2016 Theses Doctoral

Photography Distinguishes Itself: Law and the Emerging Profession of Photography in the Nineteenth-Century United States

Berger, Lynn

This dissertation examines the role of the law in the development of photography in nineteenth century America, both as a technology and as a profession. My central thesis is that the social construction of technology and the definition of the photographic profession were interrelated processes, in which legislation and litigation were key factors: I investigate this thesis through three case studies that each deal with a (legal) controversy surrounding the new medium of photography in the second half of the nineteenth century. Section 1, “Peer Production” at Mid-Century, examines the role of another relatively new medium in the nineteenth century – the periodical press – in forming, defining, and sustaining a nation-wide community of photographers, a community of practice. It argues that photography was in some ways similar to what we would today recognize as a “peer produced” technology, and that the photographic trade press, which first emerged in the early 1850s, was instrumental in fostering knowledge sharing and open innovation among photographers. It also, from time to time, served as a site for activism, as I show in a case study of the organized resistance against James A. Cutting’s “bromide patent” (1854-1868). Section 2, Spirit Photography, Boundary-Work, and the Socio-Legal Shaping of Photography, focuses on the attempts of Oscar G. Mason and other photographers to get “spirit” photographer William H. Mumler behind bars for fraud and deception in 1869. Seeking to uphold the image of photography as a scientific, mechanically objective technology, and that of the photographer as an honest, trustworthy, and honorable professional, these photographers turned the courtroom into an arena for both the social construction of technology and for policing the boundaries of the photographic profession. Section 3, “Privacy, Copyright, and Photography in the United States, is about a question that photographers, publishers, courts and legislators spent much of the nineteenth century struggling to answer: who was the rightful author, and therefore owner, of a photograph? The Section details why that question arose when it did – in the final third of the nineteenth century – as well as the different ways in which photographers, their opponents, and representatives of the law struggled to define the nature of photography along with the meaning of photographic copyright. It also deals with the emergence, around the turn of the century, of a third party claiming ownership in the photograph – the sitter – and with how the “right to privacy” was formulated in part to accommodate that party. Finally, this third Section reveals the sometimes contradictory and often quite resourceful ways in which both the advocates and adversaries of photographic copyright enlisted the right to privacy in order to back up their own property claims, even when the nascent privacy right was meant to curtail the power of both these parties.