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14 January 2022

Why Doesn’t Copyright Make Sense?

By Amalyah Keshet, Senior Consultant

Why does it often seem that copyright is difficult to navigate in the realm of art?  It’s copyright’s history. The legal protections of copyright were originally created for one medium of expression – literature – and were subsequentially extended to other media. The issues addressed looked similar, and the advantages of exclusive rights for expanded categories of creators and their distributors seemed too good to pass up, one suspects.  But the glass slipper didn’t really fit the step-sisters’ feet.

“This legal principle is intertwined with authorship, but not synonymous. Some complexities were already evident in the early history of copyright, when protecting the interests of authors was often cited as a justification for the enactment such laws, even if the money made from this type of property typically wound up in different hands.”[i]

Dr. Elena Cooper of CREATe took on 19th century copyright history last year on the occasion of the Whistler exhibition at the Hunterian Art Gallery, Glasgow.  “Portrait of Lady Eden was the subject of a legal case decided by the Paris Court of Appeal: Eden v Whistler (1897) and that case is known today for its role in the development of the right of divulgation (or disclosure) under French law. … I uncover a different perspective[ii]: the Portrait of Lady Eden case helps us to understand quite different ideas about UK copyright in the nineteenth century.”[iii]

One of those ideas, it seems, was that different media required different copyright considerations: precisely what is obvious today when struggling with the “publication” of art works, “fixation” of VR, and “quotations” from sculpture or dance.  “…[W]hile the legal landscape today is very different, contemplating a time when what was different about visual art was more clearly articulated, can help us think again today about the distinct yet different challenges that visual art poses for copyright today.”  There are volumes more to be said about this; fortunately  Dr. Cooper has published one:  Art and Modern Copyright: The Contested Image (Cambridge University Press, 2018).  

Indeed, the inclusion of visual media complicated the application of copyright law to “works of authorship,” a term still in use.  “The nineteenth century witnessed a series of revolutions in the production and circulation of images. From lithographs and engraved reproductions of paintings to daguerreotypes, stereoscopic views, and mass-produced sculptures, works of visual art became available in a wider range of media than ever before. But the circulation and reproduction of artworks also raised new questions about the legal rights of painters, sculptors, engravers, photographers, architects, collectors, publishers, and subjects of representation (such as sitters in paintings or photographs).”  Also, “Copyright and patent laws tussled with informal cultural norms and business strategies as individuals and groups attempted to exert some degree of control over these visual creations,” which sounds entirely familiar in 2022.  Read more in, Circulation and Control: Artistic Culture and Intellectual Property in the Nineteenth Century, here

…and here, for anyone irretrievably intrigued.

Last year also saw the publication of the third edition of Simon Stokes’s stalwart resource, Copyright and Art[iv].   Chapter 2, a preview of which can be read here, provides a good overview of the copyright system, its justifications, and its history.  These are sometimes baffling, and “in order to understand the current law it is necessary to have some background on how copyright has evolved.”  Stokes also begins with the observation that copyright was originally formulated to protect literary works and their authors, and that protection extended to other creative works over time wasn’t always a comfortable fit, or logical.  How does one quote from a photograph or publish a painting?

Stokes quotes the noted scholar Roberta Tushnet: “Copyright …starts with the written word as its model, then tries to fit everything else into the literary mode.”  She notes that in the U.S. “protections for photographic, musical, audiovisual, and other modes of expression were added to the U.S. code slowly and haphazardly, following economic rather than conceptual demands. Taking words as the prototypical subject matter of copyright has continuing consequences for copyright law, which often misconceives its object, resulting in confusion and incoherence. Copyright discourse can also often ignore the broader creative and cultural context in which works are created.”

Stokes goes on to say that the primary justifications for copyright fall into three broad areas. The first is on the basis of economics; the second is on the basis of public policy (the cultural argument for copyright); and the third is on the basis of moral rights (or natural law rights). None of these is the perfect justification for copyright law, “but it is submitted they have rhetorical force in the arguments between stakeholders (authors, producers/distributors/publishers and users) that have shaped modern copyright law.”    

Fortuitously connecting the dots, in July 2021 the Institute of Art and Law, hosted ‘Photography and the Law’[v], an on-line seminar convened by Simon Stokes, with presentations from eight speakers including Dr Elena Cooper; this time Dr. Cooper spoke on ‘Photographs and Copyright in the Nineteenth Century: What Can We Learn from the Past?’.[vi] The presentation drew out themes from her monograph, mentioned above.  Dr Cooper spoke about more nineteenth century developments, including the protection of celebrity sitters.  

In short, there’s a solid base of research into 19th century copyright developments to inform our twenty-first century conversations about copyright law when dealing with art and other creative media.

Take a look at Naomi Korn Associates’ History of Copyright resource here.


[i] https://www.ucpress.edu/blog/54663/whats-art-and-who-decides/

[ii] https://www.create.ac.uk/blog/2021/07/26/what-can-we-learn-about-copyright-history-from-whistlers-portrait-of-lady-eden/

[iii] https://www.gla.ac.uk/hunterian/visit/exhibitions/exhibitionarchive/whistlerartandlegacy/

[iv] https://www.bloomsbury.com/uk/art-and-copyright-9781509934270/

[v] https://ial.uk.com/report-on-our-law-and-photography-seminar/

[vi] https://www.create.ac.uk/blog/2021/08/05/create-contributes-to-institute-of-art-and-law-seminar-on-photography-and-the-law