UNDERSTANDING COPYRIGHT'S FIRST ENCOUNTER WITH THE FINE ARTS: A LOOK AT THE LEGISLATIVE HISTORY OF THE COPYRIGHT ACT OF 1870.

• Author: Brauneis, Robert

CONTENTS INTRODUCTION I. THE ADDITIONS TO COPYRIGHTABLE SUBJECT MATTER IN THE 1870 ACT: A BASIC CHRONOLOGY II. THE PRANG PETITION AND THE PROTECTION OF PRINTS IN INDUSTRIAL PRODUCTION III. THE MACDONALD GROUP OF NEW YORK ARTISTS AND THE SUI GENERIS PATH NOT TAKEN IV. THE INTERESTS OF ARTIST ORGANIZATIONS AND THE PROTECTION OF PAINTINGS, DRAWINGS, AND SCULPTURE CONCLUSION INTRODUCTION

In 1870, Congress expanded federal copyright law to reach a variety of previously uncovered categories: "painting[s], drawing[s], chromo[s], statue[s], statuary, and ... models or designs intended to be perfected as works of the fine arts." (1) That expansion was remarkable for at least three reasons. First, in sheer length and number of categories, it stands as the largest single expansion of copyrightable subject matter in American copyright law. Second, the works created in some of these new categories--paintings and drawings in particular--were not designed or intended to be created and distributed in multiple copies. That represented a marked departure from all previous categories of copyrightable subject matter, which were concerned with works typically intended to be printed in multiple copies: first maps, charts, and books, and later prints, musical compositions, dramatic compositions, and photographs. (2) Third, the 1870 Act introduced the term "fine arts" into copyright law, and the new categories--at least paintings, drawings, and statues and statuary--were thought to represent the fine arts. The term "fine arts" was understood to contrast with "mechanical arts." (3) The implicit identification of copyright with the "fine arts" side of that line portended a shift in understanding of its nature, and of its relationship with patent law, as set against an earlier understanding of the constitutional designation of copyright's domain as "Science"--theoretical knowledge--in contrast to the domain of patents as "Useful Arts"--practical knowledge. (4)

Copyright law could not incorporate such new and different material without being changed itself, and its 1870 expansion had ripple effects across many doctrines and principles, ranging from immediate adjustments to quandaries that have persisted to this day. For example, the original exclusive rights under the Copyright Act of 1790--to "print, reprint, publishf,] or vend" (5)--continued to be sufficient for all categories subsequently added before 1870, with one addition--a performance right for dramatic works to cover an important part of theater's business model. (6) When copyright added paintings, drawings, and statues, it added for the first time a right to "copy"--what is now the bedrock [section] 106(1) right of reproduction (7)--since the embodiments of the works in the new categories were not printed. A second example involves the requirement of deposit of a copy upon publication. The 1870 Act had to adjust that requirement, since paintings and drawings, and many statues, were not made and distributed in copies. It provided for deposit of photographs of works in the new categories, and the Library of Congress had to issue further clarifying instructions about when those photographs should be submitted. (8) More broadly, copyright in works that existed as unique originals raised the issue of whether and under what conditions "publication" could mean display rather than distribution of copies. That issue continued to be litigated a century later. (9)

Why did Congress undertake such a momentous expansion of copyright, and why in 1870? No one has attempted to answer this question in light of the full available record of legislative and lobbying activity leading up to the 1870 Act. In his wide-ranging account of the development of intellectual property in the United States during the nineteenth century, Oren Bracha cites two petitions seeking copyright for fine art, and argues that Congress's affirmative response stemmed from the increasing social status and organized lobbying power of artists, and the conceptual move towards "universalization" of authorship--from writers in particular to creatives of all kinds. (10) Most of the other attention to copyright and art has focused on English law, and in particular on the passage of an 1862 Act that extended copyright protection to paintings, drawings, and photographs. It is difficult to summarize that entire discussion, which includes contributions by Lionel Bently, Ronan Deazley, Stina Teilmann-Lock, and Elena Cooper. (11) Bently, like Bracha, implicates a move towards abstraction of authorship, but locates it specifically in romantic aesthetics, and its account of the origin of both literature and visual arts in the imaginations of individual creators. (12) Bently cites two other principal influences. He argues that the choice to frame an area of law as copyright law (rather than, say, separate areas of printing law, fine art law, and industrial art law) tended to group literature and art together even before the latter was protected. (13) He also contends that the demand for protection grew from a variety of concerns, but particularly from the way the introduction of photography challenged existing relationships between artists and the market for engravings, since engravings could be copied relatively easily, and relatively well, using photography. (14)

As will be detailed below, the record of activity leading up to the provisions respecting art in the 1870 Act includes five petitions presented to Congress in early 1869, cumulatively signed by several hundred artists, lithographers, publishers, and others; one ultimately unsuccessful effort to organize a group of artists and to draft a bill establishing a sui generis art registration scheme adapted from design patent law, widely reported in New York newspapers; and two bills that were introduced in Congress in 1869 specifically for the purpose of adding fine art as copyrightable subject matter. An examination of that history leads to the following principal conclusions:

First, a significant part of the impetus for protecting paintings and drawings was actually to ensure enforceable exclusive rights for prints--engravings, etchings, and particularly, lithographs--as printmaking became industrialized and print publishers became centers of investment, risk, and control. Prints had been protected under federal copyright law since 1802, but the phrasing of the 1802 Act assumed that the painter or drawer of the design for the print would be creating or commissioning the plate (whether engraved, etched, cut, or lithographic) from which the prints would be made. As the nineteenth century progressed, prints were more and more often created by print publishers who would acquire designs from painters and drawers and make entrepreneurial investments in plates and printing. Those publishers wanted to obtain exclusive rights in those designs, but the 1802 Act would not let them do that, and no American precedent supported extra-statutory common-law protection.

Second, the drive for protection of paintings and drawings was also motivated by developments in reprographic technology that enabled inexpensive mechanical reproductions to resemble more closely painted or drawn originals. Although the technological development that may most readily spring to mind today is photography, color lithography-a technology that is now less prominent in the public mind--was as important as or more important than photography to the 1870 Act.

Third, it is politically easier to expand an existing scheme of protection, with many provisions and institutional structures already in place, than it is to create a new one, which requires negotiating all of the dimensions of protection from scratch. Early in 1869, a group of artists drafted and attempted to promote a bill for sui generis protection of paintings, drawings, and sculpture, based more on design patent law than on copyright law. It had different requirements for protection and a different term, and was arguably better tailored to works of those types. However, that effort failed, and what prevailed was the simpler expedient of adding new categories of subject matter to the existing scheme of copyright protection. In that respect, the debate over protection for art, and its eventual resolution, prefigures the debate over protection of computer programs and its resolution. (15)

Fourth, in confirmation of what Bracha, Bently, and others have observed, artists and art publishers had undoubtedly more fully developed both their self-identity and their political power by the end of the Civil War. Artists were better organized in associations like the National Academy of Design, founded in 1825, the year after a previous bill to protect paintings under copyright law failed in the Senate. (16) The larger publishers of engravings and lithographs became substantial industrial ventures that employed dozens of workers in large factories and developed the kind of economic importance that could attract the attention of legislators.

Fifth, I found no evidence of opposition in 1869 and 1870 to the proposed extension of federal copyright protection to paintings, drawings, and sculpture. This provides a marked contrast with some other proposed extensions. The history of federal copyright protection for sound recordings, for example, has been halting and partial, at least in part because there was a developed industry, radio broadcasting, which had enjoyed royalty-free performances of sound recordings for some time. (17) No similar interests vocalized their objections to copyright protection for fine art.

Sixth, the 1870 Act's expansion of copyright to include paintings, drawings, and sculpture was linked less closely to English legislative developments than one might assume. English law had extended protection against copying to sculpture in 1789 and 1814, and to paintings, drawings, and photographs in 1862. (18) One might think that proponents of such...