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Rights and Reproductions?: Commercial Photography and Copyright Law in the United States, 1884-1909 by Katherine Brooks Mintie A

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Rights and Reproductions?: Commercial Photography and Copyright Law in the United States, 1884-1909 by Katherine Brooks Mintie A Rights and Reproductions?: Commercial Photography and Copyright Law in the United States, 1884-1909 By Katherine Brooks Mintie A dissertation submitted in partial satisfaction of the requirements for the degree of Doctor of Philosophy in History of Art in the Graduate Division of the University of California, Berkeley Committee in Charge: Professor Margaretta Lovell, Chair Professor Lauren Kroiz Professor David M. Henkin Summer 2017 Abstract Rights and Reproductions?: Commercial Photography and Copyright Law in the United States, 1884-1909 by Katherine Brooks Mintie Doctor of Philosophy in the History of Art University of California, Berkeley Professor Margaretta Lovell, Chair This dissertation examines photographic copyright cases tried in the United States between 1884 and 1909 to elucidate shifts in the production and reception of photographic works at the turn of the twentieth century. Copyright cases prove compelling sources for studying the history of photography because they hinge on period definitions of authorship, originality, and value as applied to photographic works. As commercial photographs from this period were increasingly produced in industrialized studios, reproduced using novel photomechanical processes, and intended for mass audiences, the judges and juries who heard these cases struggled to situate commercial photographs within established legal and popular conceptions of individual authorship, artistic originality, and criteria identifying a “copy.” Thus, the deliberations and opinions in these cases thus offer important insight into the popular reception of commercial photographs of this period. In its focus on legal debates over the aesthetic values of commercial photographs, this dissertation departs from previous studies of turn-of-the-century American photography, which primarily attend to the promotion of fine art photography by Alfred Stieglitz and his circle. Where the work and writing of Stieglitz and his cohort clarify the aims of the photographic avant-garde, the copyright cases examined in this dissertation illuminate the aesthetic and business practices of enterprising photographers who are less well known today but who met with great success in their time through the creation of work for the mass market. The examination of photographic copyright cases in this dissertation thus not only offers an opportunity to study the often neglected endeavors of commercial photographers but also to observe how judges and juries, audiences with no specialized knowledge of photography, viewed and valued popular photographic works. This dissertation is composed of three chapters that each focuses on a distinct set of photographs and legal questions. Chapter one charts the difficulty of applying the originality requirement of American copyright law to commercial photographs in an analysis of Detroit Photograph Company v. Merchants’ Publishing Company (1899). This case centers on a landscape view taken by William Henry Jackson, the acclaimed photographer of the American West, and owned by the Detroit Photograph Company. Chapter two examines legal debates over the distinctions 1 between originals and copies in Pierce & Bushnell Manufacturing Co. v. Werckmeister (1896). This case focuses on a photographic reproduction of a German painting produced by the international firm Berlin Photographic Company, and more broadly attends to the shifting aesthetic and educational import assigned to art reproductions in the United States at the turn of the twentieth century. Chapter three considers the relationship between the monetary damages granted to photographers in copyright cases and the cultural value ascribed to commercial photographs. This chapter centers on Falk v. Curtis Publishing Co. (1901), one of a number of cases that Benjamin J. Falk, a successful studio photographer based in New York City, fought against the rising photographically illustrated press at the turn of the twentieth century. The Conclusion examines both debates over the drafting of the Copyright Act of 1909, which reveal the emergence new attitudes towards commercial photography since 1884, and the lessons that photographic copyright cases from the turn of the twentieth century hold for photographers and lawmakers of today. Joining legal and art historical analysis, this dissertation demonstrates the central role of the law in shaping the production of American art and the simultaneous influence of popular visual culture on legal opinions. The fraught relationship between American art and the law continues today in courtroom debates over the promiscuous circulation of images online. Looking back to earlier cases that consider new technologies for reproducing and circulating photographic images, this dissertation argues that we can better evaluate the challenges and opportunities facing artists and the legal system in the Digital Age. 2 This dissertation is dedicated to Jim and Lauren Mintie And to the memory of Grandpa Bob Mintie (1927-2001) i Table of Contents Introduction iii Acknowledgements xiii Chapter One 1 An Unoriginal View?: Detroit Photograph Company v. Merchants’ Publishing Company (1899) Chapter Two 27 “A Plurality of Copies”: Pierce & Bushnell Manufacturing Co. v. Werckmeister (1896) Chapter Three 55 “Photography VS the Press”: Falk v. Curtis Publishing Co. (1901) Conclusion 82 Bibliography 94 Figures 103 ii Introduction This dissertation analyzes a series of contentious copyright cases tried between 1884 and 1909 to consider how commercial photographs were produced, circulated, and viewed in the United States during a period of major technological and cultural transformation. The primary aims of this project are three-fold. First, this dissertation will highlight the role of copyright cases in initiating public debates over the aesthetics and value of popular photographs at the turn of the twentieth century.1 Simply defined, copyright law offers an individual author the exclusive right to make and sell copies of an original work.2 While seemingly straightforward, many of the terms central to American copyright law were difficult to apply to commercial photographs of this period, which were increasingly produced in industrialized studios, reproduced using novel photomechanical processes, and intended for mass audiences. As a result of these and other shifts in photographic practice, the judges and juries who heard the cases addressed in this dissertation struggled to situate commercial photographs within established legal and popular conceptions of individual authorship, artistic originality, and criteria identifying a “copy.” Though legal judgments are presented as neutral and impartial, cultural and legal historians remind us that courtroom opinions in the United States are deeply informed by the beliefs, expectations, and preferences (including aesthetic preferences) held among the majority of Americans at a given historic moment.3 The American legal system, adapted from British common law, centers on the interpretation rather than strict enforcement of statutory law by appointed judges. While judges must rely on statutes and past precedent in arriving at their decisions, they have the power to construe the law to meet changing social, economic, and 1 Scholars who have approached the history of photography in the United States through analyses of copyright law include Darcy Grimaldo Grigsby, “Negative-Positive Truths,” Representations (Winter 2011), 16-38 and Enduring Truths: Sojourner’s Shadows and Substance (Chicago: University of Chicago Press, 2015), 123-141; Mazie Harris, “Inventors and Manipulators: Photography as Intellectual Property in Nineteenth-Century New York” [1839-1884] (Ph.D. dissertation, Brown University, 2014); Erin Pauwles, “Sarony’s Living Pictures: Performance, Photography and Gilded Age American Art” (Ph.D. dissertation, Indiana University at Bloomington, 2014). Studies of European photography through the lens of copyright law include Elizabeth Anne McCauley, “‘Merely Mechanical’: On the Origins of Photographic Copyright in France and Great Britain” in History of Art 31:1 (Feb. 2008), 57-78 and Molly Nesbit, “What Was an Author?” in Yale French Studies 73 (1987), 229-257. This study also relies on the work of scholars of American art who have turned to case law to study the reception of contested visual forms. See, for example, Amy Werbel, “The Crime of the Nude: Anthony Comstock, the Art Students League, and the Origins of Modern American Obscenity” in The Winterthur Portfolio (2014), 249-282; Michael Leja, “Mumler’s Fraudulent Photographs,” 21-58 in Looking Askance: Skepticism and American Art from Eakins to Duchamp (Berkeley: University of California Press, 2004); and Richard Meyer, Outlaw Representation: Censorship and Homosexuality in Twentieth-Century American Art (New York: Oxford University Press, 2002). 2 On the history of Anglo-American copyright law, see Mark Rose, Authors and Owners: The Invention of Copyright (Cambridge: Harvard University Press, 1993); Oren Bracha, Owning Ideas: The Intellectual Origins of American Intellectual Property,1790-1909 (New York: Cambridge University Press, 2016); B. Zorina Khan, The Democratization of Invention: Patents and Copyright in American Economic Development, 1790-1920 (New York: Cambridge University Press, 2005), 222-257; and Siva Vaidhyanathan, Copyrights and Copywrongs: The Rise of Intellectual Property and How It Threatens Creativity (New York: New York University Press, 2001). 3 Jane Gaines, Contested Culture: The Image, the Voice, and the Law
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