By Sophie Chung.

Pulitzer-winning novelist Pearl S. Buck once said, “If you want to understand today, you have to search yesterday.” Dr. Elena Cooper’s new book Art and Modern Copyright: The Contested Image (Cambridge University Press, 2019) presents a smart way to understand intellectual property today by studying yesterday. The book examines narratives of copyright history in order to sharpen the reader’s critical view on contemporary copyright protection.

Dr. Cooper introduces her book as “the first in-depth and longitudinal study of the history of copyright protecting the visual arts” which is noteworthy. There has been a relative scarcity of study about artistic copyright, as research primarily concerns literary copyright. The book focuses on the history of artistic copyright, in the United Kingdom from the Fine Arts Copyright Act 1862[1] to the codification of copyright in the Copyright Act 1911.[2] From the 1850s to 1911, art posed new challenges that literacy copyright protection could not fully cover. Dr. Cooper argues that modern artistic copyright law has developed from addressing these new challenges. The chapters are divided into four themes:

  • The protection of copyright ‘authors’ (painters, photographers and engravers) in Chapter 2 and 3
  • The protection of art collectors in Chapter 4
  • The protection of sitters in Chapter 5
  • The protection of the public interest in Chapter 6

Chapter 2 and 3: The protection of copyright authors (painters, photographers, and engravers) in the period of 1850-1911

Chapters 2 and 3 discuss the history of copyright laws that delineated the rights of photographers and engravers who were less protected under previous laws. During the industrial era, artistic copyright in this period had a dual bases: creative labor as well as mechanical labor. This dual foundation of artistic copyright further stimulated a complex discussion about art and its protection. Painting and literature were considered to share aesthetic equivalence, and painting became the subject of copyright protection in 1862. Meanwhile, there was a newly emerged notion that artistic copyright should be founded on mechanical labor without reference to creative authorship. This idea allowed the laws to expand. For example, photographic practices became a subject matter of artistic copyright protection even though they laid no claim to be art when it was added.

Through tracing the claims and legal debates regarding who are authors for copyright protection, the chapters demonstrate how the subject matter of artistic copyright have extended to a broader area of fine arts. Beyond practices that have aesthetic equivalence with painting or literature, a wide array of artworks became qualified as protectible copyright.

Chapter 4: The protection of art collectors

Laws are introduced as a means of protecting the owners of the physical artworks and also the right of painters to reproduce the subject matter in a painting he or she had already sold. This chapter explores the position of the art collector in artistic copyright debates during the period of 1850 to 1911. The book presents the complex relationship between art and copyright law in the nineteenth century. The introduction of artistic copyright in this period raised issues regarding how rights and interests in physical or intangible work should be reconciled. Art collectors in the nineteenth century first started to utilize copyright as a means of regulating artists and securing the value of the tangible artwork they had obtained. Meanwhile, artists sought to ensure copyright did not restrict their right to reproduce their work even after a painting was sold to collectors. In short, a sharp tension was prevalent in this period. Art collectors regarded painting as a material artifact with uniqueness and financial value whereas artists regarded painting as a repeatable performance. These debates ended in the early twentieth century as it was re-established that a painting was an unrepeatable textured surface.

Dr. Cooper details the history of debates between art collectors and artists in this chapter, and this gives an insight about the ultimate purpose copyright laws should serve. The balance between protecting and regulating artists existed in the 1862 Act which were unrepealed in the later 1911 Act. The tracking of these provisions and analyzing them throughout Chapter 4 presents an opportunity to think how early copyright laws worked as forerunners to modern-day copyright laws which protect the moral rights of artists.

Chapter 5: The Protection of Sitters

Chapter 5 provides historical foundation where the modern-day publicity right. This stemmed from discussion of how copyright laws newly recognized protection of sitters operated in a way akin to modern publicity rights. As surreptitious photography had become popular, the right of people who were depicted without their consent started to be addressed. Different from literary copyright, artistic copyright also protected the privacy and publicity rights of the sitter.

Dr. Cooper talks about how the scheme of legislation, legal process, and trade practices contributed to the development of commercial interests in an individuals’ image during the time period discussed. The 1862 Act contained a provision which granted those who commissioned portraits of themselves the right to control their own image. This functioned as a rough equivalent of a publicity right, and weighed over time as a result of subsequent litigation. Nonetheless, the 1911 Act retained the provision protecting the rights of those who sat for portraits. This supports a conclusion that despite artistic copyright no longer functioned as a right to control one’s own image, sitters still retained certain rights under the 1911 Act.

Chapter 6: the Protection of the Public Interest

In Chapter 6, Dr. Cooper argues that the promotion of art in the 19th century contributed to a broader social support for artistic copyright. The wider discourse on the public benefit of art allowed the idea to emerge that artistic copyright is important as greater protection of art contributes to improvement in public taste and economic prosperity. This chapter explains how social changes and a broadening of appreciation for art facilitated copyright law’s development.

The chapter usedcase law and statutory provisions to discuss the history of copyright infringement and defenses from the perspective of the public interest. Unlike literary copyright, there was an acknowledged societal value to copying works of visual art for study. In the 1860s, concerns emerged that works were being copied in galeries for sale rather than study. The 1862 Act included a penality for infringement that explicitly protected the right to copy work for the purpose of study.

These revealed distinct facets of artistic copyright highlight the importance of the study Dr. Cooper has done in Art and Modern Copyright. While scholars have studied the law heavily in the context of literary copyright there has been less attention paid to the distinct facets of artistic copyright. Dr. Cooper’s survey of the Acts, British Imperial legislation or even gallery regulations in Chapter 6 illuminates the difference in how artistic copyright is different from literary copyright in dealing with infringement.

Impressions

As the economic and cultural importance of copyright has grown, the legal rules related to artistic copyright have also evolved. In the United States, the debates on an artist’s fair use defense have been simmering catalyzed by the famous the case, Prince v. Cariou[3]. There have been proposed updates to the fair use analysis to accommodate the internet era where people can easily copy works of others only with right-clicks.[4] As Dr. Cooper reveals throughout her book, copyright now and then is sensitive to many factors: technology, culture, economy, and politics. Therefore, tracking the evolving characters of copyright in reaction to its contemporary social context may be of assistance in analyzing modern copyright.

Dr. Cooper’s Art and Modern Copyright (261 pages) elaborates on how changes in technology, aesthetic concepts, or social atmosphere can influence the purposes or functions of copyright laws. Through its thematic breadth, the book meticulously analyzes different aspects of copyright law and its developments. Despite the fact that the book is highly dependent on study about UK law, the book does a great job in unpacking how social and economic context are closely related to the history of artistic copyright in general. For the those interested in investigating what purposes copyright ultimately serves, Dr. Cooper’s “art and Modern Copyright” can be a great guidebook.

About the Book’s Author: Dr. Elena Cooper is a Leverhulme Early Career Fellow at CREATe, School of Law, University of Glasgow. Dr. Cooper is a member of the British Art Network and the Institute of Art and Law, and an Associate of the Centre for Intellectual Property and Information Law, University of Cambridge.

About the Book: Dr. Elena Cooper, Art and Modern Copyright: The Contested Image (Cambridge University Press, 2018) ISBN: 978-1-107-17972-1. Available here.


Endnotes:

  1. 25 & 26 Vict. C. 68 (1862).
  2. 1 & 2 Geo. V. c.46 (1911).
  3. Cariou v. Prince, 714 F.3d 694 (2d Cir. 2013).
  4. Burroughs, Scott A. “It’s a Wrap: What to Expect from the Copyright Wars in 2018”. Above the Law. Dec. 2017. Available at https://abovethelaw.com/2017/12/its-a-wrap-what-to-expect-from-the-copyright-wars-in-2018/?rf=1.

About the Author: Sophie Chung was a fall 2019 intern at the Center for Art Law and is pursuing her M.A. in Arts Administration at Columbia University. She is an attorney admitted in the state of New York and holds her J.D. from the University of Illinois College of Law. Sophie can be reached at sophiechung625@gmail.com.