by Katherine Howells
In the 1860s, photography, both as a medium and as a commercial industry, was coming under scrutiny from practitioners and politicians due to its rapid development. Issues of ownership and copyright were becoming impossible to ignore and so debates ensued around how photography should be defined and protected under the law. This culminated in Fine Arts Copyright Act, passed into law in 1862, which in turn required the registration of photographs, paintings and drawings with the Stationers’ Company for copyright protection, a system which continued for almost 50 years.
This system resulted in the creation of a large archive of registration forms and attached examples of photographs and artwork deposited at The National Archives of the United Kingdom (TNA), covering the period between 1862 and 1912. The collection is now partially catalogued, with detailed information available through TNA’s online catalogue, Discovery. Through exploratory digital analysis of the catalogue data for this record collection, this paper seeks to uncover how photographers and publishers responded to the new legislation and provide new information about the nature of photographic industries as they existed in the few years following the passing of 1862 the Act into law.
Figure 1: Copyright entry forms and attached photographs and artwork
2. Photography in the Mid-nineteenth Century
When the Fine Arts Copyright Bill was under consideration in parliament, photography as a medium was still in its early years. It was only a decade before, in the early 1840s, that photography began to become commercially available with the widespread use of the daguerreotype from 1839 and the invention of the ‘calotype’, patented by Henry Fox Talbot in 1841. In the 1840s it was a fledgling industry, described as an ‘art-science’, and was used mainly for record-keeping and was reliant on experimental enthusiasts.1
However, over the next few decades, the medium developed at great speed with various other processes coming into use including the ambrotype and the tintype. As a commercial industry, the use of photography was beginning to expand into fields of anthropology, medicine, journalism, travel and portraiture. Commercial studios were popping up around Britain, including Fox Talbot’s own photographic and printing studio in Reading. By the 1860s, despite its very recent development, photography was very well-known and photographs were encountered everywhere. The rapid commercialization of photography up to this point meant its absence from any existing copyright law could no longer be ignored. This set the stage for it to be considered for inclusion in the Fine Arts Copyright Act of 1862.
3. Copyright Before 1862
Much early copyright legislation was focused on the protection of printed books. From 1554 these had to be registered with the Stationers’ Company at Stationers’ Hall but the focus was more on printing and bookselling rights rather than authorship. The Statute of Anne in 1710 offered the first modern form of copyright legislation, legally recognising and giving copyright to individual authors for the first time.2 The statute conferred a copyright term for new books of 14 years with an optional renewal of another 14 years.3 Further legislation followed, notably the Copyright Act of 1842 which fixed the term of copyright at either 42 years or the life of the author plus seven years, whichever proved longer, and covered only literary and commercial written works. The registration records created by the existence of this Act and subsequent Acts are those which are today held at TNA under department code COPY.
Certain visual arts had been included in specific copyright legislation in the eighteenth and early-nineteenth centuries. The Engravers’ Copyright Act of 1735, the Models and Busts Act of 1798 and the Sculpture Copyright Act of 1814 protected engravings and sculpture of various kinds, but other forms of artwork were excluded from legislation. Ronan Deazley argues that despite the lack of legislation covering paintings, many artists had been fully able to profit by having their work reproduced in the form of engravings, relying entirely on earlier Engravers’ Acts and their own control over physical access to their work, and so copyright legislation covering paintings and drawings specifically may not have been thought necessary.4 However as the nineteenth century continued, there were increasing calls from creators and publishers for change. Efforts to agree reciprocal international copyright protection in the 1840s led to a wider range of visual arts being included, even though domestic copyright law was not yet prepared for this. The International Copyright Act of 1844 included protection for ‘Books, Prints, Articles of Sculpture, and other Works of Art’5, setting the stage for development of a domestic law that would cover these ‘other’ works.
4. The Fine Arts Copyright Act 1862
The Society for the Encouragement of Arts, Manufactures and Commerce (the Society of Arts) appointed an Artistic Copyright Committee in December 1857 to look into the issue.6 The committee reported that original works should be protected and after some negotiation and petitioning, a Copyright (Works of Art) Bill was put forward in April 1861. The upcoming International Exhibition in 1862 was considered to be a good reason to focus on this legislation.7 While at first the proposed bill covered a wide range of works of art, this was subsequently scaled back to only paintings, drawings and photographs.8
It was at this stage in the process that photography’s youth as a process and art form began to raise problems. Photography had not yet been adequately defined and in the minds of some in the House of Commons it was ‘not a fine art, but a mechanical process’ and so should not be included in copyright legislation for fine arts.9 This consideration was also raised in relation to the planning of the International Exhibition of 1862, where photography was excluded from the Fine Art category of the exhibition and instead displayed in a separate category of its own.10 The particular nature of photographic processes led to a range of objections: the possibility of two people producing identical photographs and the possibility of making copies of photographs to some made it seem that it would be impossible to enforce legislation for the copyright of photographs.11 These objections were overcome however, largely on the basis that the ‘time, effort and money’ involved in the taking of photographs, particularly those taken on journeys abroad, needed to be taken into account.12 The Fine Arts Copyright Act became law on 29 July 1862.
Copyright had to be registered at Stationers’ Hall in order to be claimed and defended. It was also determined that when one party commissioned a work of art from an artist, the copyright belonged to the party who paid for the work, whereas when an artist registered a work for copyright protection and then subsequently sold the work, the copyright ceased to exist unless a written agreement determined otherwise.13 The copyright term was decoupled from the moment of publication, but relied entirely on the life and death of the author.
5. Copyright Registration at Stationers’ Hall
In order for a person to register their painting, drawing or photograph for copyright protection, they were required to complete a registration form. Those registering a work were instructed to enter a description of the work being registered, along with the name and place of abode of the copyright owner (or proprietor of copyright) and the name and place of abode of the copyright author (the artist or photographer). The forms were then dated and signed by the owner and in many cases a copy of the work (in the form or a print or sketch) was attached to the form.
Figure 2: A copyright entry form, catalogue ref: COPY 1/1/193
These registration forms and attached artwork, along with related registers and indexes were eventually transferred to the Public Record Office, now TNA. The collection comprises over 1,000 pieces and potentially over 400,000 individual entry forms. The vast size of the collection can make it difficult to engage with meaningfully, however this is where digital methods of analysis become particularly useful. The size of the collection, the detailed nature of the information found in each entry form and, most importantly, the fact that a proportion of the entry forms have been transcribed into the catalogue make this collection an ideal candidate for data analysis.
6. Research Questions
Understanding the context behind the controversial inclusion of photography in the 1862 Fine Arts Copyright Act raises questions about photographic industries at the time, questions which may be answered through examining the catalogue data for those photographs which were registered under the Act. These include:
- How did photographers and publishers initially respond and take advantage of the new legislation?
- Which parties were active in the photographic industry in 1862 and how did they work together?
To address these questions, this paper aims to focus on records from the first few years after the Fine Arts Copyright Act was passed into law. There are 2,953 registration records under the Find Arts Copyright Act in the collection dated between August 1862 and December 1863. Through careful analysis and examination of these records, one can reveal some answers to these questions.
7. Preparing the Catalogue Data
Despite the very valuable volunteer-led cataloguing work which created the data to make this research possible, the structure of the catalogue data itself poses significant problems for analysis. The details transcribed from the entry forms have been uploaded to the online catalogue in the form of a single text field. Each single text field includes names of the copyright owner and the copyright author, their addresses and a description of the work being registered. To enable any analysis, this information needed to be separated out into individual fields.
First, the data was downloaded from TNA’s catalogue, Discovery, and a dataframe created in Python using the Pandas library. Then regular expressions were used to separate out the description of the image from the names and addresses of the copyright owner and authors, based on the structure of the text in the field. The information could then be viewed in individual columns for ‘description’, ‘name of copyright owner’, ‘address of copyright owner’, ‘name of copyright author’, address of copyright author’ and ‘notes’ for additional information included in the original field. The data could then be categorised based on several criteria: whether the work appeared to be a photograph or an artwork, whether the entry form was registering multiple works simultaneously, whether the owner and author were identical, and whether there was or was not a copy of the work attached to the form.
This data cleaning made it possible to conduct simple analysis and enrichment of the data. The data was enriched through the application of natural language processing library spaCy to identify and extract names and place names from the name and address fields and extract lists of nouns from the ‘description’ field.
To illustrate, the seventh item registered for copyright protection under the 1862 Act, found under catalogue reference COPY 1/1/7, has the catalogue description as follows:
‘A photograph of the Prince of Wales and Princess Alexandra of Denmark. With the motto “May you be happy”.’ No copy of photograph(s)/artwork(s) annexed. Copyright owner of work: Frederick H. Mares, 79 Grafton Street, Dublin, Ireland. Copyright author of work: Frederick H. Mares, 79 Grafton Street, Dublin, Ireland. Form completed: 19 August 1862. Registration stamp: 1862 August 19.
Following cleaning and natural language processing using Python, pandas, regular expressions and spaCy, the following set of data is separated and easily accessible for analysis.
Table 1: Data fields extracted from one catalogue description for record COPY 1/1/7
|‘A photograph of the Prince of Wales and Princess Alexandra of Denmark. With the motto “May you be happy”.’
|Frederick H. Mares
|Copyright owner address
|79 Grafton Street, Dublin, Ireland
|Frederick H. Mares
|Copyright author address
|79 Grafton Street, Dublin, Ireland
|Date form completed
|19 August 1862
|Registration stamp date
|19 August 1862
|[‘Frederick H. Mares’]
|author address locations
|[‘Frederick H. Mares’]
|owner address locations
|[‘the Prince of Wales’]
|[‘copy’, ‘motto’, ‘photograph’]
Due to inconsistencies in the data, the information extracted is not perfect and errors will remain. This means that any statistical results must be considered as estimates and conclusions therefore cannot be definite. This paper reports on the findings from this work-in-progress exploratory analysis, which will hopefully be expanded and improved in future research.
8. The Response to the 1862 Fine Arts Copyright Act
Photographers, artists and publishers responded gradually to the new registration system, submitting on average 88 forms per month in 1862. This rose to on average over 200 a month in 1863, perhaps a result of the general upward trend in the numbers of photographic industries, but also perhaps due to increasing awareness of and engagement with the legislation. There is a particular spike in December 1863 with over 400 registrations.
8.1 Image Types and Formats
Figure 3: Type of image registered per month between August 1862 and December 1863
Even though the legislation provided protection for paintings and drawings as well as photographs, photographs made up the bulk of the works registered in the first 17 months. Over 80% of the images registered were photographs, although there was a slight increase in the appearance of other forms of artwork in November and December 1863. This does perhaps suggest that many photographers were well aware of the commercial potential of their medium and keen to take advantage of the new copyright legislation.
There are many examples of overlap between the artistic formats in these records. In some cases, it is unclear exactly what format of images is being registered. People registered photographs of paintings and drawings and there are even several layers of formats included, such as in the example ‘’A photograph of an old engraving from ‘Guido’s’ painting of the ‘Nativity”’ registered by John Stone on 28 November 1862 (COPY 1/1/302). Composite images made from photographs combined with illustrations can also be found. Other examples show groups of images of different formats registered together to create one image:
- 1) ‘Drawing of outline for illuminating with a photograph of Shakespeare’. 2) ‘Drawing of outline for illuminating a photograph of ‘The Christian Martyr’.
- 1) ‘Watercolour drawing of an ornamental design to encircle a group of photographs in photo-lithographic medallions’. 2) ‘A group of portraits of royal personages in photolithographic medallions with ornamental border’. 3) ‘A group of photo-lithographic medallions with tone plate and scroll work in watercolours’.
The majority of the photographs registered in 1862 were portraits, some of which were registered in sets with different poses and props, particularly those of theatrical subjects. They are mostly of the same size, approximately 9cm x 5.5cm, so perhaps intended for carte de visites.
Figure 4: ‘Photograph of James Rogers as Miss Lily O’Conner rising from the water and clutching a rock’, Southwell Brothers, 25 October 1862, catalogue ref: COPY 1/1/207
The types of photographs being registered gradually began to diversify, with larger formats and examples of landscapes appearing in the registrations. More advertising material can also be found, material which became much more common in the paintings and drawings registrations in later years.
8.2 Registrations of Multiple Images and Missing Attachments
More than 20% of the forms submitted were registering multiple images with one form. In the entry form referenced as COPY 1/1/139, William Henry, Frederick and Edwin Southwell, London-based portrait photographers trading as the ‘Southwell Brothers’, list six photographs of dancer, actress and comedian Lydia Thomson in the description box, as follows:
- ‘Photograph of Miss Lydia Thomson in Spanish dress, standing with face in hand’.
- ‘Photograph of Miss Lydia Thomson in Spanish dress, standing in listening attitude’.
- ‘Photograph of Miss Lydia Thomson in Spanish dress, standing playing guitar’.
- ‘Photograph of Miss Lydia Thomson in Spanish dress, feet crossed, sitting playing guitar’.
- ‘Photograph of Miss Lydia Thomson in Spanish dress, sitting looking down, guitar by side’.
- ‘Photograph of Miss Lydia Thomson in Spanish dress, standing elbow on guitar’.
Figure 5: Description field of entry form and attached photographs, catalogue ref: COPY 1/1/139
It was very common for forms to be sent in with no image attached. 44% of the entry forms registered between 1862 and 1863 have no image attached. Attaching an image of the work being registered was not compulsory, so the lack of attachments was perhaps just due to the complexity of producing a print just for the copyright registration process.
9. Photographic Industry Connections in 1862-3
The legislation required the details of both the copyright owner and the author to be included in the entry form for the registration of images. The presence of this information opens up opportunities for the study of photographic networks in the period. A network graph was produced, using network analysis software Gephi, showing the connections between owners and authors in each registration they made.
One initial finding of this analysis is that over 80% of forms included the same person as both copyright owner and copyright author. This indicates that, at this time, the majority were registering their own work for copyright protection. This is far more common for photographers than for artists, suggesting that many photographers were still independent amateur experimenters or small-scale commercial actors at this time.
The size of the nodes in the graph below correspond to the number of entry forms where the name of the individual is present. The thickness of the edges also corresponds to the number of forms shared by two nodes. Green nodes are copyright owners and red nodes are copyright authors.
Figure 6: Network graph showing connections between copyright owners and authors, excluding nodes solely with self-loops
London photographer Robert Hindry Mason, known for his portraits of Charles Dickens14, is particularly active in the graph, having submitted 28 forms registering multiple photographs. His photographs are all portraits of significant figures. The graph reveals he worked with several other photographers to register works, including successful portrait photographers John and Charles Watkins and stereoscopic specialist Thomas Richard Williams.
Overall, it is evident that at this early stage photographic networks were fairly small and disconnected. Most photographers were registering their own works for themselves, or working with just one or two others. Another example that can be seen in the network is Charles Whittingham and John Wilkins who are listed as the copyright owners for 151 images created by Charlotte and Elizabeth Whittingam. Charles Whittingham was a printer with premises in Took’s Court, Chancery Lane, which is listed as the registration address for these images. In 1838 he took over his uncle’s business, the Chiswick Press, in 1838. His daughters, Charlotte and Elizabeth, trained as artists and had their work registered by their father’s business, which we can see from their appearance in the network.
Figure 7: Detail from network graph
A large archive of registration records for photographs, paintings and drawings, has been created as a result of the introduction of the Fine Arts Copyright Act in 1862. This Act came into force in a context where the status of photography was still in flux. Debates about the nature of photography as a medium and industry and its relation with other forms of art were still ongoing. Digital analysis of the first entry forms submitted under the new legislation can give an insight into the way photographers, artists and owners responded to the new opportunity and offer a snapshot of photography as a commercial industry at the time.
The first photographs selected for registration under the Act were primarily portraits of famous individuals, likely intended for sale as cartes de visite. The individual photographers active in this area were often working in small networks or simply registering their own photographs, suggesting the industry was still at this point fairly small and localised.
It is important to bear in mind the limitations of this analysis. Firstly the data can include errors, which need to be taken into account when drawing any conclusions. Secondly, since we are focusing on the early years of the Act, one must consider that there were likely many photographers and publishers who had not yet started taking advantage of the new opportunity. More information photographic networks are of course invisible in this archive.
However, this study does show the great potential of using digital methods of analysis to interrogate archival data, and in particular data that includes relationships between individual actors. The fact that, for many of the records in this archival collection, the photographs themselves were never attached and so cannot be seen today, the descriptions provided in the entry forms become ever more important. Analysing the original information provided by those registering their work opens up excellent opportunities for studying industries and networks which can be hard to uncover in other ways.
Cooper, Elena, Art and Modern Copyright, Cambridge: Cambridge University Press 2018
Deazley Ronan, Martin Kretschmer and Lionel Bently (eds.), Privilege and Property: Essays on the History of Copyright, Cambridge: Open Book Publishers 2010
Deazley, Ronan. ‘Commentary on Fine Arts Copyright Act 1862′, in Primary Sources on Copyright (1450-1900), eds L. Bently & M. Kretschmer, 2008 www.copyrighthistory.org
Litvack, Leon. “Dickens in the Eye of the Beholder: The Photographs of Robert Hindry Mason.” Dickens Studies Annual, vol. 47, Penn State University Press, 2016, pp. 165–99, http://www.jstor.org/stable/10.5325/dickstudannu.47.2016.0165.
Marien, Mary Warner. Photography: A Cultural History. London: Laurence King Publishing 2006
About the Author
Dr Katherine Howells is a Principal Records Specialist in Visual Collections at The National Archives of the UK. She specialises in nineteenth and twentieth-century visual culture and digital research methods. In particular, she is interested in how historical images are remembered and reused in culture and society, and the impact of those images on the development of identities and perceptions of the past. Her research has recently focused on intellectual property, photography, and government publicity records held at The National Archives. Katherine holds a PhD in Digital Humanities and an MA in Early Modern History both from King’s College London.
- Mary Warner Marien. Photography: A Cultural History, London: Laurence King Publishing 2006, 26
- Mark Rose, ‘The Public Sphere and the Emergence of Copyright’ in Privilege and Property: Essays on the History of Copyright, eds. Ronan Deazley, Martin Kretschmer and Lionel Bently, Cambridge: Open Book Publishers 2010, p. 82
- Ibid., p. 83
- Ronan Deazley, ‘Breaking the Mould?’ in Privilege and Property: Essays on the History of Copyright, eds. Ronan Deazley, Martin Kretschmer and Lionel Bently, Cambridge: Open Book Publishers 2010, p. 298
- Ibid. p. 290
- Ibid. p. 299
- Ibid. pp. 300-301
- Ibid. p. 304
- Parlimentary Debates, Vol. 165, ser. 3, col. 1890-1, 20 March 1862
- Elena Cooper, Art and Modern Copyright, Cambridge: Cambridge University Press 2018, p. 17
- Deazley, ‘Breaking the Mould?’, p. 306
- Cooper, Art and Modern Copyright, p. 4
- Deazley, ‘Breaking the Mould?’ pp. 313-4
- Leon Litvack. “Dickens in the Eye of the Beholder: The Photographs of Robert Hindry Mason.” Dickens Studies Annual, vol. 47, Penn State University Press, 2016, pp. 165–99, http://www.jstor.org/stable/10.5325/dickstudannu.47.2016.0165.