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Published online by Cambridge University Press: 22 April 2021
In the early years of the twentieth century, Life magazine had only approximately one hundred thousand subscribers, yet its illustrated images (like the Gibson Girl) significantly influenced fashion trends and social behaviors nationally. Its outsized influence can be explained by examining the magazine’s business practices, particularly the novel ways in which it treated and conceptualized its images as intellectual property. While other magazines relied on their circulation and advertising revenue to attain profitability, Life used its page space to sell not only ads, but also its own creative components—principally illustrations—to manufacturers of consumer goods, advertisers, and consumers themselves. In so doing, Life’s publishers relied on a developing legal conception of intellectual property and copyright, one that was not always amenable to their designs. By looking at a quasi-litigious disagreement in which a candy manufacturing company attempted to copy one of the magazine’s images, this article explores the mechanisms behind the commodification and distribution of mass-circulated images.
1 Information about this incident has been reconstructed from what seems to be testimony about the LIFE/Huyler’s debacle. The person testifying is not identified, nor are any of the other figures beyond what is detailed above. “Testimony,” box 9, folder 54, Life Magazine Records, Manuscripts and Archives Division, New York Public Library [hereafter cited as LMR].
2 Arms and the Man was featured on the cover of the July 8, 1909, issue (Volume LIV, no. 1393)—just several months before this episode occurred. It’s worth noting that the original was a painting, not a print.
3 For the purposes of this article, borrowing from the shorthand convention in the Life Publishing Company archive and the magazine’s text, I will refer to the Life Publishing Company as LIFE (this nomenclature was used to suggest an editorial personification of the company in the magazine’s pages), and Life magazine (the principal product of said publishing company) as Life. On the periodization of the Golden Age of Illustration, see Walt Reed, The Illustrator in America, 1880–1980: A Century of Illustration, eds. Roger Reed and Walt Reed (New York: Published for the Society of Illustrators by Madison Square Press, 1984), 68.
4 The latter of whom began working for LIFE at age 14; his first drawing netted him $8. James Montgomery Flagg, Roses and Buckshot (New York: G.P. Putnam’s Sons, 1946), 42. It’s also worth noting that this was not always for the good. Also associated with the magazine was E.W. Kemble, who helped popularize racist caricatures of African Americans. The magazine’s overall stance toward African Americans (and indeed, women, immigrants, and other targeted groups) could be wildly incoherent. One early page, for example, features an anti-racist illustration valorizing the troops of the 54th Massachusetts Regiment—alongside a racist caricature of a contemporary Black soldier. Life, no. 241, Aug. 11, 1887, 92–93. Similar juxtapositions include columns of commentary praising the professionalization of women only pages away from cartoons mocking the very same.
5 Writes magazine historian Frank Mott: “In the middle nineties, the American people took the Gibson Girl to their hearts. She and the Gibson man became popular middle-class ideals. The girl of the nineties tried to dress and to stand like the popular idol, and to hold her chin as the picture girl held hers; she said: ‘Why do they call me a Gibson girl, a Gibson girl, a Gibson Girl?’ while all the time she was doing her best to act so ‘they’ would bestow that compliment upon her.” Mott, Frank Luther, A History of American Magazines, vol. 4 (Cambridge, MA: Belknap Press of Harvard University Press, 1957), 564.Google Scholar
6 Mott indicates that circulation was at 50,000 in 1890 and 150,000 in 1916. History of American Magazines, 565. In 1912, the first year for which circulation statistics survive in the magazine’s archival records, the magazine had close to 140,000 subscribers. “American Newspaper Annual and Directory,” box 10, folder 82, LMR. The above, consequently, is just a guess.
7 The Middlebrow Network, a group of British scholars devoted to studying the phenomenon, periodizing the middlebrow between 1920 and 1950. Joan Shelley Rubin, in The Making of Middlebrow Culture, is more expansive, identifying middlebrow antecedents that go back far into the nineteenth century—though still situating middlebrow culture in “the three decades following the first world war.” Rubin, Joan Shelley, The Making of Middlebrow Culture (Chapel Hill: University of North Carolina Press, 1992), xi.Google Scholar
8 George Harvey in Mott, History of American Magazines, 4:565. Collier’s was another example of a ten-cent weekly. The Saturday Evening Post was a five-cent weekly. Munsey’s and McClure’s were ten-cent monthlies.
9 For example, Ohmann, Richard M., Selling Culture: Magazines, Markets, and Class at the Turn of the Century (New York: Verso, 1996);Google Scholar or Schneirov, Matthew., The Dream of a New Social Order: Popular Magazines in America, 1893–1914 (New York: Columbia University Press, 1994).Google Scholar The subject of illustration more specifically has been capably examined by Neil Harris in several articles, including: Harris, Neil, “Iconography and Intellectual History: The Half-Tone Effect” in New Directions in American Intellectual History, eds. Higham, John and Conkin, Paul Keith (Baltimore: Johns Hopkins University Press, 1979)Google Scholar; “Pictorial Perils: The Rise of American Illustration” in Cultural Excursions: Marketing Appetites and Cultural Tastes in Modern America (Chicago: University of Chicago Press, 1990). Regarding the massified and the rarified: take, for example, Rubin, The Making of Middlebrow Culture. The formation of the classic high/low dichotomy was best explored in Lawrence W. Levine, Highbrow/Lowbrow: The Emergence of Cultural Hierarchy in America (Cambridge, MA: Harvard University Press, 1988).
10 For example: Banta, Martha, Imaging American Women: Idea and Ideals in Cultural History (New York: Columbia University Press, 1987)CrossRefGoogle Scholar; Kitch, Carolyn L., The Girl on the Magazine Cover: The Origins of Visual Stereotypes in American Mass Media (Chapel Hill: University of North Carolina Press, 2001)Google Scholar; Patterson, Martha H., Beyond the Gibson Girl: Reimagining the American New Woman, 1895–1915 (Urbana: University of Illinois Press, 2005).Google Scholar
11 Two counterexamples are worth mentioning: a hagiographic and heavily nostalgic history of the magazine from the 1970s and a more recent article discussing the magazine’s relationship with cultural modernism in the 1920s. John Flautz, Life: The Gentle Satirist (Bowling Green, OH: Bowling Green University Popular Press, 1972); Céline Mansanti, “Mainstreaming the Avant-Garde: Modernism in Life Magazine (New York, 1883–1936),” Journal of European Periodical Studies 1:2 (Winter 2016).
12 Ohmann; Selling Culture, 25.
13 This article has been constructed from one of the largest parts of the LMR collection, the “Contracts and Agreements” series, which seems to be the directly transplanted filing cabinets of the company. This series includes roughly four decades’ worth of contracts and similar agreements and correspondence between LIFE’s business department and third parties that the publishing company worked with.
14 Wilson, Christopher P., “The Rhetoric of Consumption” in The Culture of Consumption: Critical Essays in American History, 1880–1980, eds. Fox, Richard Wightman and Jackson Lears, T. J. (New York: Pantheon Books, 1983), 42 Google Scholar
15 And, it should be noted, a wife. He married Mary Mott several years after founding Life. Mitchell’s journey to LIFE was a long one. As a young man he was mostly provided for by his uncle, the railroad executive Oliver Ames Jr., as his father was confined to an insane asylum. Oliver Ames Jr.’s largess was likely what provided Mitchell with the capital required to start LIFE. By his own account, he founded LIFE while on assignment for another magazine; he was dissatisfied with the subject matter of his assignments. For more information, see Lueck, Therese L., “John Ames Mitchell (17 January 1845–29 June 1918)” in American Magazine Journalists, 1850–1900, ed. Riley, Sam G. (Detroit: Gale, 1989).Google Scholar
16 At least this is how Mitchell told the story a decade later. Mitchell’s account, however, was featured in an issue including a series of satirical notes of congratulations, including one from the sitting president—identified only as “Grover”—as well as one from the czar of Russia (“… in commemoration of your birthday, I have ordered the release of 10,000 Siberian exiles, and have ordered the execution of twenty-five Imperial Tax-Collectors”). So perhaps this story ought not to be taken wholly literally. Life, Jubilee Number, Jan. 1893, 15–19.
17 In 1892, when the company was reincorporated, Mitchell owned 750 of 1,000 shares. “Minutes of the Board of Directors,” box 23, folder 1, LMR.
18 Wrote Edward S. Martin, “Whatever Life is, Mr. Mitchell has made it … [he] found sufficient occupation in editing and devising means for the expenditure or investment of profits. His idea of what the paper ought to be has always been reasonably clear in his own mind, and has been the controlling force that has made Life what it has been and what it is.” “John Ames Mitchell,” The Book Buyer 13:3 (Apr. 1, 1896): 134. What that was, exactly, is somewhat confusing. Mitchell was a member of a cohort of magazine editors and professionals (like Edward Bok, S.S. McClure, George Lorimer) that changed the face of the American magazine at the turn of the century. He did not entirely fit their mold, though, and is probably best considered as a transitionary figure between the new (e.g., The Saturday Evening Post) and old (e.g., Harper’s Weekly; the Century) types of magazine. Unlike his compatriots, Mitchell did not impose a house style, and seemed to prefer that his illustrators came to him, rather than soliciting. For more on the new generation of magazine professionals, see Wilson, Christopher P., “‘Magazining’ for the Masses” in The Labor of Words: Literary Professionalism in the Progressive Era (Athens: University of Georgia Press, 1985).Google Scholar
19 “In flux” might describe much of the history of the American middle classes throughout the nineteenth century. What at the beginning of the century has been referred to as the “middling sorts”—upper-level artisan manufacturers and yeomen farmers—slowly transitioned in the antebellum years into something quite different, as artisan manufacturers, in particular, transitioned into small-scale entrepreneurs. Alongside a new class of white-collar clerical workers, and, eventually, salaried sales agents, the historian Stuart Blumin argues that this middle class achieved some measure of social distinction and stability in the middle years of the nineteenth century. Typified by discrete social and cultural practices that were invested in the domestic realm alongside career pathways that slowly elevated a white-collar worker’s lifetime earnings above his working-class peers, the mid-century middle class achieved a comfortable status quo. At the moment of Life’s introduction, however, “the middle class” was transforming once again as the older proprietary order gave way. While older white-collar jobs proliferated alongside the rise of larger corporations, trusts, and retail operations, the seemingly-guaranteed career advancement of the mid-century clerical worker was replaced by multiple tiers of white-collar work: lower-level clerkships that often never offered any advancement (and that were open to the children of previous generations of immigrants); salaried managers that were dependent upon increased education; and, newly, upper-level professionals. Much of what Life was doing in the 1880s and ‘90s can be understood in light of these changes, responding to the shifting anxieties of its shifting middle-class readership. For more on the middle class of the nineteenth century, see Blumin, Stuart M., The Emergence of the Middle Class: Social Experience in the American City, 1760–1900. (Cambridge: Cambridge University Press, 1989)Google Scholar; for an anthology of more recent scholarship, see The Middling Sorts: Explorations in the History of the American Middle Class, eds. Burton J. Bledstein and Robert D. Johnston (New York: Routledge, 2001). Regarding the rise of the white-collar clerkships and the new capitalist economy, see Zakim, Michael, Accounting for Capitalism: The World the Clerk Made (Chicago: University of Chicago Press, 2018)CrossRefGoogle Scholar. For the turn toward salaried occupations caused by economic uncertainty, see Balleisen, Edward J., “Epilogue” in Navigating Failure: Bankruptcy and Commercial Society in Antebellum America (Chapel Hill: University of North Carolina Press, 2001)Google Scholar. On the relationship between the white-collar and corporate consolidation, see Chandler, Alfred D., The Visible Hand: The Managerial Revolution in American Business (Cambridge, MA: Belknap Press of Harvard University Press, 1977)Google Scholar. Regarding mid-century middle-class social and cultural habits and “domesticity,” see Ryan, Mary P., Cradle of the Middle Class: The Family in Oneida County, New York, 1790–1865 (Cambridge: Cambridge University Press, 1981)Google Scholar; Grier, Katherine C., Culture & Comfort: People, Parlors, and Upholstery, 1850–1930 (Rochester, NY: Strong Museum, 1988)Google Scholar. The classical work on the New Middle Class of Life’s readership—often styled as the Professional-Managerial Class or PMC—is Robert H. Wiebe, The Search for Order, 1877–1920 (New York: Hill and Wang, 1967).
20 “Letter from Feb. 17, 1910,” box 9, folder 56, LMR. In 1883, in one of its first issues, the magazine described itself as: “neither a snob nor a socialist.” The “class of better people” was, like the magazine itself, somewhere in between. “American Aristocracy,” Life 40 (Oct. 4, 1883): 166.
21 To clarify: the Saturday Evening Post was a five-cent weekly. The Ladies Home Journal was a five-cent monthly, until the late 1880s, when it became a ten-cent monthly. So, to subscribe to Life meant a monthly expenditure of 40 cents; to subscribe to the more popular Post cost 20 cents, and to the Ladies Home Journal, only 10.
22 One Life cover, from 1889, described LIFE’s audience fairly well. One character addresses the other: “Don’t you find New York society rather empty and unsatisfactory?” The other responds: “Not necessarily. You can take your choice in that respect. There is the bohemian set, all brains and no style; society proper with a fair amount of each, and the Four Hundred, all style and no brains.” Life 316 (Jan. 17, 1889). The magazine continued its willingness to mock across social divides continued through the early years of the twentieth century; Céline Mansanti, in her article on Life, notes that the magazine frequently went after Gertrude Stein in its later years for what it perceived to be the pretentious obscurity of her works. Life was not a magazine for the everyman, but it seemed to instictively dislike everything that was not.
23 Mott, History of American Magazines, 4:562.
24 These included in particular jeremiads against vivisection, support for opening the Metropolitan Museum of Art on Sundays, and a virulently anti-Semitic campaign against theater producer unionization. For more on Life’s targets, see “A Little List of Society Offenders” in Flautz, Life: The Gentle Satirist. But compared to Collier’s, its ten-cent weekly competitor, these were small fish to fry.
25 Downey, Fairfax, Portrait of an Era as Drawn by C.D. Gibson; a Biography (New York: C. Scribner’s Sons, 1936), 47.Google Scholar
26 Mott, History of American Magazines, 4:564.
27 In the case, LIFE was suing the city of Toronto because, following the passage of an indecency ordinance, the magazine had been banned from the streets. The cause? Pictures of, among other things, Catholic clergy (portrayed negatively) and women dancing (the reverse).
28 Mott, History of American Magazines, 4:559
29 “Minutes,” box 23, folder 1, LMR.
30 A 1903 audit—the sole surviving from this period—reveals that the Life magazine account of LIFE Publishing Company was $1,692.94 in the red as of August 31. This negative figure already includes $5,038.87 of revenue in “sundry receipts”—the sales of cuts ($3,050.57), drawings ($1,225.90), waste paper ($275.90), and other miscellaneous royalties ($487.50). LIFE Publishing Company, however, made $10,594.89 in profit, buoyed largely by $8,136.28 in a separate income stream from a “Books, Proofs, etc” account. Together, then, book sales, print sales, and royalties ($12,899.25) turned what was actually a net loss of over $2,300 into a healthy profit. While these numbers do not come near to the revenue derived from circulation ($28,632.34) and subscriptions (16,161.94), they make up the margin of profitability. “Life Publishing Company Balance Sheet as of August 31, 1903,” LMR box 8 “Audit Co.” folder.
31 [Scribner’s] box 8, folder 27; [Doubleday] box 11, folder 103-A, LMR.
32 This practice was so regularized that a representative of the company explained it directly to illustrator J.R. Shaver: “We frequently arrange for the publishing of a book of our material and whenever we do so the artist, author, receives a royalty of 10 percent of the retail price of the book” (“Letter of May 11”). The same practice also applied to one of the magazine’s first famous illustrators, E.W. Kemble, as well as illustrators Burt Levey, J.E. Jackson, and someone the record only refers to as Haskell (possibly Ernest Haskell). Correspondence to illustrators, box 8, folder 13, LMR.
Some particularly high-status illustrators were able to negotiate slightly better terms, however. Harrison Fisher seems to have been able to negotiate a contract in 1908 where he was able to republish his work for profit more freely, and Charles Dana Gibson received limited control over republishing his works in book form, which when exercised overseas caused some contention with the magazine company. “Gibson,” box 8, folder 15, LMR.
33 Writing to the illustrator Burt Levey (alternatively spelled Levy), LIFE made this clear: “We are to grant Mr. Levey the right to publish … provided we do not care to publish the book ourselves.” [emphasis added] “Letter of March 1905,” box 8, folder 13, LMR.
34 Intriguingly, image licensing schemes were not always profitable for Life’s partners, owing in part to turn-of-the-century Americans’ attitudes toward the originality and authenticity of illustrated media. The issue was not whether, in the Benjaminian sense, licensed images lacked aura—for buyers of images available only as reproductions, this could not have been a problem. Rather, consumers were interested in whether the seller of the image was also its original buyer, which would have vested the art and the sale with some sort of authenticity. As a 1913 letter from one of Life’s licensing partners explained: “We find today that the better class of people will not buy anything that has been published before by anybody else, and it must be owned and copyrighted by the people offering it.” Box 9, folder 36, LMR.
35 Metcalfe was eventually brought onto the magazine’s staff as an editor, and, after Mitchell’s death, was briefly the lead editor of the magazine.
36 Correspondence with the George H. Doran Company, box 10, folder 77, LMR. During the war years, LIFE printed special army and navy versions of the calendar. Box 13, Unmarked folder (possibly 167b), LMR. In 1921, the roster expanded: there was a Vanity Calendar, Society Calendar, Boy Scout Calendar, and Dog Calendar. Box 13, folder 167-A, LMR.
37 Correspondence with the Charles E. Bentley Co., box 8, folder 7, LMR.
38 Correspondence with the M.H. Birge and Sons Co., box 8, folder 8, LMR.
39 Box 8, folder 12, LMR.
40 “Letter of Nov. 28, 1918.” Box 14, folder, 190, LMR.
41 “Gibson Pictures,” box 12, folder 140, LMR. News syndicates like Wheeler’s and McClure’s allowed news organizations to obtain content from the syndicate’s contributing members.
42 “Letter of June 19th, 1913,” box 12, folder 126, LMR.
43 “Letter of October 30, 1909,” box 9, folder 54, LMR.
44 And quite a stockpile it was. In 1903, the company valued its “inventory” of drawings at over $15,000. “Balance Sheet as of August 31, 1903,” box 8, Un-numbered “Audit Co. of NYC” folder, LMR. Miller’s comprehension is evident from the numerous remaining correspondences he conducted as the company’s business manager. Oftentimes image licensing deals were negotiated through him; if not, they frequently had his seal of approval.
45 This term was already being used in legal circles during LIFE’s era, though Richard Rodgers Bowker, of Publishers Weekly and Harper’s Weekly, included the term less than five times in his summation of copyright law’s sections on the meaning and history of the legal construction. Bowker, Richard Rogers, Copyright: Its History and Its Law (Boston and New York: Houghton Mifflin Company, Riverside Press Cambridge, 1912), Project Gutenburg Ebook, produced from the Google Print Project.Google Scholar
46 Box 14, folder 200, LMR.
47 Correspondence with Robert Watson & Sons, box 14, folder 191, LMR.
48 In fact, the company pursued the nascent film industry with great interest, particularly in the 1920s when the magazine was supposedly losing its relevancy.
49 Correspondence with Mr. A. B. Coates, 1910, box 9, folder 44, LMR.
50 “Letter of October 20, 1909,” box 9, folder 54, LMR.
51 “Letter to Mr. H.W. Kent,” box 10, folder 100, LMR.
52 While seemingly incongruous with the Metropolitan Museum’s more hierarchical view of culture, this decision is not ultimately that surprising. A new generation of managers like Henry Watson Kent was beginning to rethink the museum’s attitude toward the public vis-à-vis public programming, focusing more on the application of “culture” to industry. See Trask, Jeffrey, Things American: Art Museums and Civic Culture in the Progressive Era, 1st ed. (Philadelphia: University of Pennsylvania Press, 2012).CrossRefGoogle Scholar
53 The first time this happened was on the Sept. 27, 1883 issue, though the change didn’t stick until a few weeks later. Prior to that time, Life, along with most other magazines, reused the same cover image for every issue. It was not until the 1890s that changing covers became a common practice. Kitsch, The Girl on the Magazine Cover, 4.
54 Historian Michele Bogart notes that sometime around the turn of the century, other magazines had picked up on this strategy: “Repeat exposures,” she writes, “… made certain illustrators into big names … Indeed, both Bok and Lorimer were instrumental in making a new generation of illustrators, and ultimately in boosting the reputation of some, like Maxfield Parrish, Joseph Leyendecker, Jessie Willcox Smith, and (later) Norman Rockwell, to the level of nationally acclaimed ‘media stars.’” Michele Helene Bogart, Artists, Advertising, and the Borders of Art (Chicago: University of Chicago Press, 1995), 23. Mitchell’s efforts preceded Bok’s, and may have ultimately inspired them—though as noted later, Bok was an imperfect imitator.
55 Correspondence with the George H. Doran Company, box 10, folder 77, LMR.
56 Though no paperwork remains to confirm it, LIFE appears to have worked with R.H. Russell & Sons as their publishing house of choice for illustration books in the 1890s. Russell published the first Gibson book in 1894; two years later, in 1896, an ad in Scribner’s indicates that it published books from Gibson, E. W. Kemble, and T.S. Sullivant (all in the LIFE stable). Advertising Section, Scribner’s Monthly Magazine 6:27 (Dec. 1896). Later books by Kemble, James Montgomery Flagg, and John Ames Mitchell himself were published by LIFE, itself. By the turn of the century, the magazine was both self-publishing and fielding out publishing requests for illustration books sufficiently so frequently that it saw fit to include the contract provision previously mentioned in all of its agreements with illustrators; publishing illustration books seems to have been something that the company at least imagined itself doing fairly frequently.
57 On Frank Leslie’s, see Brown, Joshua, Beyond the Lines: Pictorial Reporting, Everyday Life, and the Crisis of Gilded Age America (Berkeley: University of California Press, 2002), 34–40.CrossRefGoogle Scholar
58 This practice was different from those of Mitchell’s contemporaries. While editors like The Ladies Home Journal’s Bok shared with Mitchell a desire to associate their magazines with cultural merit, they were more inclined to chase celebrity writers or institute a single recognizable house style of writing to do so. One episode on this subject from Bok’s memoirs is illustrative: “[Cyrus Curtis] paid Mr. [William Dean] Howells $10,000 for his autobiography, and Mr. Curtis spent $50,000 in advertising it. ‘It is not expense,’ he would explain to Bok, ‘it is investment. We are investing in a trade-mark. It will all come back in time.’” As quoted in Wilson, The Labor of Words, 47. Establishing a “trade-mark” was certainly on Mitchell’s mind. The mode of obtaining it—building from scratch a reputation for visual flair among numerous styles—was quite different.
59 What exactly that meant in objective terms or replicable analysis is difficult to qualify; what qualified as a “Life-quality” image ultimately came down to John Ames Mitchell’s subjective judgment, informed by his own professional artistic career history. Occasionally, however, Mitchell did comment on what he thought made a good illustration or illustrator. “The American public,” he wrote in 1889, “has a weakness for intellectual art. They like an idea in their pictures, and if they can have it well told, graphic, technically good, and with a touch of human nature, they like it all the better.” The right sort of illustration, he wrote, referring to caricature, “appeals to intellect, the eye, and worst of all, to the sense of humor of the beholder.” From this it is at least possible to discern that wit—or the visual expression of a witty idea—was among the more important elements of what Mitchell sought. And while visual wit does not typify all of the work of all of Life’s stable, it is a something of a commonality, stretching from the way that Phillips plays with line and color, to Gibson’s games of perspective or value or expression, to Flagg’s well-rendered caricatures. Each of these were as much intellectual formations as much as they were aesthetic and visual techniques—they were, in other words, intellectually and technically sophisticated jokes that were in some sense inseparable from the unique perspectives of their producers. Mitchell believed that this was what the picture-viewing public was after, and he appears to have been right. John Ames Mitchell. “Contemporary American Caricature,” Scribner’s Magazine 6 (Dec. 1889): 728–45.
60 Box 11, folder 108, LMR.
61 It sold 1,500 copies, and was in no way related to the vastly more popular Checkered Game of Life of the 1860s, or the Game of Life of the 1960s. Correspondence with Parker Bros., box 10, folder 66, LMR.
62 “Letter of Sept. 26, 1912,” box 10, folder 66, LMR.
63 The exact circumstances of this quotation are worth tertiary discussion. LIFE was writing to a correspondent who was asking for the use of an image called “That Ecstatic Moment When You Sit Next to the Judge” for an advertisement. Normally, explained LIFE, they would charge a license fee for its use, however in this case the solicitor was a major donor to LIFE’s Fresh Air Fund—a Mitchell pet project that transported tenement-bound children out of the city during the summer—and so the company granted the license for a nominal $1 fee as thanks. LIFE’s images were its most significant assets, and so they could be gifted and doled out as favors at will, regardless of the depreciation that would follow their use. “Letter September 28, 1914,” Box 12, Folder 143, LMR.
64 Correspondence with the Luis F. Dow Co., box 15, folder 265, LMR.
65 “Letter to Mr. H.W. Kent,” box 10, folder 100, LMR.
66 “Life and its Copyrights,” Life, no. 1627, Jan. 1, 1914, 58.
67 “Letter of September 23,” box 12, folder 144, LMR.
68 “September 28 Reply to Letter of September 23,” ibid. This “mercy” was on account of Andrew Miller’s friendship with one of the Herald’s staffers. Penalties for violations in court, explained LIFE, would probably be in excess of $250 per violation, plus fees. This saga concludes without resolution, as records of the National Herald’s payments do not appear to survive. The distillery paper tried to negotiate the penalties down, noting that they would have to come out of the pocket of the correspondent (in this case the managing editor, who felt responsible), and again pleading that the magazine ought to count the distillers as friends. In fact, reminded the Herald, in recompense the paper had decided previously purchased 100 copies of Life and forwarded them to clergymen throughout the country, evidently admiring the magazine’s position on Prohibition.
LIFE’s threat may itself have been based on a misunderstanding of copyright law. Copyright: Its History and Its Laws notes that under the 1909 act, penalties for a violation could range from $250 to $5000 … except in cases involving “a newspaper reproduction of a copyrighted photograph,” in which case penalties ranged from $50 to $200. As noted below, it’s not quite clear what LIFE’s illustrations counted as. Bowker, Copyright, loc. 4374.
69 Publisher’s Weekly, Mar. 16, 1912, 890.
70 Box 8, folder 27, LMR.
71 Prints were not protected until 1802, and then only loosely. Photographs did not receive protection until 1865. “The 19th Century,” A Brief History of Copyright in the United States, n.d., www.copyright.gov/timeline/timeline_19th_century.html. (accessed Aug. 2018).
Some protections for images including “paintings, drawings, chromos, statues, statuary, and models or designs” arrived with the 1870 general copyright revision—but only for those images “intended to be perfected as works of the fine arts.” The 1870 revision also centralized the process for claiming copyright. Previously, registrants would have to submit their works to the local district court; after 1870, all claims had to be directed to the Library of Congress. Bowker, Copyright, loc. 1299–1300.
It took until 1903, when the Supreme Court decided Bleistein v. Donaldson Lithographing Co., for illustrations used for commercial purposes to be fully protected, as the 1870 act was ambiguously worded. Writing for the court, Oliver Wendell Holmes reinterpreted the statue such that it was no longer necessary to judge what was fine art by aesthetic standards. Instead of contrasting “fine art” with popular art, Holmes wrote that the law meant to differentiate aesthetic works of all purposes with works for mechanical or industrial purposes, and thus commercial art (like illustration) could be copyrighted. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 (1903). Accessed via https://supreme.justia.com/cases/federal/us/188/239/ (accessed Aug. 2018).
72 The case in question was Davis v. Benjamin. Bowker, Copyright, loc. 1856.
73 To elaborate: works of art refer to actual paintings or sculptures—what Richard Rodgers Bowker referred to as “the fine arts.” Reproductions of works of art meant reproductions of the former category, including etchings, engravings, and casts, etc. that “contain in themselves an artistic element distinct from that of the original work.” Whether this included half-tones or not is unclear; Bowker only mentions half-tones insofar as to say that they are not included under the Photography category. It thus follows that a James Montgomery Flagg illustration, for instance, might be eligible for copyright first in its painted form as a work of art, and then subsequently in its half-tone form as either a reproduction or a pictorial illustration. Noteworthy, here, is that a single visual idea only appears to be protectable in its physically realized forms. Bowker, Copyright, loc. 4061.
74 Bowker, Copyright, loc. 4061.
75 “Testimony,” box 9, folder 54, LMR.
76 “Letter of October 21,” ibid.
77 Bowker Copyright, loc. 4028.
78 Bowker, Copyright, loc. 4351.
79 “Testimony,” box 9, folder 54, LMR.
80 “Testimony,” ibid.
81 For example, both the Meek Company and LIFE argued to each other about where the idea had come from, with the Meek Company claiming that its artist had conceived of its piece independently, and LIFE arguing that he had clearly copied. In fact, none of this actually mattered, at least according to Bowker’s Copyright: under the 1909 law, intent was not relevant to deciding whether an image had been copied, and ignorance was not an excuse: “Infringement is a question of fact rather than of intent. It is not a valid defense that the infringer is ignorant; nor, on the other hand, can any one be held for intention to infringe, where the act of infringement has not been accomplished.” But Bowker also hedged his bets, explaining that “The new American code, nevertheless, recognizes knowledge and intent in certain cases of punishment or damages by the use of the words “willfully” and “knowingly.” Bowker, Copyright, loc. 4486.
82 After a few letters of brinksmanship, Huyler’s agreed to pay LIFE for the use of Arms and the Man. It tried to negotiate the price down to $400 but was firmly rejected by the magazine. “Letter of November 10,” box 9, folder 54, LMR. The candy company eventually paid $500.
83 There is some reason to believe that Gibson himself was responsible for Collier’s adoption of LIFE’s strategy. Just several years before leaving Life, Gibson appears to have tried—much to Miller’s ire—to outfox LIFE at its own game: he had attempted to sell a book of his images in Britain without LIFE’s consent by taking advantage of ambiguity in copyright holdings between nations as well as his own standing in the company. He seems to have been foiled but signed on to work with Collier’s only several years later. “Gibson” and “Henderson,” box 8, folder 15, LMR.
84 Mott, History of American Magazines, 4:565.