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Rights and Reproductions?: Commercial Photography and Copyright Law in the United States, 1884-1909


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 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.

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