A HISTORY of INTELLECTUAL PROPERTY in 50 OBJECTS Edited by CLAUDY OP DEN KAMP and DAN HUNTER 6 Lithograph Amanda Scardamaglia

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A HISTORY OF INTELLECTUAL PROPERTY IN 50 OBJECTS Edited by CLAUDY OP DEN KAMP and DAN HUNTER 6 Lithograph Amanda Scardamaglia

he legacy of the lithograph is un- Senefelder was conferred exclusive print- Tderstated, crowded out by our per- ing rights for 15 years from the Prince of ception of the importance of the printing Bavaria on 3 September 1799 for “Chem- press. Although there were clear parallels ical Printing for Bavaria and the Elec- between both processes, in terms of tech- torate.” Soon after, he set up a number nical achievement and social consequence, of presses in Offenbach in Germany and the lithograph was responsible for chang- London, later securing patent rights across ing print advertising practices around the Europe, including in England, where he world. obtained a patent in 1801 for “A New Lithography, a method of chemical Method and Process of Performing the printing based on the incompatibility Various Branches of the Art of Printing on of oil and water, was invented by Alois Paper, Linen, Cotton, Woollen and other Senefelder sometime around 1796 in Ba- Articles.” To produce a lithograph using varia as a cheap and efficient alternative Senefelder’s method, the artist draws on the to the existing processes for print repro- surface of a limestone or other plate with duction using metal and wood engraving. greasy crayons or a grease-like ink. When Its invention had a profound impact on the drawing is complete, a solution of gum the categories of intellectual property, and arabic and nitric acid is washed across the transformed the production of print adver- stone to prevent the grease from bleeding. tising in the same way the printing press The entire surface of the limestone is then transformed the production of literary washed with water, and the stone is rolled works. It paved the way for the registration with printing ink. Since grease and water of commercial artifacts as trademarks for repel each other, the ink adheres only to the first time. And it casts an illuminating the greasy drawing. Thereafter, paper is shadow on the glow in which the printing laid across the stone and together they press has basked, and especially on the are pulled through a press. This transfers prevailing accounts of how intellectual the image from the stone to the paper, property law has developed in response producing a mirror image of the original to new technologies. image, to complete the printing process. It is a popular myth that Senefelder The invention of the lithograph could invented lithography by chance: the story not be more significant to the media age in goes that he penned a list for his mother which we now live. To some, the printing on a flat stone with a grease pencil and, press is the most significant development on a hunch, covered the surface with acid, leading to the advent of advertising. The only to discover the greasy pencil pro- printing press facilitated the first forms tected the stone and revealed the list. In of print advertising. These were featured reality, Senefelder was an accomplished in the newly established newspapers and playwright who struggled to pay the print- magazines and were a marked departure ing fees, and was motivated to develop an from the earlier methods of word of mouth affordable way to print his theatrical works. advertising and town-criers. The printing press also allowed for mass advertising, choice in the late 19th to early 20th cen- including the mass publication of posters, turies. Lithography was warmly embraced handbills, flyers, pamphlets, and other by artists, particularly in Europe with no- promotional material. table names including Pablo Picasso, Edgar But from a design perspective, these ads Degas, and Édouard Manet all working lacked visual appeal. Early print adver- with lithographs at various times during tising was dominated by black and white their careers. textual matter and only began to incorpo- Obviously, the transition from textual rate trademarks and graphics in the 1850s, to graphical advertising was not due to although this was dictated by the limits of the lithograph alone, in the same way that the mechanical printing processes available one cannot claim the printing press was at the time. Enter the lithograph, dramat- singularly responsible for revolutionizing ically changing the face of advertising, the production of the written word. The most notably from the 1870s, thanks to shift in advertising aesthetic was assisted developments such as chromolithography by other innovations in production tech- which facilitated the layering of color. niques, notably the development of new During the latter part of the 19th cen- fonts. Changes in advertising practices tury, advertising evolved from the simple were also influenced by new practices in text and devices used in early classified product packaging. Advances in paper- advertising, to artistic masterpieces. Li- board packaging and the invention of the thography allowed for the production of metal can and methods in canned food low-cost, high-quality illustrations on la- preservation were particularly important, bels and other ephemera. Lithography providing a packaging canvas upon which also enabled the reproduction of original producers could affix their labels, bringing paintings, delicate oil-and-water drawings advertising into people’s homes. and other sketches, which were used as full- Many of these product labels and adver- page advertisements and more frequently, tising posters were registered for copyright for advertising posters. protection, with international copyright The advertising poster really owes its registers littered with lithographs. This existence to lithography. Early advertising appears strange, for copyright is supposed posters were produced using wood or metal to protect authorial works, not commercial engravings with little color or design, but descriptors, and many of these works, par- the production quality did not compare ticularly product labels, were largely de- to the possibility offered by lithography scriptive, and not at all similar to the kinds and color lithography. Jules Chéret, who of creative works normally associated with became a master of The Belle Époque and copyright protection and artistic works. the French poster art movement, show- The labels were merely instructional, con- cased this possibility in a way that pro- veying information about the product and moted lithography as a legitimate art form. the proprietor, having no meaning beyond Chéret’s work inspired a troupe of other the associations to the products to which designers, with the growing popularity of they were affixed. poster art culminating in a major exhibi- Controversy quickly ensued. In the 1840s, tion in Paris in 1884. The public bought the American courts limited the scope of into this hype and started to demand these protection for the owners of these commer- advertising posters for their own personal cial artifacts. The high point was a case collections, with the aesthetic appeal soon involving the reproduction of a medicine surpassing their advertising function. label for “Doctor Rodgers’ Compound There is no doubt that this palpable Syrup of Liverwort and Tar,” which had shift in style would have been impossible been registered for copyright protection. without lithography, and its ability to pro- The court rejected the plaintiff’s claim, duce inexpensive, first-class illustrations in holding the labels served a purely com- a way that traditional printing methods mercial purpose of identifying goods for could not. It is no wonder that lithography sale and therefore could not be protected as quickly became the printing medium of copyright works. Notwithstanding this de- cision, the distinction between the various made the reproduction of trademarks categories of lithographs was not always and advertising materials easier than ever applied in practice, with thousands of la- before and so facilitated the production of bels registered as copyright works across counterfeits and imitations. Lithography the continents. also made it possible to produce content In response, the US State Department that was commercially valuable and worth distributed a circular to the district courts protecting. not to register these types of labels because Firms realized this, and took advan- it was contrary to the purpose of copyright, tage of the registered trademark system. which was designed to promote the acqui- Many of these early registered trademarks sition and diffusion of knowledge, and to were advertising posters. Many more were encourage the production and publication labels. These labels, which became in- of works of art. But again, the practice con- creasingly ornate and featured bright and tinued until 1903 when the US Supreme often gaudy colors, were primitive in their Court confirmed the legality of these regis- attempt to distinguish the products on trations, deciding that a picture is a picture which they were affixed. Early labels were and nonetheless a subject of copyright, even mostly descriptive of the product and lacked if used for an advertisement. features that would serve to differentiate While copyright was never intended to a brand or trader. Some labels were little protect trade labels or advertising posters more than a long descriptive text, with- for that matter, this practice was allowed out any distinctive elements at all; other for some years because there was at the than, perhaps, the border of the label. time no proper legislative machinery Nevertheless, the practice continued largely for the registration of trademarks. And unabated, thanks to the broad definition were it not for the habit of registering of a trademark. these commercial works as copyright, The production of lithographs posed the necessity of legislation permitting a legal problem. These objects did not trademark registration would have likely fit the traditional copyright mold, but arisen sooner. they also did not sit squarely within the Copyright was never intended to pro- definition of a trademark. Today, we tect commercial interests and brand iden- understand copyright and trademarks tity. This is clear from the limits to the to be conceptually different, albeit with protection afforded to trade material by some overlap. Lawmakers, the courts, the copyright system. While copyright and the bureaucrats responsible for ad- registration did serve as notice to other ministering these registration systems traders that a claim had been made over recognized a conceptual difference a work, in the case of infringement, the between the registered copyright and owner was only entitled to an award of trademark systems in the 19th century damages for copying. Moreover, a copy- too, as these regimes were still in their right owner was not eligible for damages infancy, but it took some time for these for trade diversion or lost sales caused by legal differences to fully develop. consumer confusion. Copyright registra- Over time, the definition of a trademark tion therefore only gave rise to the right was interpreted more strictly to relate to against copying; it did not give authors distinctive and not descriptive signs, to the exclusive right to use those works in the exclusion of labels lacking any distinc- the course of trade. tive indicia. But this was only following Trademark registration overcame these a decades-long process which eventually limitations and provided the kind of protec- carved out a more distinct delineation tion for brands and commercial reputation between copyright and trademarks—a that copyright did not. There were a num- delineation that was only brought to bear ber of factors leading to the introduction by the invention of lithography and the of trademark registers in the common lithograph. In this way, the lithograph law world. Lithography was part of this was to trademark law what the printing complex matrix. Stone press printing press was to copyright, transforming the production of print advertising in the same way that the printing press transformed the production of literary works. ♦