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a photograph was a writing, and so could be protected,
but only if the photographer had created an original
intellectual conception of which he could be considered
the ‘author.’ Napoleon Sarony’s images of Oscar Wilde
passed the test with ease but some photographic circus
posters later failed. One further problem remained: the
United States approach was heavily protectionist, and
until 1891 works by non-resident authors, including
photographers, could be pirated with impunity.
In the United Kingdom and America, statutes ex-
plicitly gave copyright to photographs. Countries in
the civil law tradition followed a different route. By
the law of July 1793, the National Assembly of France
gave exclusive rights to ‘les auteurs d’écrits en tout
genre, les compositeurs de musique, les peintres’ and
others to sell and distribute their works in the Republic.
Following this lead, albeit slowly, other countries gave
authors of at least some artistic works varying degrees of
protection against copying: Prussia in 1837 for drawings
and paintings, Austria in 1840 for unspecifi ed works of
art, Spain in 1847 for paintings and sculptures. No-one
knew though whether these laws applied to photographs:
was a photograph a work of art? It was not until No-
vember 1862 that the courts in France concluded, in
a case brought by the carte de visite company Mayer
and Pierson, that it could be, so long as the author had
invested his own personality in the work and had not
merely used a machine to reproduce nature. The Belgian
courts followed a similar route, but many European
states, notably in Germany and Scandinavia, regarded
photographs as purely mechanical products deserving
only very limited protection.
Protection in countries other than the photographer’s
own was provided until 1886 by bilateral treaties. This
caused problems for trade, since provisions varied so
widely and protection was available only if a treaty
had been agreed. The Berne Convention brought an
international system of protection, though its value was
much reduced by the absence of the United States which
continued to rely on bilateral treaties. Moreover there
was no agreement on photographs, which were not men-
tioned in the main text at all but only in a protocol. Some
countries (such as the United Kingdom and France)
accorded photographs the status of artistic works, while
others (led by Germany) declined to do so. The solution
to these differences was a compromise which permitted
both approaches, but it was inequitable in its effect. A
state that recognised photographs as artistic works was
obliged to follow the basic Berne principle of granting
protection under its national law to works created by
citizens of any member state of the Berne Union, but
no reciprocal protection was available for their citizens
in countries which did not treat photographs as artistic.
This problem was not fi nally resolved until well into
the twentieth century.
The Berne Convention was signed by only ten
countries, Belgium, France, Germany, Great Britain,
Haiti, Italy, Liberia, Spain, Switzerland and Tunisia,
but its effects were more widespread than this small
membership implies. Japan, for instance, recognised
photographs as artistic works the year after it was signed
and the colonies of Britain and France mostly adopted
the copyright laws of their mother countries. By the end
of the century, most commercially active photographers
knew where they stood in the countries with which they
dealt, even though the protection they were able to enjoy
varied hugely.
Tim PadfieldSee Also: Daguerre, Louis-Jacques-Mandé; Talbot,
William Henry Fox; Fenton, Roger; Cole, Henry;
Frith, Francis; Sarony, Napoleon and Olivier François
Xavier; and Mayer & Pierson.Further Reading
Copinger, W. A., The law of copyright (London 1st ed. 1870,
2nd ed. 1881).
Blaine, D R, On the laws of artistic copyright and their defects
(London 1853).
Cornish, W. R., Intellectual property (4th ed., London 1999).
Drone, E. S., A treatise on the law of property in intellectual
productions in Great Britain and the United States (Boston,
MA 1879).
Frith, Francis, ‘The Art of Photography’ in The Art Journal (v,
1859) quoted in Mike Weaver ed, The Art of Photography
(London 1989).
Garnett, Q. C., Kevin and Alistair Abbott, ‘Who is the ‘author’
of a photograph?’ European Intellectual Property Review
1998, 204–209.
Gendreau, Ysolde, Axel Nordemann and Rainer Oesch, eds.,
Copyright and photographs: an international survey (Lon-
don 1999).
Nimmer on Copyright (New York 2000).
Padfi eld, Tim, Copyright for Archivists (London 2001).
Ricketson, Sam, The Berne Convention for the Protection of
Literary and Artistic Works, 1886–1986 (London 1987).
Society for the Encouragement of Arts, Manufactures and Com-
merce, Report of the Artistic Copyright Committee to the
Council (London 1858).
Scrutton, T. E., The law of copyright (4th ed., London 1903).
Sterling, J. A. L., World Copyright Law (London 1999).
Forbes, J. Wright, ‘Copyright in photographs’ Scots Law Times
vol 8, 1900, 94–95.CORNELIUS, ROBERT (1809–1893)
Pioneer daguerreotypist and businessmanRobert Cornelius was born in Philadelphia on 1 March
1809, the only son of Christian Cornelius to live to
adulthood. Christian had worked as a silversmith before
establishing himself as a successful lamp and chandelier
manufacturer. Robert’s name fi rst appeared in a 1835
Philadelphia business directory listing his occupation as