CIHA London 2000.
Thirtieth International Congress of the History of Art
Art History for the Millenium: Time.
Section 23
Digital Art History Time
London, 3-8 September 2000
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Robert M. Verhoogt <r.verhoogt@hum.uva.nl>, Art History Department/ Institute of Cultural History, University of Amsterdam, Herengracht 286, 1016 BX Amsterdam, tel: 00 31 (0) 20 525 3017.

Artistic Piracy. Modern conflicts of artistic copyright in historical perspective.

 © each author has full responsibility in owning copyright on the texts and on the images they publish on this website

 

 At the end of 1885, the famous Victorian painter John Everett Millais finished his work Bubbles. It became one of his most widely known pictures thanks to its numerous reproductions. The painter sold Bubbles to the Illustrated London News. This very popular illustrated magazine published a coloured reproduction in one of its supplements. After publication the magazine sold the picture to the well-known soap-company Pears. This firm also published a reproduction of Bubbles, but this time the painting was used for an advertising campaign. Millais was very upset with the way his work was exploited. From a legal point of view, however, he was powerless at that time. The Bubbles incident is a well-known example of recurrent conflicts concerning intellectual property during the nineteenth century. In this lecture I will explain some aspects of these conflicts, especially in relation to art-reproductions.

Problems with intellectual property are of course much older than the nineteenth century. The invention of the printing press forced printers and publishers to create a system of privileges, which would protect their interests. It was recognised that legal rules were needed to ensure that investing in the production and distribution of printed goods was commercially viable. An additional effect was of course that those who granted privileges held a powerful instrument for control and censorship. This system of privileges was largely organised between publishers and the authorities that provided them; the authors were mostly out of sight. However, authors and more specifically artists, became more and more aware of their interests in printed matters. Rubens, for example, negotiated with the States of Holland about his rights to publish reproductive prints after his works. A century later William Hogarth also tried to ensure his privileges for prints after his famous paintings. It resulted in legal protection by the so-called 'Hogarth Act' of 1735, which protected him as an engraver not as a painter. Although many artists tried to protect their interests, this system of privileges continued to be dominated by publishers. During the Enlightenment new ideas were formulated about the relationship between artistic creation and authorship, which brought about a change in the focus of protection from the publisher to the original artist. The concept of the genius played an important role in the evolution of the anonymous writer to the modern author. During the second half of the eighteenth century it became more and more accepted that the author was not only primarily responsible for his intellectual creation, but that he was also the first to gain the profits from it. The traditional publishers privilege slowly transformed into the authors right.

During the first decades of the nineteenth century, social and economical changes and the growing public interest in art resulted in a strongly expanding art-market. Besides dealing in pictures, a large-scale print-trade emerged in printed art-reproductions like line engravings, mezzotints, and lithographs. From the late 1850s the dealing in photographic reproductions became fashionable. As a result of these tendencies copyrights of modern paintings became more and more important in the nineteenth century art-world.

Popular artists were well aware of the possibilities to sell printed versions of their works and the rights to do so. During these times the selling of a painting nearly always implied the selling of the copyright as well. Generally, artists had to explicitly ask collectors for permission to publish prints after his own works of art. However, the reproduction of paintings often resulted in conflicts between the owner of the work and the artist. Therefore the engraver Abraham Raimbach already underlined in his memoirs in 1843: 'At all events, the artist should distinctly make known to the purchaser the conditions with which his picture is encumbered before the bargain is completed, to the end that the unsuspecting Maecenas may not have just reason to complain of uncandid, if not dishonourable dealing, when, after years of possession, the claim of copyright is put forward.' During the nineteenth century the relation between owners and artists in respect to copyrights remained a complicated matter. Better protection of the artist and his work immediately threatened the owner to do whatever he wanted to do with his possession.

Besides artists, many printsellers were also interested in the copyrights of popular modern paintings. The famous Victorian art-dealer Ernest Gambart once approached the Pre-Raphaelite painter William Holman Hunt in relation to his work The Light of the World (1850-1853). Unfortunately the painting had already been sold. Then Gambart inquired after the copyright of the painting. The painter already had an offer for it of 300 pounds. After negotiating he agreed to 200 pounds on the condition that Gambart would contract a highly skilled engraver to guarantee a fine reproduction after his work.

Holman Hunt is just one example of a nineteenth century artist who dealt with printsellers about copyrights of his paintings. Already in 1841 the French painter Horace Vernet underlined the importance of this subject for modern artists in his essay Du droit des Peintre et des sculptures sur les ouvrages. Besides from the painting itself, the selling of the copyrights could be an important independent source of income. Especially since the 1840s the prizes of copyrights for modern paintings increased distinctively. Famous Victorian painters like William Powel Frith and Edwin Landseer made fortunes solely by selling the copyrights of their works. Sometimes the prize for the copyright was even higher than the prize for the painting itself. In 1846 Landseer earned 2400 pounds for 4 paintings, but the copyrights on the other hand yielded 4400 pounds. The earlier mentioned John Everett Millais could also ask a lot of money for his copyrights, but he hesitated with his first reproduction of The Return of the Dove to the Ark. He wrote to a friend: 'I would not ask anything for the copyright, as the engraving will cost nearly five hundred pounds. That in itself is a great risk, particular [as] it is the first that I shall have engraved. I shall not permit it to be published unless [I am] the perfectly satisfied with the capabilities of the etcher. [...]I am myself confident of its success; but it is natural that men without the slightest knowledge should be a little shy of giving money for the copyright.' Later in his career he wasn't too shy any more to ask a lot of money for the exclusive reproduction rights of his work. Not only in the British Empire but also in France, copyrights were substantial sources of income for modern artists. Ingres, Delaroche, Vernet and Scheffer probably made a lot of money with copyrights.

In the nineteenth century art-trade, copyrights of modern works of art became an important part of the art-business. Exploiting copyrights, in combination with expensive reproduction-techniques like traditional line engraving, asked for large investments by printsellers. Such investments, however, became increasingly threatened by the introduction of new reproduction techniques. Large economical interests made printsellers eager to protect their market against illegal reproductions or 'artistic piracy' as the dealer Gambart called it in his paper On Piracy of Artistic Copyright in 1863: 'It is not, […] against competition that protection for copyright in art-works is demanded, […] but against robbers.'

Gambarts essay is a fierce argument of an art-dealer for a better protection of his exclusive right to publish prints, especially against the threat of cheap lithographs and photographs. In those days the English print-trade suffered from an enormous stream of cheap lithographs, mainly from Germany, illegally made after English and French prints. Much worse was the danger from photography in the business of art reproduction: 'When it is considered that almost anyone having a camera can reproduce, unassisted, and in the privacy of his "studio," an engraving, [..] in so perfect manner, that the generality of the public might take the photographic copy for the original impression from the copperplate, it will be seen what mischief to the skilled artist, who has executed that plate, and the publisher who commissioned him, a fraudulent photographer can do.' As soon as popular engravings were published, many cheap photographs appeared on the market, thus severely damaging the sale of prints. So Gambart suffered large losses because of illegal photographs of expensive prints after for example Holman Hunts Light of the World. For that reason he took many photographers to court for lawsuits about copyrights.

Besides Gambart many English colleagues fought against fraudulent photographers in court. But it remained difficult to have them convicted. And even when piracy was proved the photographer was usually only convicted to a small fine and he had to hand in his camera: 'This may be law, but certainly is not justice', wrote the Art Journal in 1862. What was needed was a better legal protection against this new medium. Gambart wrote in 1863: 'It is now a question for the legislature and the public to decide whether or not the school of English line-engraving, once occupying so high a position, shall perish or be maintained.'

Gambart was right. Legislation on artistic property was indeed inadequate in England. Writers, engravers, composers and sculptors were protected. For long painters however only had the property of the painted canvas. Additional to this was the strong scepticism in relation to any legal protection of artistic copyright in nineteenth century England. In 1849 the Art Journal still wrote: 'There is a tendency in the present age to legislate for everybody and for everything, and to estimate the productions of the mind by their pecuniary value. The consequence of this utilitarian policy must be to lower Art, and, as such, we beg to protest against it.[...] Public opinion, in a highly civilised society like that of England, is itself the highest species of legislation. To this the Artist, like every other citizen, can appeal, and successfully, when he is injured. The laws of Copyright, however, assume that artists are unable to take care of their own rights[...]'

The basis assumption of the Art Journal was that the painter took strongly advantage of the distribution of reproductions for the spreading of his name and fame. The only legitimate source of income for the artist was the selling of his painting to which artistic protection was not necessary. The prevailing view at that time in England was that the painting was already protected by its own intrinsic artistic qualities, impossible to copy and therefore unnecessary to protect. The Art Journal's opinion on copyrights is characteristic for the English common-sense point of view about legal matters in general. A high esteem of the common sense of justice is attended by a deep suspicion of any legislative power recording the natural dynamics of right and wrong. Contrary to these opinions is, for example, the French point of view, which was dominated by a strong belief in the possibilities of legislation.

For that reason it is not surprising that Gambart in his criticism of the English situation pointed to France as an example which should be followed in matters of copyrights. 'Come to France, and travel from Calais to Marseilles, and you will not find any pirated copies of English engravings for sale', Gambart wrote. There seemed to be a more efficient protection of artistic property in France. After the French Revolution new ideas about intellectual property came into existence, which highly recognised the interests of the author. French copyright law protected the authors of paintings, prints, sculpture, literature and musical compositions against any form of reproduction. Characteristically engravers or printsellers had to pay the painter 100FF for reproducing the original work.

However, photography also changed the scene of artistic property in France. During the 1840s the new medium was already involved in several legal conflicts. Cases in the 1850s underlined the illegality of taking photographs of works of art without the artist's permission. Therefore artists were more or less protected against the new medium. Further more, several cases recognised the photographic copyright and the fact that the individual photographer also deserved legal protection. Because of this situation, new problems emerged around the question which photographic technique was 'sufficiently artistic' to be protected and which one was not. The struggle around the protection of photographic prints resulted in a long chain of unpredictable decisions. Again, artistic copyright protection of paintings, prints and photographs seemed to be better protected in France compared to England. Or should we say less insufficient? During the last decades of the nineteenth century new copyright-laws were formulated in England and France. The national differences of copyright legislation slowly faded away. International treaties paved the way to a more international protection of artistic copyright. Most important was of course the well-known Bern convention (1886) which laid the foundation for modern legislation of artistic copyright.

In line with Rubens and Hogarth, many artists were well aware of the importance of intellectual property to control the publication of prints after their works. Especially, in the nineteenth century problems related to copyrights played an important role. These problems interfered with the complicated relationship between artists, dealers and owners of works of art. The developments on matters of artistic copyrights were accelerated by new ideas about artistic creation and new techniques for reproduction. Lithography and photography were in a sense 'the new media' of the nineteenth century. They brought about important changes in the field of the reproduction, opening up new horizons but immediately creating new dangers to the interests of artists and publishers. Legal protection of works of art was tested trial after trial often pointing to another maze in the law. More than once, the artist, like Millais in his case of Bubbles, remained powerless from a legal point of view.

From this background we can perceive conflicts of artistic copyrights from an historical perspective. Today's new digital media can be compared to the analogue media of the nineteenth century. They set a new standard for the production and reproduction of works of art. Comparable with the conflicts in earlier times the modern conflicts are the results of the intrinsic tension between ideas of the market, authorship and technological innovation. On the one hand there are economic and moral arguments for the special bond between the author and his work. On the other hand there are technological innovations from the printing press, and photography to the new digital media. Whereas economic and moral arguments imply to conserve the exclusive bond between the author and his work, the technological innovation makes it possible to separate them and deny this special relationship.

Finally, as long as traditional concepts of market and authorship are accepted (neither Barthes nor Benjamin changed these from a legal point of view) the history of intellectual property will be marked by technological inventions. Digital techniques like the Internet, CD-ROMs etceteras offer new possibilities and create new problems. Although these problems are complex, they seem to be re-appearances of ever-smouldering conflicts in the history of intellectual property. To solve modern problems of artistic copyrights, we can be inspired by similar conflicts from the past. Economic and moral arguments are, I think, still valid and crucial in the protection of artistic property. What remain are technological challenges not only to develop but also to control modern reproduction techniques. It will require time and a great deal of effort solve these complex problems. However, examples from the past confidently show that legal copyright protection can be flexible enough in responding to new media for reproduction. For now the digital age is an fascinating chapter in the never-ending story of legal protection of works of art against artistic piracy.

 

Selected Bibliography

Ano, 'Property in art', Art Journal: the illustrated catalogue of the industry of all nations, 1 (1849), 133-136.

Ano, Art Journal: the illustrated catalogue of the industry of all nations, 1(1849), 263.

Ano, 'Foreign lithographs', Art Journal: the illustrated catalogue of the industry of all nations, 3 (1851), 173-174.

Ano, Art Journal: the illustrated catalogue of the industry of all nations, N.S. 6 (1860), 222.

Ano, 'Minor topics of the month', Art Journal: the illustrated catalogue of the industry of all nations, N.S. 1 (1862), 241.

Ano, 'Minor topics of the month', Art Journal: the illustrated catalogue of the industry of all nations, N.S. 2 (1863), 59.

Ano, 'Reviews', Art Journal: the illustrated catalogue of the industry of all nations, N.S. 2 (1863), 128.

Ano, 'Minor topics of the month', Art Journal: the illustrated catalogue of the industry of all nations, N.S. 2 (1863), 103.

Ano, 'Minor topics of the month', Art Journal: the illustrated catalogue of the industry of all nations, N.S. 2 (1863), 210-211.

Engen, R. Pre-Raphaelite Prints. The Graphic Art of Millais, Holman Hunt, Rossetti and their Followers. London, 1995.

Feather, J. Publishing, Piracy and Politics. An historical study of copyright in Britain. London New York, 1994.

Gambart, E. On Piracy of Artistic Copyright. London, 1863.

Hamber, A.J. "A Higher Branch of the Art" Photographing the Fine Arts in England, 1839-1880. Amsterdam, 1996.

Huard, A., E. Mack. Repertoire de Legislation, de doctrine et de jurisprudence en matiere de Propriété Littéraire et Artistique. Paris, 1895.

Maas, J. Holman Hunt and The Light of the World. London, 1984.

Maas, J. Gambart. Prince of the Victorian Art World. London, 1975.

McCauley, E.A. Industrial madness: commercial photography in Paris, 1848-1871. New Haven, 1994.

Millais, J.G. The Life and letters of Sir John Everett Millais. (vol.2) London, 1899.

Phillips, C.P. The Law of Copyright in works of literature and art and in the application of designs. London, 1863.

Putnam, G. H. The Question of Copyright. A summery of the copyright laws at present in force in the chief countries of the world. New York London, 1891.

Raimbach, A. Memoirs and recollections of the late Abraham Raimbach. London, 1843.

Saunders, D. Authorship and Copyright. London, 1992.

Stephens, F.G. Memoirs of Sir Edwin Landseer; a sketch of the life of the artist, illustrated with reproductions of twenty-four of his,most popular works. London, 1874.

Treuherz, J. Victorian Painting. London, 1993.

Woodmansee, M. The Author, Art and the Market. Reading the History of Aesthetics. New York, 1994.

 

Notes

  1. J.G.Millais, The Life and letters of Sir John Everett Millais, vol.2 (London 1899), 186-191.
  2. Feather, Publishing, Piracy and Politics. An historical study of copyright in Britain, (London New York 1994), 10.
  3. ibid, 151.
  4. The Act 8 Geo.2, c13, also known as the Hogarth's Act, is the earliest act of legislation with the subject of copyright in engravings, see: Phillips, The Law of Copyright in works of literature and art and in the application of designs, (London 1863), 205-206.
  5. See also: Woodmansee, "Genius and the Copyright", in: The Author, Art and the Market. Reading the History of Aesthetics, (New York 1994), 35-55.
  6. Feather, Publishing, Piracy and Politics, 122-124.
  7. Raimbach, Memoirs and recollections of the late Abraham Raimbach, (London 1843), 140.
  8. See about this painting: Maas, Holman Hunt and The Light of the World, (London 1984).
  9. William Henry Simmons (1811-1882) made the print which was completed in 1860: Engen, Pre-Raphaelite Prints. The Graphic Art of Millais, Holman Hunt, Rossetti and their Followers, (London 1995), 43-45.
  10. Frith received for The Derby Day 1500 pounds and 2250 pounds for the copyrights 2250, Treuherz, Victorian Painting, (London 1993), 125; Art Journal 1849, 263 and Art Journal 1860, 222. See: Stephens, Memoirs of Sir Edwin Landseer; a sketch of the life of the artist, illustrated with reproductions of twenty-four of his,most popular works, (London 1874), 6.
  11. See about Edwin Landseer: Maas, Gambart. Prince of the Victorian Art World, (London 1975), 20 Likewise the painter Sir Thomas Lawrence had a contract with his printseller for 3000 pounds a year for the exclusive reproduction rights of his works: Art Journal 1849, 263.
  12. Letter of J.E. Millais to Thomas Combe, see: J.G. Millais, Life and letters of Millais, 100-101. De engraving was never published.
  13. Gambart, On Piracy of Artistic Copyright, (London 1863), 4.
  14. ibid, 5.
  15. ibid, 7.
  16. Art Journal 1862, 241; Art Journal 1863, 103; 210-211.
  17. Hamber, "A Higher Branch of the Art" Photographing the Fine Arts in England, 1839-1880, (Amsterdam 1996), 12-13.
  18. Art Journal 1862, 241. Numerous lawsuits against photographers misrepresented photography in England during the 1850s and 1860s: Hamber, "A Higher Branch of the Art", 194, 227.
  19. Gambart, Artistic Copyright, 21.
  20. Gambart opinion on copyright largely based on his lawsuits of the 1850 en 1860s. See about copyright protection Art Journal 1849, 133. Copyright protection seriously changed in Britain with The Act 25 & 26 Vict c. 68 (1862) was the first law protecting the copyright of the authors of paintings, drawings and photographs.
  21. Art Journal 1849, 263.
  22. Art Journal 1849, 133.
  23. Gambart quoted in Hamber, "A Higher Branch of the Art", 212.
  24. Hamber,"A Higher Branch of the Art", 12.
  25. Saunders, Authorship and Copyright, (London 1992), 90-95; 109-121. Besides the recognition of the individual interests Saunders also underlines the importance of public interests.
  26. For the law of 19th July 1793, see Huard, Mack, Repertoire de Legislation, de doctrine et de jurisprudence en matiere de Propriété Littéraire et Artistique, (Paris 1895), 375-414 and Art Journal 1851, 173-174.
  27. Besides from artists, sometimes also museums or exhibition-organisations had to be consulted for permission concerning copyrights. But this was more a matter of organisation than of legal motifs. See about making photographs at the Salon-Exhibitions and the Louvre museum: McCauley, Industrial madness: commercial photography in Paris, 1848-1871, (New Haven 1994), 282-287.
  28. The important case Mayer et Pierson versus Thiebault, Betbeder and Schwabbé recognized the photographic copyrights, McCauley, Industrial madness, 30-34.
  29. Feather, Publishing, Piracy and Politics, 3-4. See also: Putnam, The Question of Copyright. A summery of the copyright laws at present in force in the chief countries of the world, (New York London 1891), 20-24 and Saunders, Authorship and Copyright, 90-95.
  30. Prior to the 29th July 1862, there was no copyright in any painting, drawing or photograph in Britain. The Act 25 & 26 Vict c. 68 was the first law protecting the copyright of the authors of paintings, drawings and photographs, see: Phillips, The Law of Copyright, (London 1863), 218-224. See for an abstract of copyright law in Great Britain: Putnam, The Question of Copyright, 186-211. See for the French legislation: Huard, Mack, Repertoire de Legislation, 567-580.
  31. 'The diversification of media is an essential part of the history copyright in the nineteenth and twentieth centuries', Feather, Publishing, Piracy and Politics, 174. 

 


Abstract

1. Title

Artistic Piracy. Modern conflicts of artistic copyright in historical perspective.

2. Aims and objectives

New digital media produce a lot of new possibilities for artists and art-historical analysis but also new difficulties. An important issue in this case are copyright problems. Modern conflicts of copyright, however, are not new but can be seen as a new representation of the ever-complex relationship artists have to their intellectual property. Already during the nineteenth century many artists were deeply involved in conflicts of artistic copyright caused by new media like photography. Therefore, modern conflicts of artistic copyrights can be interestingly related to similar problems in the past. My paper will focus on the nature of problems of artistic copyright and then will articulate them further from an historical point of view.

3. Summary description of primary material

The primary material to be discussed in my paper is in the first place nineteenth century (inter) national copyright laws and jurisprudence. Secondly, I will draw from relevant discussions about this subject published in leading art periodicals as the Art Journal, L'Artiste and Gazettes des Beaux- Arts. Finally, I will use specific art-historial material like correspondences of leading artists.

4. Central argument

My paper will focus on conflicts of artistic copyright primarily in terms of the relationship that artists have with their artistic intellectual property. During the nineteenth century many artists struggled with artistic piracy analogous to modern problems of copyright in the digital era. In my paper I will point out that the history of artistic copyright and the history of art are closely interwoven. Modern copyright problems not only cause difficulties to modern research of the history of art. At the same time they represent a new interesting field of art-historical research. Therefore I will propose to analyse conflicts of artistic copyright from an historical perspective as an integral part of the history of art.

5. Preferred session: 23. Digital Art Time

Copyright problems are not limited to the new media in our digital era but have their own interesting history, closely related with the history of art. Historical analysis of conflicts of artistic copyright can have a twofold result. Firstly, it can open op new fields of interesting art-historical research. Secondly, the historical understanding of these conflicts can put new lights on modern problems of artistic copyright.

In my view by art-historical research of copyright issues, problems of our modern digital era can be related to similar problems in the past. Historical analysis of conflicts of copyright can open up new aspects of the history of art and also result in a better historical understanding of modern difficulties of artistic copyright. Therefore, I think my paper may contribute to the topics to be discussed in session 23 Digital Art Time.

 

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