Brauneis on Fine Art and the Copyright Act of 1870

Robert Brauneis, George Washington University Law School, has posted Understanding Copyright's First Encounter With the Fine Arts: A Look at the Legislative History of the Copyright Act of 1870, which appeared in the Case Western Reserve Law Review 71 (2020):

In 1870, Congress made its single largest addition of categories of copyrightable subject matter, expanding copyright protection to cover “painting[s], drawing[s], chromo[s], statue[s], statuary, and . . . models or designs intended to be perfected as works of the fine arts.” For the first time, it included works not designed or intended to be created and distributed in multiple copies, and it aligned copyright with the “fine arts” as opposed to the “mechanical arts,” a revision of the earlier understanding that copyright would cover “Science” as opposed to the “Useful Arts.” Why did Congress so act?

A thorough examination of the legislative history of the 1870 Act, and associated historical documents, leads to the following conclusions. First, artists sought protection for paintings and drawings in part to ensure enforceable exclusive rights for prints as the industrial organization of print production changed. Second, the drive for protection of paintings and drawings was also motivated by advances in reprographic technology, particularly color lithography. Third, expansion of an existing scheme of protection is politically easier than creating a new scheme of protection and negotiating all of the dimensions from scratch. Fourth, artists became better organized in associations like the National Academy of Design, and art publishers became substantial industrial ventures that employed dozens of workers in large factories, which increased their political visibility and power. Fifth, the proponents of expansion faced no organized opposition. Sixth, the 1870 Act’s expansion had few ties or references to earlier English expansion, reflecting the increasing independence of US legal culture from English legal culture after the Civil War.

--Dan Ernst