Tuesday, May 31, 2005

The Eye of the Dead Man* (19th c. Photography, Copyright and the Law)

"Prior to the 1890s, [American] courts generally held that the photographic subject was protected from the unauthorized reproduction and sale of their portraits, a ruling that put an odd spin on questions of ownership, copyright, and commodification.[21] The ability to restrain the unauthorized reproduction of one's image was not founded upon the right to 'privacy' (a distinctly American legal concept that would not come into use until the end of the century), but, as this 1884 quotation from the Chicago Legal Times demonstrates, upon the principle of vested ownership in one's image. 'So, if a likeness, once lawfully taken, were, without permission, to be multiplied for gain... it might be considered whether there was not a violation of a sort of natural copyright, possessed by every person of his or her own features, for which the courts would be bound to furnish redress.' In the eyes of the court, the use value of the photograph resided not in the object itself but in the quality of the image captured upon the photographic plate: the photographic subject's 'right to control the market of her own beauty could not have been denied her by any court.'" -Thomas Thurston, "Hearsay of the Sun"

This whole article is really very good, and not least for its attempts to, as Thurston says, "help to establish standards in incorporating primary texts into critical essays, foster collaboration among scholars from different disciplines, and perhaps lead to the development of more ambitious legal-historical hypertexts."

Thurston describes the article as a consideration of "the legal reception of photography as a type of evidence in the appellate cases, legal treatises, and legal journals of the last half of the nineteenth century." I think it is also an excellent case study for a history of the reception of new technologies (which is an aspect of the PhD I'll be starting in October at The University of Chicago, with equal interests in the role of critics in the reception of new technologies, in technology+art, and in the operation and creation of publics).

Thank you Thomas Thurston for the incredibly well researched and fascinating and useful paper. And thank you Anne Galloway for the reference.

*in one of the cases that Thurston describes, a photograph is analogised to the eye of a dead man, because like the eye of a dead man [by which the lawyer means, a murdered man], a photograph permanently fixes the last thing it sees. By comparison—and this is the pointy end of the legal stick being brandished here—the eye of the live man registers only fleeting impressions, unfixed, impermanent, fallible and therefore far less useful (evidentiary) in a court of law than photographs...or the eyes of dead men. As Thurston carefully describes, photographs were not immediately and enthusiastically admitted into courts of law as evidence.
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