Guthrie podcast: Mathew Brady and Photographic Copyright

podcastlogoFor the 27th episode of the Journalism History podcast, host Nick Hirshon spoke with Jason Lee Guthrie about how 19th-century photographer Mathew Brady, best known for his vivid battlefield scenes of the Civil War, used copyright to protect his work from infringement and legally link his name with images he believed would have enduring value.

Guthrie is an an assistant professor in journalism and mass communication at Samford University in Birmingham, Alabama. He is the author of “Ill-Protected Portraits: Mathew Brady and Photographic Copyright” in the June 2019 issue of Journalism History.

This episode is sponsored by the English Department at the University of Missouri-St. Louis.


Nick Hirshon: [00:00:09] Welcome to Journalism History, a podcast that rips out the pages of your history books to reexamine the stories you thought you knew, and the ones you were never told. I’m your host, Nick Hirshon, guiding you through our own drafts of history.

[00:00:25] This episode is sponsored by the English Department at the University of Missouri-St. Louis, where it is our mission to transform the lives of our students.

[00:00:35] Mathew Brady is often heralded as the father of photojournalism. He risked physical danger and financial peril to document the American Civil War from the battlefield, and his vivid photographs of corpses scattered at Bull Run, Antietam, and Gettysburg brought the gruesome reality of war to a public unused to seeing true likenesses of men who died in combat. The public imagination about Brady has often focused on his bravery and ingenuity in creating those images. But less attention has been paid to how he protected them. Brady also played an important role in the history of copyright for photographs and his career demonstrates the limits of legal protection for creative work as well as the ways that cultural factors interact with the law to influence ideas about creative ownership.

[00:01:18] In this episode, we discuss Brady’s photography, and the evolution of copyright in the United States, with Jason Lee Guthrie, an assistant professor in journalism and mass communication at Samford University in Birmingham, Alabama. Jason, welcome to the Journalism History podcast.

Jason Lee Guthrie: [00:01:34] Yeah, thanks for having me. I’ve been really enjoying the past episodes and really excited to be a guest, so thanks.

Nick Hirshon: [00:01:41] Well, I’m excited to start talking to you because your subject, Mathew Brady, is someone who I knew a little bit about, probably like our listeners, but not a ton. And we’re here today to discuss your article that will be in the summer issue of Journalism History on the use of copyright by Mathew Brady. He was one of the earliest photographers in American history, best known for his scenes of the Civil War. And you describe how he made deliberate attempts to protect his work from infringement, secure economic compensation, and legally link his name with images that he believed would have enduring value. So, first question for you. Why were you interested in researching the career of Mathew Brady?

Jason Lee Guthrie: [00:02:16] Yeah. So, this came out of some dissertation research that I did during my doctoral work at the University of Georgia under the direction of Dr. Janice Hume, who might be familiar to a lot of Journalism History listeners. And so I was really interested in the sort of creative history of copyright. So, obviously, there’s a lot written on the legal history of copyright: What do the policymakers and politicians say? What do the lawyers and judges say? I was interested in how creative people have used and understood copyright or more often misunderstood and misused copyright. And so my dissertation looked at Mathew Brady as well as Stephen Foster, an early American songwriter, and Benjamin Franklin, who’s obviously early American lots of things, but how they sort of used and understood copyright was something that I was really interested in as sort of a background of how do creative people use and understand copyright today?

Nick Hirshon: [00:03:30] And when I was reading your article, you go into Brady’s early career, how he learned his craft, and I found it interesting that sometimes historical figures that we don’t associate with each other are somehow entwined. One of the surprising revelations I got from your article was the connection between Mathew Brady and Samuel F. B. Morse, who is best known for contributing to the invention of the single-wire telegraph system and helping develop Morse code, the character encoding system that’s used in telecommunication and codes, text characters, as standard sequences of two different signal durations with dots and dashes, or dits and dahs. So, can you explain that connection between Brady and Morse? I know it’s not the focus of your article by any means, but just how are they connected?

Jason Lee Guthrie: [00:04:11] Yeah, absolutely. That’s a great question because I’m actually really interested in doing some, extending my research by looking at Morse, a really fascinating important early American content creator. You mentioned the telegraph, but really before his image of his telegraph and what he was most known for during that early and middle period of his career was he was the most famous portrait photographer — excuse me — portrait painter in America.

[00:04:48] And so a lot of the paintings that are hanging on the walls in Congress of early presidents and senators and all were actually done by Morse. But to really answer your question, the connection between Morse and Brady is, it really starts with a connection between Morse and photography. So, Morse was in France in January of 1839 seeking a French patent for the telegraph to protect the telegraph from infringement in Europe. And he just so happened to be there at the same time that Louis Daguerre’s photographic process was being announced.

[00:05:42] So, the early history of the technology of photography is really dizzying to the uninitiated. It’s still pretty complex to me and I’ve spent a lot of time reading about it and thinking about it. But basically Louis Daguerre is who the Daguerreotype is named after, and the most important distinction between a Daguerreotype and what we think of today as a photograph is the process by which the image is made. So, in 1839 what Louis Daguerre was announcing was this process by which a glass plate that had been coated in silver could be exposed, depending on the amount of light, for anywhere between a three- to even double-digit second exposure, the less light, the longer the exposure. And then covered back up and put through a chemical development process to produce a single positive image. So, for our listeners that can remember film cameras, we had to develop the negatives and the negatives are kind of black and white, opposite of what the eventual image was going to be, the daguerreotype technology produces a positive image, so exactly what you see is exactly what ends up coming out on the grayscale in a daguerreotype. So, Louis Daguerre is announcing this, Morse is there, he’s fascinated by it as an artist himself. The ability —

[00:07:24] One of the main things that early photography enthusiasts were interested in was this ability to fix an image of a great person, a president, a senator, whatever, so then they could paint the portrait of that person in more detail without having to have them sit. So, Morse was really interested in this discovery. They corresponded while Morse was in France, shared their discoveries with each other, and then when Morse comes back to New York, to America, after seeking that patent for his telegraph in France, he starts offering lectures on daguerreotypy in New York. Now we don’t know for sure whether Mathew Brady attended these lectures in person or whether he learned it sort of one degree removed. We know that a man named William Page did attend these lectures from Morse and that Brady took art lessons from Page as a young man. But one of the things that’s really kind of confounded Brady scholars has been a real lack of traditional primary sources. For someone that was as well known as Brady was during his lifetime, in the years after it and even still today for Civil War photography, the kinds of personal correspondence and even business records that historians typically look to are a lot more scarce than similar figures of similar celebrity status from the time and that’s another reason that the copyright records can be really interesting because they do provide some fill-in there. But just coming back around to your question, Samuel Morse is really the person that brought daguerreotypy and by extension the photographic processes that would come after to America and a really interesting figure to study regarding intellectual property issues in his own right as well.

Nick Hirshon: [00:09:46] And I mentioned in the opening that the public imagination around Brady surrounds the American Civil War, but Brady was active as early as 1849 when he opened his first Washington gallery. So, can you discuss his pre-war career and how that led up to the Brady we know today from the battlefield photographs?

Jason Lee Guthrie: [00:10:02] Yeah. I believe that Brady’s actual first studio was 1844 in New York. And he went on to have a series of successful studios in New York, kind of starting with the cheaper real estate and moving his way up Broadway as many daguerreotypists and photographers did during that antebellum period. So, as early as 1844, Brady actually had his first studio in lower Broadway, and as his success and his celebrity status continued to progress he kind of moved up Broadway to nicer and nicer studios, spaces. But yeah, the way that he got his start was similar to a lot of the other daguerreotypists. It was a very crowded market, real easy point of entry. And he actually in his early days, one of the interesting kind of historical tidbits, he actually oversaw the daguerreotypes of prisoners for a text on phrenology by Marmaduke Sampson. And of course phrenology was a popular pseudoscience of the mid-19th century where people believed that the shape of a person’s head or nose or whatever could tell you things about them and what their proclivities might be for morality or things like that.

[00:11:57] And so that was something that Brady was involved in. He was also a manufacturer of daguerreotype cases for a while but once he really got started with the studios, he had a real knack for marketing and promotion, I think, was the thing that set him apart from a lot of his competitors. And so he progressed pretty quickly to have a very well-known name in New York. His first foray into Washington, D.C., era in the lead-up to Zachary Taylor’s inauguration, he did OK for a few months, but the market in D.C. was already crowded as well and he was kind of a newcomer. So, he ended up closing that gallery and came back in 1858, I believe, with Alexander Gardner as a manager and, of course, later on Gardner and him would split and Gardner would go on to have his own very prolific career. But that pre-war period, I think, is important to understand about Brady because he is so remembered for the Civil War for photographs today that it can sometimes feel like it’s this five-year chunk was everything he did.

[00:13:15] And that’s absolutely not the case. The fame and the fortune that he amassed, especially in the 1850s, is really what allowed him to document the Civil War in the way that he did. Halfway through the Civil War, he’s expended all of his own personal fortune in documenting the war. And then for the rest of the war, he has to rely on all these complicated things of credit to get supplies and promising future rights to images and things like that and he’s really penniless by the end of the war and doesn’t really ever recover. He doesn’t pass away until the mid ’80s, ’90s. He spends the rest of his life trying to recover some of that fortune that was lost. The name recognition is still there, but the fortune doesn’t really come back. And that’s actually where the title for the article comes from. Brady’s mention of “ill-protected portraits” comes from an interview that he does much later in life, 1891, where he expresses this bitterness. He even kind of, hyperbolically, suggests that most of the images in the country are from his “ill-protected portraits.”

[00:14:58] “Most” is a strong exaggeration there. But yeah, he’s pretty discouraged. And I argue that, at least in part, that discouragement comes from, he conceived of copyright as something that should protect his legal and even moral rights to ownership in his work. And he’s understandably, from his perspective, pretty discouraged, pretty crestfallen when that’s not what happens. He viewed copyright as the kind of thing that could inherently protect his work and just copyright on its own really couldn’t do that for a lot of technological reasons, cultural reasons, and I think that’s something that’s really important to understand.

Nick Hirshon: [00:15:57] So, I was asking about the pre-war Civil War kind of career of Mathew Brady and how copyright was affected there. But can you tell me, the copyright process evolved significantly throughout the 19th century, especially during Brady’s career. What was the copyright process specifically at that time? For example, what kind of materials would someone have to submit to register a copyright? Where did they have to go, did they have to go to a courthouse, did they have to go in person? Obviously, it’s all different today and it’s electronic. But what were some of those changes during Brady’s time?

Jason Lee Guthrie: [00:16:28] Yeah. This is a really important — because it is very different than today. Copyright is something that’s evolved immensely over time. So, the Constitution has a clause that is sometimes called the copyright clause, sometimes called the copyright and patent clause. It’s real brief and it kind of just sets up an initial authority that Congress needs to act on this to provide more direction. Copyright was something that’s really important to the Founders.

[00:17:12] So, they put it in the Constitution. In 1790, they enact the first copyright act that covers any map, chart, book, or books. And then just 12 years later, they realized that they need to expand that, to amend that in 1802 to include historical and other prints. And this really points to the fact that American culture has always been a very visual culture, even from the very foundation. So copyright is something that’s constantly being amended. For instance, in 1831, musical compositions are added. The initial term is extended, but when first, the daguerreotype process, and then what we think of today is more of a photographic process that something that can be printed on paper and that has what’s called a wet colloidal negative is these things common in the antebellum period.

[00:18:17] Most photographers are still going through this mindset of the 1802 protection for historical and other prints. And here’s how we know this. For a daguerreotype, again, it’s printed on a piece of glass with a silver coating, for that to be transferred to paper and something that can be mass produced, you’ve got to basically make an etching, like a lithographic engraving from that image. And so that was something that clearly fell under the 1802 law that covered historical and other prints. So, when the photographic process comes on where the image is made onto a negative right from the start, photographers continue to register those images for copyright in the same way that they had lithographic engraving. So even though the law didn’t quite protect photographs using that name as a medium, photographers were submitting for copyright under the assumption that it was going to be covered in the same way that visual work had been covered for decades at that point. So, the registration process pre-1870 was carried out at the local district court. So, in New York, I mean, New York is by far, leaps and bounds, the cultural center, the technological center of America in the antebellum period. And that’s one of the ways that that’s reflected is in the copyright records.

There’s over 100 volumes of copyright registration records in New York pre-1870. By comparison, all the years between 1845 to 1870, with a couple of supplements, fit into one large volume for the Washington, D.C. district. So, you would go to the local district court. There was a form that you would fill out where you just kind of put in your name in a blank, put in the date in a blank. The medium, whether it was a book or a play or a musical composition, in a blank, most of the language was really standardized. And then you would sign it and the clerk of court in the local district court would sign it. The clerk of court would also record that whole copyright language by hand in the registration book. And then starting really in the lead-up to the Civil War and especially there’s a big spike in this in 1862 with the images of the Civil War that Brady and his partners and his operators were producing. Photographers would actually also submit something that authors had been submitting, which would be like a title page from the book, or if it was a play they would kind of just rip the title of the play and the publication date out of one of the playbills.

And so the photographers started doing this as well. They would include either even just handwritten title page substitutes or pieces from the mount of what’s called a carte de visite, the large-format photograph that might be sold off like a famous president or senator, general, or something like that. And so there’s basically you fill out a form. It’s also recorded in the registration book and you might include further evidence like a title page. And that was the process until 1870 when it became centralized and transferred to the Library of Congress. And so it’s a fairly diffuse process. That’s something that makes it really difficult to say this is the first of whatever that was recorded. Those kinds of things can be difficult because the record keeping was spread out all over the federal districts at the time. But it does mean that there is a lot of paperwork out there. And so as that becomes collected, and as the Library of Congress is working right now to digitize a lot of those records, I think we’ll have a lot clearer picture of that in the years to come.

Nick Hirshon: [00:23:27] And you’ve already mentioned this a little bit, but now that you’ve established what the copyright process was like in Brady’s time, if we can talk specifically about your work on Brady’s copyright registrations. You had mentioned before that relatively few primary sources from Brady’s life have survived, specifically a lack of personal correspondence, letters and such. So, if you could speak first as to why do you think that happened with Mathew Brady? Why did his letters not survive, or was he not writing letters, or any other sort of personal effects and then how did you find the sources for your article? Again, you alluded to this, that you made use of records of the District of Columbia and the Southern District of New York. But can you discuss a little bit more about the problem that you faced with this lack of sources, which sometimes discourages historians from even starting on a research project, and then eventually how did you find the right sources to make this come to light?

Jason Lee Guthrie: [00:24:15] Yeah, great question. There’s been enough sort of secondary literature that as I dug into that I felt, OK, I’m not gonna be wasting my time to get into this. So, there is a fairly recent biography that was done of Brady, Mathew Brady: Portraits of a Nation, by Robert Wilson. That was a great sort of overall resource to help me get started. But really, who I’ve got a commend here are the just unbelievably dedicated group of amateur Civil War photography historians at the Center for Civil War photography, especially Bob Zeller, who is the president of that organization. They’ve done just a really remarkable amount of work in documenting not just Brady, but especially Brady, because his work is so closely associated with the Civil War.

[00:25:30] Just a remarkable level of detail to the point where Bob Zeller’s mentor, Bill Frassanito, was so conversant with the photography of the Battle of Gettysburg that he can tell you the exact location and time of day where the tripod was for every known photograph of the Battle of Gettysburg. That being said, Bob Zeller had gotten into the copyright records just a bit. But a lot of the work in that vein was more interested in aesthetics or technology or just the documentation of the war itself. But I knew from the work that Bob had done that there was a story to tell with these copyright records here. And as to why Brady’s personal correspondence, things like that, haven’t survived, it’s really hard to say. It does seem like he was the kind of person that was very work focused. He was very absorbed, to his own even financial detriment. He made a fortune again in the 1850s, but really exhausted that entire fortune within just a couple of years because he was so absorbed with documenting the Civil War.

So, it’s possible that he either didn’t have a lot of correspondence or wasn’t very fastidious with saving it. But the thing that was really fascinating to me was trying to look at the copyright records for what can they tell you that’s more than just, this thing was registered on this day and it did this. And just one example when we talked about those title page substitutes, that appears to be something that was fairly spontaneous on Brady and his operators’ part. Once the New York records become digitized and we can dig deeper into those, we might find that some other photographer was doing it several years earlier but, as best as I can tell so far, that was an innovation of Brady and his crew to submit those title page substitutes, and it could have been something that the clerk of court in the D.C. district requested because other people that were filing in other mediums were doing this. But I would argue that it could also be a mark of legitimacy. This could be Brady trying to legitimate his work on par with other more recognized artistic mediums like literature, music, and playwriting, and things like that. That story behind the story of the copyright records is something that I’m really interested in and I think, again, there’s a lot more to do there. But yeah, I think there is a story that those records can tell.

Nick Hirshon: [00:29:09] And one part of that story about the copyright records in 1862 you mention in your article that in that year Brady and his operators accounted for more than 80 percent of all copyright registrations in the District of Columbia and they had gone from 31 registrations the year before, 1861, to 213 in 1862. So, what accounted for this uptick? Why did they have so many more and such a wide amount of the copyright registrations in that year?

Jason Lee Guthrie: [00:29:36] Yeah, I mean, that is a great question and probably the single most interesting phenomena, at least in the material that I covered. Because when you look at that uptick in registration there, it’s obvious that something was really driving that. So, one of the big mysteries of Brady’s career, and this goes all the way back even to his own lifetime and the literature that comes out that really sort of remembers him and forgets everybody else, is why this split between Brady and Alexander Gardner? So, Gardner was Scottish. He came over in the mid-1850s to New York and kind of quickly found this position with Brady kind of in Brady’s inner circle and then Brady stays with the studio in New York because that’s the moneymaker but he sends Gardner down in 1858 to have a sister studio in D.C. and so they have all this success together.

[00:30:53] The early documentation of the war, all of the period press wants to carry images from the Brady gallery. They’re the most written about, the most celebrated. But then they have this split right during the middle of the war. And so one of the early narratives surrounding that was arguments over attribution. So, even though it’s Gardner and other photographers like James Gibson who are actually the ones going out into the field and taking the photographs, it’s Brady’s name who’s on the studio and it’s definitely Brady that’s getting the credit in the press.

[00:31:44] And so when you look at the registration spike in 1862, you see during the beginning of the year it’s primarily Brady that’s registering under Brady’s name. And then in May of 1862, Brady has a batch that he registers in his name and then some of the operators that work for him begin to register in their names all on the same days. So, you would imagine that they were all there in the clerk of courts’ office in D.C., taking up all of his time for May 5 and 7, 1862, and then Brady’s registrations and his own personal name start to really drop off. But Gardner and the other operators really continue all the way through 1862. And so I think that timeline there, it does suggest that arguments over who’s getting credit are figuring into the split. When Gardener starts his own gallery and then has a really celebrated career documenting the American West after the Civil War, he is really meticulous about who gets the copyright registered in whose name and who gets credit for the rest of his career. So, it does seem like there is something there.

[00:33:20] The things that I think it really says to me is that Brady especially thought of copyright as something that you follow the rules, you follow the procedure, and then this is what’s going to happen because this is what’s legally, morally right. If you follow the rules, you follow the procedure, you register the photograph as it’s supposed to be registered, it’s going to protect your work from infringement. That’s not the case. And I think that somewhere during this time as Brady is also exhausting his own personal fortune, he’s beginning to realize that. He’s beginning to realize that he’s gone down this path of spending every dollar he has to document the war kind of expecting that everything’s gonna come back to him eventually and he really hits this this place where he’s beginning to realize that that may not happen. Brady’s registration practices after that spike in 1862 are much lower. He primarily focuses on just the most popular images rather than copyrighting almost half of the images and putting a copyright notice on every image whether or not it was copyrighted. So, I think that it suggests not only that they felt like they had something of significant value with the images of the war, but also the spike and the subsequent drop-off suggest that Brady’s kind of coming to terms with what copyright can and can’t do. And as he’ll find out, copyright in and of itself can’t really protect his images from infringement. And that’s something that was, again, really discouraging for him.

Nick Hirshon: [00:35:31] What other steps can you tell us that Brady took to protect himself? Because you mentioned in your article one strategy he employed, a photograph he took of Major General Robert B. Potter and his staff, where Brady himself was leaning against a tree on the far right of the image. So, he’s including himself in the image as if to say, ‘This is mine. You can’t really crop me out.’ So, were there any other strategies you were taking? Can you maybe expand on that strategy of including himself in a lot of his photographs?

Jason Lee Guthrie: [00:35:58] This was something that Brady actually did. I believe the earliest photo that I’ve seen that he is himself in was from 1861, and he would really continue that practice as the copyright registration drops off a bit. The appearing in photographs individually actually picks up and I think that’s one thing that suggests that at least partially what was in his mind was this idea of, ‘OK, well, if copyright can’t protect my images from infringement, I’ll just appear in them myself.’ But to us, looking back, it can be really easy to sort of parse it out in these discrete things but it’s likely that it wasn’t that discrete for Brady at the time. Appearing in his own photographs was also kind of a mark of authenticity, an artistic mark, an artistic statement, even something that painters had done for hundreds of years would be to paint either a signature or even a small piece of themselves into their image.

And I think what Brady was trying to communicate was all of that. I think Brady was enamored of celebrity and tended to situate himself in photographs that he thought would have that celebrity cachet as well. And that practice, it really, if nothing else, one thing it really did was help to add to the legend of Brady and this idea that he was responsible for so many of the images of the Civil War, because he embraced that celebrity role in a way that really none of the other photographers at the time did. There were other photographers that made as important artistic aesthetic contributions. And there were certainly other photographers who were as successful financially. There were a lot of photographers who were more successful financially and probably had a better business sense. But I do think it’s fair to say that none really embraced the opportunity for celebrity that Brady had, especially in the 1850s with his New York studio and then with the Civil War images, as problematic as it ended up being financially. Brady had that sense that this was a moment to cement his name to his current generation and to also link his name to these images for the rest of history, and that’s something that he really embraced and really pursued even to the detriment of other pursuits like financial interest.

Nick Hirshon: [00:39:32] And if you’ll just allow me a slight detour here away from copyright and into kind of the history of photography, cause you mention in your article, the Battle of Antietam on September 17, 1862, the single bloodiest day of the American Civil War, was also a landmark for photography history. Can you just tell us a little bit about why that day was so significant?

Jason Lee Guthrie: [00:39:36] Sure. I think the easiest answer to that is this was the first time that there were widely publicized images of bodies, actual dead bodies, in the battlefield. The American Civil War was widely covered by images. The Crimean War a few years earlier was actually the first war to be covered by a photojournalist or what we now think of as a photojournalist. But the Civil War, the scope of that coverage is exponentially higher. And the Battle of Antietam was really the first time that the photographers got there quickly enough and had the technology at the ready and just sort of had their processes in place where they could actually get images of the battlefield. And I think to your point about the registration in 1862 leading up to that, as somebody that’s looked a lot at the evidence and has studied this a lot and really thought about this a lot, I think that the frenzy that was created over images leading up to it and then especially of the images of the battle, I mean, this was a huge deal in the press at the time. A New York Times writer wrote that “Mr. Brady has done something to bring home to us the terrible reality and earnestness of war. If he has not brought bodies and laid them in our door, yards, and along the streets, he has done something very like it.” So, that was a New York Times, an unnamed reporter, speaking after viewing the images of the dead from the Battle of Antietam. So, these were widely popular but then when people would actually come and see them, they would actually leave pretty depressed, pretty dejected overall. It was the kind of thing that was, like, exciting to think about, exciting to read about. But then when you actually saw them, it was kind of a turning point in public opinion for the war. And how that feeds into the copyright spike in 1862 and then the subsequent drop-off, it’s hard to say, but it’s possible that there was a sense of, we’ve really captured something and this is something of historical value.

[00:42:45] But if not, it’s going to make us rich, at the very least these are going to be very popular, we’ve got something that’s really valuable here. But then to see the impact of that and as the war really dug in around that time and sort of became very evident that this is not something that’s gonna be over right away, this is something that’s going to drag on, that public opinion shift. It’s interesting to think about how all of these things work together because those images of Antietam had a profound impact on public opinion about the war. And I don’t think that it was exactly the impact that the photographers who made the images were really expecting. So, yeah, that’s a great question.

Nick Hirshon: [00:43:36]  And I’m sure that sort of visceral image, seeing gory battlefield photos, that set the standard for what we kind of see today in the media and their choices about whether to show a photograph of dead bodies in any sort of a situation. Moving back to copyright, you mentioned in the article one of the earliest copyright cases involving photography was Brady and Gibson versus Belew in 1865. This revolved around a photograph taken of President Andrew Johnson soon after he became president upon Abraham Lincoln’s assassination. So, can you walk us through that case? What was happening, who were the parties involved, and what were they fighting over?

Jason Lee Guthrie: [00:44:17] Yeah, sure. So, here’s the important background is, if we go back to what we were talking about earlier about sort of the chronology of copyright law and how most photographers were submitting their work under the guise of that 1802 law that protected historical and other prints, photography actually gets added explicitly to copyright protection on March 3, 1865. It’s actually one of the last pieces of legislation that Lincoln signs before he’s assassinated 40 days later, whatever it is. And so when that happens, at that point, it’s not necessarily that everything before that is invalidated. That’s still for a judge to decide. But now that it is explicitly added, it has more potential to win in court.

So, of course photography is added in early March 1865. Lincoln’s assassinated in April. And then sometime at the end of April, with enough time for the photograph of Johnson to be registered on May 1, 1865, that photograph of Johnson is taken and the photograph is registered on May 1. So, a rival photographer, P.J. Belew, takes this image, the images, and this is true of all images with a copyright notice at this time, the language of the copyright notice is something that’s mandated by law. Typically it’ll say, ‘entered according to Act of Congress,’ and then have the registration date, the person’s name. And if it’s pre-1870, it’s gonna have the district court that it was registered in and that notice has to be printed really close to the photograph so that if somebody else reprints the photograph without that notice then it’s clear that they did it intentionally to evade the law as far as what the legal language says there. And that’s exactly what P.J. Belew did with this image of Andrew Johnson. It’s a fairly famous one, he’s kind of seated in this regal looking chair, slouching under the weight of the burden that’s fallen upon him, which he obviously would not bear up very well in coming years, was not the most popular president ever, but so this case of Brady and Gibson v. Belew is basically Brady and James Gibson have to take Belew to court to get him to stop infringing upon their copyright in this image. And they’re somewhat successful. By June 7, they’ve convinced a judge to agree with them that Belew did infringe upon their copyright and to prohibit Belew from printing, publishing, selling, or exposing for sale copies of that pirated version. But to me, one of the things that was really interesting about this case, so it was really interesting to find.

First off, I had only seen it mentioned in one article, an article by a woman named Josephine Cobb, who was the archivist in charge of the Still Pictures Division at the National Archives in the mid-20th century. And it shouldn’t even really properly be called an article. It was actually a transcript of a talk she gave to the Columbia Historical Society in 1963. And it’s really kind of confounded the rest of us who are studying Brady today, because parts of the talk are really heavily cited and you can find the sources that she’s talking about. And then in the middle it starts to decrease and then by the end of her talk the citations aren’t there. And so there was this really brief mention of this case but no other writer that I’ve read had written about it and possibly hadn’t seen it. But so while I was at the National Archives searching for this thing, just the fantastic staff there were able to really stick with me for a few days, and we found it. We found the original case file for this case, and it actually even had an ancillary document in it from, I believe, 1948 that Cobb herself had signed about where the original photo that was entered as evidence, like where it should be filed, should it be filed in that case file or in the still pictures. This case that has been largely forgotten to history is significant on a number of levels I think. It’s certainly among the earliest cases of photographic copyright infringement, again, because of the diffuse nature, how everything worked in the district courts, it’d be really difficult to make a ‘this is the first’ claim. Possibly when all these rest records get digitized and you can kind of cross-reference them, we might be able to make that claim. But it’s certainly among the first because you’re talking about the entire case happens within about three months of photography being added to copyright protection. But more than that, what I think was really interesting about it is how it shows the limits of copyright. So, Brady and Gibson won their injunction against Belew but there’s nothing in the case file and nothing in the gallery business records that do exist that I’ve seen that suggests that they got any remuneration from Belew. Like whatever money that Belew made off of it, maybe they got some back, maybe they didn’t.

But at this point in time, the amount of time that Brady and Gibson gave to fighting this infringement, because Brady would have been primarily based in New York at this time but he had to pursue the infringement in D.C. If anything, he probably lost money by pursuing this just from losing the normal course of business, and it almost certainly did not result – fighting this infringement did not result in a financial reward that was really worth the time and energy that it took. And I think that’s really important to understand, is that copyright is great if you want to have a notice printed with your name on something, you feel like it gives you that sort of legal cachet and all of that. But it doesn’t necessarily guarantee that you’re going to have a method to stop someone from infringing. And then if they do infringe, that you’re really going to have a way to recoup that infringement. And a lot of that is just part of the ephemeral nature of creative work. And that’s something that Brady found out pretty quickly, and I think that’s the real importance of this case and what it illuminates to me.

Nick Hirshon: [00:52:47] And there’s one other case that you mentioned. You described the federal court decision in New York the next year in 1866, the case of Wood vs. Abbott. So, can you again outline for us the significance of that case to the history of photography and copyright?

Jason Lee Guthrie: [00:53:01] Right. So, photography is added to the list of mediums in 1865. So, that list of mediums, again, has grown. 1790: map, chart, book, or books. 1802: historical and other prints. 1831: musical compositions. So, 1865, photography, specifically photography, not just the prints, are added. But the status of anything that was registered for copyright before 1865 is still really undecided at that point. I would argue that at least what the legislative intention of adding photography as a medium in 1865 was certainly not to invalidate the previous copyright. Politicians of this era, they really understood the power of photography, none more so than Abraham Lincoln himself. And so to me it’s unlikely that the legislative intention was to say, “OK, March 3, 1865, we add photography, everything before that is invalidated.” And that’s something that in the way that the copyright legal process works is really up to the courts. So, about a year later, as you said, 1866, this case comes up in federal court in New York. And the judge in that case decides that photography as a medium does not, in fact, qualify for the definition of a print in the sense intended by the 1802 act.

Now he’s making a legal distinction. He’s not making a comment on the value of photography or what it means to society or whether it’s an artistic medium. He’s just simply saying that basically if photography was so different than engravings and the lithographs that were made from daguerreotypes, that it needed to be added as its own unique medium, then it can’t be something that falls under that original definition. And so the effect of that, what that does, is it immediately invalidates every copyright that was registered before March 3, 1865, which is of course to say the vast majority of images of the Civil War. The photography trade press at the time was really robust and one of the most well-known publications was Humphrey’s Journal. They wrote of that case, Wood v. Abbott, that it’s an interesting example of how the changes and advances in science compel changes in the laws.

[00:56:08] But it is easy to see how for Brady and the other photographers how this could be really discouraging, how this would lead to a situation where later in life you are really upset that all this work that you did, your rights in it, and really something that you had kind of depended on to help secure your ability to profit, to at least make your investment back and recoup your costs, that that’s the way that it went, that those copyrights were invalidated. And so it’s a very important moment in the history of photographic copyright. And I think it does help to illuminate this sort of convoluted way that copyright works that’s much more complex than the average creative person understands. And, uh, yeah.

Nick Hirshon: [00:57:16] Terrific. Well, thank you for taking us through those three cases in such detail. You had mentioned earlier – as we try to get back to Brady and wrap up our discussion of his life and career – what happened to him after the war. So much of the focus is, as you said at the start, on those five years of the Civil War and his famous photographs. We talked about what he did beforehand. You started talking a little bit about afterwards that he became kind of bitter, and that the title of your article is “ill-protected portraits,” which comes from a phrase that Brady used to describe how most American photographs were infringements of his own. So, what comes of Brady after the war?

Jason Lee Guthrie: [00:57:52] Sure. So, James Gibson was actually one of the photographers that initially went with Gardner after the split somewhere late 1862 early 1863, but they sort of make up after the war and Brady is concentrated back in New York. He’s trying to rebuild the business that he had had there before the war. The country has changed to the point where yes, New York is still the cultural and technological center, but D.C. is really cemented in a way that it was as a locus of power after the Civil War and he needs to have a presence there. So, he hires James Gibson. They have a partnership. And Gibson is running that D.C. operation. That’s the nature at the time of that case. Brady and Gibson v. Belew. But really before even 1870, Gibson’s run the D.C. business completely into the ground, he skips town and nobody ever really hears from him again. He kind of falls off the historical record. And Brady just really struggles and never does really recapture that. He has a nephew. As far as we know, he has a nephew and as far as we know, Brady never had any children of his own. But he does have a nephew named Levin Handy that goes into the daguerreotype business as well. And Brady will kind of work for him and they’ll sort of use Brady’s name to get business, especially celebrity business. But he just, he never is able to build the same level of financial income or really even celebrity cachet that he had before. And part of that is because he spends a lot of his time trying to get different forms of repayment for the images that he took of the Civil War. So, a lot of those were sort of traded to the E. & H. T. Anthony Company, which was a photographic supply company, so that he could have a steady stream of the photographic supplies that he needed to document the war. And he didn’t have cash, so the only thing he could trade was the images. But then eventually he kind of gives up on selling them outright or some benefactor buying them and he’s really counting on the government giving a fair amount for these images. But he really hits a, quite a few roadblocks in that process. And part of which is that the government had their own contract photographers that were working under the auspices of the Army and those photographs already inherently belong to the government because they were done basically under contract. So, Brady spends that second half of the 19th century trying to recover what he’s lost and he’s never able to do it. But if there is a silver lining here or at least something that I think is really important to sort of consider with this, I would argue that Brady really does achieve the thing that was most important to him, and that is that his name was forever linked, in his own time, even to ours, to these images, especially the images of the Civil War. And I think when it really came down to it, Brady was more concerned about the celebrity status than he was about the economics. And you can see that in the material economic transactions that he made, including his use of copyright. Like anybody, I’m sure he would have loved to have found fortune as well as fame. But like a lot of creative people, fame was the more important and when he had to choose between the two, he chose the fame. And he’s dead now. The money’s not doing him any good. But here we are still talking about him decades later, and I think that that is something that would have brought him at least a degree of satisfaction.

Nick Hirshon: [01:02:41] And you also mentioned in your article how Brady more than any other American photographer, you feel, fulfills this idea of “author function” espoused by the French philosopher Michel Foucault that allowed mass-produced images to be turned into a marketable commodity. So, what you’re just saying, that he has a legacy, that he is still valuable to society today in the history of photography, copyright, and all that, can you explain as the last Brady question there, about his “author function” and how he represented that?

Jason Lee Guthrie: [01:03:17] Sure. So the idea of an “author function,” what Michel Foucault is writing about there is really authors of books who, their celebrity status is beginning to be understood and used to advertise and market their work. Now that’s different from photography in the sense that by the time period that Michel Foucault is talking about, the 19th century, books and writing have been around for centuries at that point. Photography’s brand new. So, to me the important thing to understand there is that when photography was first coming about, it was often actively positioned not as an artistic medium, not as something that had an artist behind it or an author behind it, but as a product of nature or a product of the sun. And this was done to give it sort of a mark of authenticity that set it apart from portrait painting. Again, just like literature, painting art had a long history. And at first, to legitimate itself, photography had this need to sort of say why it’s important or why do you need to take a photograph? You could just have one of the great paintings. The kings and dukes and the clergy and presidents and senators or whatever, when it first came out, they’re still working in a cultural moment where the biggest thing that you can have done to have your memory is have your portrait painted. So, how are you going to convince me to let you take my photograph instead?

And so there was initially this big push to narrate photography as a product of nature, a product of the sun, but something that’s a product of nature, a product of the sun, is not eligible for copyright in the sense of especially the Anglo-American understanding of copyright. Copyright in the English tradition, and the English tradition is passed down directly to the founding fathers’ understanding of copyright and the way that it works. It’s really all about not even like a moral right that a creative artist has with this almost divinely inspired thing they’ve made. It’s a statutory right. Like the rules are, if you make something and you register it and you follow all the steps of the registration whatever they may be at that point in time in history, then you did X and Y should happen. And Y is the protection of your work from infringement and the ability to recoup moneys that are made if your work is infringed upon. So, for photography to make this transition from something that’s a product of nature, of the sun, to something that is human authored is something that was necessary to happen in the legislative mindset and even in a broader sense, the public opinion mindset. And Brady is at least a very important part of that. While other photographers were referring to work as products of nature, of the sun, there’s almost no record of Brady doing that. He thought of himself as an artist and he referred to himself as the author or designer or artist of his work.

[01:07:04] One of the more interesting artifacts that we looked at through this was, on the back label of certain carte de visites from the Brady gallery series during the Civil War, on the back label there was information about the series number and the title of the photograph and the date that it was taken, but Brady actually added this bit of language, “the photographs of this series were taken directly from nature at considerable cost. Warning is therefore given that legal proceedings will be at once instituted against any party infringing the copyright.” And this two-sentence statement here is interesting on a number of levels. The phrase “taken directly from nature at considerable cost” is, as far as I can tell, the closest that Brady ever got to allowing for nature’s influence on the authorship of his work and then of course he immediately emphasizes not the part that the sun made this image but his cost in procuring them.

[01:08:30] And then it also shows that Brady really understood that part of the power of copyright was just the fear and intimidation factor. When you’re threatening on the actual image itself that legal proceedings are gonna be at once instituted, what you’re trying to do is you’re trying to stop infringement before it even happens, possibly because you’re aware that if the infringement happens there’s not as much you can do. But if people don’t know that and they’re just afraid of doing it, maybe you can discourage them from doing it at the beginning. And that’s part of what, in my dissertation and in the sort of somewhat extended dissertation version of this work, that’s part of what I called the ritual economy of copyright. So, the political economy of copyright obviously is going to be really concerned with this idea of how is the economics of the creative industry structured and how does that influence the superstructure of the way that the language of laws comes out. And certainly the way that they’re applied. But there’s also this, like, social aspect of copyright that it’s enforced really unevenly based on public perception of the value of a certain type of medium. And this is something that we’re still really grappling with today.

[01:10:05] The founders were most concerned with copyright, with making sure that the public domain was protected. They wanted the American farmer to be as well read as the English nobility. Now they also understood that if there wasn’t any incentive to write new works or to produce visual works and other things like that, like if everything just went immediately into the public domain, then there would be less knowledge created. So, they understood that they had to give a limited time and a limited monopoly incentive to content creators to create content. But they wanted to make sure that it didn’t turn into this long, ongoing thing.

[01:10:53] So that works would quickly enter the public domain and then the diffusion of knowledge would be widespread. That’s almost the exact opposite of what we have now. If you look at, like, the recent, almost completely approved merger between the Fox entertainment business and Disney, I mean, Disney was already the most powerful owner of copyrights in the world and now that power is even more solidified. And whenever the copyright terms like on early Mickey Mouse stuff or whatever are coming up for renewal, they have the lobbying power and the economic resources to get those terms extended. Whatever is going to protect their interests, their business, they have the resources to really voraciously pursue even street art of Mickey Mouse if they feel that that is in their best interest. And so understanding like how we got here with copyright, the legal history is really important but it’s also really important to understand some of this creative history as well, especially how creative people have used and understood it. Mathew Brady is a small piece of that but I think an important piece, because he’s really the one in America that helped transition photography as a medium from something that we understand as authored by the nature, by the sun or by nature, to authored by a human artist. And that’s the widely accepted view today. That view allows for copyright and other visual mediums to be eligible for copyright protection, and I think that it just really speaks to the importance of this work and the importance of doing more work in this vein in the future.

Nick Hirshon: [01:12:58] And I can’t thank you enough for spending so much time giving us intricate detail about Mathew Brady, about copyright. You’re clearly an expert in this field and we appreciate your sharing your expertise. One final question that we always ask guests on the Journalism History podcast — you say you’ve listened before, so you’ve probably heard it, maybe pondered it yourself. Why does journalism history matter? You spend so much of your research, your dissertation, your life looking into the history of journalism. So why do you think in a broad way journalism history matters?

Jason Lee Guthrie: [01:13:30] Well, I think journalism history matters because journalism matters, and we are in many ways in moments of crisis over a lot of things in our current American culture today. I mentioned the somewhat of a crisis over copyright ownership and the monopoly that it’s really piled up for publishers and distributors. This is something that not only affects entertainment. It affects the journalism industry as well. And I think that history is something that can help us to understand how we got where we are and can at best help us to chart a new future for where we’re going.

Nick Hirshon: [01:14:17] Thanks for tuning into this episode of the Journalism History podcast, and additional thanks to our sponsor, the English Department at the University of Missouri-St. Louis. Until next time, I’m your host, Nick Hirshon, signing off with the words of Edward R. Murrow: “Good night, and good luck.”

Leave a Reply

Fill in your details below or click an icon to log in: Logo

You are commenting using your account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s