The Forgotten Origins of Copyright for Photographs

It’s fairly well-known that photographers like Matthew Brady used photographs in unique and important ways during the Civil War to document the conflict like never before.  It’s also known among copyright nerds that 1865 saw not just the end of the Civil War, but the amendment of the federal copyright statute to include photographs.  However, the conventional narrative of this law has always been that the amendment to the law to include photographs was close to a bolt from the blue.  As William Patry puts it:

This Act had a remarkably short legislative history. On February 22, 1865, the Committee on Patents and the Patent Office, which had been studying the issue, reported S.468, which was passed by the Senate the same day. The House passed the bill on March 2, and President Lincoln signed it into law the next day.

Source (internal citations/quotations omitted).  The law is one of Abraham Lincoln’s two main accomplishments on copyright, the other being his appointment of Ainsworth Spofford to be the Librarian of Congress in the same year.  However, the legislative history of the law was longer than has currently been understood, as a bill to include photographs within copyright law had actually been introduced in the House the previous year by Thomas A. Jenckes and committed to that chamber’s Committee on Patents.  However, for reasons that are unclear the House did not order the Bill printed, and as a result it has been all but forgotten until I found a manuscript copy of the bill in the Congressional files at the National Archives.

Finding the bill was a bit of a fluke – when I was writing my article on the origin of performance rights for music in 1897, I went through Thorvald Solberg’s work Copyright in Congress, 1789-1904, in search of any previous bills to provide such performance rights. What I found is that for a number of bills, he describes copyright bills, but provides no details as to the content of the bill.  The Library of Congress’s American Memory – A Century of Lawmaking site does not have a copy of the bill (House Bill 505 from the 38th Congress), so I (perhaps excessively) checked the files of the Committee at the National Archives.  Sure enough, there’s a handwritten copy there.  My scan of the bill is here, and I’ve included a transcription below the jump.

The act that would be passed in 1865 to include photographs in copyright is extremely terse, stating that  the provisions of the copyright law “shall extend to and include photographs and the negatives thereof which shall hereafter be made, and shall enure [sic] to the benefit of the authors of the same in the same manner, and to the same extent, and upon the same conditions as to the authors of prints and engravings.”1  On the other hand, the bill introduced by Jenckes in 1864 created a whole mechanism for deposit of a “memorandum” describing the photograph with the clerk of the District Court (since copyright registration was still at the District Courts until 1870).  Also included, seemingly added later, were two final sections establishing limited trademark protection for the marks of photographers (six years before the first law providing for federal trademark protection).

I don’t currently know the connection between the 1864 Jenckes Bill in the House and the bill a year later in the Senate which became law, but the introduction of the Jenckes Bill gives an explanation of how Congress moved so quickly on the issues – even if the public record doesn’t make it clear, the House Committee on Patents had been considering a bill to include photographs within copyright since the previous session of Congress.  There’s probably the necessary information to link these bills in the Papers of Thomas A. Jenckes; one of these days I hope to be able to tell the whole story.  But in the interim, this seemed a nugget of information worth sharing.  The bill text follows below the jump.

38th Cong., 1st Sess., HR 550

  1. Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled. That from and after the passing of this act any person or persons being a citizen or citizens of the United States or resident therein, who shall be the author or authors of any photograph, which shall not have been disposed of before the commencement of this act, and his or their assigns shall have the sole and exclusive right of copying reproducing and multiplying such photographs and the negative thereof by any means and of any size for the term of twenty eight years from the time of depositing in the clerk’s office of the District Court the memorandum herein after mentioned.
  2. And be it further enacted that if at the expiration of the aforesaid term of years, such author or any such authors, if there be more than one, be still living and a citizen or citizens of the United States or resident therein, or being dead shall have left a Widow or descendant, either or all of them still living, the same exclusive right shall be continued to such author, or if dead then to such widow and descendants for the further term of fourteen years – Provided that within six months before the expiration of the first term the said memorandum shall be a second time recorded in the Clerk’s office of the said District Court.
  3. And be it further enacted that nothing herein contained shall prejudice the right of any person to copy or use any work of fine art in which there shall be no copyright, or to represent any scene or object notwithstanding that there may be a copyright in a copy or imitation previously made of such work or in some representation of such scene or object.
  4. And be it further enacted, that no person shall be entitled to the benefit of this act unless he shall before offering for sale any copies of such photograph, deposit in the clerk’s office of the District Court of the United States of the District wherein the author or his assignee shall reside, a memorandum specifying the name of such author, assignee and the place of his abode and a brief description of the nature and subject of such photograph.
  5. And be it further enacted that it shall be the duty of the Clerk of such Court to file such memorandum and to copy the same in a book to be kept in his office for such purpose and to be entitled “Register of Proprietors of Copy right in Photography;” and such clerk shall be entitle to receive for the performance of said duty a fee of [blank].
  6. And be it further enacted. That if the author of any photograph in which there shall be a subsisting Copy right, after having sold or disposed of such Copy right, or if any other person, not being the proprietor for the time being of such Copyright shall, for sale, hire, exhibition, or distribution, without the consent of such proprietor, in writing, repeat, copy, multiply, or colorably imitate by photographing, sketching, painting, lithographing, engraving, drawing, sculpturing, or by any other means or in any other way, such photograph, or shall cause the same to be done, or shall import from any other Country any such repetition, copy, or imitation, or knowing the same to be such repetition, copy, or imitation shall sell or expose the same to sale or cause the same to be so sold or exposed to sale, such person for every such offense shall forfeit to the proprietor of the Copyrights for the time being, the sum of One hundred Dollars; and all such repetitions, copies, and imitations made without such consent as aforesaid and all negatives of photographs made for the purpose of obtaining such copies shall be forfeited to the proprietor of the Copyrights.
  7. And be it further enacted that the persons so offending shall also be liable to pay such proprietor all damages occasioned by such inquiry to be recovered by a special action on the case in any Court having cognizance thereof, and the several Courts of the United States empowered to grant injunctions to prevent the violation of the rights of authors and inventors shall have jurisdiction in such cases are are hereby also empowered to grant injunctions according to the principles of equity to restrain such repetition, copying and imitation and shall also have power, upon a bill in equity, to order and compel the delivery to such proprietor of all such unlawful repetitions, copies and imitations and negatives of photographs and to award and decree damages for the retention or conversion thereof and to enforce the collection and recovery of such damages by attachment or execution.
  8. And be it further enacted that if any person shall attempt to evade the provisions of this law by altering any Copy righted photograph in any manner by changing its size, details or back ground by retouching, painting or other means, he shall be deemed to have copied or imitated such photograph within the provisions of this act.
  9. And be it further enacted that such copyrights may be assigned and such assignments be proved or acknowledged and be recorded in the same manner as copyrights of books can be assigned, and the assignments thereof be proved or acknowledged and recorded.
  10. And be it further enacted that the proprietor of any negative or photograph therefrom shall have the sole and exclusive right to the use of any title, initial, name, imprint or monogram that he may adopt and use as designating his authorship or ownership.
  11. And be it further enacted that if any person, not being such proprietor, shall fraudulently make or cause to be made any imitation or altered facsimile of any such title, initial, name, imprint or monogram, and shall place the same on any negative or photograph, he shall be deemed to have copied or imitated such photograph, within the provisions of this act.
  1. the 1865 Act then includes several paragraphs reestablishing the requirement of copyright deposit with the Library of Congress, a requirement which has been retained ever since

Author: Zvi S. Rosen

Lawyer and sometimes academic. I've written a fair deal about the evolution of intellectual property law into its present form, this blog is a way to share things that don't fit into a full-length article.

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