Book review: Art and Modern Copyright – the Contested Image

After decades of scholarship on the historical evolution of copyright in literary works, finally [yes… F.I.N.A.L.L.Y.] we now have an equivalent (and comprehensive) book dedicated to the early copyright history of artistic works. This Kat thus passionately devoured, “Art and Modern Copyright – the Contested Image”,  by Elena Cooper.

Not only does the book plug a scholarly gap in the copyright literature, but it does so by revealing in a nuanced way the manner by which images have laboured their way into copyright law. Where most scholars paint a picture of authorship and “artistic copyright” with a broad bush, Cooper takes the time to draw the very fine details of the debates emerging in law and the arts at the moment that copyright protection was extended to image-based works.

In doing so, the book corrects a number of all-too-common (mis)assumptions we make on early copyright for artistic works, as well as on the impact copyright has had on aesthetic debates in the arts, and vice versa. One of such (mis)assumption is the idea that the history of copyright has much to do with literary copyright and little else. To the contrary, Cooper evidences that the protection of images by copyright in the 19th century materially contributed to shaping modern copyright as we know it today.

Before the adoption of the 1911 Copyright Act, which marks the beginning of modern copyright in the UK, different creative expressions received varying levels of protection under the copyright laws. Books were treated differently from engravings, paintings, sculptures and so forth. The central tenet of the book is that the 1911 Copyright Act concealed the differences that once existed in the law between literature and the arts, this by establishing a one-size-fits-all approach. In erasing these differences, we forgot and subsequently ignored the history of artistic copyright.

Art and Modern Copyright recovers the history and memory of artistic copyright as it existed and thrived in the period between 1850-1911. The detailed manner in which the book retells this history is a testament to the fact that the history of artistic copyright is a complex one indeed. This book compares and contrasts the positions of lawyers, government, artists, and other key industry stakeholders (such as print sellers, representative bodies, collectors, museums and galleries) on applying copyright to image-based works, in the main to  engravings, paintings and photographs.

Cooper’s analysis is based on archival research, including former legislative bills, enacted acts and submissions by lawyers or the government. These sources are juxtaposed with the writings and practices by the artists themselves (painters, engravers, photographers) and their collaborators (print sellers, gallerists, collectors) to highlight the range of views on the issue of copyright at the time. In other words, Art and Modern Copyright is a place where Cooper brings together lawyers, art historians, art sociologists and archivists to demonstrate that the application of copyright to image-based works was intensely debated.

It is impossible to do justice to the thoroughness of the book here. Instead, this Kat shall exercise reviewer’s privilege by picking-and-choosing key themes that either particularly struck her intellectual fancy or   shed light on little-known facts about early copyright protection.

Copyright, authorship and artistic status

Dr Cooper, book launch at the Victorian Picture Library.
Photograph by Susanna Brunetti 

A key theme running through the book, unsurprisingly perhaps, is the notion of authorship. This question finds itself entangled in the complicated relationship between an artform acquiring artistic status and securing copyright. The author explains that at the time receiving copyright protection was not evidence of artistic status for the artform in question. Indeed, Cooper demonstrates the extent to which copyright and artistic status became decoupled as copyright was extended to ‘lower’ forms of art, such as photography, which was perceived as a mechanical or reproductive technique, and not one of true ‘design’ (p. 67-68). The application of copyright to photography went against submissions from, for example, the Royal Academy of Arts, which lobbied in favour of copyright embodying cultural classifications of art, with design-based creative works receiving more protection than works produced through reproductive means (p. 68-69).

Nonetheless, Cooper shows that aesthetics theories did feature in court (in the arguments of counsel and judges), but their meaning could be twisted to fit their legal reasoning so that copyright could be attributed where no authorship or artistic status had heretofore been recognized (e.g. p. 63-64 about photography). In doing so, copyright jurisprudence developed its own interpretation of aesthetic theory, departing from those proposed by artists, critics and historians at the time.

Copyright as a means to control artists

Cooper explains that one of the challenges unique to artistic copyright is the fact that painting, unlike books, could retain great value as a physical object (p. 109). However, the value in the ‘original’ painting could be impaired by reproductions (known as ‘repetitions’) by the artist of the same work. Whilst repetitions could be of interest for the artist (to improve the piece or generate more revenues), it could also be detrimental to the interest of owners and collectors, who would see the value of their purchase decrease.

This is the point at which, Cooper argues, copyright became a tool of particular interest for owners and collectors, who would acquire the painting as well as the copyright in the image. This way, collectors had legal means to prevent artists from repeating their work (p. 109). During this period, copyright became an instrument for the control of artists (painters in this case) at least as much, if not more so, as it was serving to benefit their interest. This ‘other side’ of copyright points to an interesting contrast with the concept of Romantic authorship, which is often cited by lawyers as the justification for the introduction of copyright, where in fact the artist’s interests were only one of many stakes at play.

The book chapter by chapter

The book is made up of five chapters (excluding the introduction and conclusion). The first chapter (Chapter 2 in the book) cover the various lobbying efforts engaged in by bodies representing the interests of painters, engravers and photographers (e.g. Royal Academy, Fine Art Society, Society of Artists, and Association of the Protection of Photographers Against Piracies) as they sought to obtain copyright protection. This chapter covers the period ranging from 1850 and 1862, closing with the passage of the 1862 Fine Arts Copyright Act. The second chapter describes the evolution of copyright law, between the period 1862 and 1911, and the debates that it yielded within artistic circles culminating in the enactment of the 1911 Copyright Act.

The rest of the book is dedicated the role of different stakeholders in the evolution of industry practices and copyright law. Cooper starts, in the third chapter (Chapter 4 in the book), with the influence of collector. The fourth chapter (Chapter 5 in the book) then moves to discuss the role of the sitters who were the “faces” in the paintings and photographs. This chapter depicts what could well be described as the genesis of publicity rights in the UK, as practices developed amongst painters and photographers to protect the privacy of their sitters when they were not already celebrities themselves.

The fifth and last chapter (Chapter 6 in the book) brings together the part played by galleries, printers and pirates [read: sellers of unauthorized photographs of paintings] in shaping industry conventions and the law. In this chapter, Cooper notes that the notion of public interest as it related to artistic copyright was more generous than the copyright reforms that followed. For example, the 1862 Act allowed private uses and copies of work for private study, which right did not exist for literary or music copyright at the time. Theses exceptions are another example of the difference in regimes, that became lost with the enactment of the 1911 Copyright Act.

This book will be useful to scholars and students interested in the history of copyright as related to image-based arts, or to the fine arts more generally. It is certainly a must for any copyright historian, as this piece is the first [to this Kat’s knowledge] comprehensive study, brilliantly executed, that is dedicated to “artistic copyright”. It is not the objective of the book to put forward ways in which copyright could better protect image-based works today. Rather, its aim is to shed light on the legislative context and state of the ‘creative industries’ at the time modern copyright came into being in the UK. As such, the book will be less relevant for practising lawyers or policy-makers.

Book reviewed : Art and Modern Copyright – The Contested Image by Elena Cooper. 2018. Cambridge University Press. 304 pages. ISBN: 97811071797210. Online ISBN: 9781316840993. Retailing from 76.50 (here), see other options here.

Second and Fourth photographs, Display at Your Own Risk (DAYOR) exhibition by Andrea Wallace, photographs by Michael Gimenez, modified.