. Photography’s most consistent feature is its inconsistency. Legal history provides a useful means for understanding changing responses to photography and other forms of visual expression.

The development of photography in the United States has not followed a progressive model of increasingly expansive rights for individual authors and inventors. Instead, notions of photographic creativity expand and contract in keeping with substantive structural shifts in

238 federal property laws. Study of photography’s entanglement with government regulation provides clearer picture of the ways and reasons that resistances to reproducibility have played out differently in different moments. While photography’s categorical instability unsettled early attempts to introduce negative-positive processes, later in the nineteenth century its flexibility catalyzed experimentation and appropriation. Although American portrait photographers are not known for developing novel processes or compositions, their great ingenuity has been in crafting images and ideas that demonstrate reproduction is often an important form of originality.

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Introduction illustrations

Figure I.1: Unidentified studio, Portrait of an unidentified sitter, ambrotype, c. 1855. Detail of casing embossed “Cuttings Patent//July 11, 1854” American Antiquarian Society.

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Chapter 1 illustrations

Figure 1.1: John Adams Whipple, Edward Anthony, crystalotype (paper print from an albumen negative) frontispiece, Photographic Art Journal, April 1853. Fine Arts Library, Harvard College Library

Figure 1.2: Root & Co. Daguerrian Gallery, 363 Broadway, copper merchant token, 1850s. Smithsonian Institution, National Portrait Gallery.

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Figure 1.3: Mathew Brady’s New York Daguerrian Miniature Gallery, 207 Broadway, studio advertisement in the form of a banknote, 1844-45 or 1848-53. Matthew R. Isenburg collection.

Figure 1.4: Langenheim Brothers studio, Frederick Langenheim Looking at Talbotypes, daguerreotype, c. 1849-51. Metropolitan Museum of Art.

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Figure 1.5: Detail of Whipple blind stamp used to mark crystalotype frontispieces which appeared in 1853 and 1854 editions of the Photographic Art Journal. Smithsonian Institution, Dibner Library, National Museum of American History.

Figure 1.6: John Adams Whipple, Hancock House, crystalotype frontispiece, Homes of American Statesmen, 1854. New York Public Library.

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Figure 1.7: John Adams Whipple, Hancock House, crystalotype frontispiece, Homes of American Statesmen, 1854. American Antiquarian Society.

Figure 1.8: John Adams Whipple, Hancock House, crystalotype frontispiece, Homes of American Statesmen, 1854. Library of Congress.

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Figure 1.9: John Adams Whipple, Hancock House, crystalotype frontispiece, Homes of American Statesmen, 1854. Boston Athenaeum (copy 1).

Figure 1.10: John Adams Whipple, Hancock House, crystalotype frontispiece, Homes of American Statesmen, 1854. Boston Athenaeum (copy 2).

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Figure 1.11: Gurney Daguerrian Gallery, 189 Broadway, studio advertisement in the form of a banknote, 1843-1853. Matthew R. Isenburg collection.

Figure 1.12: E.B. Chase Daguerrian studio, 247 Washington Street, Boston, studio advertisement in the form of a banknote, 1848-51. Smithsonian Institution, National Numismatic Collection.

Figure 1.13: “Genuine Dies used by Counterfeiters for Manufacturing Spurious Bills,” Dye’s Bank Mirror, 1853. American Numismatic Society Library.

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Figure 1.14: Langenheim Brothers studio, Henry Clay, Talbotype, c. 1849. Detail at right. Missouri Historical Society.

Figure 1.15: Langenheim Brothers studio, Henry Clay, Talbotype, c. 1849. Smithsonian Institution, National Portrait Gallery.

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Chapter 2 illustrations

Figure 2.1: Titian Ramsay Peale II, stereoview of Patent Office interior courtyard, undated. Smithsonian Institution Archives.

Figure 2.2: Titian Ramsay Peale II, Treasury Building, “Dry Collodion//Albumenized Collodion negative//Taken at ½ past 4 pm Oct 14/56//10' exposure to yellow light just before //sunset; all the buildings & street being//in shadow.” Smithsonian Institution, National Museum of American History.

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Figure 2.3: Principal Public Buildings at Washington, D.C., wood-engraving, 1854. Smithsonian Institution, National Portrait Gallery.

Figure 2.4: Unidentified studio, Jonathan Wood Taft, cased ambrotype shown with and without backing fabric, c. 1855. American Antiquarian Society.

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Figure 2.5: Detail of the “Classified Index of Subjects for Invention of March 1872,” July 17, 1872. Record group 241, Records of the Patent Office. Orders, Notices, and other Misc. Records, 1845-1962. Box 1. Commissioner’s Orders, 1845-1876, page 308. National Archives and Records Administration, College Park, MD.

Figure 2.6: Patent for affixing, securing, and viewing likeness in monuments. U.S. Patent 10468.

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Figure 2.7: A.A. von Schmidt and William Dougal, U.S. Patent Office, Etching and engraving. Smithsonian Institution, National Portrait Gallery.

[Image omitted]

Figure 2.8: Titian Ramsay Peale II, watercolor over drawing by Charles Willson Peale, Interior of Front Room in Peale’s Museum, 1822. Detroit Institute of Arts.

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Figure 2.9: Titian Ramsay Peale II, “TR Peale’s first attempt at photography, Pearce’s Mill//Rock Creek, DC.” Smithsonian Institution, National Museum of American History.

Figure 2.10: Titian Ramsay Peale II, “Collodion negative//obtained in 4 minutes (noon)//Printed on salted paper//Sept. 26, 1855//Pearce’s mill//Rock Creek, DC.” Smithsonian Institution, National Museum of American History.

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Figure 2.11: Titian Ramsay Peale II, “Printed on albumen//Had to prepare the paper myself//TRP.” Smithsonian Institution, National Museum of American History.

Figure 2.12: Titian Ramsay Peale II, Stereograph self-portrait in G Street front parlor, Washington, DC. Smithsonian Institution Archives.

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Figure 2.13: Titian Ramsay Peale II, “(St. Matthew’s Church//Washington DC)//Albumen negatives, Whipple’s process.” Smithsonian Institution, National Museum of American History.

Figure 2.14: Titian Ramsay Peale II, “Albumenized Collodion//Bayard’s formula//Sensitized Oct 28th/[18]56//Exposed 3' [minutes] "[Oct] 29th " [1856] //Taupenot’s process //Developed [Oct] 30" [1856]//Photo J[ournal] vol. 3 p—//Great falls of the Potomac//Maryland Shore.” Smithsonian Institution, National Museum of American History.

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Figure 2.15: Patent application reviewed by Titian Ramsay Peale II, July 1856. Records of the Patent Office, National Archives and Records Administration. U.S. Patent 15336.

Figure 2.16: Titian Ramsay Peale II, Figure 2.17: Titian Ramsay Peale II, Portrait of Joseph Henry, albumen print, 1865. Portrait of Joseph Henry, carte-de-visite. Smithsonian Institution Archives. Smithsonian Institution Archives.

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Figure 2.18: Titian Ramsay Peale II, “Albumen//12' [minute] exposure 4 pm//TRP (A drop of perspiration on the portico!)” Smithsonian Institution, National Museum of American History.

Figure 2.19: Amateur Photographic Exchange Club outing on the Potomac, stereograph, July 4, 1862. Smithsonian Institution, National Museum of American History.

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Figure 2.20: Ogden Nicholas Rood, Daddy Long-Legs and his Memories, cliché-verre print included with Amateur Photographic Exchange Club newsletter, April 1, 1863. Smithsonian Institution, National Museum of American History.

Figure 2.21: Attributed to John Wood, Capitol under construction with Washington city canal in foreground, July 1860, mounted in Peale album. Smithsonian Institution, National Museum of American History.

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Figure 2.22: Titian Ramsay Peale II, “Aqueduct Bridge, Georgetown DC.//(Raining) TRP.” Smithsonian Institution, National Museum of American History.

Figure 2.23: Titian Ramsay Peale II, “Foundation of Cabin John Bridge (Aqueduct) DC.//TRP.” Smithsonian Institution, National Museum of American History.

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Figure 2.24: Titian Ramsay Peale II, “Washington Aqueduct//Bed of Reservoir.” Smithsonian Institution, National Museum of American History.

Figure 2.25: Titian Ramsay Peale II, “President Lincoln’s guard, grounds south of Presidential mansion, 1861, Trial plate (dry process), The time early morning.” Smithsonian Institution, National Museum of American History.

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Figure 2.26a: Titian Ramsay Peale II, panorama view facing East with Capitol in background. Smithsonian Institution, National Museum of American History.

Figure 2.26b: panorama view facing West with Washington Monument under construction in background. Special Collections, University of Rochester Library.

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Figure 1.26c: panorama view facing North up 10th street with Patent Office in background at right. Smithsonian Institution, National Museum of American History.

Chapter 3 illustrations

Figure 3.1: Antoine Sonrel studio, Louis Agassiz, carte-de-visite, c. 1862. Massachusetts Historical Society.

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Figure 3.2: Mental Photographs, 1874 imperial edition, albumen removed from carte-de-visite backing and affixed into album, entry dated 1876. Metropolitan Museum of Art.

Figure 3.3: E.P. Barney, Ceres, carte-de-visite albumen print of a lithograph, 1865. American Antiquarian Society.

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Figure 3.4a-b: E.P. Barney, Sweet Sixteen (left), carte-de-visite albumen print of a lithograph, 1865. E.P. Barney, Winter Sport (right), carte-de-visite albumen print of a lithograph, 1865. American Antiquarian Society.

Figure 3.5: E.P. Barney, Purity, carte-de-visite albumen print of a lithograph, 1865. American Antiquarian Society.

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Figure 3.6: Photographic vignette carte-de-visite copies of a photograph from a negative made by Anthony Berger in Mathew Brady’s Washington, D.C. studio. Left to right: Published by E. & H.T. Anthony, New York; J. Carbutt, Photographic Artist, Chicago; unknown maker; unknown maker. Note that Carbutt’s image, second from left, is a photograph of a lithographic copy of the Brady studio photograph. A hint of wallpaper has been added to the background. American Antiquarian Society.

Figure 3.7: Carte-de-visite photograph of a lithograph after a photograph, published by J.B. & H.D. Hamilton, Cleveland, Ohio. American Antiquarian Society.

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Figure 3.8: Carte-de-visite photographs of lithographs after a photograph. No studio names are imprinted, but each is cropped differently and given a variant title. American Antiquarian Society.

Figure 3.9: Portrait of General Meade carte-de-visite by C.D. Fredricks (left) and vignette copy photograph by an unknown maker (right). American Antiquarian Society.

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Chapter 4 illustrations

Figure 4.1: Sarony studio, Rose Newham, cabinet card, c. 1890. New York Public Library for the Performing Arts.

[Image omitted]

Figure 4.2: Unidentified studio, Boy and Dog on Floor, sixth plate daguerreotype, c. 1850. Reproduced in Merry Foresta, Secrets of the Dark Chamber: the art of the American daguerreotype (Washington, D.C.: National Museum of American Art, 1995), 98.

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[Image omitted]

Figure 4.3: Cindy Sherman, Untitled (Artist in Her Studio), chromogenic print, 1983. Metropolitan Museum of Art.

Figure 4.4: Southworth & Hawes, Harriet Beecher Stowe, daguerreotype, c. 1850s. Metropolitan Museum of Art.

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Figure 4.5: C.D. Fredricks & Co., Henry Ward Beecher, carte-de-visite, c. 1860s. Special Collections, Fine Arts Library, Harvard College Library.

Figure 4.6: Unidentified artist, hand-colored salt print, 1860s. Courtesy Charles Isaacs.

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Figure 4.7: A.P. Webb, cabinet card, c. 1870. Private collection.

Figure 4.8: Sarony studio, Helene Menzeli, cabinet card, c. 1870. Private collection.

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Figure 4.9: H.H. Green, Specimens of Ornaments and Printing Types, 1852. American Antiquarian Society.

Figure 4.10: Chas. T. White, Abridged Specimen Book of the New York Type Foundry, 1859. American Antiquarian Society.

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Figure 4.11: Sarony studio “after Bouguereau,” Going to the Bath from Sarony’s Living Pictures, 1894-95. American Antiquarian Society.

Figure 4.12: Sarony studio “after Sarony,” Diana from Sarony’s Living Pictures, 1894-95. American Antiquarian Society.

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Figure 4.13: Thomas Nast, caricature of Napoleon Sarony, albumen photograph mounted as cabinet card, c. 1870. Special Collections, Fine Arts Library, Harvard College Library.

Figure 4.14: Sarony studio, Sarony’s Photographic Studies No. 21, uncut sheet of carte-de-visite albumen prints, c.1866. Courtesy Lee Gallery.

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Figure 4.14 detail with copyright registration: “Ent. accg. to Act of Congr. A.D. 1866 by N. Sarony in the Clerks Office of the Southern District of N.Y.”

Figure 4.15: Napoleon Sarony, Adah Isaacs Menken, carte-de-visite, 1866. Smithsonian Institution, National Portrait Gallery.

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Figure 4.16: Sarony studio, Sarony’s Photographic Studies No. 17, uncut sheet of carte-de-visite albumen prints, 1866. Metropolitan Museum of Art.

Figure 4.17: C.D. Fredricks & Co., Cyrus West Field, carte-de-visite, c. 1866. Special Collections, Fine Arts Library, Harvard College Library.

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Figure 4.18: Sarony studio, John Newton, cabinet card, c. 1885. Special Collections, Fine Arts Library, Harvard College Library.

Figure 4.19: Sarony studio, Edwin Booth Figure 4.20: Sarony studio, Edwin Adams, as Richelieu, cabinet card, c.1870. cabinet card, c. 1870. Harvard Theatre Collection Harvard Theatre Collection

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Figure 4.21: Sarony studio, Frank Bangs in Julius Caesar, cabinet card, c. 1870s. Harvard Theatre Collection.

Figure 4.22: Sarony studio, Oliver Doud Byron, Figure 4.23: Sarony studio, P.T. Barnum, cabinet card, c. 1870s. Harvard Theatre Coll. cabinet card, c.1870s. Harvard Theatre Coll.

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Figure 4.24: C.D. Fredricks & Co., Robert E. Lee, carte-de-visite, © Minnis & Cowell, 1863. Special Collections, Fine Arts Library, Harvard College Library.

Figure 4.25: “Oscar Wilde, The Apostle of Aestheticism—From a Photograph by Sarony,” Frank Leslie’s Illustrated Newspaper, January 21, 1882.

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Figure 4.26: John H. Bufford & Sons after Sarony, lithographic sheet music cover, c. 1882. Note the Sarony “signature” in the lower right corner of the portrait frame. Boston Public Library.

Figure 4.27: Lithographic trade card for Straiton & Storm cigars, c. 1882. Library of Congress.

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Figure 4.28: Sarony studio, Oscar Wilde, cabinet card, 1882. Library of Congress.

Figure 4.29 (left): Sarony studio, Oscar Wilde, albumen print mounted on 12 x 7 ¼ in. card, 1882. Metropolitan Museum of Art. Figure 4.30 (right): Burrow-Giles after Sarony, lithographic trade card for Ehrich Brothers, 1882. Sotheby’s sale, October 29, 2004 (United Kingdom), lot 23.

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Figure 4.31: Sarony studio, William Cullen Bryant and Peter Cooper, cabinet card c. 1870s. Special Collections, Fine Arts Library, Harvard College Library.

Figure 4.32: Sarony studio, Chief Justice and Associate Justices of the Supreme Court of the United States, cabinet card, 1890. Special Collections, Fine Arts Library, Harvard College Library.

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ENDNOTES

Introduction 1 James Brown sketchbooks, manuscript coll. 566, vol. 3, unpaginated. The Winterthur Library: Joseph Downs Collection of Manuscripts and Printed Ephemera, Winterthur, DE. 2 Ibid. 3 Carroll’s New York City Directory to the Hotels of Note, Places of Amusement, Public Buildings...etc. with a description of and directories when and how to visit the prominent objects of interest. Also, to the leading mercantile firms, in every commercial pursuit (New York: Carroll & Company, Publishers, 1859), 10. 4 On photography in the city, see Jeff L. Rosenheim’s Metropolitan Museum of Art catalogue essay, “ ‘A Palace for the Sun’: Early Photography in New York City,” in Art and the Empire City: New York, 1825–1861 (New Haven and London: Yale University Press, 2000), 227–241. 5 The phrase “intellectual property” was not in common use in mid-nineteenth America. On the evolution of the wording, see Justin Hughes, “A short history of ‘intellectual property’ in relation to copyright,” Cardozo Legal Studies Research Paper no. 265 (2009), 1–48. 6 Although photography studios are barely mentioned (and Brady’s name is spelled incorrectly), for an otherwise helpful overview of art venues along Broadway see Kenneth John Myers, “The Public Display of Art in New York City, 1664–1914,” in Rave Reviews: American Art and Its Critics, 1826–1925 (New York: National Academy of Design, 2000), 31-51. 7 Rob Rudd, “Open for Business at 535 Broadway: The Account Books of James Brown, New York Daguerreotypist,” Daguerreian Annual (2001), 2–9. 8 New York as it was and as it is; giving an account of the city from its settlement to the present time; forming a complete guide to the great metropolis of the nation... (New York: D. van Nostrand, 1876), 32. 9 A survey of New York City guide books registers the concerns that informed photographic practices. Texts surveyed for this introduction include John Doggett, The Great Metropolis; or New York in 1845 (New York: John Doggett, Jr. 1844); Phelps’ New York City Guide (New York: Ensign, Bridgman, & Fanning, 1854); G. Danielson Carroll, Carroll’s New York City Directory (New York: G. Danielson Carroll, 1859); H. Wilson, Trow’s New York City Directory (New York: John F. Trow, 1860); Miller’s New York As It Is (New York: James Miller, 1861); Humphrey Phelps, The Great Metropolis: Phelps’ New York City Guide to All That Can Be Seen, and How to See It (New York: H. Phelps, 1865); New York Illustrated (New York: D. Appleton & Co., 1875); New York Illustrated: A Pictorial Delineation of Street Scenes, Buildings, River Views, and Other Features of the Great Metropolis (New York: D. Appleton, 1882); and Charles Newhall Taintor, The City of New York: A Complete Guide, with Descriptive Sketches of Objects and Places of Interest….(New York: Taintor Brothers, Merrill & Co., 1884). My gratitude to Emily Guthrie and Rosemary Krill at the Winterthur Museum & Library for their guidance in accessing relevant material in the library collections. 10 Rev. J.F. Richmond, New York and Its Institutions, 1609–1872. A Library of Information, pertaining to the great Metropolis, past and present....(New York: E.B. Treat, 805 Broadway, 1872), 112. 11 See Edwin G. Burrows and Mike Wallace, Gotham: A History of New York City to 1898 (New York: Oxford University Press, 1999). 12 “New-York Daguerreotyped,” Putnam’s Monthly III, n. XV (March 1854): 242. 13 Names for photographic processes have been compiled from a variety of primary sources. The reference to “Email,” a process “to treat photographic pictures in such a manner that they appear to stand out from the surface of the picture,” was found in William T. Brannt and

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William H. Wahl, The Techno-Chemical Receipt Book: containing several thousand receipts, covering the latest, most important and most useful discoveries in chemical technology, and their practical application in the arts and industries (Philadelphia: Henry Carey Baird & Co., 1887), 300. 14 “Counterfeiting Bank Notes,” The New York Daily Times, April 7, 1857, 4. 15 Geoffrey Batchen, “The Naming of Photography: ‘A Mass of Metaphor,’ ” History of Photography 17, no. 1 (Spring 1993): 28. 16 Brown transcribed his notes on art from Frank Howard, The Sketcher’s Manual, or the whole art of picture making reduced to the simplest principles by which amateurs may instruct themselves without the aid of a master (London: Darton and Clark, 1837). 17 Humphrey’s Journal often discussed the American Art-Union and National Academy of Design. Exhibited work was frequently recounted at length in the Photographic Art-Journal as well. 18 Rudd incorrectly notes Brown’s patent as 10,255, but it is U.S. Patent 10,225, issued November 15, 1853. Rudd, “Open for Business.” 19 Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53 (1884). 20 Even those critics most cognizant of the constructed character of photographs and photographic discourse insist that nineteenth-century audiences subscribed to notions of photographic truth. See, for example, Allan Sekula, “The Body and the Archive” (1986), in The Contest of Meaning: Critical Histories of Photography, ed. Richard Bolton (Cambridge, Mass.: MIT Press, 1989). But there was a great deal of skepticism regarding the denotative capacities of photography in the nineteenth century as well, and viewers were hardly naïve about the intense level of mediation necessary to achieve a passing likeness. 21 For a synopsis of ontological accounts and counter-arguments see Hilde van Gelder and Helen Westgeest, “Representation in Photography: The Competition with Painting,” Photography Theory in Historical Perspective (West Sussex: Wiley-Blackwell, 2011), 14–63. More recently, there have been attempts to shift from questions of ontology to issues of agency. On the divide between accounts of photography in different fields of inquiry, see Diarmuid Costello and Margaret Iversen, “Introduction: Photography between Art History and Philosophy,” Critical Inquiry 38 (Summer 2012): 679–693. 22 For a nuanced approach to the issue of indexicality, see François Brunet, “ ‘A better example is a photograph’: On the Examplary Value of Photographs in C.S. Peirce’s Reflection on Signs,” in The Meaning of Photography, eds. Robin Kelsey and Blake Stimson (New Haven: Yale University Press, 2008), 34–49. 23 An article on Fitzgibbon’s in St. Louis reported: “The miniature size colored Photographs are finished by Mr. J. Brown of New York, who has lately becomes attached to this famed gallery, and it gives us pleasure to speak of his skill as an artist. We consider his coloring much more brilliant and softer in tone that any Wenderoth [the originator of one of the forms of the ivorytype process] ever did when he was engaged at this establishment.” Photographic Art-Journal (April 1856): 128.

Chapter 1 1 Photographic Art-Journal (March 1853): 187. 2 On the popularity of the daguerreotype process in the United States, see Beaumont Newhall, The Daguerreotype in America (New York: New York Graphic Society, 1961); Floyd Rinhart and Marion Rinhart, The American Daguerreotype (Athens, Ga.: University of Georgia Press, 1981); and John Wood, America and the Daguerreotype (Iowa City: University of Iowa Press, 1991).

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3 Eric Helleiner, The Making of National Money: Territorial Currencies in Historical Perspective (Ithaca: Cornell University Press, 2003), 20–21. John Lauritz Larson characterizes the period’s economic transformation as the “tipping point for which we search in the lives of antebellum Americans, when they came to believe (correctly or not) that impersonal market forces had disabled the fabric of personal, familial, and cultural connections by which people earlier had tried to mitigate the hard facts of material life. It probably does not explain every personal and political decision made during the antebellum decades, but this market revolution was on the minds of nearly everyone in the United States between the Revolution and the Civil War, and it colored (if it did not dictate) their reaction to a host of public issues ranging from banking and money to bankruptcy, land policy, tariffs, manufacturing, democracy, and the expansion of slavery.” John Lauritz Larson, The Market Revolution in America: Liberty, Ambition, and the Eclipse of the Common Good (Cambridge University Press, 2010), 9. 4 Heinz Tschachler, The Greenback: Paper Money and American Culture (London: McFarland & Co., Inc., 2010), 24. Although Tschachler sweeps rather quickly through large swaths of American history, jumping from Ralph Waldo Emerson to hip-hop slang within a few paragraphs, he captures the mood of cynicism which accompanied the speculative fever of mid-nineteenth- century America. 5 James A. Haxby, Standard Catalog of United States Obsolete Bank Notes, 1782–1866 (Iola, Wis.: Krause Publications, 1988), vii. 6 Stephen Mihm, A Nation of Counterfeiters: Capitalists, Con Men, and the Making of the United States (Cambridge, Mass.: Harvard University Press, 2007), 3. 7 Mark W. Geiger, Financial Fraud and Guerrilla Violence in Missouri’s Civil War, 1861–1865 (New Haven: Yale University Press, 2010), 26–27. 8 This statistic is routinely cited in numismatic literature. See David Johnson, “The Social World of Counterfeiting,” Illegal Tender: Counterfeiting and the Secret Service in Nineteenth-Century America (Washington: Smithsonian Institution Press, 1995), 1–36. Michael Malley deems it to be “more or less accurate.” Michael O’Malley, “Specie and Species: Race and the Money Question in Nineteenth-Century America,” The American Historical Review 99, n. 2 (April 1994): 369–395. An anonymous writer commented: “It may safely be stated that the art, as pursued in the United States, is without parallel, and that without vaunt or hyperbole, we can ‘beat the world’ on this our national specialité—counterfeiting. A species of literature, even unknown to the rest of the world, has been initiated among us; and no merchant or mechanic deems himself safe unless he consults the ‘counterfeit detector’….” Quoted from National Intelligencer, February 1863, in Lynn Glaser, Counterfeiting in America: The History of an American Way to Wealth (Clarkson N. Potter, 1968), 9. 9 See Richard Doty, America’s Money, America’s Story (Iola, Wisconin: Krause Publications, 1998) on British counterfeit prevention innovations devised by Jacob Perkins, who emigrated from the United States. Eric Helleiner, a professor of political science, briefly tracks the British suppression of counterfeiting in The Making of National Money, 56–58. Frances Robertson explains the eradication of forgery and stabilization of paper currency in Britain, charting the establishment of trust in the period immediately preceding the introduction of photography. Frances Robertson, “The Aesthetics of Authenticity: Printed Banknotes as Industrial Currency,” Technology and Culture 46, n. 1 (January 2005): 31–50. 10 “Bank Note Counterfeit and Alterations: Their Remedy,” The Merchants’ Magazine and Commercial Review, July 1853, 72, excerpted in William Dillistin, Bank Note Reporters and Counterfeit Detectors, 1826–66 (New York: American Numismatic Society, 1949), 33; also cited in Lynn

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Glaser, Counterfeiting in America: The History of an American Way to Wealth (Clarkson N. Potter, 1968), 83. 11 Michel Foucault, The Order of Things: An Archaeology of the Human Sciences (New York: Pantheon Books/Random House, 1970), 179–180. 12 Ibid., 181. 13 Useful recent studies of the impact of monetary policy on American art include Leo G. Mazow and Kevin M. Murphy, Taxing Visions: Financial Episodes in Late Nineteenth-Century American Art (University Park, Pa.: Pennsylvania State University Press, 2010), and Sophie Cras, “Art as an Investment and Artistic Shareholding Experiments in the 1960s,” American Art 27, no. 1 (Spring 2013), 2–23. I am grateful to Sophie Cras for discussing her ideas regarding the influence of twentieth-century economic conditions on artistic practice, which have helped me to think more carefully about the consequences of financial systems in the preceding century. 14 Collectors of photography, numismatics, and Americana have uncovered fewer than ten advertisements for photography studios which were shaped as bank notes before the Civil War. In the same period, at least forty-nine tokens were produced for photography studios. See David M. and Charlotte Gale, “A Study and Catalog of 19th-Century Photographic Tokens,” The Numismatist 97 (May 1984): 912–932. Token production remained fairly consistent during and after the war. Photographic ads produced to pass as paper notes resumed in the years following the 1860s production of Demand Notes, but do not seem to have been as popular as tokens. 15 “Illustrious Americans,” Reading American Photographs: Images as History Mathew Brady to Walker Evans (New York: Hill and Wang, 1989), 21. He is more explicit in a later essay, “Mirror in the Marketplace: American Responses to the Daguerreotype, 1839–51,” Lincoln’s Smile and Other Enigmas (New York: Hill and Wang, 2007), 3–25: “While this is difficult to prove, it is not improbable that the loss of authority of printed money and the consequent widespread perception of instability in society’s basic token of exchange affected the reception of photography, a new technique that itself threatened…to destabilize the entire craft of picture making and, not least, to deflate another kind of standard currency: the representational value of handcrafted pictures” (7). Trachtenberg’s interest is in divining ways in which daguerreotypy was evoked in the literary imagination of the period, while I focus on references to negative-positive alternatives. Counterfeiting coins was incredibly time-consuming and demanded highly skilled artisans. Lynn Glaser, Counterfeiting in America: The History of an American Way to Wealth (Clarkson N. Potter, 1968), 221. 16 See Legacy in Light: Photographic Treasures from Philadelphia Art Public Collections (Philadelphia: Philadelphia Museum of Art, 1990), 22. See also Julius F. Sachse, “Philadelphia’s Share in the Development of Photography,” Journal of the Franklin Institute (April 1893): 274–278. 17 William Robinson, A Certain Slant of Light: The First Hundred Years of New England Photography (Boston, Mass.: New York Graphic Society, 1980), 28. Alan Trachtenberg touches on this when he notes that news of photography arrived on the heels of the 1937 financial panic. Alan Trachtenberg, Reading American Photographs, 21. 18 Bray Hammond, Banks and Politics in America from the Revolution to the Civil War (Princeton, NJ: Princeton University Press, 1957), 723. 19 It was in New York that free banking was first attempted and cultivated the greatest debate. Economic historian Bray Hammond writes of free banking: “its native home as a practice was New York….it was in New York that the new idea had the most pertinacious support” (572– 573). He outlines early free banking proposals and meticulously tracks debates over the

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constitutionality of private banks in the state Supreme Court between 1839 and 1845. “Free Banking in New York and Michigan: 1835–1865,” Banks and Politics in America, 572–604. Howard Bodenhorn builds from Hammond’s study, culling from recent scholarly interest in free banking. Bodenhorn, “Free Banking: The Populist Revolt Takes Root in New York,”State Banking in Early America: A New Economic History (New York: Oxford University Press, 2003), 183–218. The number of American photographers who experimented with paper photographs has been underreported in most photographic histories. For a useful synopsis see Keith Davis, “The Rise of Paper Photography,” The Origins of American Photography, 1839–1885: From Daguerreotype to Dry Plate (New Haven and London: Yale University Press in association with The Nelson-Atkins Museum of Art, 2007), 153–171. The Nelson-Atkins collection contains a number of remarkable early American paper prints which contradict assertions that their resolution was less than that of daguerreotypes. Although there were only a few major attempts to circulate commercially viable processes in the United States, study of photography journals and American collections reveals that several studios attempted paper print production. There is scant record of widespread commercial experimentation in the 1840s, but by 1854 Henry Hunt Snelling recounted: “There have been more apparatuses, &c., sold in the United States, within the last three months, for paper manipulation, than during the whole time previous since its discovery. There is Whipple, and Masury, and Silsbee, of Boston; Brady, Gurney, Root, Haas, Fredericks, Lawrence, and Prevost, of New York; McClees and Germon, of Philadelphia; Whitehurst of Baltimore, Washington, &c.; Whitney and Denny, of Rochester; Hawkins, of Cincinnati; FitzGibbons of St. Louis; Miller, of Akron, Ohio, who are already profitably engaged in this branch of their art, and every day brings anxious inquiries from all parts of the country regarding the process. In view of the hosts of 25 cent galleries springing up in all quarters, our most respectable artists begin to look to the crystalotype to redeem their artistic skill from the odium case upon the daguerrean art by its prostitution to such paltry results.” Photographic Art-Journal (March 1854): 96. Also see Jas. E. McClees, Elements of Photography, being a brief detail of the Principles upon which the different styles of Heliographic Pictures are Produced (Philadelphia: J.E. McClees, 1855), 13–15. Broadway photographer Jeremiah Gurney referred to his paper prints, several of which appeared in the Photographic Art-Journal, as “daguerreotypes on paper” or “mezzographs,” evoking the tonal range of mezzotint engravings. But, as was the case in Brady’s studio, Gurney’s prints—produced after he partnered with Charles D. Fredricks in 1854—seem to have been used primarily as the basis for overpainting. His promotion boasted that his photographs “can be taken on paper or canvas, as large as life, and are superior to any oil painting, when finished by a competent artist. The exact expression, the correct outline of form and features, are powerful assistants in making them superior to the common oil painting.” Christian A. Peterson, Chaining the Sun: Portraits by Jeremiah Gurney (Minneapolis: Minneapolis Institute of Arts, 1999), 40. Other photographers who made paper prints prior to 1860 include Alexander Hesler, George Kendall Warren, John Wood, and John Willard. Southworth & Hawes advertised crystalotypes and Talbotypes as early as April 1854. My gratitude to Mack Lee and Charles Isaacs for sharing their knowledge and collections of early American paper prints. 20 Rev. J.F. Richmond, New York and Its Institutions, 1609–1872: A Library of Information, pertaining to the great Metropolis, past and present (New York: E.B. Treat, 1872), 132. On the difficulty of maintaining a business in this period see Scott Sandage, Born Losers: A History of Failure in America (Cambridge, Mass.: Harvard University Press, 2005). 21 Eleanor Ewart Southworth, “Mirrors for a Growing Metropolis: Printed Views of Broadway, 1830–1855” (Master’s thesis, University of Delaware, 1985), 69.

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22 Photographic Art-Journal 3, no. 3 (March 1852): 170. The editor of the Photographic Art-Journal added, “These predictions, which strengthen ours, fully justify our predilections that...artists— people of taste—have a marked preference for the design on paper.” 23 For a chronology of developments in negative-positive processes see Helmut Gernsheim, The Rise of Photography, 1850–1880: The Age of Collodion (London; New York: Thames & Hudson, 1988). In her account of the “delirious boosterism” of American exhibitions and catalogues devoted to European calotypes in the early 1980s, Abigail Solomon-Godeau underscores the wide variation in negative-positive processes, destabilizing any notion of a uniform calotype aesthetic. Abigail Solomon-Godeau, “Calotypomania: The Gourmet Guide to Nineteenth- Century Photography,” Photography at the Dock: Essays on Photographic History, Institutions, and Practices (Minneapolis, MN: University of Minnesota Press, 1991), 4–27. American calotypes were not swept up in the “sepia wave” of canonization, though she otherwise carefully measures its aesthetic undertow. 24 The most well-known, J.B. Greene, was an American citizen, but lived and worked abroad exclusively. See Bruno Jammes, “John B. Greene, an American Calotypist,” History of Photography 5, n. 4 (October 1981): 304–324. More recently, Will Stapp attempted to clear up biographical confusion about Greene in his entry “John Beasly Greene,” in the Encyclopedia of Nineteenth- Century Photography vol. 1, ed. John Hannavy (New York and London: Routledge, 2008), 619–622. As Jammes noted in his essay on the photographer, “Greene holds an exceptional and unexpected position in the history of American photography. This position is all the more important in that the calotype era produced only a few interesting works in the United States itself” (316). An upcoming exhibition surveying Greene’s work traveling to the Metropolitan Museum of Art, National Gallery of Art, and San Francisco Museum of Modern Art should provide an opportunity to consider his career and relationship to other photographers in greater depth. Also see David R. Hanlon, “Pilgrims on Paper: The Calotype Journey of Leavitt Hunt and Nathan Flint Baker,” History of Photography 31, n. 4 (Winter 2007): 319–329. Baker and Leavitt Hunt, the younger brother of William Morris Hunt and Richard Morris Hunt, learned Blanquart- Evrard’s paper negative process on a tour of Italy and the Middle East in 1851 and 1852, and attempted to sell prints from their negatives through a Broadway gallery in 1852. Hanlon notes Baker’s fear that by selling their work they might be infringing on the Talbotype patent held by the Langenheims. 25 “Paris Correspondence,” North American and United States Gazette, September 6, 1855, col. C. 26 Richard R. Brettell, Nancy Keeler, Sydney Mallett Kilgore, “The Calotype as Print Medium,” in Paper and Light: The Calotype in France and Great Britain, 1839–1870 (Boston: David R. Godine, 1984), 58. 27 For a recent study of the motivations and outcomes of the Mission Héliographique, see Stephen Monteiro, “ ‘Nothing Is So Dangerous as Hypothesis’: The Mission Heliographique, Photography, and the Spectacle of History,” Photography & Culture 3, issue 3 (November 2010): 297–320. 28 Louis Désiré Blanquart-Evrard’s “heliographic press” was mentioned in American journals as early as spring of 1852. His “Treatise on Paper Photographs” translated from the French by J.R. Snelling, appeared in serial form in the Photographic Art-Journal. See, for example, volume 3, no. 4 (April 1852): 215–222. François Brunet explores the French conceptualizations of reproducibility that preceded the introduction of photography in La Naissance de l’idée de photographie (Paris: Presses universitaires de France, 2000). While American publishers struggled to garner interest in

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negative-positive techniques, the Société Française de Photographie, with the encouragement of Albert, duc de Luynes, sponsored a competition for photomechanical techniques. 29 Estimates of European publications culled from a variety of sources, including Julia van Haaften, “‘Original Sun Pictures’: A Check List of the New York Public Library’s Holdings of Early Works Illustrated with Photographs,” Bulletin of the New York Public Library (Spring 1977): 355–415; Lucien Goldschmidt and Weston J. Naef, The Truthful Lens (New York: The Grolier Club, 1980); Imagining Paradise: The Richard and Ronay Menschel Library at George Eastman House, Rochester (Rochester, New York: George Eastman House, 2007). American publications were drawn from the above sources, as well as archival research in collections. Texts which include only a single photographic print are Homes of American Statesmen (copyrighted in 1854, but available in 1853); Remarks on Some Fossil Impressions in the Sandstone Rocks of the Connecticut River (1854); Photography: A New Treatise (1855); and Garrick: His Portrait in New York (1857); Frederick deBourg Richard’s Random sketches: or, what I saw in Europe: from the portfolio of an artist (1857); Illustrations of Longfellow’s Courtship of Miles Standish (1859) contains eight photographic reproductions of paintings; and Autograph Etchings by American Artists (1859) with clichés-verre by American artists. I am not including privately printed texts that included paper photographs, such as Poems of Maria Lowell (1855) or World of Science, Art and Industry (1855), which was extra- illustrated with prints by John Adams Whipple and will be discussed later in the chapter. 30 According to statistics from the London Art-Journal published in the New York Photographic Art-Journal, in the third Photographic Society exhibition of 1856 there were only 3 daguerreotypes shown, while the other 603 photographs were produced from negative-positive processes, including waxed paper negatives, calotype negatives, and collodion negatives. Photographic Art-Journal (May 1856): 141. 31 Great Exhibition of the Works of Industry of all Nations, 1851. Official Descriptive and Illustrated Catalogue, volume 3 (London: W. Clowes and Sons, Printers, 1851), 1431–32. 32 Robert Taft, Photography and the American Scene: A Social History, 1839–1889 (New York: Macmillan, 1938), 60–61. 33 John Szarkowski fell in with this line of reasoning: “I think it is suggestive that the standard early technique for photographic portraiture in the United States was the daguerreotype, while in Europe it was the calotype, or negative-positive system. With the calotype system, an almost infinite number of prints could be made from a single negative, whereas the daguerreotype produced one unique picture. The distinction corresponded perfectly to the social perspectives of the United States on the one hand and, for example, England on the other. In England almost everyone wanted a picture of Lord Tennyson, Dr. Livingstone, or the queen, so such pictures were published in sizable editions. In the United States, by contrast, almost everybody wanted a picture of himself and his family.” Szarkowski, “Photography and America,” Art Institute of Chicago Museum Studies 10 (1983): 238. Also see essays in Young America: The Daguerreotypes of Southworth & Hawes (New York: George Eastman House and the International Center for Photography, 2005) and any number of other daguerreotype catalogues including Beaumont Newhall, The Daguerreotype in America. 34 Richard Rudisill, Mirror Image: The Influence of the Daguerreotype on American Society (Albuquerque: University of New Mexico Press, 1971), 47. 35 Ibid., 53, 159–161. 36 John Wood, America and the Daguerreotype (Iowa City, Iowa: University of Iowa Press, 1991), 25. Cited in Alan Trachtenberg, “Likeness as Identity: Reflections on the Daguerrean Mystique,” in The Portrait in Photography, ed. Graham Clarke (Seattle, Washington: University of Washington

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Press, 1992), 220. Wood maintained “the American daguerreotypist’s way of seeing was different from the European’s. That difference of both Vision and vision marked the difference in their work. A moral and social agenda inspired by a boundless faith in America’s promise lay at the heart of artistic vision prior to the demoralizing carnage of the Civil War. We saw ourselves heroically and classically, like Greenough’s massive, Olympian Washington. That was the Vision, and artists with a vision will find the means to express it” (15). 37 “Inscription for the back of a bank-note,” Putnam’s Monthly II, n. XI (November 1853): 557. 38 A. Barton Hepburn, History of Coinage and Currency in the United States and the Perennial Contest for Sound Money (New York: The Macmillan Company, 1968), 160. 39 Ibid. 40 Detectors frequently aided counterfeiters in their work, and several detector editors were found to be in league with banks. Stephen Mihm makes these points, and catalogues similar remarks in the nineteenth-century. See, for example, “Counterfeiting,” The New-York Times, July 30, 1862, 1. Mihm, Nation of Counterfeits, 246–253. Mihm also tracks the numbers of lottery managers who turned to note detection as lotteries became increasingly perceived as disreputable in the 1830s (235–238). The degree to which detectors undermined their own authority is important to David M. Henkin’s argument as well. See “Promiscuous Circulation: The Case of Paper Money,” City Reading: Written Words and Public Spaces in Antebellum New York (New York: Columbia University Press, 1998), 152–156. 41 Nathan Appleton, Remarks on Currency and Banking: Having Reference to the Present Derangement of the Circulating Medium in the United States, 3rd ed. (Boston: J.H. Eastburn’s Press, 1857), preface. 42 Willis’s Bank Note List, and Counterfeit Detector XIV, n. 5 (February 1857): back cover. Whipple’s process used albumen-coated glass negatives to produce salted paper print. Later he switched to collodion on glass to print albumen positives but retained the name crystalotype for both his negatives and positives. His process is said to have been developed independently from that of the Langenheim Brothers and Niépce de St. Victor. For details of Whipple’s studio and early experimentation with negative-positive processes in Boston, a wonderful resource is William Robinson, A Certain Slant of Light: The First Hundred Years of New England Photography (Boston, Mass.: New York Graphic Society, 1980). The most thorough account of Whipple’s career is found in Sally Pierce’s excellent Whipple and Black: Commercial Photographers in Boston (Boston, Mass.; Boston Athenaeum: Distributed by Northeastern University Press, 1987). 43 Photographic Art-Journal (December 1852): 380. 44 Photographic Art-Journal (April 1853): 254. 45 Humphrey’s Journal (June 1852): 73. 46 H.H. Snelling, A Dictionary of the Photographic Art, forming a complete encyclopedia of all the terms, receipts, processes, apparatus and materials in the art; together with a list of articles of every description employed in its practiced (New York: H.H. Snelling, 1854), v–vi. 47 “Gossip,” Photographic Art-Journal (June 1852): 383. 48 The July 1853 issue included a crystalotype after a daguerreotype of the moon. The August 1853 issue featured a portrait of Harriet Beecher Stowe. In September 1853 the crystalotype frontispiece was a magnified cross-section of the breathing tubes of a silk worm. Hon. Edward Everett of Massachusetts was the subject of the crystalotype included in November 1853. December 1853 showcased Perkin’s Institution for the Blind in Boston. I am grateful to Lilla Vekerdy and Kirsten van der Veen in the Dibner Library, Smithsonian Institution National Museum of American History, for their assistance in accessing and analyzing the Photographic Art- Journal, and other important photographic material in their collections.

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49 In several instances crystalotypes affixed to mounts were inserted across from nearly identical printed illustrations, yet the rather lengthy text printed included by the publisher does not mention the crystalotypes. I suspect the volumes in the Houghton collection were extra- illustrated copies not sanctioned by the publisher but produced by Whipple in limited supply. 50 Photographic Art-Journal (January 1854): 32. 51 Although the edition has an 1854 copyright, a volume in Houghton Library bears an 1853 inscription. 52 “Whipple’s Daguerreotypes,” Dover Gazette & Strafford Advertiser, March 17, 1855, col. A, reprinted from the Boston Daily Advertiser. The article acknowledges “the value of this invention is scarcely fully appreciated by the public as yet….” 53 References to Whipple’s studio often mention his contrivance for polishing plates, not only as a labor-saving convenience, but as a public spectacle. Novelty was an important draw for photography studios. Advertisements for the crystalotype were doubtlessly intended to encourage visitors to think of Whipple as a proprietor at the cutting-edge of his craft. See, for example, Boston Daily Advertiser, January 5, 1857, col F. On Whipple’s position within New England, see Pamela Hoyle, The Development of Photography in Boston, 1840–1875 (Boston, Mass.: Boston Athenaeum, 1979). 54 See, for example, New Hampshire Statesman, May 27, 1854, col C; Boston Daily Advertiser, January 18, 1855, col. A; The Boston Daily Atlas, January 22, 1855, col. H; Bangor Daily Whig & Courier, January 23, 1855, col. E; The Boston Daily Atlas, February 21, 1855, col. H; Bangor Daily Whig & Courier, December 28, 1855, col. A; North American and United States Gazette, August 28, 1856, col. H; Daily National Intelligencer, August 21, 1856, col. F; North American and United States Gazette, August 28, 1856, col. H (on a supposed case of photographic forgery in Paris) reprinted in The Charleston Mercury, August 29, 1856, col. D; The New York Herald, January 28, 1857, pg. 4, col. C; Milwaukee Daily Sentinel, April 29, 1857; The Charleston Mercury, June 30, 1857, col. F; American and United States Gazette, December 09, 1857, col. C. These reports seem to have been, in part, the product of alarmist reports circulated by the Association of Banks. It is not far-fetched to consider the rumor may have been started by the Bank Note Engravers company to stimulate interest in their anti-counterfeiting technologies. Reports continued to reference photographic counterfeits after 1857, but were not as prevalent. See, for example, “The Artizan and Mechanic’s Column,” New Hampshire Statesman, February 4, 1860, col. C. 55 Boston Daily Advertiser, January 18, 1855, col. A. The name of his process, as with so many words in the mid-nineteenth century, was not spelled consistently, but I have chosen to use “crystalotype,” the spelling Whipple most regularly employed. The next month the paper included a notice that “An interesting discussion took place relative to the danger to be apprehended from the crystallotype process of copying bills, in which a number of prominent bank officers took part. Specimens of bills copied by this process was (sic) exhibited and it was stated that when taken carefully and by skillful workmen, they would be so accurate as to deceive nine persons out of ten.” Boston Daily Advertiser, February 16, 1855. 56 “Association of Banks for the Prevention of Counterfeiting, from the Traveller, Feb. 15,” Daily Advertiser, February 16, 1855. 57 “Third Annual Report of the Association of Banks for the Suppression of Counterfeiting,” Bankers' Magazine, and Statistical Register V, n. X (April 1856): 802–803. 58 See Howard Bodenhorn, State Banking in Early America: A New Economic History (New York: Oxford University Press, 2003). Bodenhorn builds on essays by Arthur J. Rolnick and Warren E.

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Weber, including “New Evidence on the Free Banking Era,” American Economic Review 73, n. 5 (December 1983): 1080–91. 59 “Report of the Association for the Prevention of Counterfeiting,” Bankers' Magazine, and Statistical Register V, n. XII (June 1856): 921. 60 See, for example, W.L. Ormsby, “On the Statistics of Counterfeiting; Defects in Our Paper Currency,” Papers of the American Geographical and Statistical Society (October, 1863): 56. 61 “American Paper Money in Canada. Curious Case before the Toronto Police Court—A Woman Charged with Having Counterfeit American Money—Nobody Can Tell Whether the Bills are Genuine—Beauties of the American Paper Currency,” The New York Herald, September 15, 1859, 8A. 62 See Richard Doty, America’s Money, America’s Story, 98. Heinz Tschachler agrees, “It appears that choice of a second color was largely determined by efforts to bust counterfeits, especially after the invention of photographic methods in the 1840s.” Tschachler, The Greenback, 60. Marcus Aurelius Root credited Snelling with the idea, in 1854, to introduce color into bank notes to prevent photographic counterfeiting. M.A. Root, The Camera and the Pencil; or the Heliographic Art, Its Theory and Practice in All Its Various Branches; e.g.—Daguerreotype, Photography, &c. (New York: D. Appleton & Co.; Philadelphia: M.A. Root and J.B. Lippincott, 1864), 384. 63 The Boston Daily Atlas, February 21 1855, col. H. The letter was undersigned by “Gurney & Fredericks” on February 7, 1855. Throughout this dissertation I spell the studio name Fredricks as it was most commonly written, without the second e, though some sources, including Craig’s Daguerreian Registry, use Fredericks. 64 Elisabeth Theresa Feilding to William Henry Fox Talbot, undated, in The Correspondence of William Henry Fox Talbot (foxtalbot.dmu.ac.uk), document 5581. Larry J. Schaaf suggests the letter should be dated c. 1843 based on a November 1843 reference to photographic counterfeiting in Lloyd’s Weekly London Newspaper. It is probable there were concerted efforts to use daguerreian plates as engraving matrices from which to print photomechanical counterfeits. See, for example, a daguerreotype of a bank note by Anson Clark in the collection of the Metropolitan Museum of Art (MMA 1998.47), which reproduces Haxby catalogue number MA- 1200-G8a. David Jaffee, briefly discusses Clark in “Daguerreotypes: The Industrial Image,” A New Nation of Goods: The Material Culture of Early America (Philadelphia: University of Pennsylvania Press, 2010), 275–325. For more on Clark’s career see Richard Bolt, “Anson and Edwin H. Clark: Pioneering Daguerreotypists of Western Massachusetts,” The Daguerreian Annual (1991): 79–90. Abraham Bogardus also made daguerreotypes of bank note designs, as a legitimate commission for the American Bank Note Company. See Craig’s Daguerreian Registry, ed. John S. Craig, vol. 1 (Torrington, Conn.: J.S. Craig, 2003), 40. 65 Daily Chronicle & Sentinel, January 1, 1857, col. C. 66 The New York Herald, March 31, 1857, 8, col. B; reprinted in The Daily Cleveland Herald, April 1, 1857, col. C. 67 E.J. Wilber & E.P. Eastman, A Treatise on Counterfeit, Altered, and Surious Bank Notes with Unerring Rules for the Detection of Frauds in the Same (Poughkeepsie, NY: Published for the Authors, 1865), 42. 68 Hippolyte Fizeau’s process for printing from daguerreotype plates appeared in American journals as early as the 1850s, if not before, and Paul Pretsch’s photogalvanography was referenced in the years following his 1854 British patent, yet there is little evidence of American experimentation in the 1850s. The American Phototype Company took up Pretsch’s process in the early 1860s, but Lynn Glaser suggests counterfeiters used transfer methods prior to the

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importation and development of photomechanical processes. Lynn Glaser, Counterfeiting in America: The History of an American Way to Wealth (Clarkson N. Potter, 1968), 191–192. Pretsch is mentioned repeatedly in the photographic press, but descriptions of photographing onto wood for the purposes of easy reproduction are mentioned in the popular press in the late 1850s as well. See, for example, The Charleston Mercury, March 2, 1858, col. A. In the 1840s and 1850s in the United States, there were many prints translated from daguerreotypes, but few successful attempts using photo-sensitive materials. David Hanson tracks efforts to import commercially viable photo-mechanical methods in “The Beginnings of Photographic Reproduction in the USA,” History of Photography 12, n. 4 (October–December 1988): 357–376. His essay concludes: “from 1851 onward, new methods for reproducing the photographic image in printer’s ink were frequently discussed in American professional journals. However, no commercially workable process appeared until the advent of the photolithograph” (373). Photolithography was in use in the United States by the late 1850s. See David A. Hanson’s essays for relevant discussion of experiments by the Langenheim Brothers and A.A. Turner. The Langenheims employed their photolithography process in stereoview series in the late 1850s. David Hanson, “A.A. Turner, American Photolithographer,” History of Photography 10, n. 3 (July–September 1986): 193–211; and “Early Photolithographic Stereographs in America: William and Frederick Langenheim and A.A. Turner,” History of Photography 9 (April–June 1985): 131–140. For more on photolithography see David Tatham, “The Photolithographs of L.H. Bradford,” Aspects of American Printmaking, ed. James F. O’Gorman (Syracuse, New York: Syracuse University Press, 1988), 105–135. I am indebted to discussions with Malcolm Daniel and Jacob Lewis regarding the development of photomechanical processes. Helena E. Wright was also incredibly generous in sharing her insights into early efforts to perfect photomechanical processes, and provided repeated access to the graphic arts collection at the Smithsonian National Museum of American History. See her excellent synopsis “Photography in the printing press: the photomechanical revolution,” in Presenting Pictures, ed. Bernard Finn (London: Science Museum, 2004), 21–42. 69 A “photographic bank note” was patented by L. Eidlitz of New York, New York on 14 February 1860 (U.S. Patent 27116), but I have not been able to locate a specimen of Eidlitz’s process. My gratitude to Richard Doty for his assistance with attempts to locate paper prints of currency from this period. In conversation with Dr. Doty, as well as the staff of the American Numismatic Society in New York, it would seem there are no known extant paper prints of currency. I am also grateful to Nicholas M. Graver for his generosity in sharing his knowledge regarding photographic numismatics. It is possible that two bank-notes in the American Antiquarian Society collections, which were marked as counterfeits in the nineteenth century, may have been printed photographically, but it is more likely that they are merely engravings which were heavily bleached by the counterfeiters so as to appear worn, and therefore legitimate. I am thankful for the insights of Lauren Hewes, Curator of Graphic Arts at the American Antiquarian Society, who kindly reviewed their counterfeit obsolete notes with me, and appreciate her thoughtful observations on relationships between photography and printmaking in the period. 70 There are reports of European paper prints making their way to the United States. Roger Fenton’s Crimean War images were mentioned in the North American and United States Gazette, January 31, 1856, col. A. Whipple also showed Fenton’s Crimean views. Boston Daily Advertiser, January 5, 1857, col. F. For references to European paper prints for sale in the United States in the 1850s see Keith Davis, The Origins of American Photography, 1839–1885: From Daguerreotype to Dry Plate (New Haven and London: Yale University Press in association with The Nelson-Atkins Museum of Art, 2007), 158.

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71 The Daguerreian Journal, started in November 1850, hinted at alternatives to the dominant daguerreian mode of creating photographs when its name changed in 1852 to Humphrey’s Journal of the Daguerreotype and Photographic Arts, and the Sciences and Arts Appertaining to Heliography. Reflecting the delay in unseating the daguerreotype process in the United States, the title was not shortened to Humphrey’s Journal of Photography, Chemistry and Pharmacy until 1862. From the outset Humphrey described his journal as “devoted to the Daguerreian and Photogenic Arts” and included articles on negative-positive processes alongside methods for other types of photographic processes. For the Photographic Art-Journal, support of John Adams Whipple was the culmination of their efforts to spearhead the paper revolution. In their selection of articles, and in the Gossip column—the only section of original writing—they urged photographers to experiment with negative-positive processes. Gustave Le Gray’s treatise on photography, which discussed both paper and glass negatives, and Frederick Scott Archer’s wet plate process, appeared in American publications immediately after their release in Europe. The experiments of Claude Félix Abel Niépce de Saint-Victor, which utilized albumen rather than collodion to produce glass negatives, were obvious precedents for the technique Whipple patented. 72 “Photogenic Drawing,” The United States Magazine and Democratic Review V, n. XVII (May 1839): 518. On debates over priority of invention, see Gregory Wickliff, “The Daguerreotype and the Rhetoric of Photographic Technology,” Journal of Business and Technical Communication 12, n. 4 (October 1998): 413–436. 73 Martha Sandweiss, Print the Legend: Photography and the American West (New Haven and London: Yale University Press, 2002), 124–125. On the rhetoric surrounding the introduction of the daguerreotype process see Susan Newberry, “Commerce and Ritual in American Daguerreian Portraiture” (Ph.D. dissertation, Cornell University, 1999). 74 On the filtration of Daguerre’s process into the United States see Sarah Kate Gillespie, “Samuel F.B. Morse and the Daguerreotype: Art and Science in American Culture, 1835–55” (Ph.D. dissertation, City University of New York, 2006). Gillespie discusses Morse’s allegiance to Daguerre over Talbot and mentions that photographic prints made using Talbot’s process circulated at the National Academy reception, at which Morse spoke on Daguerre’s techniques (89–92). For a helpful chronology see R. Derek Wood, The Arrival of the Daguerreotype in New York (New York: American Photographic Historical Society, 1994). On the politics behind the gradual roll-out of Daguerre’s process see Anne McCauley, “Francois Arago and the Politics of the French Invention of Photography,” Multiple Views: Logan Grant Essays on Photography, 1983–1989, ed. Daniel P. Younger (Albuquerque: University of New Mexico, 1991), 43–69. 75 Boston Mercantile Journal, March 1, 1839, cited in William F. Robinson, A Certain Slant of Light, 3. 76 See William Welling’s meticulous year-by-year account of the spread of photographic information in Photography in America: The Formative Years, 1839–1900 (New York: Thomas Y. Crowell, 1978). 77 Throughout this dissertation, emphasis in quotations is transcribed from original document, unless otherwise noted. “The New Art, or ‘The Pencil of Nature,’” National Intelligencer, March 7, 1839, 2, reprint from the Boston Mercantile Journal. 78 Ibid. 79 Ibid. 80 William Henry Fox Talbot, “Calotype (Photogenic) Drawing,” Literary Gazette, February 13, 1841. 81 Roger Taylor, “The Formative Years: The Calotype in the 1840s,” Impressed by Light: British Photographs from Paper Negatives, 1840–1860 (New York: Metropolitan Museum of Art, 2007), 15.

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82 For an account of the aesthetic discourse surrounding the calotype in France see Margaret Denton, “Francis Wey and the Discourse of Photography as Art in France in the Early 1850s: ‘Rien n’est beau que le vrai; mais il fauit le choisir,” Art History 25, n. 5 (November 2002): 622– 648. European rhetoric was internalized by Americans to some degree. See, for example, “Gossip,” Photographic Art-Journal 3, no. 3 (March 1852): 189. Yet the following year, the editor claimed that Whipple’s process offered both tonal and linear clarity. “The present results of Mr. Whipple’s Crystalotype surpass anything of the kind yet exhibited. The rapidity and success with which Mr. Whipple manipulates, brings the crystalotype within the reach of the cheapest monthly magazines as an illustration, and at a cost much below the steel engraving. Their truthfulness to nature, and their greater uniformity of appearance, their delicacy of tone and color, and their clearness of outline must commend them to our publisher as illustrations to their works.” Photographic Art-Journal (March 1853): 187. Christopher Phillips has argued that associations between the calotype and artistry were reiterated in later scholarship. Christopher Phillips, “A Mnemonic Art? Calotype Aesthetics at Princeton,” October 26 (Autumn 1983): 34– 62. 83 I have not discerned any indication of a particular aesthetic program being promoted by Snelling or Humphrey through their selection of European articles for republication, though it would be worth closer examination to track which articles were reproduced from European journals to gauge the connections of each publication. They do seem to have had pushed for markedly different entrepreneurial agendas, however, as will be discussed in the following chapters. 84 Although he published regularly on a variety of techniques, Henry Hunt Snelling remarked that, “the superiority of paper photographs as illustrations, the rapidity with which they can be multiplied, their distinctness, and the great number of purposes to which they are applicable, must cause them, in a great measure, to supercede the daguerreotype and not only daguerreotypes, but lithographs…They may be said to be a medium between pencil and water color drawings and the engraving, partaking in their nature a little of each, while the fact of their being more true to nature—when well executed—will make them of more value to all who appreciate the fine arts, or the beauties of the universe.” Photographic Art-Journal (May 1854): 160. 85 Merry A. Foresta, Secrets of the Dark Chamber: The Art of the American Daguerreotype (Washington, D.C.: Smithsonian Institution Press, 1995), 15–16. 86 Foresta cites “New Discovery in the Fine Arts,” New Yorker (April 13, 1839) but a slightly longer version was published as “The Pencil of Nature: A New Discovery,” in The Corsair 1, n. 5 on the same date. The Corsair, a journal which proudly proclaimed itself the beneficiary of “the piratical law of copyright,” does not cite its source, but The New-Yorker credited Blackwood’s Magazine. See “New Discovery-Engraving,” Blackwood’s Edinburgh Magazine 45 (March 1839): 382–390. Alan Trachtenberg remarks on the conflation of the processes of Daguerre and Talbot in “Mirror in the Marketplace,” 3–25. 87 “The New Art—Photography,” The Mirror of Literature, Amusement, and Instruction, April 27, 1839, 262. 88 Geoffrey Batchen, “The Naming of Photography: ‘A Mass of Metaphor,’” History of Photography 17, n.1 (Spring 1993): 31, fn 59. On the importance of word choice in reference to reproduction in the language of the French academy, see Patricia Mainardi, “Copies, Variations, Replicas: Nineteenth-Century Studio Practice,” Visual Resources 15, n. 2 (1999): 123–147. 89 Daily National Intelligencer, May 12, 1849, col. A.

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90 Oliver Wendell Holmes, “The Stereoscope and the Stereograph,” The Atlantic Monthly 3, n. 20 (June 1859): 739. Holmes later noted that he apprenticed with J.W. Black, Whipple’s partner. “Doings of the Sunbeam,” The Atlantic Monthly 12, n. 69 (July 1863): 1–16. 91 Oliver Wendell Holmes, “The Stereoscope and the Stereograph,” 740–741. Holmes’s musings were collected in Soundings from the Atlantic (Boston: Ticknor and Fields, 1864). Historian Mike Ware discusses aversion to negatives in “Luminescence and the Invention of Photography: ‘A Vibration in the Phosphorus,’” History of Photography 26, n. 1 (Spring 2002): 4–15. “The realization of camera photography, which intrinsically yields a negative image, may have been inhibited by our innate aversion to the dark. One can appreciate why any early experimenter, confronted with the experience of the negative-working effect, might have felt disinclined to pursue it” (8). Darcy Grigsby ruminates evocatively on the racial implications of Holmes’s commentary, and the significance of American monetary policy on portrait representations. “Negative-Positive Truths,” Representations 113, no. 1 (Winter 2011), 16–38. 92 Oliver Wendell Holmes, “The Stereoscope and the Stereograph,” 742. 93 Later in the essay Holmes notes his preference for paper rather than glass stereoviews. By the time of his July 1863 article “Doings of the Sunbeam,” which describes the production of albumen paper and positive prints, negative-positive procedures had become commonplace. On Holmes’s insistence on divergences between photographic and human perception, see Josh Ellenbogen, “The Eye of the Sun and the Eye of God,” Visual Resources 26, n. 2 (May 2010): 113–130. In his discussion of differences between Lady Eastlake and Holmes, Ellenbogen addresses their stances in terms of personal politics without touching too extensively on the degree to which national attitudes play a role in their analysis. 94 “Photographic Counterfeiting,” Boston Daily Advertiser, January 18, 1855. 95 Signing bills became so labor intensive that clerks were employed to sign for bank officers. On tension between homogenization of penmanship and reliance on autographs as unique embodiments of character, see Tamara Plakins Thornton, “The Romance and Science of Individuality,” Handwriting in America: A Cultural History (New Haven and London: Yale University Press, 1996), 72–107. 96 McClees’ Gallery of Photographic Portraits of the Senators, Representatives & Delegates of the Thirty-Fifth Congress, photographed and published by McClees & Beck, No. 308 Pennsylvania Avenue Washington DC and James Earle McClees and Julian Vannerson, Portraits and Autographs of the President of the United States, Vice President, Cabinet and Eminent Senators and Representatives. Taken from Life. Examples of both volumes are held in the collections of the Smithsonian Institution National Portrait Gallery. I am grateful to Ann Shumard, Frank Goodyear, and Amy Baskette for making the collections and research files of the Smithsonian National Portrait Gallery available. 97 It is likely that the inclusion of signatures was an attempt to align paper photographs with singular imagery, and disassociate photographic prints from the large editions of printed portraits. Margaretta Lovell comments on the rise in artist signatures on eighteenth-century American paintings “in a business that depended on personal contact.” She argues that though “usually attributed to a burgeoning ‘pride,’ these signatures seem more likely to have been both guarantees of quality for the assurance of the purchaser—not unlike the silversmith’s touchmark or the clockmaker’s dial-imprinted name—as well as covert messages addressed to potential purchasers.” Margaretta Lovell, Art in a Season of Revolution: Painters, Artisans, and Patrons in Early America (Philadelphia: University of Pennsylvania Press, 2005), 14. 98 “The Pencil of Nature. A New Discovery,” The Corsair 1, n. 5 (April 13, 1839): 71.

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99 My thinking here is, of course, informed by the recent translation of Walter Benjamin’s well- known “The Work of Art in the Age of Mechanical Reproduction,” as “The Work of Art in the Age of Its Technological Reproducibility,” a difference that signals Benjamin’s concern with the imagined implications of reproducibility, rather than qualities of a particular reproduction. On the distinction see Samuel Weber, Benjamin’s –abilities (Cambridge, Mass,: Harvard University Press, 2008). Weber finds that the repercussion of the change in suffix is to “shift the emphasis from the ostensibly self-contained work to a relational dynamic that is precisely not self-identical but perpetually in the process of alteration, transformation, becoming-other” (59). 100 Charles A. Seely, The Ambrotype. A Practical Treatise on the Art of Producing Collodion Positives (New York: Seely & Garbanati, 424 Broadway, 1857), 5. 101 David M. Henkin, The Postal Age: The Emergence of Modern Communications in Nineteenth-Century America (Chicago, University of Chicago Press, 2006), 58. 102 Walter Benjamin, “The Work of Art: Second Version,” The Work of Art in the Age of Its Technological Reproducibility, and Other Writings on Media (Cambridge; Mass.; London, England: Belknap Press, Harvard University Press, 2008), 24–25. 103 Photographic Art-Journal (April 1852): 255. 104 The North American and Daily Advertiser, November 21, 1844, col. B. Also see “Counterfeit semblance,” The Photographic and Fine Art Journal (July 1856): 224. 105 M.A. Root, The Camera and the Pencil, 43. 106 On the prevalence of Shakesperean citations in popular culture see Lawrence W. Levine, “William Shakespeare in America,” Highbrow/Lowbrow: The Emergence of Cultural Hierarchy in America (Cambridge, Mass.: Harvard University Press, 1988), 11–81. For a concise account of the spread of his plays in the United States see Virginia Mason Vaughan, “Making Shakespeare American: Shakespeare’s Dissemination in Nineteenth-Century America,” Shakespeare in American Life (Washington, D.C.: Folger Shakespeare Library, 2007), 23–33. 107 Courtesy Babcock Gallery. Gallery identification number 22730.08. My gratitude to Frank Goodyear for the reference. 108 David M. Henkin, “Promisuous Circulation: The Case of Paper Money,” City Reading: Written Words and Public Spaces in Antebellum New York (New York: Columbia University Press, 1998), 143. 109 Lovell, Art in a Season of Revolution, 46. Also see Lovell’s first chapter, on the distinct markets for painted and printed portraits. 110 See, most notably, John Tagg, The Burden of Representation (Minneapolis: University of Minnesota Press, 1988); Allan Sekula, “The Body and the Archive,” October 39 (Winter 1986), 3– 64; and Alan Trachtenberg, “Illustrious Americans,” 21–69. 111 “Arts of Counterfeiting,” New Hampshire Statesman, May 27, 1854, col. C. 112 Karen Halttunen, Confidence Men and Painted Women: A Study of Middle-class Culture in America, 1830–1870 (New Haven: Yale University Press, 1982), xv. 113 Ibid., 152. 114 Alan Trachtenberg refers to such prints as “an advertising gimmick some daguerreotypists used in the hard times of the 1840s.” Reading American Photographs, 18. 115 On vignette designs see Richard G. Doty, Pictures from a Distant Country: Images on 19th Century U.S. Currency (Raleigh, North Carolina: Boson Books, 2004), e-book; and Heinz Tschachler, “Designing the Paper Dollar,” The Greenback, 62–93. Political economist Eric Helleiner refers to the shift from local imagery to national vignettes and personalities as a form of “banal

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nationalism,” which fostered cohesion through daily encounter. Eric Helleiner, The Making of National Money, 105–110. 116 The vignette appeared in a number of advertisements fashioned to resemble currency. See Robert A. Vlack, An Illustrated Catalogue of Early North American Advertising Notes (New York: R.M. Smythe, 2001). 117 Clifford F. Thies, “Female Beauty as Depicted on U.S. Obsolete Notes,” Paper Money (March/April 2007): 133. 118 John S. Dye, Dye’s Bank Mirror (Cincinnati, Ohio: John S. Dye, 1853), 10. 119 On relationships between specie and slavery see Charles W. Calomiris and Larry Schweikart, “The Panic of 1857: Origins, Transmission, and Containment,” The Journal of Economic History 51, n. 4 (December 1991): 807–834. The authors ascribe the Panic of 1857 to anxieties stimulated by the Dred Scott decision, pointing out that Southern branch banks were able to weather the economic climate more easily than independent Northern banks, which faced insolvency in the rush for conversion from notes to specie. Reliance on speculation and suspension of convertibility flamed unrest. See also Michael O’Malley, “Specie and Species: Race and the Money Question in Nineteenth-Century America,” The American Historical Review 99, n. 2 (April 1994): 369–395. 120 “Corry O’Lanus’ Epistle: On Photography,” The Fireside Companion, June 15, 1869, 4. 121 Alan Trachtenberg, “The Daguerreotype and Antebellum America,” in Young America: The Daguerreotypes of Southworth & Hawes (New York: George Eastman House and the International Center for Photography, 2005), 17–18. 122 Mihm, Nation of Counterfeiters, 12. 123 See Mihm, “Passing and Detecting,” Nation of Counterfeiters, 209–259. 124 Jaffee, A New Nation of Goods, 324. 125 On paper mills, see Cathleen A. Baker, From the Hand to the Machine: Nineteenth-century American paper and mediums (Ann Arbor, Michigan: The Legacy Press, 2010), 17. 126 Prevost learned to make waxed paper negatives while in France but, once back in New York, he published tips for other struggling with LeGray’s process as early as 1854. Julie Melby, “Victor Prevost: Painter, Lithographer, Photographer,” History of Photography 35, n. 3 (August 2011): 225. 127 “The Crystal Palace Fair,” New York Times, October 9, 1857. 128 For statistics see Bray Hammond, Banks and Politics in America, 596. 129 “Counterfeiting,” New York Times, July 30, 1862, 1. 130 Ibid. 131 Emphasis here, as throughout the chapter, as in original. “Photogenic Drawing,” The United States Magazine and Democratic Review V, n. XVII (May 1839): 519. 132 Consistent and affordable paper was difficult to find. In 1854 the 750 paper mills in operation in the United States produced 250 million pounds of paper but imported 405 million pounds of rags to do so. An 1864 history of American papermaking noted “our seamen had to scour every corner of the globe” in competition with other countries looking for rag. It cost 24 million dollars to produce 27 million dollars’ worth of paper. The high cost of paper, 2 ½ cents per pound, forced print publishers to increase prices or drastically reduce the size of their publications. See Joel Munsell, A Chronology of Paper and Papermaking (Albany: J. Munsell, 1864), 97–104. More recently, John Lauritz Larson summarized the erratic pace of development in the papermaking industry in The Market Revolution in America, 66.

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133 Photographic Art-Journal (April 1853): 254–255. 134 Snelling dismissed rumors of Anthony’s sway over the journal: “We are perfectly aware that certain parties have circulated a report that the Journal is sustained by Mr. E. Anthony, and is under his influence; but a greater lie—oh! We should have said stretch of the imagination, for fear of offending ears polite—never was promulgated. Mr. Anthony does not, nor never has attempted, to influence one line of the Journal, and he contributes nothing to its support further than paying for his advertisement...” Photographic Art-Journal (February 1853): 129–130. 135 Henry H. Snelling, The History and Practice of the Art of Photography; or the Production of Pictures through the Agency of Light. Containing all the Instructions Necessary for the Complete Practice of the Daguerrean and Photogenic Art, Both on Metalic (sic) Plates and on Paper (New York: G.P. Putnam, 1849), vi–vii. 136 See William Robinson, A Certain Slant of Light, and Gregory Wickliff, “Light Writing: Technology Transfer and Photography to 1845,” Technical Communication Quarterly 15, n.3 (2006), 309, as well as Sarah Kate Gillespie, “Samuel F.B. Morse and the Daguerreotype: Art and Science in American Culture, 1835–55” (Ph.D. dissertation, City University of New York, 2006), 203–204. 137 See documents 4539, 5605, 5749, and 5766, The Correspondence of William Henry Fox Talbot (foxtalbot.dmu.ac.uk). 138 The correspondent, American diplomat George Gliddon, wrote to convey from Haight “the immense gratification he and his friends in America derived from those splendid Sun-Pictures, you were so kind as to present to him last Summer…” Document 5749, The Correspondence of William Henry Fox Talbot (foxtalbot.dmu.ac.uk), October 14, 1846. The year prior, a photographer in Columbus, Ohio, wrote to Talbot about his attempts to produce photographs using newspaper accounts of negative-positive processes: “I have been waiting for some one in this country more skilful (sic) than myself to take up this very interesting subject but no one so far as I know having moved in the matter I am desirous of trying again.” Document 5208, The Correspondence of William Henry Fox Talbot (foxtalbot.dmu.ac.uk), March 16, 1845. 139 See documents 5782, 5792, 5804, and 5845, The Correspondence of William Henry Fox Talbot (foxtalbot.dmu.ac.uk). On Anthony as an entrepreneur see William and Estelle Marder, Anthony, the Man, the Company, the Cameras: an American Photographic Pioneer (Plantation, Florida: Pine Ridge Pub. Co., 1982). 140 Document 5766, The Correspondence of William Henry Fox Talbot (foxtalbot.dmu.ac.uk), November 2, 1846. 141 For my study, the most useful text on Barnum has been James W. Cook, The Arts of Deception: Playing with Fraud in the Age of Barnum (Cambridge, Mass.: Harvard University Press, 2001). In his work on “artful deception,” Cook reminds readers, “the new middle class maintains a well- deserved scholarly reputation for having been deeply concerned—even downright anxious— about questions of fraud in almost every facet of its historical development…worries about deception, in short, were positively endemic to the culture of the new middle class” (26). On distrust of financial speculation, see Ann Fabian, Card Sharps and Bucket Shops: Gambling in Nineteenth-Century America (New York: Routledge, 1999). She focuses throughout the book on moral and economic reform in New York City. See Nancy Keeler for a discussion of Talbot as a speculator, “Inventors and Entrepreneurs,” History of Photography 26, n. 1 (Spring 2002): 26–33. 142 Reese Jenkins, Images and Enterprise: Technology and the American Photographic Industry, 1839 to 1925 (Baltimore: Johns Hopkins University Press, 1975), 5. Jenkins is generally attentive to

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market incentives, but exempts early processes from commercial interests, arguing that they were primarily experimentally motivated. 143 Document 6210, The Correspondence of William Henry Fox Talbot (foxtalbot.dmu.ac.uk), mailed February 6, 1849; received February 22, 1849. 144 Ibid. 145 North American and United States Gazette, Thursday, April 19, 1849; issue 16, 600 D; reprinted in subsequent weeks. 146 Ibid. 147 Ibid. An undated broadside in the George Eastman House collections is similarly worded. Beaumont Newhall remarks that the Langeheims circulated a thousand copies of it, but does not note the basis for his estimate. Beaumont Newhall, The Daguerreotype in America, 52. 148 North American and United States Gazette, February 2, 1850, col. B. 149 For an overview of their prints, see Dolores A. Kilgo, “The Alternative Aesthetic: The Langenheim Brothers and the Introduction of the Calotype in America,” in America and the Daguerreotype, ed. John Wood (Iowa City: University of Iowa Press, 1991). For biographies of the brothers, consult George S. Layne, “The Langenheims of Philadelphia,” History of Photography 11, n. 1. (January–March 1987): 39–51. 150 The Langenheims sold licenses for five states (Georgia, Florida, Alabama, Louisiana, and Texas) to a single firm, operated by James Maguire and W.H. Harrington out of New Orleans. Information on the firm can be found in Margaret Denton Smith and Mary Louise Tucker, Photography in New Orleans: The Early Years, 1840–1865 (Baton Rouge, LA: Louisiana State University Press). Beaumont Newhall ascribed the failure of the Langeheim’s project to poor quality and strict licensing: “The public’s apathy is understandable, for the pictures are weak, poorly lighted, and with none of the quality seen in the product of even a journeyman daguerreotypist. They painted out the background to silhouette the figures, which were monotonously alike...Photographers were disinterested, for they were reluctant to pay for the use of any restricted process; they looked upon payment of the license fee as a needless expense, and they saw no reason to abandon the daguerreotype process, which the American public was most enthusiastically endorsing.” Beaumont Newhall, The Daguerreotype in America, 53. Although photographers did regularly complain about licensing fees in the 1850s, I have not found licensing restrictions given as an explanation for not taking up the Langenheim Talbot patent in period literature. Newhall does not cite specific references but does note that the Langenheims complain about difficulty issuing licenses in their correspondence with Talbot. 151 Marcus Aurelius Root explains that they soon turned to the albumen on glass process of Niepce St. Victor, which they patented as “Hyalotypes.” M.A. Root, The Camera and the Pencil, 371. The Langenheims, like Whipple and other photographers, used novelty to stimulate business. “A singular scene was presented as Lengenheim’s (sic) Daguerreotype gallery, in Philadelphia, recently. Driespach, the celebrated Lion King, carried his pet tiger to the rooms of Mr. L, sat down very contently with the animal in his arms, and had the likeness of himself and companion taken in beautiful style.” Young America, June 7, 1845, 2 and 11. Whipple also used his negatives as lantern slides. 152 David R. Hanlon, “Prospects of Enterprise: The Calotype Venture of the Langenheim Brothers,” History of Photography 35, n. 4 (2011): 354. 153 Photographic Art-Journal (March 1852): 196.

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154 Andre Gaudreault and Philippe Marion, “A Medium is Always Born Twice…,” Early Popular Visual Culture 3, no.1 (May 2005): 3-15. 155 On the move from private to centralized banking in the Civil War see Bray Hammond, “Federal Monetary Control Restored,” Banks and Politics in America, 718–739. Printed without reciprocal gold specie in reserve, greenbacks were of course primarily an attempt to infuse Union coffers during the Civil War. For a discussion of the Legal Tender Act of 1862 see Bray Hammond, Sovereignty and an Empty Purse: Banks and Politics in the Civil War (Princeton, NJ: Princeton University Press, 1970) as well as Mihm, “Banking on the Nation,” in Nation of Counterfeiters, 305–359. 156 “The Daguerreotype—Its Present Position,” Humphrey’s Journal (January 1862): 260–261. 157 “Doings of the Sunbeam,” The Atlantic Monthly 12, n. 69 (July 1863): 8. Alan Trachtenberg remarks that Holmes’s figurative language, “which transferred an elusive solidity of reference from money to photographs subliminally promised stability in the antebellum world of inflated money, shaky confidence, and conflicting values.” Trachtenberg, Reading American Photographs, 18–19. But Holmes differentiated between processes, and did not characterize as all photographic forms as stable. 158 J. Laurence Laughlin, “The Gold Discoveries and the Act of 1853,” The History of Bimetallism in the United States (New York: Appleton and Company, 1900), 78. Laughlin argued that although the 1870s witnessed criticism about the bimetal standard, “the real demonization of silver in the United States was accomplished in 1853” (80). On the social repercussions of bimetallism see Mary McAleer Balkun, “The Real, the Self, and Commodity Culture, 1880–1930,” The American Counterfeit: Authenticity and Identity in American Literature and Culture (Tuscaloosa: University of Alabama Press, 2006), 1–17. Regarding ongoing difficulty in weighing the impact of monetary forms into sociological analysis see Viviana A. Zelizer, “Making Multiple Monies,” in Explorations in Economic Sociology, ed. Richard Swedberg (New York: Russell Sage Foundation, 1993), 193–211.

Chapter 2 1 Realization that an underexposed negative would appear as a positive when viewed against a dark ground was documented as early as 1851. Frederick Scott Archer’s process had been published in the Photographic Art-Journal at least as early as April 1852. 2 Robert Taft, “The Ambrotype,” Photography and the American Scene: A Social History (New York: Dover Publications, 1938), 129. 3 Abraham Lincoln, “Second Lecture on Discoveries and Inventions” (February 11, 1859) in The Collected Works of Abraham Lincoln, vol. 3, ed. Roy Basler (New Brunswick, N.J.: Rutgers University Press, 1953), 363. 4 Re-adjustment of classes to accord with “Classified Index of Subjects for Invention of March 1872,” July 17, 1872. Record group 241, Records of the Patent Office. Orders, Notices, and other Misc. Records, 1845–1962. Box 1. Commissioner’s Orders, 1845–1876, 308. National Archives and Records Administration, College Park, MD (NARA). 5 2200 patents were issued in 1850, more than 4400 in 1860, 12000 in 1870, and 13000 in 1880, according to Donald Grier Stephenson, Jr., The Waite Court: Justices, Rulings, and Legacy (Santa Barbara, California: ABC-CLIO, 2003), 34. An issue of the journal Technology and Culture devoted to patents offered preliminary assessment of the impact of fluctuating politics on the ratio of approved patents. See Carolyn Cooper, “Making Inventions Patent,” Technology and Culture 32, no. 4, special issue: Patents and Inventions (October 1991): 837–845.

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6 Janice G. Schimmelman, American Photographic Patents 1840–1880: The Daguerreotype and Wet Plate Era (Nevada City, California: Carl Mautz Pub., 2002). 7 “Gossip,” Photographic Art-Journal (April 1852): 254. 8 “Photography,” The Charleston Mercury, April 2, 1858, col. B. 9 N.G. Burgess, “Why?” Photographic Art-Journal (January 1857): 23–24. 10 On the Meade brothers see entry dated January 1857, New York, vol. 376, p. 218, R.G. Dun & Co. Collection, Baker Library Historical Collections, Harvard Business School. On Brady see entry dated July 1852, New York, vol. 368, p. 442, R.G. Dun & Co. Collection, Baker Library Historical Collections, Harvard Business School. 11 Photographic Art-Journal (January 1854): 32. Despite his immodesty in ranking himself alongside the most well-respected photographers of the time, the correspondent did not sign his letter. By the 1850s, mechanics’ institutes had similarly shifted from a technical to a more explicitly ethical mission. See Stephen R. Rice, “Head and Hand: The Mechanics’ Institute Movement and the Conception of Class Authority,” Minding the Machine: Languages of Class in Early Industrial America (Berkeley: University of California Press, 2004), 42–68. 12 Tanya Sheehan, Doctored: The Medicine of Photography in Nineteenth-Century America (University Park, Pennsylvania: Pennsylvania State University Press, 2011), 33–38. 13 The Daguerreian Journal (August 15, 1851): 209. 14 Photographic Art-Journal (February 1852): 111. 15 The Daguerreian Journal (November 15, 1850): 48. 16 As Kevin Murphy explains, “During the middle third of the nineteenth century American artists, like Americans lawyers and doctors, worked [to] make their occupation into a profession that would have the right to regulate the entry of practitioners into the field.” The National Academy of Design was formed “to take control of their profession by creating standards of training and merit while providing a marketplace for American art.” Kevin Michael Murphy, “Economics of Style: The Business Practices of American Artists and the Structure of the Market, 1850–1910” (Ph.D. dissertation, University of California, Santa Barbara, 2005), 1. Murphy describes several strategies also applicable to photographers: the adaptation of style to market trends, trading on one’s reputation to maintain a market, and the formation or reinvigoration of professional organizations. 17 Alexis de Tocqueville, “On the Use That the Americans Make of Association in Civil Life,” Democracy in America, edited and translated by Harvey C. Mansfield and Delba Winthrop (Chicago: University of Chicago Press, 2000), 489–492. 18 Ibid, 492. 19 “The present state of photography in England,” Photographic Art-Journal (July 1853): 30. 20 “Educational Institutions of New-York,” Putnam’s Monthly II, no. VII (July 1853): 15. 21 Deborah Jean Warner, “The American Photographical Society and the Early History of Astronomical Photography in America,” Photographic Science and Engineering 11, no. 5 (September– October 1967): 342–347. 22 A later photographic journal, published out of Philadelphia starting in 1879, used the same name. 23 The advertisement appeared on the back cover of Charles A. Seely, The Ambrotype. A Practical Treatise on the Art of Producing Collodion Positives (New York: Seely & Garbanati), 1857.

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24 Carroll Pursell, “The Expansion of American Manufactures,” The Machine in America: A Social History of Technology (Baltimore: Johns Hopkins University Press, 1995), 103. 25 “Gossip,” Photographic Art-Journal (February 1852): 127. 26 Photographic Art-Journal (July 1853): 31. 27 Photographic Art-Journal (February 1854): 38. 28 Along those lines, rather than considering the only other photographic journal in publication as competition, Humphrey remarked, “We are well pleased with the appearance of this Journal, and are happy to welcome all publications devoted as co-laborers in the promotion of the interests of the Daguerreian world.” The Daguerreian Journal (April 15, 1851): 338. 29 Henry Hunt Snelling, “The Art of Photography,” Photographic Art-Journal (January 1851): 1. Snelling complained frequently about over-priced photographic instruction, and recommended subscription to the journal as an alternative to costly lessons. Because Snelling was an employee of Edward Anthony’s supply company, financial considerations were not entirely irrelevant to the interests of the journal. 30 He continued, “It has long been the practice of an unprincipled few to gather some worthless receipts and impose on Daguerreian Artists, particularly those in the country, by representing these as being highly valuable, and adopted by the first artists. By this means they dispose of a process that never found its way into the operating room of an eminent artist. This sort of extortion should be stopped, and we know of no better way than by a reliable medium through which such humbugs can be effectively exposed and the artist warned of them.” The Daguerreian Journal (November 1, 1850): 15–16. 31 Adrian Johns, Piracy: the intellectual property wars from Gutenberg to Gates (Chicago: University of Chicago Press, 2009), 179. 32 Peter Jaszi and Martha Woodmansee, “Beyond Authorship: Refiguring Rights in Traditional Culture of Bioknowledge,” in Scientific Authorship: Credit and Intellectual Property in Science, ed. Mario Biagioli and Peter Galison (New York and London: Routledge, 2003), 195. 33 Richard Shiff, “Originality,” in Critical Terms for Art History, ed. Robert S. Nelson and Richard Shiff, 2nd ed. (Chicago and London: University of Chicago Press, 2003), 145. 34 Catalogue of the Pictures forming the Collection of the Works of the Old Masters, with a list of the engravings, now being exhibited at the Gallery of the Lyceum Building, No. 563 Broadway, 2nd ed. (New York: George F. Nesbitt, 1849), front cover. 35 Robert Macfarlane, Original Copy: Plagiarism and Originality in Nineteenth-Century Literature (Oxford: Oxford University Press, 2007), 33. 36 Christine MacLeod, “Concepts of Invention and the Patent Controversy in Victorian Britain,” in Technological Change: Methods and Themes in the History of Technology, ed. Robert Fox (Amsterdam, The Netherlands: Harwood Academic Publishers, 1996), 138–139. 37 “As the example of Dürer reveals, anxiety concerning intellectual property, which is sometimes associated with a supposed rise in the celebration of individual genius, may more naturally be regarded as a byproduct of the relatively large-scale commerce in imagery which printmaking made possible.” Anthony Hughes, “The Cave and the Stithy: Artists’ Studios and Intellectual Property in Early Modern Europe,” Oxford Art Journal 13, no. 1 (1990): 47. 38 Although most art historical accounts of photography privilege stories of individual and technical advancement, there have been a few writers who have considered the development of photography within a framework of commercial exigency, allowing that ideas were often

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claimed, rather than independently created. There is a growing body of literature which understands authorship as a function of discourse as much as the product of agency I am especially beholden to the efforts of Reese Jenkins to bridge technological and commercial motivations. In Images and Enterprise: Technology and the American Photographic Industry, 1839 to 1925, Jenkins is careful to situate technological upheavals within a larger push for professionalization in mid-nineteenth-century America. More recently, several scholars have proposed viable models for thinking through artistic developments in light of experimental science. Sarah Kate Gillespie’s study of early American photographers, among them John Draper and Samuel F.B. Morse, positions their work in relation to experimental science of the period. Rachel Ziady DeLue’s work on George Inness considers the importance of optics on the painter’s perception of his work. She cogently argues the embeddedness of scientific inquiry in social history, revealing its profound influence on her subject. Both DeLue and Gillespie demonstrate that contemporary understandings of science established the perimeters in which artists worked. Likewise, Jennifer Tucker’s book Nature Exposed catalogues the fundamental importance of scientific discourse on the creation and reception of photography. This chapter similarly considers the varying degrees to which photographers internalized scientific discourse, as filtered through Patent Office protocols which posited, at different moments, different notions of what might be categorized as scientific innovation. Gillespie and DeLue both remark on their indebtedness to Jonathan Crary, and although I quibble with his assessment of the degree to which scientific models filtered into public consciousness, the importance of his work in insisting on the historical contingency of perception is foundational to my study, as to so many others who attempt to reconcile cultural and artistic paradigms. Recent studies on the business of photography in the nineteenth century also inform this chapter. I have looked especially to Anne McCauley’s research into the influence of French legal restrictions on studio photography in Paris, and Steve Edwards’s writing on British photography journals. His attention to the ways in which ideas about photography circulated in periodicals has been invaluable in studying photographic literature in the United States. But although nineteenth-century attempts at distinguishing between intellectual and manual labor are central to Edwards’s work, he does not discuss the degree to which the patent system encouraged, or at least facilitated, photographers eager to sustain such distinctions. 39 Michel Foucault, “What is an author?” (1969) in Language, Counter-Memory, Practice (Ithaca, New York: Cornell University Press, 1977), 126. 40 Michel Foucault, “What is an author?” (1969) in Aesthetics, Method, and Epistemology, ed. James D. Faubion, Essential Works of Foucault, 1954–1984, vol. 2 (New York: The New Press, 1998), 220. 41 Ibid., 221–222. 42 Foucault recognized that “A certain number of notions that are intended to replace the privileged position of the author actually seem to preserve that privilege and suppress the real meaning of his disappearance.” Ibid, 207. Indeed post-structuralist theories, and their manifestations in art photography, might very well have signaled the death knell for the Great Man theory of artistic endeavor. But appropriation art, which could have made some headway towards critiquing the notion of individual authorship, was deployed instead to re-inscribe it.

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Individual artists were valorized for their conceptual rigor while manual labor was deemed no longer the artist’s responsibility. Paradoxically, interest in deskilling led to a re-assertion of authorship as scholars focused on intellectual activity, venerating cerebral rather than manual production. As Thomas Crow has noted, “The sort of photographic and appropriation procedures that promise an effacement of the authorial self are invariably recouped through other media of publicity and critical attention, so that daring gestures can always be linked to a well-known individual.” Thomas Crow, “Homemade Photographs and Homeless Representation,” Modern Art in the Common Culture (New Haven and London: Yale University Press, 1996), 97–110. 43 Lewis Mumford, Technics and Civilization (New York: Harcourt, Brace and Company, 1934), 6. 44 Steve Edwards, The Making of English Photography: Allegories (University Park, Pennsylvania: Pennsylvania State University Press, 2006), 1. 45 Walter Benjamin, “Letter from Paris (2): Painting and Photography,” in Selected Writings, vol. 3, 1935–1938 (Cambridge, Mass.: Harvard University Press, 2002), 240, cited in Edwards, Allegories, 2. 46 In recognizing the immersion of individuals within communities, Jennifer Tucker’s Nature Exposed accounts for creativity as a group enterprise. She stresses that the prevalence of rhetoric of fraternity spurred photographic experimentation. As she writes, “fraternal social organization persisted in the mid-nineteenth century, especially among artisans; the cultural hopes pinned on photography were seen by many to hinge on its incorporation into a new fraternal order.” Nature Exposed: Photography as Eyewitness in Victorian Science (Baltimore: Johns Hopkins University Press, 2005), 50. But otherwise the story of photography is generally recounted as one of individual accomplishment. The importance of collaboration, though central to the history of the medium, is rarely considered. Certain alliances are frequently referenced, yet the significance of the idea of partnership—of two heads, or two financing streams, being better than one—has not often been addressed. Despite recent interest in collective practice in modern and contemporary art, the dynamics of partnered practice, especially its prevalence in certain categories of work, such as photography, receives little attention. Erotically charged and familial partnerships are increasingly subject to critical scrutiny, as in the recent instances in which a wife’s name has been linked to work traditionally attributed only to her husband. Yet the dynamics of business relationships have received relatively little attention. With a few notable exceptions, like Southworth and Hawes or Bernd and Hilla Becher, histories of photography have continued to insist on singular accomplishment, denying or ignoring the many minds which conceived of ideas and the many hands necessary in their realization. Although photography, like printmaking or film production, often demands collaboration, collective effort is not generally acknowledged. The printers who developed and editioned photographic masterpieces are, for example, rarely, if ever, discussed. Recognition of the ubiquity of partnered practice in mid-nineteenth century America is fundamental in understanding the charged discourse of authorship perpetuated in photographic literature of the period. Financial support of family members was also commonplace. C.D. Fredricks’s studio, for example, was funded in large part by his wife’s income. See the Fredricks entries in the Dun credit agency registers, New York, vol. 378, p. 321 and 585, R.G. Dun & Co. Collection, Baker

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Library Historical Collections, Harvard Business School. On women as “silent partners” see Debra Lindsay, “Intimate Inmates: Wives, Households, and Science in Nineteenth-Century America,” Isis 89, issue 4 (1998): 631–652. 47 The designation “bridging occupation,” which Nancy Keeler uses in reference to Nicholaas Henneman’s work with Talbot, offers a productive concept for considering the move of many operators into partnership positions. See Nancy Keeler, “Inventors and Entrepreneurs,” History of Photography 26, n. 1 (Spring 2002): 29. 48 On protections afforded limited liability corporations see Robert E. Wright, “Capitalism and the Rise of the Corporation Nation,” in Capitalism Takes Command: The Social Transformation of Nineteenth-Century America, eds. Michael Zakim and Gary J. Kornblith (Chicago: The University of Chicago Press, 2012), 145–168. For a more expansive account see Alan Trachtenberg, The Incorporation of America: Culture and Society in the Gilded Age (New York: Hill and Wang, 1982). 49 United States Constitution, Article I, Section 8. 50 For a careful account of the development and effects of the American patent system see B. Zorina Khan’s economic history The Democratization of Invention: Patents and Copyrights in American Economic Development, 1790–1920 (Cambridge: Cambridge University Press, 2005). On the comparative market impact of French and British systems see Christine MacLeod, “The Paradoxes of Patenting: Invention and Its Diffusion in 18th- and 19th-Century Britain, France, and North America,” Technology and Culture 32, n. 4 (October 1991): 885–910. 51 Henry Hunt Snelling, The History and Practice of the Art of Photography; or the Production of Pictures through the Agency of Light. Containing all the Instructions Necessary for the Complete Practice of the Daguerrean and Photogenic Art, Both on Metalic (sic) Plates and on Paper (New York: G.P. Putnam, 1849), 5. 52 Nathan G. Burgess, The Photograph and Ambrotype Manual: A Practical Treatise on the Art of Taking Positive and Negative Photographs on Paper and Glass, commonly known as photography in all its branches; containing all the various recipes practised by the most successful operators in the United States. By N.G. Burgess, Practical Photographer, and Manufacturer of Chemicals for the art (New York: Hubbard & Burgess, 1859). 53 Anne McCauley, “Francois Arago and the Politics of the French Invention of Photography,” Multiple Views: Logan Grant Essays on Photography 1983–89, ed. Daniel P. Younger (Albuquerque: University of New Mexico Press, 1991), 43–69. 54 “Photography,” The Art-Journal 65, vol. 4 (February 1, 1852). Reprinted in Photographic Art- Journal (April 1852): 244. On British reactions to patents by Daguerre and Talbot, see R. Derek Wood, The Calotype Patent Lawsuit of Talbot v. Laroche 1854 (Bromley, Kent: R.D. Wood, 1975) and “JB Reade, FRS, and the Early History of Photography; Gallic Acid and Talbot’s Calotype Patent,” in Annals of Science 27, no.1 (May 1971): 47–83. Also Wood, “The Daguerreotype Patent, The British Government, and The Royal Society,” History of Photography 4, no.1 (January 1980): 53–59. 55 On the maneuvering of Talbot’s agents within European patent systems see Keeler, “Inventors and Entrepreneurs.” 56 Talbot’s oath was notarized 20 April 1847, received by the Patent Office May 21, reviewed June 16, and patented June 26. U.S. Patent 5171, Record group 241, Records of the Patent Office, NARA.

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As early as 1847 the Patent Commissioner argued lowering fees for non-citizens would be beneficial. “The great expense which attends the procuring of patents in most of the governments of Europe, and particularly in Great Britain, prevents the patenting of many valuable inventions which are never voluntarily made public, but are used in secret at home, and, of course, rarely become known in other countries. If our laws permitted the patenting of such inventions on the same terms on which patents are granted to American citizens, many of those inventions would find their way into use in this country.” Edmund Burke, Annual Report of the Commissioner of Patents for the Year 1847 (Washington: Wendell and Van Benthuysen), 10. Though in the 1850s the fee for British non-citizens was $500, the fee for other non-citizens was lowered to $300. International fees were determined by the reciprocal costs charged of American attempting to secure patents in other countries. 57 “It was known to the office that the Talbotype had been the subject of experiment with individuals as a matter of investigation and scientific amusement, but this could not be construed as public and common use, and the patent has been accordingly granted.” Charles G. Page report in Annual Report of the Commissioner of Patents for the Year 1847, 33. 58 Talbot’s Boston lawyer, R.H. Eddy, wrote to Patent Commissioner Edmund Burke on June 21st, “I do not perceive on what legal grounds you return the letters patent of Mr. Talbot until the specimens of pictures arrive. There is no part of the patent law which requires him to furnish such specimens—as his application is not for a chemical ‘composition of matter’ but is for a process.” In support of his argument Eddy pointed out that applications for a process of manufacturing sugar did not require sugar specimens. The Patent Office must have immediately responded, because Eddy wrote again on June 25th, “Knowing that the law does not require specimens in the case of a ‘process’ but only in that of a ‘composition of matter’ I felt that there was no direct necessity of forwarding the specimens.” U.S. Patent 5171, Record group 241, Records of the Patent Office, NARA. 59 Ibid. Although the patent was granted in late June, as of July 6 Eddy was again forced to account for the specimens. A postscript from Talbot was included, “There are transmitted herewith five specimens of my invention called Calotype or Talbotype pictures, all of which are views taken from nature. And to avoid any mistake or misapprehension, I wish it known that these pictures were made solely by my process, and have not been altered or retouched by the hand of any artist—and that such pictures can be made by my process by persons altogether ignorant even of the rudiments of drawing.” 60 List of Patents for Inventions and Designs Issued by the United States from 1790 to 1847, with the Patent Laws and Notes of Decisions of the Courts of the United States for the Same Period Compiled and Published under the direction of Edmund Burke, Commissioner of Patents (Washington, DC: J. and G.S. Gideon, 1847), vi. 61 John Werge, The Evolution of Photography with a Chronological Record of Discoveries, Inventions, Etc., Contributions to Photographic Literature, and Personal Reminiscences Extending over Forty Years (London: John Werge, 1890), 27. He goes on to say that the high costs of licenses initially deterred him from photography. 62 Thomas Jefferson, the first patent administrator, though wary of monopolies, calculated that limited monopoly terms offered an important incentive to invention. Unwilling to impede innovation, and quickly overwhelmed by the time necessary to review applications, he relaxed application requirements. Early in the nineteenth century, following cursory review and public

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disclosure of an application, existing patent holders had a window in which to claim infringement against new claims. On the significant revisions of the 1836 Act see Edward C. Walterscheid, To Promote the Progress of Useful Arts; American Patent Law and Administration, 1798– 1836 (Littleton, Colorado: Rothman & Co., 1998). If no interference accusations were submitted, an application would be registered. It was therefore the responsibility of patent holders to remain vigilant that their claims were not being compromised. Describing the laxity of that patent policy, the renowned historian of science A. Hunter Dupree commented that “only inventors who had machines of great potential for sale and charlatans could profit greatly.” A. Hunter Dupree, Science in the Federal Government: A History of Policies and Activities (Cambridge, Mass.; Harvard University Belknap Press, 1957), 13. As the courts became clogged with infringement cases, such as Samuel Morse’s, it was supposed that a more intensive system of examination would strengthen the imprimatur of American patents. 63 The Patent Office library included a wide range of contemporary scientific journals and scholarly treatises dating as far back as the sixteenth century. By 1878 the library contained twenty-four thousand volumes, including around two hundred British, French, and German books and journals devoted to photography. Catalogue of the Library of the United States Patent Office (Washington: Government Printing Office, 1878). 64 On Peale’s career more generally see Kenneth Haltman, Looking Close and Seeing Far: Samuel Seymour, Titian Ramsay Peale, and the Art of the Long Expedition, 1818–1823 (University Park, PA.: Pennsylvania State University Press, 2008), as well as Kenneth Haltman, “Titian Ramsay Peale’s Specimen Portraiture; or Natural History as Family History,” The Peale Family: Creation of a Legacy, 1770–1870 (New York: Abbeville Press, 1996). Also see the exhibition catalogue by Julie Haifley, Titian Ramsay Peale, 1799–1885 (Washington, DC: The Gelman Library, George Washington University, 1981). His work in natural history is the subject of a dissertation chapter by Ellery E. Foutch, “Arresting beauty: The perfectionist impulse of Peale’s butterflies, Heade’s hummingbirds, Blaschka’s flowers, and Sandow’s body” (Ph.D. dissertation, University of Pennsylvania, 2011). 65 Given Peale’s insistence on originality in patent applications, it is worth nothing that his expedition work had been criticized because not all the species he identified were deemed new. Jessie J. Poesch, Titian Ramsay Peale, 1799–1885, and his journals of the Wilkes Expedition (Philadelphia: American Philosophical Society, 1961). The Wilkes Expedition was a similarly contentious site for dispute over territorial expansion, the role of government oversight and funding of scientific pursuits, and the obligations of science to contribute to practical applications. On the display of materials from the Wilkes expedition in the Patent Office, and Peale’s frustration of the collection and display of specimens, see Antony Adler, “From the Pacific to the Patent Office: The U.S. Exploring Expedition and the origins of America’s first national museum,” Journal of the History of Collections 23, no. 1 (2011): 49–74. 66 For an overview of his extant work see Julie Link Haifley, “Capital Images: The Photography of Titian Ramsay Peale, 1855–1885,” Records of the Columbia Historical Society, Washington, D.C., vol. 50 (1980): 229–244. 67 Alexander Nemerov, Acting in the Night: Macbeth and the Places of the Civil War (Berkeley: University of California Press, 2010), 134–135.

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68 See, for example, letters dated 6 March 1851, and 29 April 29 1852, microfiche #5498, The Collected Papers of Charles Wilson Peale and His Family, ed. Lillian B. Miller, microfiche edition (Millwood, N.Y.: Kraus Thomson, 1980). 69 Examiners of the US Patent Office to Hon. Alexander Stuart, Secretary of the Interior, 5 May 1852, microfiche #5498, The Collected Papers of Charles Wilson Peale and His Family, 1. 70 Alexander H. H. Stuart, Secretary of the Interior to Examiners of the US Patent Office, 7 May 1852, microfiche #5498, The Collected Papers of Charles Wilson Peale and His Family, 1–2. 71 Ibid. 72 Letter to John Frazer, 21 April 1852, microfiche #372, The Collected Papers of Charles Wilson Peale and His Family, 2. Bache and Henry “had taken it as their mission to upgrade the image of American science by restricting entrée to individuals whose credentials and conduct they deemed properly ‘professional.’ ” Robert C. Post, “ ‘Liberalizers’ versus ‘Scientific Men’ in the Antebellum Patent Office,” Technology and Culture 17, no. 1 (January 1976): 32–33. I am deeply indebted to Post’s work for an understanding of the rapid changes in the Patent Office. 73 List of Patents for Inventions and Designs Issued by the United States from 1790 to 1847, xviii. 74 Letter to Griswold, 1 July 1856, U.S. Patent 15336, Record group 241, Records of the Patent Office, NARA. 75 Letter to John Frazer, 13 April 1852, microfiche #370, The Collected Papers of Charles Wilson Peale and His Family, 2. 76 See Ewbank ledger entries, May 1850 to August 1851, p. 17–23, Record group 241, Records of the Patent Office. Orders, Notices, and other Misc. Records, 1845–1962. Box 1. Commissioner’s Orders, 1845–1876, NARA. Kara Swanson, a patent attorney and historian of science, acknowledges the questionable ethics of former examiners going into private practice, but makes a case that the mediation of patent agents was a service to examiners in that it prevented them from having to interact with less knowledgeable applicants. Kara W. Swanson, “The Emergence of the Professional Patent Practitioner,” Technology and Culture 50, no. 3 (July 2009): 519–548. 77 Commissioner order, November 6, 1871, 306. Record group 241, Records of the Patent Office. Orders, Notices, and other Misc. Records, 1845–1962. Box 1. Commissioner’s Orders, 1845–1876, NARA. 78 A memo of 19 January 1872 ordered that former commissioners were to have free access to all office records. Record group 241, Records of the Patent Office. Orders, Notices, and other Misc. Records, 1845–1962. Box 1. Commissioner’s Orders, 1845–1876, p. 306, NARA. 79 U.S. Patent 31357, “Exhibiting Stereoscopic Pictures of Moving Objects,” Record group 241, Records of the Patent Office, NARA. 80 “New and Valuable Discovery: Hillotypes,” The Daguerreian Journal (February 15, 1851), 210. 81 Ibid. In his correspondence Hill explained that he was pursuing a patent at the advice of others, but had been offered $20,000 by parties interested in monopolizing the process. He reiterated the point in the following issue “my purpose is unalterably fixed to avoid monopoly, and to take a course which will put the process into general use.” “Hillotype,” The Daguerreian Journal (March 1, 1851): 242. The issue is dated March 1 but Hill’s letter was dated March 12, 1851. Presumably the issue was published later than stated on the masthead, but submission of misleading information on the part of Hill would certainly not be surprising. 82 Ibid., 274. In the preface of his 1850 Treatise on Daguerreotype, Hill took a decidedly less collegial tack, chastising: “The entire work we claim as our own, by Authorship and by Copy-right; and we

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hereby give notice, that is the system of thieving our ideas, hitherto practiced, is not stopped, we shall prosecute the offenders.” L.L. Hill, Treatise on Daguerreotype, part II (Lexington, New York: Holman & Gray, 1850), 3. 83 M.A. Root, The Camera and the Pencil; or the Heliographic Art, Its Theory and Practice in All Its Various Branches; e.g.—Daguerreotype, Photography, &c. (New York: D. Appleton & Co.; Philadelphia: M.A. Root and J.B. Lippincott, 1864), 316. 84 “Hillotype,” The Daguerreian Journal (March 1, 1851): 241. 85 The Daguerreian Journal (April 15, 1851): 347. 86 The Daguerreian Journal (May 15, 1851): 18. 87 Francis Wey, “Heliography on Plates,” translated in Photographic Art-Journal (January 1852): 41, 45. François Brunet argues that assumptions of Hill’s charlatanism deeply informed French perceptions of American practices, contributing to the success of La Lumière. He also hypothesizes that Hill’s reluctance to publish a full account of his process consciously mimicked the gradual roll-out of the daguerreotype process. See “Le point de vue français dans l’affaire Hill,” études photographiques 16 (May 2005): 122–139. The similarity between Hill’s declarations and Daguerre’s can be explained, I believe, by way of intellectual property protocols, as Brunet touches on in his reference to Morse’s arguments for an inventor’s natural right to their ideas. I wholeheartedly agree with Brunet’s conclusion: “On ne comprendra cette histoire, comme l’histoire des sciences et des techniques en général, qu’en prenant toute la mesure des facteurs institutionnels, sociaux et politiques.” 88 Editorial note, Photographic Art-Journal (January 1852): 45. 89 M.A. Root to George Mallory, 17 January 1854, Scovill Collection II, Baker Library, vol. 1, document 135. Given the chemicals with which Hill was experimenting, it might very well have been true that he was unwell. 90 Photographic Art-Journal (April 1852): 255. 91 On railroad patent pools see Steven W. Usselman, “Patents Purloined: Railroads, Inventors, and the Diffusion of Innovation in 19th-Century America,” Technology and Culture 32, no. 4 (October 1991): 1047–1075. He extends his argument in Steven W. Usselman and Richard R. John, “Patent Politics: Intellectual Property, the Railroad Industry, and the Problem of Monopoly,” in Ruling Passions: Political Economy in Nineteenth-Century America, ed. Richard R. John (University Park, Pennsylvania: The Pennsylvania State University Press, 2006), 96–125. Usselman’s research has found that “railroad managers assumed they would profit more from the open exchange of technical information than they would by securing exclusive rights to specific inventions” (104). 92 Samuel F.B. Morse, letter dated 12 May 1851, printed in The Daguerreian Journal (May 15, 1851): 20–21. 93 Ibid. 94 For a study of outcomes for patentees in United States courts see B. Zorina Khan, “Property Rights and Patent Litigation in Early Nineteenth-Century America,” The Journal of Economic History 55, no. 1 (March 1995): 58–97. New York City inventors were particularly prolific in the category designated “Arts—polite, fine, and ornamental,” see Annual Report of the Commissioner of Patents, for the year 1848 (Washington: Wendell and van Benthuysen, 1849), 88–89. New York

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State generally ranked among the highest proportion of patents per capita. Annual Report of the Commissioner of Patents for the year 1871, vol. 1 (Washington: Government Printing Office, 1872), 7. 95 Burgess, The Photograph and Ambrotype Manual, sixth edition, 28. 96 On the Anthony prize see William and Estelle Marder, Anthony the Man, the Company, the Cameras: an American Pioneer (Plantation, Florida: Pine Ridge Publishing Company, 1982), 63–67. 97 “Information to persons having business to transact at the Patent Office,” November 1852. Record group 241, Records of the Patent Office. Orders, Notices, and other Misc. Records, 1845–1962. Box 1, p. 28, NARA. Pre-emptive sale had been a particular problem in the 1840s, when ideas were poached from desperate inventors with some frequency. Michael Borut, “The Scientific American in Nineteenth Century America” (Ph.D. dissertation, New York University, 1977), 127. The public-use provision was handled differently in different courts. An 1839 patent amendment extended license rights to those who had obtained information about a process or device less than two years before patenting. The issue of prior sale or use was contentious, and policy changed frequently after the Patent Act of 1836 and Patent Act of 1839. See Steven Lubar, “The Transformation of Antebellum Patent Law,” Technology and Culture 32, no. 4 (October 1991): 932–959. 98 Root worries about the secret archives in an extensive letter to the Photographic Art-Journal (February 1856): 60. 99 Photographic Art-Journal 3, n. 5 (May 1852): 291–292. 100 Morton J. Horwitz, The Transformation of American Law, 1780–1860 (Cambridge, Mass.: Harvard University Press, 1977), 253. Richard R. John’s work has helped me navigate the historiography of American policy history. His interest in networked interactions and reactions between agents, rather than subscribing to a strict top-down or bottom-up narrative, aligns with my findings regarding relationships between photographers, federal mandates, localized responses, and public opinion. In turning to political history as an important context for understanding nineteenth-century beliefs about photographic practice, I have tried to balance assessment of government policies, judicial trends, and private interests to guide my account of perceptions in the photographic community about regulatory shifts. Richard R. John, “Ruling Passions: Political Economy in Nineteenth-Century America,” in Ruling Passions: Political Economy in Nineteenth-Century America, ed. Richard R. John (University Park, Pennsylvania: The Pennsylvania State University Press, 2006), 1–20. 101 Horwitz, The Transformation of American Law, 33. On the increased authority of the legal system in first half of the nineteenth century see Brian Balogh, “The Uncontested State: Letters, Law, Localities,” A Government Out of Sight: The Mystery of National Authority in Nineteenth-Century America (New York: Cambridge University Press, 2009), 219–276. Balogh concurs with Horwitz, arguing that although there were important distinctions between district court rulings, there was relative consensus on the importance of economic development. He explores the incursion of government policies into communities which maintained ideological committed to laissez-faire economic models. It was imagined government intervention could ensure laissez-faire advancement. 102 On promotion of improvements in land claims see Horwitz, The Transformation of American Law, 56–62. 103 On early photography patents in Britain see Bernard and Pauline Heathcote, “Patent Protection,” A Faithful Likeness: The First Photographic Portrait Studios in the British Isles, 1841–1855

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(Nottinghamshire: Bernard and Pauline Heathcote, 2002), 25–35. On the revised British patent system see Adrian Johns, “Inventors, Schemers, and Men of Science,” Piracy, 247–290. 104 With what is said to have been a characteristic insistence on exclusivity, Henry remarked of the attempt to form a National Institute for the Promotion of Science: “promiscuous assembly of those who call themselves men of science in this country would only end in our disgrace.” Letter to Alexander Dallas Bache quoted in George H. Daniels, “The Process of Professionalization in American Science: The Emergent Period, 1820–1860,” Science in America since 1820, ed. Nathan Reingold (New York: Science History Publications, 1976), 69. 105 Nemerov, “The Glass Case: Interior Life in Washington, D.C.,”Acting in the Night, 94–136. 106 “The Commissioner of Patents and the Patent Office,” Scientific American XIII, no. 1 (September 12, 1857): 5. 107 S.C. Fay Papers, Box 4, printed ephemera folder. The Winterthur Library: Joseph Downs Collection of Manuscripts and Printed Ephemera. Scientific American referred to the commissioner’s management with unconcealed disdain, “It is a burning disgrace to the country that a Bureaucracy in which such vast interests are at stake should be in the hands of a person who cannot administer it better than the Patent Office is now administered.” “The Commissioner of Patents—His Incompetency and Mismanagement,” Scientific American XVII, no.6 (August 10, 1867): 89. 108 The Photographic and Fine Art Journal (January 1856): 81. 109 The Daguerreian Journal (November 15, 1850; May 1, 1851): 370. 110 “The New Commissioner of Patents,” Scientific American XIII, no. 6 (October 17, 1857): 45. 111 “Trouble at the Patent Office—‘Revising Board’ Appointed,” Scientific American III, no. 19 (November 3, 1860): 299. The journal had previously voiced support of Peale. When he had been promoted, the journal commented: “Mr. Peale has been a long time in the Patent Office, and is eminently qualified to perform the responsible duties of a Chief Examiner.” “Changes in the Patent Office,” Scientific American VII, no. 38 (June 4, 1853): 298. 112 Robert C. Post, “‘Liberalizers’ versus ‘Scientific Men’ in the Antebellum Patent Office,” Technology and Culture 17, no.1 (January 1976): 26. Post cites an 1853 address in which Joseph Henry dismissed the majority of patents as either useless or “futile attempts to innovate and improve” earlier innovations (43). 113 Letter to Frazer, 9 May 1849, microfiche # 362, The Collected Papers of Charles Wilson Peale and His Family, 2. 114 In fact, Munn & Company, the publishers of Scientific American not only advertised a guide for inventors, but became one of the largest firms of patent solicitors, promising to counsel applicants, guide applications through the Patent Office, and promote and publicize their client’s patents. An 1876 advertisement promised “special attention to the prosecution of Rejected cases, Appeals, Extensions and Interferences. A special notice is made in the Scientific American...Patents are often sold in part of whole, to persons attracted to the invention by such notice.” New York as it was and as it is; giving an account of the city from its settlement to the present time; forming a complete guide to the great metropolis of the nation... (New York: D. van Nostrand, 1876), 302. 115 United States Constitution, Article I, Section 8, in the section on regulation of commerce. 116 New York Times, Aug. 16, 1858, 2. On Morse interference hearings see, reprinted from London Merchants Magazine, an article by Professor Page, “Electro-Telegraphy. Progress and Practicability of Sea and River Lines of Communication,” The Daguerreian Journal (December 2, 1850): 103– 106.

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117 List of Patents for Inventions and Designs Issued by the United States from 1790 to 1847, v. 118 Remonstrance By Many Inventors And Others Interested In Inventors Against The Bill for Altering and Amending the Patent Laws (December 1848), 3, microfilm no. 35588 (Goldsmiths’-Kress library of economic literature). 119 Burke to H.H. Sylvester, Chief Clerk of the Patent Office, Feb. 1848. Record group 241, Records of the Patent Office. Orders, Notices, and other Misc. Records, 1845–1962. Box 1. Commissioner’s Orders, 1845–1876, p. 11, NARA. 120 Remonstrance By Many Inventors And Others, 11. 121 George Gifford, An Address on the Patent Laws, delivered on invitation of the American Institute in Castle Garden, at its Twenty-Second Annual Fair (New York: Jennings & Harrison, 1849), 3–4. 122 Ibid., 15. 123 U.S. Patent 11213; U.S. Patent 11266; U.S. Patent 11267. 124 Intensification of animosity can be traced in William Welling’s thorough year-by-year chronological account Photography in America: The Formative Years, 1839–1900 (New York: Thomas Y. Crowell, 1978). Two years after the patents, the pages of the American photography journals continued to brim with enraged correspondence. Writing to “vitiate this bug-bear balsam patent,” M.P. Simons envisioned a day “not far distant when the patent laws will be so revised that a person cannot obtain a patent for that which belongs to another; or which is even worse, as in this instance, the public at large, without the risk of being heavily fined for the theft.” Photographic Art-Journal (June 1856): 187. Encapsulating criticism of Cutting in a single word, S.J. Scott referred to the patent as “bosh.” Photographic Art Journal (June 1856): 189. 125 “$1000 for a place like Syracuse is not only exhorbitant but extortionate. We do not deny Mr. Cutting the right to his patent, but in view of this extortion, and the fact that other processes exist equally good, we say purchase not unless at a fair price.” Photographic Art-Journal (July 1855): 221. For comparison’s sake, in 1852 Peale’s annual salary as an assistant examiner was $1,500. Full examiners made $2,500. Charles C. Little & James Brown, American Almanac and Repository of Useful Knowledge for the year 1852 (Cambridge, Mass.: Metcalf and Company, 1851), 108. 126 U.S. Patent 3638; U.S. Patent 4802; U.S. Patent 5163; U.S. Patent 6559; U.S. Patent 8077. In this period he also witnessed U.S. Patent 4886. 127 Steven W. Usselman, “Patents, Engineering Professionals, and the Pipelines of Innovation: The Internalization of Technical Discovery by Nineteenth-Century American Railroads,” Learning by Doing in Markets, Firms, and Countries, ed. Naomi Lamoreaux, Daniel M.G. Raff, and Peter Temin (Chicago and London: The University of Chicago Press, 1999), 61–91. 128 American Journal of Photography (July 1, 1858): 35. Quoted in Welling, Photography in America: The Formative Years, 133–134. 129 Letter drafted by Titian Ramsay Peale to J.A. Cutting care of C.G. Page, 17 April 1854. Correspondence related to U.S. Patent 11266, Record Group 241, NARA. Letters were drafted by Peale but went out under the signature of the patent commissioner. 130 Ibid. 131 Ibid. 132 Letter from James Cutting to Charles Mason, 17 June 1854. Correspondence related to U.S. Patent 11266, Record Group 241, NARA. 133 Letter drafted by Titian Ramsay Peale to J.A. Cutting care of C.G. Page, June 19, 1854. Correspondence related to U.S. Patent 11266, Record Group 241, NARA. A note scribbled on the specifications, “308 Broadway//Snelling,” references the address and manager of E.

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Anthony’s photographic supply company, suggesting that Peale may have been in touch with the editor of the Photographic Art-Journal regarding citations, or perhaps simply for supplies to assist in examination. 134 Ibid. 135 Ibid. 136 Ibid. Also see Burgess, The Ambrotype Manual (1856 edition), 127–128. Rehn was later awarded a government contract to copy documents for the patent office using photolithography. M.A. Root, The Camera and the Pencil, 373. 137 On the reversals common in Mason’s tenure see Borut, “The Scientific American in Nineteenth Century America.” The journal reciprocated, publishing favorable commentary on Mason’s appointment 138 Robert C. Post, Physics, Patents, and Politics: A Biography of Charles Grafton Page (New York: Science History Publications, 1976), 138. 139 Page worked in the Patent Office from 1842 until 1852, having been appointed to a position as senior examiner in 1844. After working as a patent agent, serving as a lobbyist for the “liberal” position in the American Polytechnic Journal, and submitting patent applications for his own ideas, Page returned to Patent Office employment in 1861. Three other examiners who resigned with Page in 1852 went into private practice. Page’s photographic research was published in both scientific and photographic journals. For a fascinating account of the partisan politics that informed the policies of the Patent Office see Post’s Physics, Patents, and Politics. Page used his position in the Patent Office to inform Morse of competing technologies, for which Morse compensated him, and he testified as a witness on Morse’s behalf in the 1848 infringement suit. But in 1860, in the midst of Morse’s extension hearings, Page turned on Morse, insisting on the importance and priority of his own contributions over Morse’s claims. 140 Revision were commonplace, as a review of Peale’s Patent Office correspondence makes clear. Digests of interference records compiled in the nineteenth century suggest that strategic modification was standard in other fields as well. See, for example, the review of John Rider’s gutta percha patent, which several Patent Office rejections determined to be coincident with Charles Goodyear’s vulcanized rubber. Rider fought for nine years, during which time he continued to foster hope in his stockholders. Review of John Rider’s gutta percha patent. Caution to manufacturers of India rubber, gutta percha, & c. (New York: W.H. Arthur & Co., stationers, 1853), 24. 141 Post, Physics, Patents, and Politics, 11. After leaving his position as examiner, Page moved into an office across from the Patent building, opened a branch office on Wall Street in New York, and started the American Polytechnic Journal, which joined Scientific American in lobbying for liberalization. 142 Information to persons having business to transact at the Patent Office, 1845, 75–76. Record group 241, Records of the Patent Office. Orders, Notices, and other Misc. Records, 1845– 1962. Box 1. Commissioner’s Orders, 1845–1876, NARA. 143 Decision of Hon. Philip F. Thomas, Commissioner of Patents, on the application of Samuel F.B. Morse, for an extension of his patent for a new and useful improvement in electro-magnetic telegraphs (Washington: H. Polkinhorn, 1860), 8. 144 Humphrey’s Journal (June 1, 1860): 38–39. 145 R. Derek Wood, “Gallic Acid and Talbot’s Calotype Patent,” Annals of Science 27, n. 1 (March 1971): 47–83, fn. 66. Also see R. Derek Wood, “The Photographic Patent Case, Talbot v.

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Henderson, 1854,” Annals of Science 27, n. 3 (September 1971): 239–264. Attention to Talbot’s suit reflects British debate over patents in the late 1850s and 1860s. Politicians eager to reform or eradicate the British patent system argued that unlike the copyright that protected works of art, inventions were merely discoveries that sprung from the study of nature, and should therefore be shared, at least within national boundaries. In a recent lecture, Jordan Bear remarked that in the same years in which photographers stirred by talk of reform were pressuring Talbot to relax his patent restrictions, a portrait gallery of inventors was planned for the British Patent Office to underscore individual advancements. Jordan Bear, “ ‘Erroneously Supposed to Have Been Photography’: Policing the Boundaries of a Prehistory,” Photography & Its Origins conference, Rutgers University (April 27, 2012). Similar debates regarding the benefits and drawbacks of monopolies played out in the United States. 146 Brady seems to have entered into arrangement with one of Cutting’s agents but was then sued by another, or by Cutting himself. Of the suit, an editorial at the time commented, “But this suit has greater importance than the settlement of a personal dispute; because the attempt to establish the right to patent the use of bromides and balsam of fir will be met by very strong evidence in opposition....This being so, where is the originality? Surely not in the patentee.” The Photographic and Fine Art Journal (April 1856): 127. 147 List of Patents for Inventions and Designs Issued by the United States from 1790 to 1847, xxii. 148 George Gifford, An Address on the Patent Laws, delivered on invitation of the American Institute in Castle Garden, at its Twenty-Second Annual Fair (New York: Jennings & Harrison, 1849), 21–22. 149 Annual Report of the Commissioner of Patents for the Year 1871, 15. 150 “Re-issues,” Scientific American XI, no. 50 (August 23, 1856): 394. Cutting’s patent was re- issued as an “Improvement in Photographic Pictures on Glass” on August 12, 1856 as U.S. Patent Reissue No. 384. John Rehn, the brother of his partner, signed as witness to the re-issue. The 1858 Cutting & Bradford photolithography patent was similarly re-issued with strategic expansion of claims. Re-issues, intended to allow for corrections, were often abused by applicants, or their agents, who attempted to expand on their original claims and thereby block newer improvements. Morse’s extensions were particularly egregious. On profits accrued through modifications claimed in re-issues, and legal attempts to curtail the practice see Kendall J. Dood, “Pursuing the Essence of Inventions: Reissuing Patents in the 19th Century,” Technology and Culture 32, n. 4 (October 1991): 999–107. 151 D.D.T. Davie, “An Appeal to Photographers,” Letter from Utica dated 20 August 1856, Photographic Art-Journal (September 1856): 276–277. Davie concludes, “No Hillotype delusion could now impose itself upon us as it did upon the N.Y.S. Association (through a very small and secret orifice); thanks be to time (which conquers all), that mountebank has fallen after having fully exhausted the patience and credulity of mankind.” 152 “Personal & Art Intelligence,” Photographic Art-Journal (September 1856): 287. 153 Ibid., 288. In the same issue, in an article titled “ ‘Patent’ Injustice,” Snelling reprinted an article complaining of patent policy in Scotland with the introduction “It would seem by the following, that Uncle Sam’s people are not the only victims to patent laws injudiciously granted. The absurd practice of patenting every little modification in the photographic art, is becoming more general than wise” (295). 154 On Cutting licenses and lawsuits see the thorough article by James S. Jensen, “Cutting’s Edge,” The Collodion Journal V, n. 19 (Summer 1999): 1–9. Jensen is mistaken, however, in connecting Commissioner Mason with the initial rejections of Cutting’s claims. Although correspondence went out under the commissioner’s name, Patent Office archives make clear

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that Peale completed the examinations and drafted each outgoing letter. Jensen claims of the extension, “when all the evidence was considered by the same examiner who had approved the patent 14 years earlier, he now recommended that the extension be denied” (9). Jensen does not cite his source, but if he is referring to Peale it would not be at all surprising if he denied the extension, given the vehemence with which he opposed its original issue. 155 On Constant Guillou see Robert Wall Eskind, “The Amateur Photographic Exchange Club: The Profits of Association” (Master’s thesis, University of Texas, Austin, 1982), 52–57. 156 “Interesting to Photographers,” Scientific American I, n. 1 (July 2, 1859): 7; “Law Reports,” New York Times, June 22, 1859, 3. 157 Frank Leslie’s Illustrated Newspaper, issue 658, May 9, 1868, 114, col. B. 158 Ibid. 159 Jensen, “Cutting’s Edge,” 8. 160 That accusations of plagiarism have been lobbed at American manuals from this period demonstrates a fundamental misunderstanding regarding the status of international intellectual property regulation at the time. 161 The copy, inscribed by J. Appleby Williams, is held in the Winterthur Library. Despite the book’s promise, it seems not to have offered Williams the precise formula he needed. Inside, he made note of several adjustments in the collodion recipes. For a register of photography manuals see Laurent Roosens and Luc Salu, History of Photography: A Bibliography of Books (New York: Mansell, 1989–1994). 162 Burgess, The Ambrotype Manual (1856), 2–3. Of proprietary claims, Burgess writes “Wherever any patent has been secured for any peculiar detail of the Photographic Art, it has always tended to bring discredit on its projectors, and render them odious in the eyes of the fraternity, as grasping and over-reaching in their endeavors to gain a few dollars and cents out of this beautiful process, which seems to belong to a higher race of discoveries than most others, partaking almost of the things spiritual” (15). 163 Ibid. 164 In April 1856, for example, in a section on mica in photography, Snelling writes “Several claimants have arisen as to priority in the use of this article in photography; so we might as well put in our claim, having suggested it to Mr. Sutton, of Detroit, about two years ago. Some one should have a patent for it. Mr. Zealy sends us the following as his method of using it, and being the first to communicate to his fellow artists what will undoubtedly be new to most of them, we award him the patent right to the good will of all honest hearts, as well as our thanks.” Zealy, for his part, argued, “Some of my friends wish me to patent it, but I think otherwise.” Photographic Art-Journal (April 1856): 128. The Photographic Art-Journal was so strident in its denouncement of Cutting that the journal was accused of receiving money from Brady, Gurney, and other large firms for its opposition. The editor insisted “We have only to be convinced that a man has really and truly invented a new process, or instrument, or improved in any way any forumlae used in photography, to give him our cordial assistance....We believe that a man is entitled—when so disposed—to reap whatever benefit can be derived from the fruits of his brain; and under such circumstances, he can always command our support. But, on the contrary, we shall as cordially oppose alleged

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improvements, that we feel convinced are not the property of those claiming them.” Photographic Art-Journal (May 1856): 159. At the same time, the Photographic Art-Journal began to consider publishing more original material, rather than drawing the majority of its articles from European publications. “Instead of relying so almost entirely upon foreign writers for the contents of our Journal, our great aim is to make it entirely original, and thus return the many obligations we are now under to them.” Photographic Art-Journal (December 1856): 381. The journal offered to pay for original submissions as early as May 1853. The articles should be as practical as possible, but we have no objections to good sound theory when properly borne out by experimental facts” (320). 165 William A. Terry, “Experiments on the Developer—Substitutes for the Bromides,” The Photographic News (March 23, 1866): 141, reprinted from American Journal of Photography. 166 “The Use of Bromides in America,” The Photographic News (March 29, 1866): 147–148. As early as 1855 a writer advised American photographers that they had “a perfect right to make and sell” ambrotypes “provided you adopt any of the published processes, and do not follow the modifications of Mr. Cutting, which are not in themselves material to the production of perfect proofs.” The Photographic and Fine Art Journal (July 1855): 223. In a footnote Robert Taft writes, “I also have in my possession copies of the correspondence during 1865, of E.P. Smyth and Timothy H. Hubbard of Boston, who were the assignees of Cutting’s patent at this time. The correspondence indicates that while extensive efforts were made to collect royalties under this patent, considerable difficulty was encountered. The royalty fees show considerable variation, probably being what the agents of Smyth and Hubbard could collect.” Taft, Photography and the American Scene, 475, fn. 154. 167 “On Ambrotypes,” The Photographic and Fine Art Journal (November 1855): 349. 168 George W. Howard recipe book and proceeding of town council, p. 106–108. Doc. 1348, The Winterthur Library: Joseph Downs Collection of Manuscripts and Printed Ephemera. Elsewhere in the book Howard uses the word “Ambrotype” generically to refer to glass positives, indicating that there was more amateur photographic practice in the United States than is usually discussed. Another reference to collodion suggests its use as an “artificial skin” to protect open wounds from infection. Howard culled recipes from the Saturday Evening Post, among other sources, including myriad tips such as a formula for etching, methods for killing cockroaches, and instructions for adding black spots to a white horse and white spots to a sorrel. A black stain across the section on japaning suggests the book was actively used. 169 “Ambrotype vs. Collodiotype,” Photographic Art-Journal (May 1856): 146. Photographic Art-Journal suggested the suits against Cutting were tests of the use of the word “ambrotype” as a trademark term. Photographic Art-Journal (October 1856): 320. 170 H. Wilson, Wilson’s New York Commercial Register to accompany Trow’s New York City Directory, for the year ending May 1, 1861 (New York: John F. Trow, 1860), 12–13. 171 Annual Report of the Commissioner of Patents for the Year 1871, 17. 172 The Photographic and Fine Art Journal (November 1856): 351. 173 In the months between application and issuance of Humphrey’s patent in April 1857, a similar claim by John B. Hall had been approved. 174 Geoffrey Batchen, “The Naming of Photography: ‘A Mass of Metaphor,’ ” History of Photography 17, no. 1 (Spring 1993): 28.

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175 Alan Trachtenberg, Reading American Photographs: Images as History, Mathew Brady to Walker Evans (New York: Hill and Wang, 1990), 3. 176 Wilson’s New York Commercial Register, 12–13. 177 Chauncey A. Goodrich, A Pronouncing and Defining Dictionary of the English Language Abridged from Webster’s American Dictionary (Philadelphia: J.B. Lippincott & Co, 1856), 16. 178 Marcus Aurelius Root letter of June 20, 1855, Photographic Art-Journal (July 1855): 220–221. 179 Marcus Aurelius Root letter of October 30, 1855, Photographic Art-Journal (December 1855): 356. 180 Photographic Art-Journal (February 1856): 61. 181 M.A. Root to T.R. Peale, 10 June 1856. Correspondence related to U.S. Patent 15341, Record Group 241, NARA. A letter directly to an examiner is rare in the archive of photography patents, but Root’s letter suggests a level of familiarity; he requested that Peale inform him about the status of his own patent, as well as that of Cutting’s application. The records include only a curt reply from a Clerk of the Patent Office informing Root that his patent was under review and a letter from Peale to Root later in the month informing him that some paperwork was missing. 182 See T.A. Cutting, Cutting Kin (Campbell, CA: T.A. Cutting & Sons, 1939), 12, 68, and 79–82. James Jensen notes the name-change in “Cutting’s Edge.” Mark Osterman also refers to James Anson Cutting in his scholarship. See, for example, his “Ambrotype” entry in The Focal Encyclopedia of Photography: Digital Imaging, Theory and Applications, History, and Science, ed. Michael R. Peres, 4th ed. (Boston: Focal Press, 2007), 40–41. 183 Photographic Art-Journal (March 1856): 80. 184 Patents jointly granted were frequently the subject of later litigation. “Under the rulings of the courts such patents are worthless, giving no protection, and the owner is without remedy.” Annual Report of the Commissioner of Patents for the Year 1871, 15. 185 Photographic Art-Journal coordinates some of the exchange as early as Jan. 1856. On the Exchange Club see Robert Taft’s Photography and the American Scene and Robert Wall Eskind, “The Amateur Photographic Exchange Club: The Profits of Association.” 186 Seven issues of the newsletter are held in the George Eastman House. “The American Photographic Exchange Club,” Image 1, n. 2 (February 1952): 4. 187 The Photographic and Fine Art Journal (July 1855): 222. 188 See Keith Davis, “‘A Terrible Distinctness’: Photography of the Civil War Era,” in Photography in Nineteenth-Century America, ed. Martha A. Sandweiss (Fort Worth, Texas: Amon Carter Museum, 1991), 178, fn 125. 189 “From Louisville, KY.,” The Photographic and Fine Art Journal (February 1856): 61. 190 Coleman Sellers, “An Old Photographic Club,” Anthony’s Photographic Bulletin XIX (1888): 359. 191 Ibid., 404. 192 Titian Peale to Coleman Sellers 28 May 1864, series VIII-A, microfiche 14, document 2171, The Collected Papers of Charles Wilson Peale and His Family. Also see Kenneth W. Dobyns, A History of the early Patent Offices: the Patent Office Pony (Fredericksburg, Va.: Sergeant Kirkland’s Museum and Historical Society, 1997), 160. 193 Mr. W.G. Entrekin to the Scovill supply firm, 28 December 1875, Scovill Collection II, Baker Library, vol. 41, document 26.

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194 Daniel Goldstein, “Outposts of Science: The Knowledge Trade and the Expansion of Scientific Community in Post-Civil War America,” Isis 99, n. 3 (September 2008): 519–546. 195 Carolyn C. Cooper, “Social Construction of Invention through Patent Management,” Shaping Invention: Thomas Blanchard’s Machinery and Patent Management in Nineteenth-Century America (New York: Columbia University Press, 1991), 29–56. “Shop right,” in which employee inventions belonged to their employers, began to take hold in the 1870s. But even before the concept of work for hire, individual inventors sold or licensed their concepts to larger photography studios which could afford to manage and protect the property. 196 Cutting turned his attention to devising aerators for an aquarium he opened in Boston, which was eventually sold to P.T. Barnum. Jerry Ryan, The Forgotten Aquariums of Boston (Boston: New England Aquariums, 2011). The New York Times reported that he died in an asylum, grieving at the failure of his speculative enterprises. “Death of an Inventor in an Insane Asylum,” New York Times, August 14, 1867, 3. 197 On the protracted struggles of individuals and companies, and alliances between manufacturers, see Grace Rogers Cooper, The Sewing Machine: Its Invention and Development (Washington, D.C.: Smithsonian Institution, 1976). 198 The trend toward dominance of big business is, of course, not unique to photography. Statistical analysis suggests that prior to the 1850s, patents were issued primarily to rural citizens with few patents, but in ensuing years patents became consolidated among smaller numbers of patentees who were located primarily in urban centers. Kenneth L. Sokoloff and B. Zorina Khan, “The Democratization of Invention during Early Industrialization: Evidence from the United States, 1790–1846,” The Journal of Economic History 50, n. 2 (June 1990): 363–378. 199 “The Stereoscope,” Photographic Art-Journal (May 1852): 292. 200 “The Use of Bromides in America,” The Photographic News (March 29, 1866): 147–148. 201 Peale might have profited from at least one of his photographs. The Library of Congress holds a print made by Alexander Gardner from a negative by Peale. “The National Cemetery, rear of Soldiers’ Home, Washington, D.C.” was published as part of the Incidents of War series. MssCol 3101, Prints & Photographs Division, Library of Congress. 202 The letter is in the Matthew R. Isenburg collection, which I had the good fortune to study in in his home in Connecticut, but which has since been transferred to the Archive of Modern Conflict, in Toronto, Canada. The deposition is included in Testimony for Albert Southworth in the Matter of His Appliction for an Extension of his Patent of April 10, 1855 for Plate-Holder for Cameras (Boston: Alfred Mudge & Son, 1868), 45–47. 203 “There is a considerable squabbling going on between certain parties relative to priority in the invention of an improved Plateholder, whereby any number of pictures, from one to a hundred, can be made on the same plate without removing the slide from the instrument. Excitement runs high, terribly impressive language is used, suits are threatened, and something or other said about the old adage of ‘suing a beggar and catching a -----’ well, we’ve forgotten what; but some very insignificant insect.” “A Bone of Contention,” Humphrey’s Journal (February 1862): 320. 204 See Steven W. Usselman and Richard R. John, “Patent Politics,” 96–125. 205 Peale to John A. McAllister, microfiche # 2215, The Collected Papers of Charles Wilson Peale and His Family.

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Chapter 3 1 New York Times June 14, 1862, 3. 2 John Tresch, The Romantic Machine: Utopian Science and Technology after Napoleon (Chicago: University of Chicago Press, 2012), xi. An excellent historiography charting the assumption of evidentiary truth is provided by Jennifer Tucker in Nature Exposed: Photography as Eyewitness in Victorian Science (Baltimore: Johns Hopkins University Press, 2005). She notes that “as close examination of nineteenth-century commentary on photographs of scientific phenomena reveals, social concepts of skill, judgment, and human agency informed what counted as objective and subjective in scientific photography even in the culture of persuasion about mechanical objectivity that denied their critical influence”(4). 3 On Sonrel see Christoph Irmscher, “Wonderful Entanglements : Louis Agassiz, Antoine Sonrel, and the Challenge of the Medusa,” in A Keener Perception : Ecocritical Studies in American Art History, edited by Alan C. Braddock and Christoph Irmscher (Tuscaloosa, Ala. : University of Alabama Press, 2009). 4 On the honorific and repressive, see Allan Sekula, “The Body and the Archive,” October 39 (Winter, 1986): 3-64. In his important study “Democracy of the Image: Photographic Portraiture and Commodity Production,” John Tagg uses the carte-de-visite production statistics from Gisele Freund’s Photography & Society and, similarly concludes, though with more insidious implications: “the burden of frontality was passed on down the social hierarchy, as the middle classes secured their cultural hegemony. The bourgeois figures in mid-nineteenth century polyphoto images aped the mannerisms of eighteenth-century painted portraits and coveted their prestige.” John Tagg, The Burden of Representation (Minneapolis: University of Minnesota Press, 1988), 36. His description of the heritage of mimesis as a burden, and its reiteration in the title of his book, The Burden of Representation, suggests that photography and its consumers did not selectively choose their rhetoric or style but were bound by precedent that regulated practitioners and viewers. Whereas most scholars look to the props and poses of earlier portraiture and find in photographic portraiture little more than echoes of earlier compositions, I suggest that vignette portraits, stripped of the accoutrement that typically distract scholars, allows specific consideration of which ideals of eighteenth-century practice were being resurrected, and for what purposes. Insistence on the regulatory capacity and instrumental deployment of photography is also the basis of Andrea Volpe’s work on cartes-de-visite. She argues, following Michel Foucault, the existence of a system of “bodily pedagogies” in which “the carte-de-visite photograph combined the traditional associations of portraiture with the visual authority of mechanical realism, which allowed the portrait photograph to be read as ‘proof’ of social position, when in actuality the carte is evidence of the cultural production of such claims.” Andrea L. Volpe, “Cartes-de-visite Portrait Photographs and the Culture of Class Formation,” in Looking for America: the Visual Production of Nation and People, ed. Ardis Cameron (Malden, Mass.: Blackwell Publishing, 2005), 45. She does not note why she uses the word proof in quotes or why she reads the carte-de-visite as a “visual authority of mechanical realism.” She may have been looking at an 1864 article “Photography as an Authority,” that argues “proofs of its perfect veracity” with striking conviction. Rev. H.J. Morton, D.D., The Philadelphia Photographer I, no. 12 (Dec. 1864): 180. But in the context of a survey of the photographic journals published in the 1860s, the stridency of the article is notable primarily because of its rarity. Its tone is that of an author trying to convince a skeptical audience. In an article reprinted from Photographisches Archiv, for example, the American Journal of Photography cautioned that images should be thought of as “photographic opinions,” to be tested, not unthinkingly accepted. The American Journal of

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Photography VII, no. 3 (Aug. 1, 1864). Contrary to Volpe’s account, contemporary reports of photography often undermined claims to authority and frequently dismissed, if they acknowledged it at all, the existence or usefulness of mechanical realism. Because she, too, is interested in surveillant and regulatory uses of photography, Shawn Michelle Smith skips abruptly from mid-century examples that decry or take for granted the unnaturalness of photographic portraiture to turn-of-the-century theorizations, masking a significant leap in chronology and in logic. But I hesitate to conflate mid-century studio photography with the later instrumental uses of photography she and others cite, such as Francis Galton and Alphonse Bertillon. Allan Sekula is more careful in his chronology to distinguish between mid- and later-nineteenth-century investments. There are, of course, examples of mid- century evidentiary uses of photography but they only rarely appear, at least in the photographic journals of the period which, though they were obsessed with the science of photography, were much less concerned with photography as science than with photographic labor. This is not to suggest that makers and users of photography did not exploit the instrumental uses of photography. They are several, though fewer than might be expected, examples of procedural uses for catching and convicting criminals, but articles about those applications are published alongside others that completely dismiss the veracity of studio portraiture. The issue then was not about the inherent qualities of the medium, but rather about how the photograph was made and used. The lens might be “truthful,” for better or worse, but the procedures that come before and after the moment (or moments) of photographic exposure were considered at least as significant as the facility of the apparatus. Contrary to the assumptions of many scholars, the allegiance to photographic authority that is commonly ascribed to the mid-nineteenth century does not accord with the prevalence of other narratives. In fact, criticisms about photographic portraiture regularly faulted the camera for its unfeeling transcription and criticized its inability to accurately transcribe. Either defect forced the operator and consumer into the role of active agent. One author disparages the camera for being, “too slow to be able to be so truthful with impunity. Portrait photography will be very far from its perfection until the apparatus is rapid enough to take the sitters unawares.” The American Journal of Photography V, no. 13 (January 1, 1863):324. An article the following year similarly bemoans the lack of photographic fidelity. “Let a lady be dressed the with the most exquisite artistic taste, her labor will be in vain the moment she exposes her looks to the ‘Peeping Tom’ of photography. He will not tell the truth. He can’t tell the truth; it isn’t in him.” “Photography Inefficient,” The American Journal of Photography VII, no. 6 (Oct 1, 1864). Originally published in Mercury. Again, I raise these points not to undermine the degree to which photography was used as a disciplinary force in the nineteenth century, but merely to insist that we pay equal attention to contemporaneous skepticism regarding its evidentiary potential. In that regard I very much appreciate Wendy Bellion’s troubling of simplistic accounts of nineteenth-century faith in technology. Bellion notes that although physiognotrace profiles were produced directly from a sitter, the interventions of skilled cutters were crucial, and, like photographic prints, some tracings were several times removed from their referent, being traced from sculptural replicas. “Accurate, true, like, correct, direct: Reiterated ad nauseam, these terms masked the uncertainty of attaining actual representation” (50). Wendy Bellion, “Heads of State: Profiles and Politics in Jeffersonian America,” New Media, 1740-1915, ed. Lisa Gitelman and Geoffrey B. Pingree (Cambridge, Mass.: MIT Press), 31-60. 5 See A.D. Coleman, “The Directorial Mode: Notes toward a Definition” (1976) reprinted in Photography in Print: Writings from 1816 to the Present, ed. Vicki Goldberg (New York: Simon and Schuster, 1981), 480-491; Elizabeth Edwards, “Thinking Photography Beyond the Visual?”

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Photography: Theoretical Snapshots (New York: Routledge, 2009), 31-48; Geoffrey Batchen, “Ere the Substance Fade: Photography and Hair Jewellery,” Photographs Objects Histories: On the Materiality of Images (New York: Routledge, 2004); Lori Pauli, Acting the Part: Photography as Theatre (New York: Merrell, 2006); Mia Fineman, Faking it: manipulated photography before Photoshop (New York: Metropolitan Museum of Art; New Haven: Yale University Press, 2012). 6 An 1864 article in The American Journal of Photography mentions “three dollars per dozen for cards and four dollars for vignettes, are the common prices for good work, while several establishment (sic), charge four dollars, and five dollars for vignettes.” “Photography in Boston,” The American Journal of Photography VI, no. 14 (Jan. 15, 1864). A few months later Humphrey’s Journal mentions that vignettes were selling for up to ten dollars per dozen in the South. The writer suggests that New York studios raise their prices to “$5 per dozen for vignettes and $4 for cartes.” Humphrey’s Journal XVI, no. 7 (Aug. 1, 1864): 112. 7 Humphrey’s Journal noted four different techniques between January 1863 and April 1864. There is some overlap among these references. Several were published originally in British journals and others are contributions from subscribers. Southworth & Hawes advertised in 1857 that they were “the original inventors of the plan of making heads in clouds, and illuminated heads or Crayon Daguerreotypes.” “An original receipt of Southworth & Hawes,” Nineteenth Century Photography New and Recent Acquisitions, Catalogue 154 (June 2012): 54. The same year, the editor of the American Journal of Photography, described the crayon process as producing “the gradual fainting of the figure into vacancy.” Charles A. Seely, The Ambrotype. A Practical Treatise on the Art of Producing Collodion Positives (New York: Seely & Garbanati, 1857), 5. But already by 1850 John J.A. Mayall had said of his Crayon Daguerreotype process “the image will be found with a halo of light around it gradually softening into the background, that will at once add a new charm to these interesting productions.” J.E. Mayall, “Crayon Daguerreotypes,” The Daguerreian Journal 1, n. 2 (November 15, 1850): 46. 8 M.A. Root, The Camera and the Pencil; or the Heliographic Art, Its Theory and Practice in All Its Various Branches; e.g.—Daguerreotype, Photography, &c. (New York: D. Appleton & Co.; Philadelphia: M.A. Root and J.B. Lippincott, 1864), 108-109. In his introduction to a reprint of Root’s text, Beaumont Newhall notes that Root’s writing is infused with the influence of Reynolds. Indeed Root frequently quotes from Reynolds’s Discourses and cites Reynolds’s work as a useful model for portraitists. Because of their almost wholesale adoption of British texts, enabled by the same loose copyright regulations in which photographic copy prints proliferated, American photography periodicals channel Reynolds via Alfred H. Wall, whose texts were frequently reprinted in Humphrey’s Journal from British sources. If the photographer’s job is to focus attention and control details, as Wall insists, it is no wonder that the vignette form was highly priced and prized. Steven Edwards carefully outlines the predominance of eighteenth-century Academic ideas in the writings of Wall, as well as in British photographic journals more broadly. Steve Edwards, The Making of English Photography: Allegories (University Park, Pennsylvania: Pennsylvania State University Press, 2006). In his drive to establish photography as an intellectual rather than mechanical process, Wall also frequently alluded to Ruskin’s insistence on the influence of memory and imagination on sensory perception, concluding that the standard for truthfulness of an image is therefore the mind of the viewer. The open space of the vignette can thus be understood as a placeholder for imaginative engagement with the sitter, a space for memory to meet visual experience. Wall describes H.P. Robinson’s work as “a capital illustration of the value that white has in guiding the spectator’s eye into the picture, and in securing subordination.” Alfred H. Wall, “An Artist’s Letter to a Young Photographer-No. 4,” Humphrey’s Journal XIII, n. 15 (Dec 1, 1861):238.

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Matthew Carey Lea, an American chemist who published hundreds of articles in the British Journal of Photography and American Journal of Science, similarly urged photographers to relax adherence to visual likeness. “The photographer must not only give up his favorite notion, that he has only to depict Nature to succeed, but also that the most perfect photograph is necessarily an accurate reproduction of Nature as she is seen. The best product of the camera, unaided by art, is often very far indeed from being a transcript of Nature.” Newman’s Manual of Harmonious Coloring, as applied to photographs. Together with Valuable Papers on Lighting and Posting the Sitter. Edited, with a preliminary chapter on obtaining harmonious negatives, and with notes, by M. Carey Lea (Philadelphia: Benerman & Wilson, 1866), 22. Realism was achieved in spite of the camera, rather than because of it. Daniel Novak points out that in the montage work of Rejlander and Robinson “manipulation was seen not as a violation of a realist ethic, but as essential to realistic representation.” Daniel Novak, “A Literature of its Own: Time, Space, and Narrative Mediations in Victorian Photography,” in Media, Technology, and Literature in the Nineteenth Century: Image, Sound, Touch, ed. Colette Colligan and Margaret Linley (Burlington, VT: Ashgate, 2011), 71. Novak argues that Victorian photographic culture demands a different theorization than that offered by modernist critics. American photography of the mid-nineteenth century similarly demands accounts that more fully consider contemporaneous issues of representation. While nineteenth-century photographers and their clients certainly assumed, to some degree, in the capacity of the camera to show things as they were, they were hardly naïve in their understanding of the limitations and ultimate insufficiency of mechanical or rote portraits. Although Novak is measured in his understanding of the complex ways in which relationships between photography and realism became propagated, many of the many books on photography written by literature scholars insist on an untenable notion of photographic realism. 9 On the collection and display of portraits, see Marcia Pointon’s phenomenal Hanging the Head: Portraiture and Social Formation in Eighteenth-Century England (New Haven: Yale University Press, 1993). 10 “Fancy” was referenced as a category of photographic production as early as the 1850s. Registers for the D.C. Collins & Co. studio now held in the American Antiquarian Society, for example, note orders for “fancy” portraits in 1852. The word was also used to describe frames and other photographic accessories. By 1874, a manual devoted a full chapter to fancy printing techniques. Charles W. Hearn, The Practical Printer. A Complete Manual of Photographic Printing (Philadelphia: Benerman & Wilson, 1874). 11 John Landseer’s Lectures on the Art of Engraving explained that vignettes offer a “sort of midsummer night’s dream, where Fancy, unrestrained by time or place, indulges in the revelry of fairy fiction—But, whether its subject be a stern and stubborn fact; or a mere painter’s reverie; the objects introduced should always be of a subordinate and accessory kind, and the main subject of the work should never be thus represented.” Landseer, Lectures on the Art of Engraving (London: publisher, 1807), 115. Such imagery concerning the operation of photographic images filtered into 1860s notions of portraiture in the United States. Analysis of journals of the period reveals a pervasive insistence on a viewer’s projection when responding to photographic portraits. In 1853 The Photographic Art-Journal reprinted several articles by Francis Wey, a leading French voice in the clamor to characterize photography. Wey extolled the “power of the human mind to remember, to imagine, and to arrange; that power which creates within the little recesses of our brain fairy palaces, vast horizons, and entire worlds; that power, in short, which displays to our mental vision innumerable portraits…” Photographic Art-Journal (Feb. 1853): 104. The imagination he describes does not merely reconstruct the visible world but also fabricates

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visionary imagery. See Margaret Denton, “Francis Wey and the Discourse of Photography as Art in France in the Early 1850s,” Art History 25, no. 5 (Nov. 2002):622-648. 12 Henri Zerner and Charles Rosen describe vignetted book illustrations as a fundamentally Romantic integration of visual and verbal arts. They propose, “If this new type of book illustration was so apt and definitive an expression of Romanticism, it was not only because the close association of text and image satisfied the desire to unite different forms of art. The vignette, by its general appearance, presents itself both as a global metaphor for the world and as a fragment. Dense at its center, tenuous on the periphery, it seems to disappear into the page: this makes it a naïve but powerful metaphor of the infinite, a symbol of the universe; at the same time, the vignette is fragmentary, sometimes even minute in scale, incomplete, mostly dependent upon the text for meaning, with irregular and ill-defined edges, not unlike Schlegel’s hedgehog. It is the perfect Romantic formula.” Charles Rosen and Henri Zerner, “The Romantic Vignette and Thomas Bewick,” Romanticism and Realism: The Mythology of Nineteenth-Century Art (New York: Viking Press, 1984), 81. My gratitude to Henri Zerner and to Elizabeth Rudy for their assistance in my study of vignetting. J.M.W. Turner was, along with Bewick, among the greatest vignette purveyors. The Turner obituary that appeared in Photographic Art-Journal was drawn out over two issues in 1852- 53 and reflected on the stimulation provided by his vignette forms, in which detail “carries the eye over miles of distance...till it is lost in the harmonious blending of earth and sky, into which fancy only can penetrate.” Photographic Art-Journal (April 1852): 252. Interest in vignette diffusion can be found in other American publications of the period. James Jackson Jarves praised Turner’s “wonderful power of suggestiveness” Jarves, The Art Idea: Sculpture, Painting, and Architecture in America, 2nd ed. (New York: Hurd and Houghton, 1865), 157. He identifies related qualities in the paintings of Gilbert Stuart, characterizing his work as “diaphanous, rather suggesting than defining outlines, with subtle interblending and gradation of tints, he evokes the soul of the sitter and brings it to the surface of his canvas. In his best portraits, without weakening the materialistic force of costume or external feature, he subdues them to their proper secondary positions” (203). “Rather suggesting than defining” also characterizes legal discussion of photography. 13 Gilbert-Rolfe suggests photography is absent of gesture, but I would argue that the space of vignetting was an explicitly active gestural maneuver. Jeremy Gilbert-Rolfe, “Blankness as a Signifier,” Critical Inquiry 24, no. 1 (Autumn 1997): 162. 14 As Elizabeth Siegel comments, “The photograph was thus incomplete without a remembering viewer, who supplied it with a living significance.” Galleries of Friendship and Fame: A History of Nineteenth-Century American Photograph Albums (New Haven: Yale University Press, 2010), 115. 15 See Susan Williams, citing Isabelle Lehuu, in Confounding Images: Photography and Portraiture in Antebellum American Fiction (Philadelphia: University of Pennsylvania Press, 1997), 45. 16 On album rituals see Elizabeth Siegel’s Galleries of Friendship and Fame and Sarah McNair Vosmeier, “Picturing Love and Friendship: Photograph Albums and Networks of Affection in the 1860s,” The Scrapbook in American Life, ed. Susan Tucker, Katherine Ott, and Patricia P. Buckler (Philadelphia: Temple University Press, 2006), 207–219. In her study of Victorian photography albums Patrizia di Bello concludes of the carte-de-visite that the “reason for its success was not the correspondence of the portrait with some truth about the inner or social qualities of the portrayed, but in participating in a social sphere—at once real and imaginary—of drawing room albums and photography studios.” Patrizia di Bello, Women’s Albums and Photography in Victorian England: Ladies, Mothers, and Flirts (Burlington, Vermont: Ashgate, 2007), 157.

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It is also interesting to consider the issue of attention in vignetting as related to contemporaneous concerns regarding the nature of vision. Fear of overstimulation may have been a motive for excluding all unnecessary photographic information. See Peter John Brownlee, “Ophthalmology, Popular Physiology, and the Market Revolution in Vision, 1800-1850,” Journal of the Early Republic, vol. 28, n. 4 (Winter 2008): 597-626. His dissertation offers further elaboration on problems associated with vision and concentration. Peter Brownlee, “ ‘The Economy of the Eyes’: Vision and the Cultural Production of Market Revolution, 1800–1860” (Ph.D. dissertation, George Washington University, 2004). See also Rachel Ziady DeLue, “The Struggle of Vision,” George Inness and the Science of Landscape (Chicago: University of Chicago, 2004), 7-30. Jonathan Crary’s discussion of models of subjective vision is deeply relevant to a study of vignettes, as is his analysis of attention. He posits “At the moment when the dynamic logic of capital began to dramatically undermine any stable or enduring structure of perception, this logic simultaneously attempted to impose a disciplinary regime of attentiveness.” Jonathan Crary, Suspension of Perception: Attention, Spectacle, and Modern Culture (Cambridge, Mass.: MIT Press, 1999), 13. This observation helps us to more accurately contextualize examples raised by Andrea Volpe and Shawn Michelle Smith as products of later nineteenth-century societal pressures. In their pivotal role in the production of photographic portraiture, mid-century American photographers’ attempts to direct attention both to the face of their sitters and to their own efforts as artists, bridge eighteenth-century theories of engaged visual perception and late nineteenth-century deployment of photography for classificatory distinctions. Increasingly efforts were made to regulate, rather than exploit, the contingency of vision addressed in mid- century texts. Vignette cartes-de-visite therefore offer insight into the meeting ground of romanticism and realism. They are sites in which photographers sought to publicize and mobilize, rather than downplay or limit, their involvement in the photographic process. 17 Mental Photographs: An Album for Confessions of Tastes, Habits, and Convictions (New York: Leypoldt & Holt, 1874). 18 See Alan Trachtenberg, “Lincoln’s Smile: Ambiguities of the Face in Photography,” Social Research 67, no. 1 (Spring 2000): 1- 23. Trachtenberg discusses the relationship between physiognomy, performance, and portrait conventions. “Thus the logic of photographic studio portraiture contains an unconscious aporia, an underlying doubt and contradiction about the ontic status of its productions…”(19). 19 Humphrey’s Journal XIII, no. 21 (March 1, 1862): 327. Similarly, in 1857 Lady Eastlake remarked “What indeed are nine-tenths of those facial maps called photographic portraits, but accurate landmarks and measurements for loving eyes and memories to deck with beauty and animate expression, in perfect certainty that the ground plan is founded upon fact?” Cited in Patrizia di Bello, Women’s Albums, 88. 20 American periodicals of the time noted the connection between mounting militarization and the carte-de-visite market. It is easy to surmise that small vignette head shots were popularized in America in large part because of their portability and concomitant memorial efficacy in a period in which families were increasingly scattered. See David M. Henkin, “Mailable Matters: From News to Mail,” The Postal Age: The Emergence of Modern Communications in Nineteenth-Century America (Chicago: University of Chicago Press), 42-62; Andrea L. Volpe, “Collecting the Nation: Visions of Nationalism in Two Civil War-Era Photograph Albums,” in Acts of Possession: Collecting in America, edited by Leah Dilworth (Rutgers, NJ: Rutgers University Press, 2003), 89-111; and Shirely Theresa Wajda, “‘Social Currency’: A Domestic History of the Portrait Photograph in the United States, 1839–1889” (Ph.D. dissertation, University of Pennsylvania, 1992).

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Historians of technology have also documented the importance of “the mediating function of memory” on responses to media in the nineteenth century. See the introduction to Media, Technology, and Literature in the Nineteenth Century: Image, Sound, Touch, edited by Colette Colligan and Margaret Linley (Burlington, Vermont: Ashgate, 2011). Yet the editors describe photo albums as “pictorial narratives of family relationships that relied on photography’s unique indexical qualities to imagine and lay out new dynastic histories and futures”(7). If consumers were drawn to what historians insist on referring to as the indexical character of photography— its capacity for seemingly exact unmediated representations—it is precisely not those aspects which I would argue animated album practice. It is the space in between images in which the narrative was fashioned. 21 Jordan Bear, “The Silent Partner: Agency and Absence in Julia Margaret Cameron’s Collaborations,” Grey Room 48 (Summer 2012): 90. For a meditation on the psychic force of bodiless heads see Julia Kristeva, The Severed Head: Capital Visions (New York: Columbia University Press, 2012). 22 Michael Leja, “Fortified Images for the Masses,” Art Journal (Winter 2011): 65. 23 Although he rightly notes “There was no conception of medium specificity in the realm of mass-image manufacture” he continues “except as a set of characteristics that could be lent to another medium through a kind of fortification.” Leja, “Fortified Images,” 82. I argue that not only was there no conception of medium-specificity, but as other types of photographic processes began to be more widely practiced alongside the daguerreotype, even the “characteristics” to which he refers were destabilized in the public imagination. In the 1860s and 1870s media were not perceived as stable enough to be sampled, but were instead part of a spectrum of associated practices. For a recent series of provocative attempts to grapple with the complexity of intermediality see Media Borders, Multimodality and Intermediality, ed. Lars Elleström (New York: Palgrave Macmillan, 2010). Useful discussion on the academic usage of “hybridity” and “intermediality” can be found in Jurgen E. Muller, “Intermediality and Media Historiography in the Digital Era,” Film and Media Studies 2 (2010): 15-38. 24 The word photographist appears regularly in photographic literature as well as on card imprints. An 1872 edition of Webster’s Dictionary includes an entry for “photographist” but no listing for the word “photographer.” 25 “The Pencil of Nature. A New Discovery,” The Corsair 1, no. 5 (April 13, 1839): 70. The article was also published, in a shortened form, on the same date in The New-Yorker 7, no.4 as “New Discovery in the Fine Arts,” where it was credited to the March issue of Blackwood’s Magazine. See chapter 1 for additional information on the earliest articles on photography that appeared in the American press. 26 On the many predictive accounts of photography, often founded on textual descriptions rather than firsthand experience, see Marcy Dinius, The Camera and the Pencil: American Visual and Print Culture in the Age of the Daguerreotype (Philadelphia: University of Pennsylvania Press, 2012). 27 “The Octoroon,”Act IV, reprinted in Plays by Dion Boucicault, ed. Peter Thomson (Cambridge: Cambridge University Press, 1984), 163. 28 Ibid. 29 J.A.J., “The Legal Relations of Photographs,” The American Law Register XVII (January 1869): 4. The essay, an academic publication rather than a court record, proposes a number of applications which might be implemented “as civilization progresses” (1). No specific American case law is cited.

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30 Ibid. 31 Joel Snyder discusses this essay in his article “Res Ipsa Loquitur,” in Things That Talk: Object Lessons from Art and Science, ed. Lorraine Daston (New York: Zone Books, 2008), 195-221. Snyder concludes, “And so photographs were transformed into legal documents by achieving the status of writing.” Yet when granted the status of writing in copyright law they were deemed potentially authored. With his typical flair for language Snyder describes the failure of American courts to achieve unanimity as a “hit-and-miss affairs,” but the reluctance to institute uniform treatment across cases was unanimous (216). 32J.A.J.’s reference to “best” evidence is crucial in understanding the legal analysis of the article: “So, of the photographic likeness of any natural object or place. When shown to be the photograph of the place or object, it is original—that is, legally speaking, the best—evidence of its features and relations; as much so as the testimony of a witness speaking from memory of the same features and relations” (7). According to contemporaneous procedures for determining “best evidence,” this would imply that photography is merely testimony, not irrefutable proof. It is, in J.A.J.’s words, the equivalent of “the testimony of a witness speaking from memory” and would seem therefore to be equally limited, fallible, or subjective in its rendering. Although he follows by arguing that in some instances a photograph would be preferable to witness testimony and rank “not as hearsay or secondary, but as original, evidence,” J.A.J. allows that in some aspects the photograph could be “perfectly exact” in perspective and color only “nearly so” (8). 33 As practiced in the mid-nineteenth century, a court “requires the best evidence of which the case in its nature is susceptible. This rule does not demand the greatest amount of evidence which can possibly be given of any fact; but its design is to prevent the introduction of any which, from the nature of the case, supposes that better evidence is in possession of the party.” (emphasis original) John Wilder May, A Treatise on the Law of Evidence by Simon Greenleaf, 13th ed. (Boston: Little, Brown, and Company, 1876), 105. Best evidence was defined more succinctly as: “The best evidence of which the case, according to its real circumstances, will admit must be produced.” William Wedgewood, Wedgewood’s Government and Laws of the United States (New York: Baker, Voorhis & Co.), 425. 34 I am building here on the work of Jennifer Green-Lewis, but focus on the particularities of the American system well before the Uniform Rules of Evidence were settled. She cites a number of evocative quotations, but I have tried to account for court decisions rather than the often impassioned arguments made by counsel. Jennifer Green-Lewis, “Signs of Things Taken: Testimony, Subjectivity, and the Nineteenth-Century Mug Shot,” Framing the Victorians: Photography and the Culture of Realism (Ithaca: Cornell University Press, 1996), 187-226. 35 “The Howland Will Case,” American Law Review 4, no. 4 (July 1870): 625-663. Rhetoric employed by counsel on either side of the cases discussed in this chapter often makes for compelling reading, but it is important to review the rulings ultimately handed down by the courts. Although decisions draw from the arguments made in court, given the vested interests of legal briefs it is crucial to distinguish the findings of the court from the photographic descriptions sketched by either side. 36 The 1871 Taylor Will case cited in “The Legal Relations of Photography,” Albany Law Journal (January 25, 1873): 51. 37 William Eborn v. George B. Zimpelman, 47 Tex. 503 (1877). 38 Ibid., citing Tome v. Parkersburg Branch Railroad, 39 Md. 36 (1873). 39 See Jennifer Mnookin, “The Image of Truth: Photographic Evidence and the Power of Analogy,” 10 Yale Journal of Law & the Humanities (Winter 1998). Whether or not it is held to be

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true in practice, precedent did not suggest that photography should be ranked above other documents in any way. As rules of evidence have been developed, there have been attempts to determine whether photographic prints have the same status as negatives. Recent technological developments have prompted additional language to try to articulate what might be considered a photographic “original” now that negatives are no longer a regular step of photographic procedure. Surveillance footage seems to be treated differently, as it is often said to have “independent probative value.” 40 Matthew Witkovsky, “Another History: on Photography and Abstraction,” Artforum (March 2010): 214. James Elkins’s Photography Theory seminar documents the tenacity, and stalemate, of the ongoing index/icon dispute. An exception is Joel Snyder’s insistence on the plasticity of photographic production in Photography Theory, ed. James Elkins (New York: Routledge, 2007). 41 Justin Hughes surveys the history of photographic copyright in “The Photographer’s Copyright—Photograph as Art, Photograph as Database,” 25 Harvard Journal of Law and Technology 327. But although he provides a useful review of American legal decisions, his analysis is limited in its reliance on sources compiled in the twentieth century. For an account of early copyright decisions involving photography in Europe see Anne McCauley, “‘Merely Mechanical’: On the Origins of Photographic Copyright in France and Great Britain,” Art History 31, n. 1 (February 2008): 57-78. Just as the Crystal Palace exhibition prompted renewed attention to patent laws in order to protect exhibited objects, the International Exhibition of 1862 spurred the British House of Commons to re-visit copyright. Attempts to protect photographs proved contentious, but arguments seem to have focused on expenses incurred by photographers rather than their labor. See also Ronan Deazley, “Struggling with Authority: The Photograph in British Legal History,” History of Photography 27, n. 3 (Autumn 2003): 236-246. Dominique de Font- Réaulx touches briefly on intellectual property disputes between painters and photographers who copied their artworks in the Exposition Universelle. Painting and Photography, 1838-1914 (Paris: Flammarion, 2012), 97-98. 42 On constitutional debates surrounding the language of intellectual property, and the utilitarian origins of American copyright more generally, see William Patry, Moral Panics and the Copyright Wars (New York: Oxford University Press, 2009). 43 Similarly, motion pictures were categorized as photographs until they were added as a category of protection in 1912. In 1865 the other categories of protection were print, musical composition, book, map, and drama. Although in the Southern District of New York photographic images were not classified as photographs until after passage of the 1865 amendment, in Washington, D.C., the categories “photography” or “picture” were used earlier, underscoring the importance of differentiating between protocol and practice. 44 E.P. Barney, author and proprietor, #169-171, Register 207, New York Southern District, March 1, 1865 to May 12, 1865, Copyright Division, Library of Congress. In the lists of copyrights for the Southern District of New York, in which details often differ from that in the registers, Barney’s entries are numbered 169, 832, and 833. In the copyright register Ceres is entered as a photograph while in the U.S. District Clerk’s Office list of records it is categorized as a print, and Sweet Sixteen is the first entry categorized as a photograph. As in Old Master prints, the printed inscription on each image incorporated both “pinxt” and publisher, acknowledging that authorship was not the product of a single individual. 45 Invectives against kitsch and sentimental imagery continue to cloud understanding of the scope of nineteenth-century photographic production. A notable exception is Anthony Hamber, “A higher branch of the art”: photographing the fine arts in England, 1839-1880 (Amsterdam: Gordon and Breach, 1996), in which he catalogues the many reproductive functions for which

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photography was employed. Use of photography to copy prints was similarly commonplace in the United States. E. Anthony’s catalogue of 1864 includes almost half as many fanciful images as unadulterated depictions. George W. Thorne’s establishment produced a catalogue in 1868 advertising 370 portraits and more than 450 “miscellaneous subjects” which included titles such as Angel’s Whisper, Cats (with the notation “15 kinds”), Convenience of Married Life, The Immaculate Conception, Mozart Before the Court of Austria, and Naughty, alongside archival images of the Declaration of Independence and the ever popular Raphael’s Cherubs. Although such images would now be termed “photographic reproductions” or “reproductive prints,” few of the prints on which the photographs were based are extant, implying that the photograph, rather than the print it reproduced, was considered the final product. Catalogue and Price List of Photograph-Albums and Photographs…Manufactured and for sale by George W. Thorne 60 & 62 Nassau Street (New York: trade catalogue, 1868). 46 United States Congress, Congressional Globe (Washington, D.C.: Blair & Rives, 1865), 981. A committee from the Patent Office reported to the Senate on February 22nd, 1865, and the amendment was passed that day. In session, the definition of the word “book” was discussed, but not that of photography. The House passed the bill on March 2nd, and President Lincoln signed it into law on March 3rd. Photography quickly became among the most heavily used categories. Between April and September 1865, about thirty percent of registrations in the Southern District of New York were photographs, a percentage that does not include albums or books about photography, which were categorized as books. 47 Wood v. Abbott, 30 F. Cas. 424 (1866). 48 Rossiter et al. v. Hall, 20 F. Cas. 1253 (1868). 49 In the 1860s, photographs of Rogers’ groups were entered into the copyright registers now held in the Library of Congress, suggesting that painters and sculptors used reproductive media as means of protecting their work before it was officially eligible for direct protection. As early as 1824 Rembrandt Peale had urged Congress to classify painting as a category of protection. A Senator opposed to the extension remarked of Peale’s equestrian portrait that “had such an act been in existence before Mr. Peale executed his painting, he could not have completed it, as Stuart had previously executed a portrait of Washington, from which Mr. Peale’s was but a copy, with some little embellishment. . …an act of Congress would have a great tendency to retard the progress of the art of painting, as it would do away with the right of imitating, and attempting to excel paintings already in existence.” Annals of Congress 511 (April 12, 1824): S. 77. William Patry indicates in Moral Panics that the act of 1870 was the result of pressure by William Morris Hunt and his colleagues. See Journal of the Senate, 41st Cong., 1st Sess. 17 (Mar. 8, 1869). 50 Prang Collection, box 50, record 468954, American Antiquarian Society. 51 An 1850 decision affirmed that copyright pertained to content, rather than merely title, but proved difficult to enforce given that deposit for literature and scripts was by title page only. The policy of district rather than national deposit further complicated questions of infringement. The 1865 act which established photography as a category also indicated it was the responsibility of the Librarian of Congress to demand deposit within a year, rather than beholden on the applicant. Within five years the statute was changed, but study of extant copyright registers in the Library of Congress suggests deposits were not routinely submitted. A notable exception is Colorado, whose copyright registers are a patchwork of pasted-in landscape photographs of iconic views and newsworthy events. My thanks to Carol Johnson, Curator of Photography in the Prints and Photographs Division, for her counsel. I am especially grateful that she recommended I study Colorado registers for comparative analysis. I also owe an enormous debt

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of gratitude to Rosemary Plakas for her deep knowledge about copyright holdings extant in the Library of Congress. There were noteworthy differences between the treatment of visual works and other forms of printed matter. In cases involving visual arts, for example, deposit had to have occurred before the alleged infringement was published, while for other media the deposit had only to be submitted before a suit was brought. In other words, other sorts of authors were responsibly for depositing a copy of a work if they were preparing to sue their competition, while graphic artists were held to a stricter standard. Eaton S. Drone, A Treatise on the Law of Property in Intellectual Productions in Great Britain and the United States (Boston: Little, Brown, and Company, 1879), 279. In covering the 1860s and 1870s I am compressing a great deal of nuance in treatment of copyright registration across districts. 52 In the Southern District of New York, for example, a photograph of a painted portrait of Andrew Johnson was pre-emptively registered by J.W. Dodge on April 22, 1865 but was not deposited until May 31, 1865 (#335). A photographic portrait titled John Wilkes Booth was deposited May 10, 1865 a week after the May 3rd registration (#138), while another titled J. Wilkes Booth, The Assassin, was registered May 2, 1865 and not deposited until July 20, 1865 (#381). Others were more efficient in ensuring prompt deposit of images for which market interest was anticipated. Photographs of Lincoln’s funeral taken April 25, 1865 were registered May 9, 1865 by E. and H.T. Anthony, and deposited the same day (#195–205). List of registrations for April 1, 1865 to September 30, 1865, and Register 207, New York Southern District, March 1, 1865 to May 12, 1865, Copyright Division, Library of Congress. 53 Boucicault v. Hart, 3 F. Cas. 983 (1875). An 1876 case, Centennial Catalogue v. Porter (5 F. Cas. 356), affirmed that a book’s published content, not its subject more generally, was eligible for protection. Baker v. Selden (101 U.S. 99; 25 L. Ed. 841), in 1879, is generally noted as an important case in establishing the idea-expression divide, but it deals primarily with distinctions between “authors” (copyright) and “inventors” (patent). 54 The earliest American copyright cases, such as Wheaton v. Peters in 1834 (33 U.S. 591; 8 L. Ed. 1055), found copyright was a privilege granted by government, rather than a common law right, and therefore to secure claims established procedures had to be followed. Debates about whether strong copyright laws favor or undermine public interest are ongoing. See Meredith McGill, “The Matter of the Text: Commerce, Print Culture, and the Authority of the State in American Copyright Law,” American Literary History 9 (1997): 21-59. 55 On the many additional variant images in circulation see Charles Hamilton and Lloyd Ostendorf, Lincoln in Photographs: An Album of Every Known Pose (Norman Oklahoma, University of Oklahoma Press, 1963). 56 William Culp Darrah, Cartes de visite in nineteenth-century photography (Gettysburg, Pennsylvania: The Author, 1981), 187. I am using portraits of Lincoln as a case study, but other examples are readily available, as portraits of most famous sitters circulated in multiple forms. Elmer Ellsworth and other Civil War soldiers were, unsurprisingly, particularly popular, but images of politicians and actors were also widely reproduced. Ellen Gruber Garvey argues “Nineteenth-century scrapbook makers were part of an elaborate circuit of recirculation, one that trespassed or found easements across the enclosure of authorship and publication.” Vignetting similarly operated as a form of easement. Ellen Gruber Garvey, “Scissorizing and Scrapbooks: Nineteenth-Century Reading, Remaking, and Recirculating,” in New Media, 1740-1915, ed. Lisa Gitelman and Geoffrey B. Pingree (Cambridge, Mass.: MIT Press, 2004), 208.

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57 See Martin T. Buinicki, Negotiating Copyright: Authorship and the Discourse of Literary Property Rights in Nineteenth-Century America (New York: Routledge, 2006). The 1870 act expanded copyright to translation though as late as 1908 a court determined a published song was not infringed by player piano rolls that translated the tune into a different material form. 58 Darrah, Cartes de visite, 29. 59 Catalogue of Card Photographs Published and Sold by E. & H.T. Anthony & Co. (April 1864). William Culp Darrah remarked that “such imprints were used occasionally on stereographs from about 1856 until 1870. In cartes de visite they were most commonly used in the early to mid-1860s.” Darrah, Cartes de visite, 172. 60 Brady’s Album Gallery, United States Historical Scenes, Civil War box 7, American Antiquarian Society. 61 American copyright law is generally characterized as a shield for commercial interests. See Ronan Deazley, Re-Thinking Copyright: History, Theory, Language (Northampton, Mass.: Edward Elgar Publishing, 2006) as well as the introduction to Privilege and Property: Essays on the History of Copyright, edited by Ronan Deazley, Martin Kretschmer, and Lionel Bently (Cambridge: Open Book Publishers, 2010), 1-20. The following chapter explains that American publishers switched sides on this issue later in the nineteenth century. While in the 1850s and 60s they regular proclaimed their right to freely reprint from non-American sources, in the late 1860s and 1870s—as they became themselves victims of piracy—they advocated international copyright protocols. 62 In the Southern District of New York register that covered July 1859 through October 1859, for example, E. Anthony registered fifty prints while Brady entered only one. Register #185, New York Southern District, Copyright Division, Library of Congress. 63 On American debates surrounding international copyright see B. Zorina Khan and Kenneth L. Sokoloff, “History Lessons: The Early Development of Intellectual Property Institutions in the United States,” The Journal of Economic Perspectives, vol. 15, n. 3 (Summer 2001): 233–46. As the following chapter outlines, American officials declined to sign the 1886 Berne Convention treatise which had been designed to draw American publishers into international copyright reciprocity agreements. It was not until 1891, when Americans began to produce as much as they imported, that politicians found it in the country’s best interest to respect international copyright laws. But union lobbying prevented American compliance with the Berne Convention until 1988, more than a century after it was drafted. 64 Elizabeth Siegel notes the importance of relaxed regulation in her study of photography albums, remarking that “the industry as a whole benefited from—even needed—such blatant plagiarism. For if the new invention was to take hold of the American imagination, manufacturers had to market, alongside their own particular offerings, the idea of the photograph album in general; moreover the rage for albums would have been dampened considerably had there not been enough to meet the need.” Siegel, Galleries of Friendship, 75. Meredith McGill argues that to look to the consolidation of notions of authorship in the late nineteenth-century bypasses understanding of the flexible mindset of preceding generations. She insists: “to identify this period with the belated settling of American copyright law on a strong authors’ rights foundation is to narrow the spectrum of nineteenth-century thinking about intellectual property and to overstate the role that copyright played in the explosive growth of the printing and publishing trades. If, in retrospect, nineteenth-century law appears inadequate, inconsistent, and unsettled, it is because a variety of models of intellectual property still vied for dominance in popular opinion, in Congress, and in the courts.” Meredith McGill, “Copyright,” History of the Book in America, vol. 3: The Industrial Book, 1840-1880, ed. Scott E. Casper, Jeffrey D.

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Groves, Stephen W. Nissenbaum, and Michael Winship (Chapel Hill: University of North Carolina Press, 2007), 158. What might seem “inadequate, inconsistent, and unsettled” could instead be understood as productive liminality. As McGill notes, “nineteenth-century markets tended to flourish–at times in a cutthroat fashion—precisely where the law stopped short of protecting authors’ rights” (159). 65 Photographers did weigh in on the development of the 1870 Act, through a committee chaired by Alexander Gardner. The resulting statute defined authorship more broadly: “Any citizen of the United States, or resident therein, who shall be the author, inventor, designer, or proprietor of any photograph, or negative thereof, and his executors, administrators, or assigns, shall, upon complying with the provisions of this act, have the sole liberty of printing, reprinting, publishing, completing, copying, executing, finishing, and vending the same.” Philadelphia Photographer (August 1, 1870): 299-300. The Philadelphia Photographer also published notice of copyright procedures following revisions in 1874. 66 The suit pitted Charles D. Fredricks, George Penabert, and Louis Le Blanc against Constant Mayer and Jeremiah Gurney but was dismissed following a review of the contract between Fredricks and Gurney. See Nathan Howard, Practice Reports in the Supreme Court and Court of Appeals, State of New York, vol. XIII (New York: Banks, Gould, & Co., 1857), 566-572. 67 New York Herald, 26 May 1857, 5, col. B and New York Herald 22 July 1857, 5, col. C. The doctrine of work for hire was not developed until the twentieth century. In the nineteenth century, protection remained with an “author” unless explicitly signed over to their employer. But employees rarely mustered the resources to defend their proprietary claims. At the dissolution of his partnership with Gurney, Fredricks’s ads noted “all the Parisian artists which he introduced to this country still remain with him.” The New York Herald, August 28, 1856, 5, col. A. Marcus Root explained the importance of staffing within New York studios: “In 1854, after the introduction of the albumen process into some of the leading establishments of our principal cities; and before the collodion process had attracted much notice, or had been successfully worked by any of our American practitioners; Messrs. Gurney, Fredericks (sic) & Pennebeart, very greatly to their credit, introduced in New York from Paris several accomplished practical artists, who had had much previous experience in coloring photographs, with both oil and water colors. This proceeding served to corroborate a statement of mine, repeatedly made in the heliographic journals, viz.: that this art belongs to the category of both the fine and the useful art.” M.A. Root, The Camera and the Pencil, 378. In 1868, upon Fredricks’s return from Europe, his advertisements foregrounded his own involvement rather than that of assistants: “Mr. Fredricks would respectfully inform his own customers and the public that he has, after an absence of several years, returned to New-York, and from this time will give his personal supervision to his art.” Church Union, October 10, 1868, 3. Despite his promotion of French assistants in the 1850s, he apparently found it necessary to highlight that he “gives his personal attention to the business…We have no Branch Gallery, and there is no other Photographer by the name of Fredricks in this city.” Liberal Christian, February 20, 1869, 6. He also ran advertisements in an American journal produced for French audiences, Le Nouveau Monde. 68 Banner of Light, May 15, 1869, 3. 69 Hermann Vogel, The Chemistry of Light and Photography (New York: D. Appleton and Company, 1875), 122-123. See also Dr. H. Vogel, “Photography and Truth,” The Philadelphia Photographer (August 1, 1869): 262-264. 70 Burrow-Giles v. Sarony, 111 U.S. 53; 4 S. Ct. 279; 28 L. Ed. 349 (1884).

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71 As Judge Learned Hand remarked regarding compilations of facts in a 1921 decision, the Sarony case “left open an intimation that some photographs might not be protected.” He maintained, however, “no photograph, however, simple, can be unaffected by the personal influence of the author, and no two will be absolutely alike. Moreover, this all seems to me quite beside the point because…photographs are protected without regard to the degree of ‘personality,’ which enters into them.” In his dissent, Justice Brandeis found, “The mere record of isolated happenings, whether in words or by photographs not involving artistic skill, are denied protection.” Jeweler's Circular v. Keystone (274 F. 932), cited in The Jeweler’s Circular 82, issue 2 (July 20, 1921): 95. 72 Recent scholarship has accounted for the historical drive to identify specific qualities of the medium, without identifying a way forward. See, for example, Peter Osborne, “Photography in an Expanding Field: Distributive Unity and Dominant Form,” Where is the Photograph? (2003), 63- 70. Close reading of legal scholarship offers a productive avenue of exploration. Discussion in Photography Theory similar reveals an inability or unwillingness to move past essentialist accounts. I am indebted to the work of Geoffrey Batchen in recognizing instead the possibility, in fact pervasiveness, of both/and models in nineteenth-century photographic discourse. See, for example, Burning with Desire: the conception of photography (Cambridge, Massachusetts: MIT Press, 1997), 202. 73 See Penelope Umbrico’s review “Infinite Photographies—on The Photographic Universe: A Conference,” Afterimage (Spring 2011), 6. 74 Gaudreault and Marion, “A Medium is Always Born Twice….”

Chapter 4 1 Charles Arthur, “Facebook forces Instagram users to allow it to sell their uploaded photos,” The Guardian, December 18, 2012, http://www.theguardian.com/technology/2012/dec/18/ facebook-instagram-sell-uploaded-photos. Vindu Goel and Edward Wyatt, “Facebook Privacy Change is Subject of F.T.C. Inquiry,” New York Times, September 11, 2013, B1. 2 Even Elizabeth Siegel’s recent account, which demonstrates that album collections provided a space for individual control over mass production, nonetheless concludes of the carte-de-visite, “The standardization and repetition of this format did more than reduce the presentation of the individual to a formula. With the carte-de-visite, as never before, portraiture became enmeshed with industrialization and modernity. In its most extreme case—the celebrity portrait—the carte- de-visite signified limitless copies, assembly-line mass-production, market distribution through traditional sales channels, and inflation or deflation depending on supply and demand. But even the personal carte, produced in much more limited quantities, still circulated as a multiple and found its value—its ‘social currency’—in exchange. The standardized poses, props, and settings for even the most intimate of pictures made them seem identical and interchangeable. This uniformity was an essential feature of the production and distribution demanded by a modern economy.” Elizabeth Siegel, “Galleries of Friendship and Fame: The History of Nineteenth- Century American Photograph Albums” (Ph.D. dissertation, University of Chicago, 2003), 88. 3 Visual Studies Workshop exhibition, Rochester, New York, October 1996–March 1997. For a more recent analysis see Steve Edwards, “ ‘Gradgrind Facts,’ or ‘The Background Is Simply a Background,’ ” in The Making of English Photography: Allegories (University Park, Pa.: Pennsylvania State University Press, 2006), 247–293. Edwards studies the Academic discourse surroundings backdrops in British publications, in which incongruous juxtapositions were often framed as grotesque.

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4 Essays accompanying the exhibition From the Background to the Foreground: The Photo Backdrop and Cultural Expression were published in Afterimage 24, issue 5 (March/April 1997). A.D. Coleman, “The Directorial Mode: Notes Toward a Definition” (1976), in Light Readings: A Photography Critic’s Writings (Albuquerque: University of New Mexico Press, 1976), 246–257. 5 Lucy Lippard, “Frames of Mind,” Afterimage 24, issue 5 (March/April 1997): 8. 6 Arjun Appadurai, “The Colonial Backdrop,” Afterimage 24, issue 5 (March/April 1997): 5. 7 Steve Edwards makes this point nicely. He notes that the “notion of the simulacrum would seem to make sense of these pictorial backgrounds, of the desires for an illusory Arcadian past, and of the ways in which a nineteenth-century audience found itself in more alluring times and places. We might add that such projections allowed the emergent middle class to cloak itself in the trappings of an aristocratic culture. In so doing, the bourgeoisie could imagine a historical continuity and legitimacy for their rule. The background simulacrum brought the glamour of military life, or some courtly spice, into the life of a workaday bourgeois. But I do not think that this story will do. There were too many contradictions and too many awkward problems with these backgrounds for us to assume that they convinced anyone.” Edwards, Allegories, 251–252. Philippe-Alain Michaud posits backgrounds as a “decisive stage in a unitary and naturalistic conception of the space of representation and in the passage from an unorganized spatiality to a spatiality organized by perspective” (52) but consideration of the wide range of vernacular practices and nineteenth-century discussions about backdrops does not sustain a connection with the perspectival tradition Michaud identifies as relevant. Michaud, Aby Warburg and the Image in Motion (New York: Zone Books, 2004). In 1879, for example, The Philadelphia Photographer reprinted passages from H.P. Robinson’s Pictorial Effect in Photography. “Cultivated minds do not require to believe they are deceived, and that they look on actual nature when they behold a pictorial representation of it….Art is not the science of deception, but that of giving pleasure, the rod pleasure being used in its purest and loftiest sense.” Reprinted in The Philadelphia Photographer XVI, no. 192 (December 1879): 358–359. As Neil Harris notes in his account of P.T. Barnum, audiences took pleasure in debating how effects were achieved. Neil Harris, “The Operational Aesthetic,” in Humbug: The Art of P.T. Barnum (Chicago: University of Chicago Press, 1973). 8 Shannon Jackson, “Working Publics,” Performance Research: A Journal of the Performing Arts 16, no. 2 (2011): 11. 9 Ibid., 12. 10 Beaumont Newhall, The Daguerreotype in America, rev. ed. (Greenwich, Conn.: New York Graphic Society, 1968), 59. 11 “Dictionary of Photography,” Photographic News 1, no. 23 (February 11, 1859): 270. Likewise it is said that Charles Dickens stood before a plain backdrop when speaking publicly so that his gestures would be more easily legible from afar. See Susan Ferguson, “Dickens’s Public Readings and the Victorian Author,” Studies in English Literature 41, no. 4 (Autum 2001): 729–749. 12 Charles A. Seely, The Ambrotype: A Practical Treatise on the Art of Producing Collodion Positives (New York: Seely & Garbanati, 424 Broadway, 1857), 42. 13 M.P. Simons, Plain Instructions for Colouring Photographs (Philadelphia: T.K. and P.G. Collins, 1857), 31. 14 Humphrey’s XIII, No. 16 (December 15, 1861): 41. Such criticism is echoed in reports throughout the 1870s. 15 In one of the few recent art historical articles to address painted backdrops, Angela Miller asserts that they were “part of a more general movement in the period after the Civil War away

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from the specificity of individual personality and toward markers, however contrived, of social status” (88). This statement, in an otherwise illuminating article about a late nineteenth-century painting of a photographer’s studio that includes children posing before a painted backdrop, supports her more general argument about the entrenchment of photography in visual data. But while it is true that historians can look to photographs, in hindsight, as markers of the status of subjects, for the sitters themselves the use of backdrops was part of a selection of options, however limited, to convey a sense of self-representation beyond the constraints of their social status. Angela Miller, “Death and Resurrection in an Artist’s Studio,” American Art 20, no.1 (Spring 2006): 84–95. 16 “Kurtz’s Conic Background,” Anthony’s Photographic Bulletin (April 1870): 72. 17 Emphasis mine. “Sitting for One’s Photograph,” Anthony’s Photographic Bulletin (May 1871): 138. Reprinted from The British Journal of Photography. 18 The reference appears on the same page as an article by Seavey on the importance of careful management of backdrops. Western Photographic News 1, no. 3 (September 1874): 57. 19 Later portrait photographs, particularly souvenir tintypes which were produced as amusements well into the early decades of the twentieth century, even more blatantly flaunt the sitter’s engagement with their fictive settings. 20 Emphasis original. The Philadelphia Photographer XVII, no. 193 (January 1880): 39. Card photographs in which painted backdrops were used were referred to as “fancy” in ads and articles throughout the late 1870s and 1880s. Ashe’s Fancy Backgrounds went so far as to incorporate the characterization into their brand. The Philadelphia Photographer XVI, no. 192 (December 1879): 384. 21 “Certain Milwaukee Ladies Seized with a Photographic Mania,” The Milwaukee Sentinel, February 11, 1883, col. E. 22 James B. Wyman, “From the Background to the Foreground: The Photo Backdrop as Cultural Expression,” Afterimage 24, issue 5 (March/April 1997): 1. Wyman references an unpublished thesis by Paul Jeremias, “The Theater and the Photograph: Observations and Parallels,” which I have not been able to locate. Michael Fried’s diatribes against theatricality aside, there is a large body of scholarly literature which seeks to define and differentiate theatricality and performativity. In this chapter I use performativity to refer to self-staging and theatricality to describe overt scene staging, which often prompts a state of self-aware reception. See Tracy C. Davis and Thomas Postlewait, “Theatricality: an introduction,” in Theatricality (Cambridge: Cambridge University Press), 1–39. Also Shannon Jackson, “Theatricality’s Proper Objects: Genealogies of Performance and Gender Theory” in the same volume. For a useful overview see Janelle Reinelt, “The Politics of Discourse: Performativity Meets Theatricality,” SubStance 31, no. 2/3, issue 98/99 Special Issue: Theatricality (2002): 201–215. Judith Butler’s scholarship, of course, informs my interpretation of nineteenth-century self-representation. The engagement which worries Fried was precisely that which was catalyzed in nineteenth-century studio work. 23 Wyman, “From the Background,” 2. 24 Ibid. 25 Emphasis original. Frank Robbins, “About our Backgrounds,” The Philadelphia Photographer XVII, no. 196 (April 1880): 105. 26 The Philadelphia Photographer XVI, no. 187 (July 1879): 220. Wyman quotes The Philadelphia Photographer passage by way of a reference in Robert Taft, Photography and the American Scene (New

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York: Dover Publications, 1964), 352–353. I have taken the text directly from The Philadelphia Photographer as Wyman’s version included a few small deviations from the original. 27 L.W. Seavey, “Backgrounds and their Uses. No. 1,” Western Photographic News 1, no. 3 (September 1874): 57. 28 Robin Thurlow Lacy, A Biographical Dictionary of Scenographers: 500 B.C. to 1900 A.D. (New York: Greenwood Press, 1990), 555. 29 A theatrical reference text locates his scenic studio at 138th Street in New York. The Broadway Design Roster: Designers and Their Credits (Westport, CT: Greenwood Press, 2003), 405–406. An auction of his assets to photographic firms in 1903 similarly noted an address on Walton Avenue, which intersects with 138th. Advertisements in the photographic literature, however, locate his studio at 8 Lafayette Place, a locale not only appropriate because the name matches his own, but also conveniently situated near the numerous lower Broadway photographic studios. It is probable that his designs were painted and sold in different locations but it is also likely that theatre designs necessitated a larger studio space than that demanded by photographic backdrops. An 1893 source indicates the Lafayette Place studio was used to paint scenery for traveling companies. Appletons’ Annual Cyclopedia and Register of Important Events of the year 1892 (New York: Appleton and Company, 1893), 558. A pamphlet which Seavey registered for copyright in 1875 indicates his studio was already active in that year. Lafayette W. Seavey’s scenic studio, 8 Lafayette Place, New York: scenery for theatres, public halls and amateurs (New York: Wood & Reilly, 1875). 30 The Philadelphia Photographer XVII, no. 193 (January 1880): 34. 31 Wilson’s Photographic Magazine XL (1903): 192. 32 Abigail Solomon-Godeau provides a valuable, if idiosyncratic, case study in her analysis of portraits of the Countess de Castiglione produced between 1856 and the 1890s. The Countess was often photographed before a blank backdrop, the edge of which is blatantly visible in several prints. Solomon-Godeau argues that interpretation of the portraits “needs to be both symptomatic and dialectical: symptomatic in that they are the personal expression of an individual woman’s investment in her image—in herself as image; dialectical in that this individual act of expression is underwritten by conventions that make her less an author than a scribe.” Abigail Solomon-Godeau, “The Legs of the Countess,” October 39 (Winter 1986): 67 33 Lori Pauli, Acting the Part: Photography as Theatre (New York: Merrell; in association with the National Gallery of Canada), 16. Miles Orvell similarly builds on the insights of A.D. Coleman’s discussion of a “directorial mode,” asserting: “the nineteenth century’s practice of photography was founded on an understanding of the medium as an illusion, and the realism of Victorian photography is properly understood as an ‘artificial realism,’ in which the image offers the viewer a representation of reality, a typification, a conscious simulacrum—though a simulacrum that elicited a willing suspension of disbelief.” Miles Orvell, “Photography and the Artifice of Realism,” The Real Thing: Imitation and Authenticity in American Culture, 1880–1940 (Chapel Hill: University of North Carolina Press, 1989), 77–78. 34 For scholarship representative of the argument that performativity is the product of avant- garde artistic practice rather than simply a longstanding photographic practice see Margaret Iversen, “Following Pieces: On Performative Photography,” in Photography Theory, James Elkins, ed. (New York: Routledge, 2007), 91–108. “Artists since the 1960s have found in photography a medium that lends itself to the redefinition of the image. That redefinition spurned the idea of recording a preexisting object or situation in favor of using the camera as an instrument of experimentation or exploration” (104). Self-portraits by Hippolyte Bayard, and scholarship by

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Abigail Solomon-Godeau, among others, demonstrate that sitters and photographers toyed with self-conscious filmic representations from the earliest years of the medium. Iversen draws from Krauss’s notion of indexicality, itself indebted to the work of André Bazin. She quoted from his “Ontology of the Photographic Image,” in her influential essay “Notes on the Index: Seventies Art in America”: “Painting is, after all, an inferior way of making likenesses, an ersatz of the processes of reproduction. Only a photographic lens can give us the kind of image of the object that is capable of satisfying something more than a mere approximation…The photographic image is the object itself, the object free from the conditions of time and space that govern it….no matter how lacking in documentary value the image may be, it shares, by virtue of the very process of its becoming, the being of the model of which it is the reproduction; it is the model.” Rosalind Krauss, “Notes on the Index: Seventies Art in America,” October, vol. 3 (Spring 1977): 75. Joel Snyder provides well-reasoned arguments against the usefulness of indexicality in his essays “Photography, Vision, and Representation,” Critical Inquiry 2, no. 1 (Autumn, 1975): 143– 169 and “Picturing Vision,” Critical Inquiry 6, no. 3 (Spring, 1980): 499–526. He argued his case valiantly in the recent roundtable on photography theory convened by James Elkins. But as Anne Collins Goodyear notes in her response to Iversen, “the authority of the index, it seems, is instead a historical function, perhaps transhistoric in its reach, whose lure extends beyond the photograph, arguably creating the desire that prefigured its existence, and a residue that endures beyond it.” Photography Theory, 215. 35 Elizabeth Siegel discusses this trend in her dissertation, “Galleries of Friendship and Fame,” 75–89. She notes, following the work of William Culp Darrah, that the first era of celebrity portraiture in the early 1860s concentrated on “statesmen, military, clerical, literary and theatrical figures, while the later one leaned toward the entertaining and often sensational.” Siegel, 81. 36 L.W. Seavey, “Backgrounds,” The Philadelphia Photographer XVII, no. 201 (September 1880): 271. 37 Mary C. Henderson, “Scenography, Statecraft, and Architecture in the American Theatre,” in vol. 1 of The Cambridge History of American Theatre, ed. Don B. Wilmeth and C.W.E. Bigsby (Cambridge: Cambridge University Press, 1998), 420–421. 38 “Three Big Social Events,” The New York Times, February 16, 1879, 2. 39 Ibid. 40 Ibid. 41 Ibid. 42 Ibid. 43 Christopher Kent, “Spectacular History as an Ocular Discpline,” Wide Angle 18.3 (1996): 1. Laurence Senelick is also deeply engaged in the study of relationships between photography and theatre. 44 Ibid., 4. 45 L.W. Seavey, “Backgrounds,” The Philadelphia Photographer XVII, no. 201 (Sept 1880): 271. 46 Ibid., 272. 47Max Petsch, “On the Influence of Individuality in Portrait Photography,” Anthony’s Photographic Bulletin, February 1871: 46 (reprinted from London Photographic News). 48 Heinz K. Henisch and Bridget Henisch, The Photographic Experience, 1839–1914: images and attitudes (University Park, Pa.: Pennsylvania State University Press, 1994), 308. 49 The Philadelphia Photographer XVI, no. 187 (July 1879): 219.

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50 On interactions with comic foregrounds see Jordan Bear and Albert Narath, “Head Trips,” Cabinet 33 (Spring 2009). 51 Frank Leslie’s Illustrated Newspaper, August 8, 1868, 322–323. 52 Ibid. For a brief biography of Sarony see Ben L. Bassham, The Theatrical Photographs of Napoleon Sarony (Kent, Ohio: Kent State University Press, 1978). It is my understanding that in a forthcoming dissertation Erin Pauwels, of Indiana University, will discuss Sarony’s biography and society portraits in some depth. I refrain from tracing his chronology, but instead seek to understand his output as a representative, if idiosyncratic, attempt to craft portraits engaging for sitters and viewers, as well as eligible for the threshold of creativity demanded by copyright regulation. 53 Barbara McCandless, “The Portrait Studio and the Celebrity: Promoting the Art,” in Photography in Nineteenth-Century America, ed. Martha Sandweiss (New York: Harry N. Abrams, 1991), 48–75. 54 New York Illustrated: A Pictorial Delineation of Street Scenes, Buildings, River Views, and other Features of the Great Metropolis (New York: D. Appleton & Co., 1882), 213. A contemporary credit report rating noted that in addition to his real estate holdings Sarony had thirty to forty thousand dollars invested in paintings. Entry dated October 4, 1881, New York, vol. 435, p. 200a85, R.G. Dun & Co. Collection, Baker Library Historical Collections, Harvard Business School. 55 New York Illustrated, 213. 56 “Life on Broadway,” Harper’s New Monthly Magazine 56, no. 332 (January 1878): 229. 57 Peter G. Buckley, “Paratheatricals and Popular Stage Entertainment,” The Cambridge History of American Theatre, vol. 1 (Cambridge: Cambridge University Press, 1998), 449. 58 Richard Grant White, “A Morning at Sarony’s,” The Galaxy IX, no. 3 (March 1870): 409. 59 Ibid., 408. 60 M.A. Root, The Camera and the Pencil, or the heliographic art (Philadelphia: M.A. Root, 1864), 439. 61 See Allan Trachtenberg on contemporary uses of regional or class-based dialects in literature. Allan Trachtenberg, The Incorporation of America: Culture and Society in the Gilded Age (New York: Hill and Wang, 1982). “Dialect either appeared within a grammatical framework or otherwise made it clear it was intended for a grammatically proper reader. This placement of speech…is unmistakably recognized as ‘low,’ as culturally inferior to the writing of the narrator” (189). 62 “A Poser–We Give it Up!” Anthony’s Photographic Bulletin (October 1870): 184-185. 63 Carl Pretzel, “Photographs,” Western Photographic News 1, no. 2 (August 1874): 4 64 David Green and Joanna Lowry, “From Presence to the Performative: Rethinking Photographic Indexicality” (2002), Where is the Photograph? (Manchester: Cornerhouse Publications, 2003), www.photo-forum.org.uk/pdfs/GreenLowry.pdf, 2. 65 Ibid., 6. 66 On the use of the pointing finger as a device of attention see Marcy J. Dinius, “Look!! Look!!! at This!!!!”: The Radical Typography of David Walker’s Appeal,” PMLA 126, n. 1 (January 2011): 55–72. For a more general history of the form see William H. Sherman, Used Books: Marking Readers in Renaissance England (Philadelphia, Pa.: University of Pennsylvania Press, 2008). My understanding of the manicule differs from that of Rosalind Krauss, who takes its appearance in Marcel Duchamp’s Tu m’ (1918) as operating neither as likeness nor as convention. She states, in the passage already quoted in a footnote above, “If the Symbolic finds its way into pictorial art through the human consciousness operating behind the forms of representation, forming a connection between objects and their meaning, this is not the case for photography” (75).

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Rosalind Krauss, “Notes on the Index: Seventies Art in America,” October 3 (Spring 1977). I find Michael Leja’s reading of the Duchamp in Looking Askance more convincing, though certainly quibble with his reference to photographic “fixed projections” as a pure form of indexicality. Michael Leja, Looking Askance: skepticism and American art from Eakins to Duchamp (Berkeley: University of California Press, 2004). 67 Sarony’s Living Pictures (New York: A.E. Chasmar & Co., 1894–95), frontis. 68 “New Photographs,” New York Times, December 13, 1873, 12. 69 Quoted in Bassham, The Theatrical Photographs of Napoleon Sarony (14) from Wilson’s Photographic Magazine (January 1893): 11. 70 “Sarony as seen by his contemporaries,” Photographic Journal of America (1897): 74. Nast’s recollections might have been self-serving. A credit report on Sarony notes that Nast loaned money to the studio in 1871 “with the understanding that if everything proves satisfactory he will eventually contribute more cap[ital.] and become a general partner. At the time of the dissolution the firm were rather in a bad way, far behind in their payments and obliged to renew their paper but with the use of the 3 [thousand] given him by Nast, S[arony] has been enabled to pay off some of his pressing claims and the concern is now [thought] to be in a better position than formerly. It would be difficult to say what means [Sarony] is possessed of as his capital is all tied up in stock material and has nothing outside.” Entry dated April 13, 1871, New York, vol. 367, p. 347, R.G. Dun & Co. Collection, Baker Library Historical Collections, Harvard Business School. 71 Heinz Henisch and Bridget Henisch, Photographic Experience, 308. 72 Notice for “Sarony’s photographic studies,” in John Towler, The American Photographic Almanac for 1867 (New York: Joseph H. Ladd, 600 Broadway, New York, 1867), unpaginated. 73 Sarah Burns, Inventing the Modern Artist: Art and Culture in Gilded Age America (New Haven and London: Yale University Press, 1996). She discusses Sarony briefly in the chapter “Performing Bohemia.” 74 Sarony’s credit reports mention that he and Major founded a partnership as publishers in 1845, which they sold within a few years to Currier, for whom they had both previously worked. A report of September 1852 characterized them as “ab[ou]t the best Lithographers in the City.” An association with Knapp was mentioned in October 1853. New York, vol. 367, p. 347, R.G. Dun & Co. Collection, Baker Library Historical Collections, Harvard Business School. 75 United States Patent 74604, dated February 18, 1868. On Oliver Sarony see Anne and Paul Bayliss, Photographers in Mid Nineteenth Century Scarborough: The Sarony Years (Scarborough: A. Bayliss, 1998). 76 An advertisement for “Sarony’s Patent Universal Rest and Posing Apparatus,” referencing his address at 543 Broadway, printed before he had secured the patent improvement, appears in John Towler, The American Photographic Almanac for 1867 (New York: Joseph H. Ladd, 600 Broadway, New York, 1867), unpaginated. 77 Ibid., unpaginated. 78 Western Photographic News (August 1874): 30. 79 Elizabeth Siegel, Galleries of Friendship and Fame: a history of nineteenth-century American photograph albums (New Haven, Conn.: Yale University Press, 2010), 8. 80 Harper’s Weekly, July 2, 1864, front page.

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81 Meredith McGill, “Copyright,” History of the Book in America, vol. 3, The Industrial Book, 1840– 1880, ed. Scott E. Casper, Jeffrey D. Groves, Stephen W. Nissenbaum, and Michael Winship (Chapel Hill: University of North Carolina Press, 2007), 167. 82 “Photographs of the Day,” New York Times, June 4, 1874. 83 Theodore Tilton v. Henry Ward Beecher action for crim. Con. Tried in the city court of Brooklyn, Chief Justice Joseph Neilson, Presiding. Verbatim Report by the Official Stenographer, vol. 1 (New York: McDivitt, Campbell & Co., 1875), 626. 84 Martin T. Buinicki, Negotiating Copyright: Authorship and the Discourse of Literary Property Rights in Nineteenth-Century America (New York: Routledge, 2006), 7. 85 Martin T. Buinicki, “Walt Whitman and the Question of Copyright,” American Literary History 15, n. 2 (Summer 2003): 248–275. 86 Benjamin Vaughan Abbott, The patent laws of all nations, vol. 2 (Washington: Charles R. Brodix, Law Publisher, 1886), 10. 87 On the Wilde sitting see Bassham, Theatrical Photographs of Napoleon Sarony, 74. At the time Wilde had published only a single volume of poetry, and it had not been particularly well received. 88 A variant sheet cover features songs such as the “Oscar Wilde Galup” and “Oscar Wilde Waltz.” Smithsonian Museum of American History, Sam De Vincent Collection, Box 628, Oscar Wilde file. 89 New York Times, December 14, 1883, 4. 90 Thornton v. Schreiber, 124 U.S. 612; 8 S. Ct. 618; 31 L. Ed. 577 (1888). 91 As Meredith McGill explains, although the United States adopted many British legal precedents, common-law copyright was not endorsed in the United States. Rather than assuming a natural right to an authored right, publication was found to be “the moment when individual rights give way to the demands of the social, and defines the private ownership of a printed text as the temporary alienation of public property. It is with the circumscription of individual rights and not with their extension that nineteenth-century American copyright law is primarily concerned.” Meredith L. McGill, “The Matter of the Text: Commerce, Print Culture, and the Authority of the State in American Copyright Law,” American Literary History 9, n. 1: 22. 92 Melissa Homestead, “When I Can Read My Title Clear”: Harriet Beecher Stowe and the Stowe v. Thomas Copyright Infringement Case,” University of Nebraska Faculty Publications (2002), paper 45, http://digitalcommons.unl.edu/englishfacpubs/45. 93 Abbott, The patent laws of all nations, 10. Case law held that although “literary merit is not a necessary element of a legal copyright,” the copyright statute “was passed for the encouragement of learning, and was not intended for the encouragement of mere industry, unconnected with learning or science.” Orlando F. Bump, The Law of Patents, Trade-Marks, Labels and Copyrights: Consisting of the Section of the Revised Statutes of the United States, with notes under each section, referring to the Decisions of the Courts and the Commissioner of Patents…(Baltimore: Cushings & Bailey, 1884), 494. 94 McGill, “The Matter of the Text,” 48–49. 95 U.S. Copyright Act 1870, 16 Stat. 198. The flurry of contrasting legal decisions can seem bewildering but demonstrates that the courts were seeking ways to grapple with questions concerning author’s rights. It is worth noting, for example, that Meredith McGill found that the majority of copyright cases decided by courts concerned dramatization. For much of the century, dramatization—unlike publication—did not signal relinquishment to the public sphere. Instead, performance was protected under common law perpetual rights to non-published writings. In

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the 1860s, however, as playwrights sought greater protections for performances of their work, dramatizations began to be treated as a form of publication, which afforded greater grounds for policing infringement, but limited the term of rights. Copyright enabled greater control over one’s work, but participation in the system came with the cost of term limitations. Meredith McGill, “Copyright,” History of the Book in America, 169. 96 Since the Copyright Act of 1976, protection is granted to “original works of authorship fixed in any tangible medium of expression, now known or later developed, from which they can be perceived, reproduced, or otherwise communicated, either directly or with the aid of a machine or device.” Pub. L. No. 94-553, 90 Stat. 2541, 17 USC § 102. There is a great deal of work still to be done in tracking the importance of the 1976 revisions on photographic production, and on visual arts compositions and circulation more generally. Insistence on fixation has denied protection for some conceptual and performative practices, and obviation of the requirement to append signatory notice might well have had profound impact on the visual arts in ways heretofore unexamined. It is worth considering, for example, how interest in signature style replaced dependence on visible artist signatures. The Pictures exhibition at Artists Space was held the year following the copyright changes of 1976. 97 Oren Bracha notes that there was a significant difference between nineteenth-century American rhetoric of authorship and the actual legal doctrine in the United States, which continued to favor statutory protocols over any assumption of natural right. The law continued to favor proprietor’s rights rather than those of authors. Oren Bracha, “The Ideology of Authorship Revisited: Authors, Markets, and Liberal Values in Early American Copyright,” The Yale Law Journal 118, n. 2 (November 2008): 186–271. 98 1884 notice in the Philadelphia Photographer cited in Craig’s Daguerreian Registry, http://craigcamera.com/dag. 99 Photographs published by J. Gurney and Son, 707 Broadway, New York (New York: John Polhemus, 1869), frontis. 100 “For the first three-quarters of the nineteenth century, the notion that copyright incorporated a creativity-based originality requirement that excluded factual matter from protection was unknown to Anglo-American law.” Robert Brauneis, “The Transformation of Originality in the Progressive-Era Debate over Copyright in News,” 27 Cardozo Arts & Entertainment Law Journal 321 (2009). 101 Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 240 (1991). 102 Boucicault v. Fox, 3 F. Cas. 977 (C.C.S.D.N.Y 1862). “A book may be original, in the sense of the law, although the materials of which it is composed, the hints and sources from which its matter was derived, can all be traced out in former works, provided the author has exercised selection, arrangement, and combination, and has thereby produced anything new.” 103 The title was only later changed to the plural Vera; or, The Nihilists. 104 Mary Warner Blanchard, Oscar Wilde’s America: Counterculture in the Gilded Age (New Haven: Yale University Press, 1998), 3. Blanchard explores how the aesthetic movement influenced American dress, behaviors, domestic interiors, and rhetoric of sexuality and gender. 105 Alan Trachtenberg, The Incorporation of America (New York: Hill and Wang, 1982), 130. Here, as elsewhere, Trachtenberg does not cite the source of the quotation. 106 “Oscar Wilde, the aesthete,” Frank Leslie’s Illustrated Newspaper, January 21, 1882, 382C. 107 A.A.H., “New York Gossip,” Boston Daily Advertiser, January 9, 1882, 5A. 108 See Matthew Hofer and Gary Scharnhorst, Oscar Wilde in America: The Interviews (Urbana and Chicago: University of Illinois Press, 2010).

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109 G.E.M., “The Great English Aesthete’s Good-By to His Bohemian Friends in New York,” St. Louis Globe-Democrat, December 31, 1882, 6A. 110 Martin T. Buinicki, “Staking a Claim: Samuel L. Clemens’ Pragmatic Views on Copyright Law,” American Literary Realism 37, n. 1 (Fall 2004): 59–82. 111 I make this claim based on study of Fredricks cartes-de-visite in the Harvard Fine Arts Library Collections. 112 On Oscanyan see Susan Nance, How the Arabian Nights Inspired the American Dream (Chapel Hill: University of North Carolina Press, 2009), 54. 113 H.C. Lea, The Dorsheimer Copyright Bill (Philadelphia: s.n., 1884), 2. Historic Collections, Harvard Baker Business Library. 114 B. Zorina Khan and Kenneth L. Sokoloff, “History Lessons: The Early Development of Intellectual Property Institutions in the United States,” The Journal of Economic Perspectives 15, n. 3 (Summer 2001): 244. 115 McGill, “Copyright,” 164–165. 116 Henry C. Carey, The International Copyright Question Considered: with special reference to the interests of American authors, American printers and publishers, and American readers (Philadelphia: H.C. Baird, 1872), 13–14. 117 Ibid. 118 Lea, Dorsheimer Copyright Bill, 1. 119 Ibid., 2. 120 New York Times, December 14, 1883, 4. 121 Burrow-Giles Lithographic Company, Plantiff in Error v. Napoleon Sarony, Transcript of Record, Supreme Court of the United States, October Term, 1883. No. 1071. In error to the circuit court of the United States for the Southern District of New York. Filed October 9, 1883. Statement and Brief for Plantiff in Error, 11. 122 Sarony v. Burrow-Giles Lithographic Co., 17 F. Cas. 591 (C.C.S.D.N.Y. 1883). 123 The Reporter. Containing Decisions of the Supreme and Circuit Courts of the United States, Courts of Last Resort in the Several States, and English and Irish Courts XVI(July—December 1883), ed. Howard Ellis, (Boston: Houghton, Mifflin and Company), 8. 124 Donald Grier Stephenson, Jr., The Waite Court: Justices, Rulings, and Legacy (Santa Barbara, California: ABC-CLIO, 2003). 125 Sarony v. Burrow-Giles Lithographic Co. 126 Burrow-Giles Lithographic Company, Plantiff in Error v. Napoleon Sarony, Transcript of Record, Supreme Court of the United States, October Term, 1883. No. 1071. In error to the circuit court of the United States for the Southern District of New York. Filed October 9, 1883. Statement and Brief for Plantiff in Error, 29. 127 Ibid., 5. 128 Ibid., 9. 129 Ibid., 11. 130 Ibid., 11–12. 131 Ibid., 15. 132 Ibid., 21.

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133 Burrow-Giles Lithographic Company, Plantiff in Error v. Napoleon Sarony, Transcript of Record, Supreme Court of the United States, October Term, 1883. No. 1071. In error to the circuit court of the United States for the Southern District of New York. Filed October 9, 1883. Statement and Brief on the Part of the Defendant in Error, 4. 134 Ibid., 12. 135 Ibid., 10. 136 Ibid., 12. 137 Burrow-Giles Lithographic Company, Plantiff in Error v. Napoleon Sarony, Transcript of Record, Supreme Court of the United States, October Term, 1883. No. 1071. In error to the circuit court of the United States for the Southern District of New York. Filed October 9, 1883. Opinion Sustaining Copyright in Photographs, March 17, 1884, 4. 138 Ibid., 6. 139 Ibid., 7. 140 Ibid., 9. 141 Ibid., 7–8. 142 Ibid., 8. 143 Samuel Blatchford to the Northwestern Literary and Historical Society of Sioux City, Iowa, April 19, 1886. Blatchford correspondence file, Small Manuscript Collection, Harvard Law Library. 144 Meredith McGill cites Oliver Wendell Holmes’s 1903 opinion in a lithography case that: “The copy is a personal reaction of an individual upon nature.” McGill, “The Matter of the Text: Commerce, Print Culture, and the Authority of the State in American Copyright Law,” 53, fn. 4. Rights to control one’s image became magnified as possibilities of reproduction grew. Privacy rights and the rights of sitters to their own images began to be formulated in the United States in the ensuing years. See Samuel D. Warren & Louis Brandeis, “The Right to Privacy,” 4 Harvard Law Review 193 (1890). Perhaps the most familiar account of a sitter losing control of their photographic portrait is Arthur Conan Doyle’s “A Scandal in Bohemia,” which was first published in 1891. Doyle, A Sign of the Four: A Scandal in Bohemia, and other stories (New York: A.L. Burt, 1900). 145 On the lineage and implications of appropriation in the work of “Pictures Generation” artists Sherrie Levine and Richard Prince, among others, see Donald Kuspit, “Some Thoughts About the Significance of Postmodern Appropriation Art,” in Reuse Value: Spolia and Appropriation in Art and Architecture from Constantine to Sherrie Levine, eds. Richard Brilliant and Dale Kinney (Burlington, VT: Ashgate, 2011), 237–250. I am indebted to lengthy conversations with Doug Eklund on relationships between modern and contemporary appropriation practices.

Epilogue 1 Association for Molecular Pathology v. Myriad Genetics, 133 S. Ct. 2107 (2013). Adam Liptak, “Justices, 9-0, Bar Patenting Human Genes,” New York Times, June 14, 2013, A1. Kai T. Eiselein v. BuzzFeed, S. D. N.Y, filed June 7, 2013. John Villasenor, “Copyright Infringement and Photo Sharing: A New Lawsuit Tests the Limits of Fair Use,” Forbes.com, June 22, 2013.Ochre v. Rockwell Architecture, 2013 U.S. App. Lexis 14321. See “Copyright: Creative is as creative does,” www.likelihoodofconfusion.com/copyright-creative-creative-does, May 17, 2013. 2 Friedman v. Guetta, Case No. CV 10-00014 DDP (JCx), C.D. Cal. (2011).

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3 Ibid., citing Los Angeles News Service v. Tullo, 973 F.2d 791 (1992). 4 Ibid. This would seem to extend the standard of originality (selection, arrangement, coordination) to non-posed works, as well. See, for example, Reed-Union v. Turtle Wax, 77 F.3d 909 (7th Cir. 1996), “Ansel Adams published multiple views of El Capitan in Yosemite National Park, in different seasons and lighting. He did not create the mountain, the park, the seasons, or the lighting, but his expression of those conditions is an artistic achievement.” Because “sweat of the brow” doctrine has been overturned, framing alone would seem to be eligible for protection given that the photograph could potentially offer a unique capture of a unique moment. See Pagano v. Beseler Co., 234 Fed. 963 (2nd Cir. 1916). In a judgment especially significant for art historians, Lewis Kaplan the New York court did not recognize the presence of unique framing in Bridgeman Art Library v. Corel Corp., 36 F. Supp. 2d 191 (S.D.N.Y. 1999), finding photographs of artworks in the public domain to be a reproductive rather than creative form of compilation. See Kimberly N. Dobson, “The Originality of Photographs for Purposes of Copyright Law before and after Bridgeman Art Library, Ltd. v. Corel Corp.,” 10 Florida Coastal Law Review 319 (Winter 2009). 5 Friedman v. Guetta. 6 Judge Learned Hand said of the idea/expression dichotomy “no principle can be stated as to when an imitator has gone beyond copying the ‘idea,’ and has borrowed from its ‘expression.’ Decisions must therefore, inevitably be ad hoc.” Peter Pan Fabrics v. Martin Weiner Corp., 274 F.2d 487 (2nd Cir. 1960). 7 Gordon v. McGinley, No.11 Civ. 1001 (RJS) (S.D.N.Y. 2011). 8 For a recent analysis of fixation, see Chapman Kelley v. Chicago Park District, 2008 U.S. Dist. Lexis 75791 (N.D. Ill, 2008). The court decided that because a garden designed by Chapman Kelley is not “fixed” it cannot qualify for protection under the Visual Artists Rights Act. 9 Cariou v. Prince, 784 F. Supp. 2d 337 (S.D.N.Y. 2011). 10 Ibid. 11 Ibid. 12 On lawsuits against Andy Warhol and Jeff Koons, see Martha Buskirk, “Original Copies,” in The Contingent Object of Contemporary Art (Cambridge, Mass.: MIT Press, 2003), 59–105. Gary Gross sued Richard Prince over Spiritual America, the project in which Prince re-photographed Gross’s photograph of an underage Brooke Shields. See also Blanch v. Koons, 396 F. Supp. 2d 476 (2005); Rogers v. Koons, 960 F.2d 301 (1992); and Hoepker v. Kruger, 200 F. Supp. 2d 340 (S.D.N.Y. 2002). 13 Mannion v. Coors, 04 Civ. 1187; 377 F. Supp. 2d 444 (S.D.N.Y. 2005). 14 Ibid. 15 Ibid. 16 Ibid. 17 See for example “Morgan Stoddard, Mother Nature as Muse: Copyright Protection for Works of Art and Photographs Inspired by, Based on, or Depicting Nature,” 86 North Carolina Law Review 572 (January 2008). 18 Melville B. Nimmer’s treatise remains the standard reference text. Melville M. Nimmer, Nimmer on copyright: a treatise on the law of literary, musical and artistic property, and the protection of ideas, rev. ed. (Newark, N.J.: Matthew Bender, electronic resource). In patent law the “ordinary observer” seems recently to have become an evaluator versed in the trade but the Gordon v. McGinley decision explicitly stated experts are not valid

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observers. Christopher Carani, “The new ‘extra-ordinary’ observer test for design patent infringement—on a crash course with the Supreme Court’s precedent in Gorham v. White,” 8 The John Marshall Law School Review of Intellectual Property Law (2009). Timothy Warnock has pointed out that “Although substantial similarity is typically a fact-intensive inquiry, courts were increasingly willing to determine that no rational fact finder could determine the result any differently than the court,” Timothy L. Warnock, “Where’d you get that idea? Stay current with these updates to copyright Law,” 46 Tennessee Bar Journal (2010). 19 Gordon v. McGinley, 2011 U.S. Dist. Lexis 92470 (S.D.N.Y. 2011). 20 LaChapelle v. Fenty, 11 Civ. 945; 812 F. Supp. 2d 434; 2011 U.S. Dist. Lexis 61513. 21 A recent law review article remarked, “Due partly to the mechanical nature of photography, courts have generally struggled with defining the originality standard for photographs and in particular with contextualizing photographs within the framework of derivative works. Although specifically protected by statute, photography has proven to be a problematic medium for copyright law due to diverging opinions regarding the applicable level of creative distance necessary for a finding of originality, in tandem with the unresolved issue as to whether photographs are derivative works or simply depictions of the underlying materials.” Marcus Hall, “Case Comment: Copyright Law–Seventh Circuit Holds Product Photography Sufficiently Creative for Copyright as Derivative Works –Schrock v. Learning Curve Int’l, Inc., 586 F.3d 513 (7th Cir. 2009)” 44 Suffolk University Law Review 605 (2011). But it is photography’s status as a “problematic medium” which has enabled productive consideration of photographs. 22 Mannion v. Coors, fn. 65. 23 Cariou v. Prince, 714 F. 3d 694; 2013 U.S. App. Lexis 8380. 24 Ibid. 25 Ibid.

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