At the intersection between photography and the law, at this historical forefront of legal practice, we observe the process of property creation, the recognition of the creator as a legal person, and the establishment of the sphere of trades between owners as ‘civil society’. If, considering the underlying framework of bourgeois legal classifications, the constructed negative representation of’reality’ invariably pertains to an individual, it becomes necessary to inquire about the legal prerequisites that enable a conversation regarding the ownership of a tangible entity that is inherently imbued with property.
In what manner might the photographer’s replication of elements that are collectively owned by the public, such as streets, rivers, and territorial seas, result in the appropriation of public property as the photographer’s own? How may the photographer get ownership of the authentic reproduction, namely the photograph? The judges and counsels in nineteenth-century France were deeply concerned with the established legal categories and juridical notions of the subject, reality, and the photographic image. These concerns demanded their immediate attention.
A 1905 ruling established that the right to observe, which every person possesses over all objects in the street, includes the right to create a photographic reproduction of what one observes, which can then be reproduced on picture postcards or cinematograph reels. Since 1861, the photographic industry has considered the reproduction of streets in both urban and rural areas, including scenic locations, as a public right.
In 1865, the Code Internationale de Propriete Industrielle, Artistique et Litteraire established that personal appropriation of the public domain, as long as it does not cause harm to anyone, is allowed. However, this is only allowed if the reproduction of the public domain is a creative work rather than a simple reproduction. According to this code, a natural product that lacks stylization, meaning it does not have a personality, is considered part of the public domain.
The main inquiry revolved on whether photography could assert itself as a ‘creation’. Regardless of the responses from photographers and theorists, the legal resolution of this issue may be categorized into two distinct stages. In the initial instance, the introduction of novel mechanical methods for replicating reality caught the legal system off guard. This led to the establishment of distinct classifications that exclusively acknowledged “manual” and “intellectual” forms of art.
The question at hand was whether the replication of reality in photography is tantamount to the permissible appropriation of reality. The initial response was that it was not, as photography was a labor devoid of spirit. During the era of craft production and unconventional experiments, photography did not have the privilege of accessing the privileged domain of the bourgeois soul known as ‘creation’ until the industry’s adoption of photographic techniques led to a significant reversal in its legal recognition.
It was contended that the camera operator just operated a device and hence could not be considered a ‘creative’. In 1860, the individuals often referred to as photographers or ‘camera operatives’ can be seen as the ‘proletariat of creation’. Similar to the proletariat, they relinquished their independence by employing their labor force in the service of a machine. In his letter dated 184-8, Lamartine, who held the positions of Minister of Foreign Affairs and virtual head of the Provisional Government at the time, expressed his deep disdain for photography due to its lack of artistic merit and its tendency to exploit nature through the use of optics. Does the act of reflecting a glass on paper qualify as an art form? No, it is a sunbeam that is captured in the moment by a deliberate action. Where is the definition of the notion of man? Where may the decision be found? Within the crystal, perhaps. However, it is unequivocally not within the realm of humanity.
The photographer cannot supplant the painter; one is a human being, while the other is an automated process. Now, let us proceed to compare them. After ten years, Baudelaire continued to strongly oppose the soulless machine that had previously attracted the attention of a society seeking novelty. He firmly believes that the misguided advancements in photography, along with other materialistic progress, have significantly contributed to the decline of the already limited French artistic talent.
If photography is permitted to complement art in certain aspects, it will soon have completely replaced or tainted it, due to the lack of intelligence of the masses, which is its inherent ally. Now is the moment for it to revert back to its original purpose, which is to serve the sciences and arts. However, let it serve as the secretary and clerk for everyone who requires total factual accuracy in their vocation. Until then, nothing could be more suitable. However, if it is permitted to intrude onto the realm of the inexpressible and the fictitious, upon anything whose worth is completely contingent upon the incorporation of a human soul, then it will have a significantly detrimental impact on the unique selling proposition (USP). However, did the bourgeois jurist find these feelings to be sufficiently rigorous? How was the legal proof of’soulless labor’ established? The solution resided within the product. According to legal standards, the photographic negative lacked inherent meaning since it just reflected the functionality of the machine.
According to a Tribunal of Commerce in 1861, the photographer has acquired the necessary skills to effectively operate the equipment and establish chemical processes for reproduction. His work devolves into a strictly mechanical procedure where he can demonstrate varying degrees of proficiency, without being able to harmonize with others who engage in the great arts, where soul and creativity play a role, and occasionally genius is shaped by the principles of art. According to a subsequent Tribunal in the same year, it was determined that the artistry of photography does not involve the direct creation of subjects, but rather the acquisition of negatives and subsequent production of prints that mechanically reproduce the image of objects in a subservient manner.
The crucial aspect for judicial analysis is the essential presence of the subject’s soul, imagination, and individuality in the production. Upon their disappearance, the lack of a’mechanical’ product is indicated.
In 1855, the Imperial Advocate contended that the photographer’s intellectual and creative efforts come before the physical execution of their work. When the concept is on the verge of being transformed into a tangible thing, the process of integration into the realm of art becomes unattainable. The illumination has performed its function, serving as a remarkable catalyst that operates autonomously from accomplishment. Consequently, the individual’s character will have been relinquished to the outcome precisely when said character might have provided its safeguard.