Why President Lincoln Put the Civil War on Hold to Extend Copyright Protection to Photographs

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We’ve taken advantage of past Presidents Days to recount George Washington’s role in the history of U.S. Copyright law, specifically the birth of fair use. That role was not insubstantial, but it was posthumous and, therefore, unwitting. By contrast, Abraham Lincoln’s contribution to copyright law was likely quite intentional.

On March 3, 1865, President Lincoln signed into law “An Act to Amend Several Acts Respecting Copyright,” the galley of which contained the subheading: “Photographs … may be copyrighted.” This was the first U.S. statute authorizing copyright protection for photographs, including separate protection for photographic negatives.

In one sense, 1865 was a perfectly reasonable time to pass the act. Just three years earlier, England had granted similar protection to photographs via the Fine Arts Copyright Act, and we’ve always been playing cultural catch-up with those folks. But that alone can’t explain the timing. There was, after all, a war on. Why did Lincoln take the time to extend copyright protection to photographs while the army of he Confederacy was still in the field? What’s with the urgency?

Well, maybe there was none. Attributing the precise timing of a relatively minor piece of legislation to a sitting President with a bicameral legislature is a little beyond the ken of your friendly neighborhood copyright blogger. However, Professor Patry has reasonably opined (as recounted by the Ninth Circuit in Ets-Hokin v. Skyy Spirits) that the “impetus for this act was likely due in part to the prominent role [of photos] in bringing the horrors of the Civil War to the public.” Others guess that the timing of the act was prompted more by a specific sense of gratitude to photographers like Mathew Brady, who acted as witnesses to the important events of the day and as traveling companions to the participants in those events, thus essentially inventing photojournalism. In fact, Brady’s photographs were among the very first registered under the new law.

Of course, it is not completely speculative to wonder if there’s even more to the story, that is, whether a law protecting a new cutting edge technology needed the support of perhaps the first President who accepted that new technology’s power and understood its potential. Lincoln was born in 1809, only a few years before Nicéphore Niépce combined light sensitive paper with a camera obscura, leading ultimately to the creation of the first permanently stable photographic image. The first confirmed photographic portrait of Lincoln still in existence was taken when he was about 35 years old, and debate still rages as to whether others have found even older images.

Moreover, although Lincoln was not the first U.S. President to be photographed at all (that honor goes to JQ Adams), he was one of the first politicians to cultivate a photographic public image. Brown University librarian and one-time White House speech writer Ted Widmer recounted in the New York Times that, while running for office, Lincoln distributed photographic campaign buttons with his own ferrotype likeness (you can still pick them up on eBay if you have a spare thousand dollars or so). In fact, in 1861, Lincoln credited his presidential win to two factors. First: the famous Cooper Union speech. Second: Brady. Later, during the war, Lincoln was to continue to welcome photographers into his retinue because, as Widmer notes, he “understood that they were helping him a great deal as he tried to give the Union a face — his own.”

 

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