Circulation and Control: Artistic Culture and Intellectual Property in the Nineteenth Century

Edited by Marie-Stéphanie Delamaire and Will Slauter, Open Book Publishers, 2021, 542 pp.
Paperback, £28.95, Digital, free, ISBN: 978-1-80064-146-4

Copyright is often posited in terms of a simple binary: creators’ rights versus violators’ theft. Alterations to this formula generally just reverse the appraisal to pit corporate avarice versus common good. The value of Marie-Stéphanie Delamaire and Will Slauter’s edited volume Circulation and Control: Artistic Culture and Intellectual Property in the Nineteenth Century lies in its nuanced analyses of the muddiness of copyright (and a few other forms of intellectual property). The volume, as the editors write, explores the tension between the desire—of creators or publishers or sellers—both for circulation, which allows for maximal exposure, and regulation that places limits in order to protect investments. This volume builds on the now-considerable literature on copyright to extend to the realm of art, primarily the visual arts.

By the twentieth century, the shift from what Meredith McGill has referred to as a “public-good” framework to an “author-centered rationale for copyright” had been sealed.¹ But in the long nineteenth century, that transition was still in process. The essays in Delamaire and Slauter’s volume address this flux, each taking up a moment when either a content-creator or, more often, a commercial enterprise strained against existing practices or legal frameworks. The fourteen essays of the book’s hefty 500 pages collectively chart the shift to a view that “copyright should not be restricted to protecting the author against cases of harm, but should enable the author to ‘reap the benefits’ of the ‘money value in reproduction’” (351). Those words are from Elena Cooper and Marta Iljadica’s essay on copyright for buildings, but they pertain to multiple media and serve as a reminder that copyright was always about commerce, the afflicted author-figure merely a screen.

Delamaire and Slauter’s superb introduction lays out two key principles that inform the volume’s orientation: (1) In many instances legal statues mattered less than “cultural norms and trade customs,” and (2) “law, culture, and business shaped one another” (13). Any history of intellectual property, in other words, must be as much “a history of norms and practices, rather than solely a history of legislative and judicial developments” (13). Each essay in the collection takes up a specific moment and medium where norms were fraying and parties turned either to existing laws or attempted to shape new ones. Isabella Alexander and Cristina S. Martinez’s essay discusses the first case brought under United Kingdom’s 1735 Engravings Act that protected engravings of paintings (but not paintings themselves). Their complex analysis of the trial to protect Elizabeth Blackwell’s botanical engravings examines the instability that “copied from nature” introduced to understandings of “copies,” debates about the meaning of “invention,” and the role of gender in artistic production and ownership.

In subsequent chapters, authors take up cases of “trans-medial” friction, instances when existing law or customs were stretched by new technologies. Slauter addresses the challenges that not just photography but specifically stereoscopic shows raised for engravings in 1860s Britain, while Oren Bracha attends to a magic-lantern slide show of the novel Ben-Hur in 1880s United States. Thomas Smits discusses the crisis that arose when the system of sharing physical stereotypes amongst illustrated newspapers in Britain and the Continent was challenged by the advent of photography, while Karen Lemmey addresses the protections Hiram Powers, amongst others, sought against papîer-maché replicas of their marble sculptures. Erika Piola drills into the rivalry between upmarket engravings and down-market lithographs in mid-century Philadelphia, while Katherine Mintie discusses the tensions between photographers and the illustrated press with the advent of halftone at the end of the century. Simon Sterns identifies distinctions in literary and visual copyright between part and whole, and Rose Roberto delves into repurposed or self-plagiarized illustrations in editions of encyclopedias. Every chapter identifies a case or moment in which prevailing customs or laws were thrown into disarray or challenged, most often as a result of an emergent technology or processes that put pressure on a dominant one.

Though most case studies in the volume take up questions of copyright—for engravings or woodcuts, photographs or panoramas, in newspapers, print shops, or at ticketed events—two deal with patents (Lemmey on designs and Shannon Perich on photographic processes including the calotype, ambrotype, and tintype). Intriguingly, Lemmey shows that by the end of the nineteenth century, most sculptors had abandoned the patent system in favor of copyright, since the latter was less expensive (395). The essays in this volume are interested in the friction between the desire to produce and sell replicas (engravings, etchings, woodcuts, photographs) and efforts to restrict copies (to certain media or sellers or licensees). To wit: Lew Wallace (the author of Ben-Hur), who sought both wide sales for his novel and to control the medium in which consumers encountered it, licensed theatrical productions but not magic-lantern shows. Attention to such tensions mean that the authors avoid triumphalist narratives of progress; failed cases and rejected claims feature as often in these essays as “victories” (whether for those seeking protections or challenging them).

With the exception of Smits’s essay on stereotypes exchanged across the Channel and Jill Haley’s on “celebrity” photographs of Māori leaders and elders, all the remaining chapters pertain to US and UK cases and laws. The editors note that the “international and colonial dimensions of copyright for artistic works remains to be studied in more detail” (23). This volume, with its in-depth case-studies and extensive bibliography of sources—archival, case law, and secondary literature in legal and art history, print, and visual technologies—is a model for and invitation to scholars to widen and deepen the study of copyright for visual works beyond
Anglo-American and Anglophone locations.

This book is highly recommended—for its nuanced case studies that consistently examine law, custom, and business practices as affordances in conversation; for the breadth of scholars (of art, law, media, and materiality) and curators who appear here and their depth of knowledge; for the precisely-selected illustrations to illuminate arguments; and for its uniformly excellent writing. The only improvement might be the inclusion of an appendix of relevant laws, dates, and the extent or limit of their coverage. Perhaps because they are attuned to matters of access and the monopolistic aspects of copyright, the editors and authors have committed to what is sometimes referred to as “copyleft”: open-source publishing and fostering a culture of trust among users. Circulation and Control is published by Open Book Publishers and is available free as a e-pub or download, each essay affixed with a Creative Commons license.

Priti Joshi, University of Puget Sound

¹ Meredith L. McGill, “Copyright and Intellectual Property: The State of the Discipline,” Book History 16
(2013), 389.