February 4: The patenting of photography in Britain raised vexing questions about the nature of authorship.
Richard Beard Jnr., born on this date in 1826 in Newton Abbot, Devon, ran studios set up by his father in London, Manchester and Liverpool. He is otherwise a very minor in the history of photography.
So, why bother with him? Because the question that arises, the doubt that he was actually the author of the daguerreotypes that bore the name ‘Richard Beard’ prominently on their cases, serves to demonstrate how the industrialisation of image-making had enormous implications for considerations of photography as art.
Daguerreotypes were delicate, their surfaces easily destroyed at a touch, so they were housed behind glass in handsome cases like that above, of tin, papier-mâché or wood, lined with velvet and with a flap or cover for further protection, and often covered in leather or morocco on the outside; most were of an established design used for jewellery and painted miniatures. Those intended for the wall (below) were supplied with a hanging ring with decorative escutcheon moulded with the words ‘Beard Patentee’, a trademark that is also seen embossed on the frame of the daguerreotype in the case above.
This signifies that the picture was made by a purchaser of a licence from Beard who had secured the patent for the daguerreotype in England from Miles Berry.
Steve Edwards amusingly answers his own question “Who invented the daguerreotype?” in his 2013 paper “‘Beard Patentee’: Daguerreotype Property and Authorship” in the Oxford Art Journal 36.3 (from which the inspiration for this post and some of its illustrations come);
As far as lawyers and senior Law Lords were concerned, the unequivocal answer to this question of the daguerreotype’s inventor was Miles Berry. Berry himself claimed that he was ‘the first and true discoverer and importer of the invention’. Not only did Berry invent the daguerreotype, but also the law insisted that between 14 August 1839 and 23 June 1841 he was the sole practitioner of the invention in the territory of England, Wales, and the Town of Berwick upon Tweed and all Crown Colonies and Plantations Abroad.
The situation with this patent was extremely unusual because the technique had been published and was public knowledge during almost the whole of a six-month period before it legally became available. The reason that Berry could barefacedly lay claim to Niépce’s and Daguerre’s invention was, as Edwards points out, an anomaly of English patent law which in 1839 granted to him, an employee of the Patent Office and patent agent in the firm of Berry and Newton, registered Patent No. 8194: A New or Improved Method for Obtaining the Spontaneous Reproduction of All Images Received in the Focus of the Camera Obscura. Berry, as agent for Daguerre and Isidore Niépce, in English law, which did not recognise foreign patents, had ‘received a communication from a foreigner residing abroad’, thus becoming the patent holder within England with monopoly over the invention; anyone wishing to use it had to apply to him to be able to make photographs (for a steep fee) for any purpose, commercial or not. On 14 February 1840 Berry ‘enrolled’ the patent, completing the legal process. Without any intention of making a daguerreotype himself, he sought a way to capitalise on it.
Richard Beard was an enterprising entrepreneur who had successfully run his father’s business in groceries and then had sold the fuel of the industrial revolution, coal. Seeing seeing a ‘start-up’ opportunity, in 1841, using money from his inheritance, he purchased Berry’s daguerreotype patent outright for £1050 (worth £74,470.00 to £92,970.00, or more in 2010).
Berry also granted a licence to the glass-merchant Antoine Claudet (1797–1867) on 25 March 1840 allowing him ‘use a limited portion of the apparatus’, though not to make and sell daguerreotypes, which later gave rise to a law suit which Beard lost, leaving Claudet his competitor in London.
In addition to the daguerreotype, Beard also needed a camera and processing which was fast enough to enable the taking of portraits, for which there was such enormous demand above all other uses of the medium. Daguerre’s camera required continuous sunshine and an exposure of 20 minutes to half an hour. Beard had been introduced to the innovative camera design of Alexander S. Wolcott (1804–1844) which required an exposure from three seconds to as much as five minutes depending upon the weather. Like a reflecting telescope it used a concave mirror instead of a lens, and thus brought the additional advantage of reproducing the subject without the mirror-reversal of Daguerre’s lensed camera, though the need to fit the plates in front of the mirror restricted their size to 1.5″ x 2″ (2.54 x 3.81cm). These cost the sitter between one and four guineas; .
So his first personal investment in a photographic patent was really in mid-1840 when he patented Wolcott’s camera design (British Patent 8546) in his name and strategically, that of John Johnson (1813–1871), an American photographer who was also Wolcott’s business partner, whose interests in the camera he then bought, making it available only to those he would licence.
Two Wolcott cameras can be seen in use in this well-know engraving, a strategy that enabled production of more than one portrait at a time, however, two years later Beard was using the fast Petzval lens on a camera design that could produce larger images. Maria Edgeworth writes to Fanny Wilson of “A Visit to Mr Beard’s Studio”;
11, Gloucester Place, 23 May 1841. Lestock came with me to breakfast here at 8 0′ clock and then he took Honora and Captain Beaufort and me to the Polytechnic and we all had our likenesses taken and I will tell you no more lest I should some way or other cause you disappointment. For my own part my object is secure for I have done my dear what you wished. It is a wonderful mysterious operation. You are taken from one room into another up stairs and down and you see various people whispering and hear them in neighbouring passages and rooms unseen and the whole apparatus and stool on high platform under a glass dome casting a snapdragon blue light making all look like spectres and the men in black gliding about like etc. I have not time to tell you more of that.
Beard patented the studio design also (Patent No. 8546 of 13th June 1840), with its skylights, reflectors and blue glass to cut the glare on the subject (daguerreotypes are blue-sensitive) but as Edwards points out, it is not Beard who is operating the camera, as is the case in the photograph of Hogg and Johnson Snr. above, because Beard had soon the idea of franchising photography, since as news of it spread, there was exponentially growing demand all over England. He did not take out patent rights in Scotland and Ireland which had separate patent laws, hence the accelerated development of photography in Scotland. He advertised widely for ‘Small and Enterprising Capitalists’ who would pay fees to obtain a licence.
One of the costs of establishing a franchise is to protect it, and eventually litigation became too expensive and Beard bowed out, strategically becoming legally ‘bankrupt’ in 1849. By then however, the calotype was beginning to make inroads on the business and indeed much of his repeat business involved making calotype copies of his otherwise irreproducible daguerreotype originals, especially those of celebrities.
Beard Jnr. himself continued to trade under the partnership name of Beard and Loard. He was also a partner in a London studio, Sharp & Beard, in the late 1850s, after his father had given up the trade.
Why should this pose such a problem for our medium? Because it is unlikely that either Beard, father or son, actually made these photographs. Like this very early portrait (below), they would been taken by Beard ‘operators’, either Jabez Hogg, or John Frederick Goddard, in England’s first professional photographic portrait studio set up by Beard at the Royal Polytechnic Institution in Regent Street, London, in March 1841.
Aside from matters concerning Beard daguerreotypes, it is also puzzling, but relevant, to consider why Julia Margaret Cameron would register her photographs for copyright. Documents at the British Public Record Office provide a picture of some 50 years, from 1862 to 1912, of professional photography. That during this period in England the copyright of photographs was not automatic accounts for Cameron’s action. Makers desiring protection of their imagery had to register at the copyright office of Stationers’ Hall in London.
From the 1870s onward an original print was required to be included with the application though earlier only about one in 12 of the applications have the original photograph attached to the form. Nevertheless the Register always gives a brief description of the photograph. Julia Margaret Cameron, between 1864 and 1875, registered 486 photographs, and even though she did not deposit any prints it is possible to construct a timeline of her image-making from the records.
The Engraving Copyright Act 1734 or Engravers’ Copyright Act (8 Geo.2 c.13) of the Parliament of Great Britain, also known as ‘Hogarth’s Act’ after William Hogarth, who prompted the law, gave protections to producers of engravings. Mark Rose notes, “The Act protected only those engravings that involved original designs and thus, implicitly, made a distinction between artists and mere craftsmen. Soon, however, Parliament was persuaded to extend protection to all engravings.” It was repealed by the Copyright Act of 1911 but came also to be applied to artistic photographs.
Patent Law and Copyright sit in relation to photography largely in contradiction. The first implies that the production of photographs is industrial and the relation of the patent holder to their patentees was that of the landowner nobleman to his tenants, and their position with their ‘operators’, whether directly or through the franchisees, was to purchase their labour without recognition of any creative originality.
Copyright bestowed value on the maker of the image, but clearly only if they were operating independently and with an understanding of the value of their labour and originality. To Patent law, any qualitative difference between the product of Beard’s or Cluadel’s studios, or between images by one photographer or another, was irrelevant, and indeed, most of the ‘operators’ remain unrecorded on the photographs, which only bear the name of the ‘owner’ of the process.
These contradictory constructs of the nature of photography remain with us in its commercial and artistic uses and in the value, capitalist or aesthetic or both combined, that we place upon photographs.