ClassyArts Blog

February 19, 2010

The Changing Face of Photography

Filed under: Dating Images — ajmorris @ 8:31 pm

It always amazes me when I read some historian describe the Carte de Visite (CDV) as an ‘instant hit’ in the United States, after its 1854 invention by Disdéri of Paris. They must not have looked at any major CDV collections.

I have a collection of thousands of digital images of dated photographs, which provides a major component of my research into dating images. I went through and looked at each type of photograph, and counted up the frequencies and distribution by type. I’ll share a summary of that study below.

The Collection

First however, I need to point out some of the limitations of the data. Only a small portion of these images are from my own physical collection of photographs — the rest have been found online, at auction sites and through dealers, family and local history sites, etc. Some of them have dates written on them, others are dated by knowing the dates of birth for young children portrayed, and judging their ages when the photos were taken. Sometimes a photographer’s imprint or copyright notice provides the date. As a whole, the majority of dates appear to be sound — the date fits the style of image and mounting, etc. But I’m sure they are not 100% correct.

Moreover, there is a bias in the collection. Images from 1864-66 are grossly over-represented, because so many of them have dated tax stamps on them. Tintypes and cased images are grossly under-represented, because so few have dates written on them — those formats are just not as easy to write on as a card mounted image.

So take the following conclusions with a large grain of salt. I believe the trends are substantially correct, though the percentages are very approximate.

Remember too that these are images from the United States and Canada, the results would doubtlessly be different if the collection were European based. England, for example, had fewer daguerreotypes and more calotypes. The cabinet card and CDV formats seem to have remained popular longer in Europe than they did here. I have also seen ambrotypes from the 1890s from Britain, though none that late from this side of the Atlantic. I’m sure there are other differences I have not yet noticed as well.

The Data by Decade

1840s

Not surprisingly, 95% of the images from the 1840s were daguerreotypes. The rest were calotypes.

1850s

The 1850s saw the introduction of albumen prints, tintypes, and ambrotypes, as well as salt prints (resembling calotypes but made from glass plate negatives). But daguerreotypes are still 85% of our dated collection for that decade. Ambrotypes make up about 7%, and the other types make up the rest. We have no CDVs from the 1850s, though some American photographers had begun making them by the end of the decade.

1860s

The 1860s probably had the greatest diversity of photograph types, as photographers began to experiment with the various new formats discovered in the preceding decade. Still, it was the CDV that dominated the scene, with 80% of all our dated images being CDVs. Ambrotypes still made up just about 7% of the images, tintypes another 6%, and only 4% were daguerreotypes — and those mostly from very early in the decade. The cabinet card was said to be introduced about 1866, but we have none from the 1860s in the dated images.

1870s

Most of the cased images dropped out of the running, with only very few ambrotype and cased tintypes being seen. The CDV continued to dominate the market, with 80% of our dated images being CDVs. Tintypes grew to 10%, mostly in paper mats. Only 5% of our dated images from the 1870s are cabinet cards.

1880s

The cabinet card comes into domination in this decade, with 65% of all images in the database. CDVs still make up a strong 30%, but the distribution is strongly skewed toward the early years of the decade.

1890s

The cabinet card remains dominant in the 1890s, with 75% of our dated images from that decade. Another 15% are what I call matted images — photographs pasted to a board, but unlike the CDV and cabinet card, there is a wide margin around all sides of the image. Some of these matted images are cabinet-card sized, and so are often lumped in with them, but I believe they are sufficiently significant to deserve their own terminology. The decade also saw a wide variety of mount sizes, both for traditional card-mount styles (where the image is nearly at the edge of the card on three sides) and the newly popular matted formats. Note that matted photographs go back to the 1850s in the collection, but were never frequent enough to deserve mention before the 1890s.

1900s

The first decade of the 20th century saw matted photographs of various sizes dominate the scene, with 70% of all images from the decade. Another new format, the postcard, came into play with 12% of the images. About 7% of images were now left loose, unmounted. Cabinet cards fell to just 5% of our examples, and most for those from the first few years of the decade.

1910s

By the 1910s the photo postcard was all the rage, with 40% of our dated images being that format. The unmounted, snapshot style images grew to 30% of the total, and matted images — mostly the work of professional photographers — dropped to 25%.

1920s

By the roaring 20s almost every family had their own camera, and unmounted prints now dominate the collection at 70%. Matted images fall to 15% of the examples, and postcards just 7%.

1930s

With the 1930s the snapshot percentage continues to increase, with 80% of the images now unmounted. Matted images remain at 15%, representing the professional photographer’s share in the market. Photo postcards are only 4% of the collection for that decade.

1940s

With the 1940s the snapshot continues to dominate numerically, now with 90% of all the images for the decade. Just 7% of the 1940s photos were matted.

Conclusion

These are the broad trends for the first 110 years of photography in Northern North America (i.e. North of the Rio Grande). Within each trend are a variety of smaller sub-trends for variants and elements, that allow us to narrow the date of any particular photograph to a span of from one to five years, depending on the particulars. Exploring those variations and nuances is what the Identifying and Dating American Photographs section of the ClassyArts site is all about. That part of the site will go online soon, for paid subscribers only. Subscribe today and support this work, and also gain access to our huge database of photographers, growing archive of old images, and soon-to-be-added database of lesser-known artists.

February 9, 2010

Most Antique Images Are in the Public Domain

Filed under: Copyrights — ajmorris @ 2:30 pm
Elizabeth Loring Reed (1780-1854) daguerreotype of earlier painting

Elizabeth Loring Reed (1780-1854) daguerreotype of earlier painting

Old photographs, including those being sold on eBay, displayed on museum and historical sites, or sold by online vendors — are often in the public domain, despite attempts by some of their owners to assert claims to copyright. As early as the 1860s the courts recognized the rights of photographers to copyright their images. Determining if a particular photograph is in the public domain, however, can be a complex and daunting task.

The relevant factors include answers to these questions:

  • When was the photograph taken?
  • Who was the photographer?
  • Was the image ever published?
  • If published, was copyright secured and/or renewed?
  • Was the publication of the image authorized by the copyright holder?
  • Is the photographer deceased, and if so, when?

When was the photograph taken?

A Sarony photograph of Oscar Wilde (c) 1882

A Sarony photograph of Oscar Wilde (c) 1882

It might seem a simple matter to determine when a photograph was taken — and sometimes it is — but other times the matter remains difficult to determine. Photographs can be copied, so to the first consideration is whether the image in question is an original or a later copy. For copyright considerations, the date the photograph was taken is what is important, not the date it was printed. An image printed from the original negative a hundred years after the negative was taken, is still a 100 year old photograph, for copyright purposes (unless it was published, which is another issue).

But what if I take a camera and take a picture of the old photograph, or use a scanner to copy it? Doesn’t that create a new photograph that I have copyright to?

Well no, it does not. Way back in 1882, in the famous case of the Burrow-Giles Lithographic Co. vs Sarony, the supreme court confirmed that the lower court was correct in supporting Napoleon Sarony’s copyright to an image of Oscar Wilde that the lithographers had copied without permission. Burrow-Giles argument that the lithograph was a new creative work was not accepted. The litho image was derived from the original photograph, and hence what we call a derivative work today, which still is protected by the original copyright.

No one would argue that an author’s copyright exists only in the original manuscript, and not in printed copies or spoken readings. By the same token a photographer’s copyright applies to any copy of the original image, no matter how it was made.

Copyright also requires that the original photograph be an original work to qualify for copyright protection. Burrow-Giles argued that Sarony did not create Oscar Wilde, and so had no right to his image. The court found however that Sarony had enough creative input into the composition, lighting and posing to meet the originality clause of the copyright law.

If Sarony had been taking a picture of painting of Wilde, the work would be derivative, and copyright would belong to the artist who painted the image, not Sarony and for his copy — despite the fact that making a good copy could be more difficult and require more creativity than taking a portrait from life — and the relevant date would be the date of the original painting, not the photograph.

Who was the photographer?

Identifying the photographer of an old image is not always clear-cut — in fact it may not even be possible. Some images are marked with the name of photographer — but even that doesn’t mean that photographer took the image. Sarony never actually took photographs in his studio — he had a camera operator to do that. Before the distinction was made clear, the assumption was that any work done by employees was automatically under copyright to the owner as hired works. That is still true today, though it may be altered by contractual agreements.

One might think then, that hiring a photographer to take your portrait would establish a ‘work for hire’ and the subject would own the copyright. You are not, in fact, hiring the photographer to take your picture — you are allowing the photograph to take your portrait. The payment (if any) is for the print or prints the photographer sells you. The photographer retains the negative, if there is one — and that is evidence that your purchase does not extend to copyright.

Many other photos have no identification on them to indicate who took the image. Most family snapshots are in that category, as well as many published images. The fact that the original photographer is not known does not mean that photographer does not still own the copyright.

Was the image ever published?

Many people think all photos made prior to 1923 are public domain — in fact only photos published prior to 1923 are now in the public domain. Photos that were never published (such as most family portraits) may be protected up to 120 years from the date of creation — as in the case where the photographer is unknown, or is a corporate entity.

Earlier copyright law had shorter time limits on the duration of copyright than we have today. Images that were published came under those limits, and if they entered the public domain they are still in the public domain. Unpublished works, however, were included in the acts extending copyright of published works that had not entered the public domain at the time the changed law went into effect.

Earlier copyright law did not specifically distinguish between published and unpublished works, but the new law, which applies to many unpublished works, says copyright extends a maximum of 95 years from publication or 120 years from creation, whichever is less.

If published, was copyright secured and/or renewed?

Very few people applied for copyright renewals when their first copyright was about to expire. Anything copyrighted before 1923 has expired copyright because they entered the public domain before the law was changed. But images published between 1923 and 1960 fall in the ‘gray zone’ — they are public domain if a copyright extension was not filed, which applies to over 90% of all cases.

The old copyright was very strict, and published material was required to include a copyright notice. There was a wiggle-room exception for accidental omission of a notice, but such a situation would be difficult to prove in retrospect. So many images, such as old postcards, were never protected by copyright because they were published without any copyright notice. (This refers to publishing in the USA, different rules apply to foreign publications.)

Was the publication of the image authorized by the copyright holder?

Publication of an image does not affect its copyright status if that publication was itself a copyright infringement. Every day, thousands of images are published on the internet — posted on eBay or Flickr, or on private websites — without the permission of a valid copyright owner. The practice is widespread because the odds of being detected are slight and the cost of seeking legal redress would be excessive. Those same conditions applied to print publishing 50 or 100 years ago, so many images were published without permission. Such images fall under the more liberal rules for unpublished works, and may thus be protected by copyright even if they were published before 1923.

Is the photographer deceased, and if so, when?

If the photograph was not published with permission of the copyright holder, then it falls into the unpublished works category, and copyright exists for 120 years from the date of creation or 70 years after the photographer’s death, whichever is shorter. Almost all family portraits fall into this category, excepting only very famous people. For most families, if any portraits were published in old genealogies, it was without the permission of the photographer.

In Summary

In the US, photographs are currently (2010) in the public domain if:

They were created over 120 years ago by anonymous photographer (pre-1890)
or
The photographer died over 70 years ago (pre-1940)
or
They were in the public domain when the law changed (published pre-1923 or published without copyright notice pre 1963 or published without copyright renewal pre 1963)

Oh yes, and a photographer can specifically place an image in the public domain, even if it was just taken yesterday. There are lots of those on Flickr, but it is only valid if they owned the copyright to begin with! Many people designate family photos or pictures they have found online or purchased at a flea market as ‘public domain’ when they are not.

Copyright © 2009 - 2010 by Andrew J Morris