C.L.J.

Book Reviews 207

contract law, sheds little light on those in return, and does not do justice to the intri-
cate relationship between freedom and choice.

DORI KIMEL
NEW COLLEGE, OXFORD

Art and Modern Copyright: The Contested Image. By ELENA COOPER.

[Cambridge University Press, 2018. xx + 304 pp. Hardback £85. ISBN 978-
11-07179-72-1.]

The study of history is essential for understanding the present. This goes for the
study of legal history too. Contemporary law is living history; it is the result of
past law and the root of future law. We can learn from past mistakes and successes
and against this background make better law. As Elena Cooper demonstrates in her
excellent volume on the history of artistic copyright in the UK, in the period from
1850 to 1911, there are lessons to be learned from her study that relate to present-
day legislative policy as well as to current application of copyright law in new
technological and cultural contexts. This is important: as a key regulator of the
arts, the existence of rational and operative copyright law is crucial for a viable
cultural domain. Artistic copyright must respond to digital transformations and to
a World Wide Web, which is at present threatened by creeping monopolisation
by Big Tech. Examples of what artistic copyright must address today include the
case of a painting created by artificial intelligence and sold at Christie’s for
$432,500 (can a machine be an author under copyright law?) and a selfie taken
by a monkey (can the photographer who facilitated the selfie claim copyright
when he or she did not take the photograph himself or herself?). Google Images
is another case in point (are the thumbnails presented in search results unauthorised
copies of the images they point to?). Looking to copyright’s history will teach us
prudence in legal responses to new technologies.
Art and Modern Copyright: the Contested Image is a fine example of the rich
scholarship that has come out of the last two decades’ mobilisation of a field
with productive new approaches to the study of copyright history. The book is pub-
lished in the Cambridge Intellectual Property and Information Law series, the first
title in which was Brad Sherman and Lionel Bently’s The Making of Intellectual
Property Law: The British Experience, 1760–1911 in 1999. That work, along
with other ground-breaking work (important samples of which were represented
in Martha Woodmansee and Peter Jaszi’s edited volume The Construction of
Authorship: Textual Appropriation in Law and Literature (1994)) set the scene
for a wave of interdisciplinary and theory-informed scholarship on copyright law.
In 2008, the free digital archive Primary Sources of Copyright (1450–1900)
(http://www.copyrighthistory.org/cam/), which makes available core documents
(and commentary thereon) from copyright history in multiple jurisdictions, was
launched. This paved the way for research to give a much fuller picture of the his-
tories of copyright than conventional accounts that have too often been driven by a
whiggish search for “origins” or “foundational moments” of copyright law.
Importantly, copyright historiography bears witness of a leap towards far stronger
theoretical and methodological footing today in the literature on the history of copy-
right. Turning away from grand narratives and teleology and instead towards case-
studies, discontinuities, genealogies and social and cultural contexts, the legacy of
the Annales School as well as a recent turn to legal empirical studies is felt in a

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 208 The Cambridge Law Journal [2019]

volume like Art and Modern Copyright Law. In the extensive bibliography given at
the end of the book the reader may inform herself or himself of the many recent
contributions to the research of an emergent discipline.
The book is based on the author’s doctoral work on photographic copyright and
on further archival work, which has brought to light interesting new materials on
artistic copyright more generally. There is an overall ambition that gets unfolded
in the chapters of Art and Modern Copyright. In particular, this study of artistic
copyright is motivated by a concern with blind angles that have arisen from the
fact that the history of copyright has been written from the perspective of literature,
not art (the copyright historian Kathy Bowrey is cited in the introduction for having
made this observation in 2002). We are told that contrary to claims made in the
existing literature that developments that took place in nineteenth-century British
copyright – including the introduction of artistic and photographic copyright by
the 1862 Fine Arts Act – may be explained as an expansion of subject matter
from literature to visual art based on the comparability between the genres, a prem-
ise of Art and Modern Copyright is that the fundamentally different logics of,
respectively, literature and visual art came to play a productive role in the making
of copyright law. Previous studies have tended to gloss over differences between lit-
erature and art. By contrast, in this study they are zoomed in on in an attempt to
highlight the gaps, divergences and conflicts that marked the historical development
of copyright in flat art: a favoured genre in the nineteenth-century art market, both
aesthetically and economically. Not only does this add further depth to our under-
standing of the particularities of artistic copyright: it serves to explain some of the
paradoxes that have been handed down to us in the application of the law. A prom-
inent example discussed at length in the book is the schism between “mechanical
labour” and “mental labour”. Modern copyright’s rationale is to protect original
mental and creative labour. However, as the scrutiny of photographic copyright’s
history reveals when pressing for the inclusion of photography as an object of copy-
right protection, in the mid-nineteenth century, photographers advanced:
a twin-track claim to copyright which drew from both aspects of photogra-
phy’s allotropic form, both its characterisation as “art” and mechanical
“work”. On the one hand, they maintained their claim that photography was
a fine art and that the grant of photography involved the recognition of that
status . . .. On the other hand, the petitioning photographers also argued that
photographs were worthy of protection on the basis that they were “works
of industry” (emphases original).
As we learn, the Lords’ debates on artistic copyright from the time of the passing of
the 1862 Fine Arts Act emphasised mental labour as the foundation for copyright.
Yet, the fact that the 1852 Copyright Act – which protected visual art as works of
mechanical labour – was left unrepealed by lawmakers in 1862 meant that until the
early twentieth century this dual – and paradoxical – basis for artistic copyright was
in play. This is an illuminating and original point made by Cooper.
Chapters two and three of Art and Modern Copyright are dedicated to “Art,
Copyright and ‘Authors’”. In these chapters the dynamic relationship between art
and copyright is explored in the context of social status-building associated with
authorship. There is a focus in the chapters on the struggles of photographers to pro-
tect their profession both in terms of legal and social recognition. While it might be
objected that in this volume the history of artistic copyright gravitates unduly
towards the history of photographic copyright, it is nonetheless always rewarding
to turn our attention to new media and the bastard genres (rather than the canonised
genres) for an understanding of the ways that law has defined art. Anomalies of the

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 C.L.J. Book Reviews 209

classificatory system of the arts including photography, artistic craftsmanship,

fashion and more expose legislators’ and society’s tacit assumptions and have a ten-
dency to challenge the legal conceptual frameworks. This is where legal innovation
takes place. When studying legal history against the grain we can fully appreciate
how the ruptures and inconsistencies were part and parcel of what looks in hindsight
as an almost natural historical development. A point also made by Cooper is that in
the nineteenth century, artistic copyright “added something new to the ‘logic and
grammar’ of copyright: a mechanical paradigm of copyright protection, which
made no reference to creative authorship”. We may go one step further here and
suggest that art was a catalyst of copyright law rather than just new subject matter
to be cultivated by the existing logics of law. In a number of ways modern copy-
right’s all-embracingness and flexibility is a product of laborious efforts to make
misfits of art fit in, socially as well as legally.
Drawing on a variety of sources including those stemming from Cooper’s original
archival research into the papers of artists, art institutions, collectors, professional
organisations and on the legal as well as the art historical literature, the two opening
chapters on art, copyright and authors take the reader through interesting conver-
gences and divergences between aesthetics and the law from the mid-nineteenth
century until the early twentieth century. For example, we learn that early in that
period, within the art community, photographers employed copyright as a social
lever in the hierarchy of the arts. However, by 1911 copyrightability had ceased
to be a marker of status among artists.
Chapter four discusses the “wrongs that artists commit” in the period from 1850
to 1911. In particular, it looks at the wrongs that artists may have been perceived to
commit against collectors, the purchasers of artists’ works. The chapter brings to
light conflicts between ownership of the physical artwork and ownership of intan-
gible rights in it: “what is long forgotten today, [is] in particular the view that copy-
right’s purpose was to regulate artists, that is, to provide a legal underpinning to a
moral code that curtailed artists’ freedom to replicate their own work so as to protect
the pecuniary interests of collectors in the physical object”. Today the conflict is
resolved to the extent that copyright in works of art belongs to the artists. In
nineteenth-century artistic copyright the picture was, so to speak, more muddled.
As we learn, it remained a contentious topic whether copyright was to follow the
artwork or the artist until the twentieth century. By the turn of the twentieth century,
Cooper points out, an interesting dynamic between legal debates and a development
in artistic norms took place. A shift in aesthetic preference from narrative genre
painting to modernist l’art pour l’art with textured surfaces that defied replication
“brought the parameters of the copyright debates into line with more general
changes surrounding legal thinking about property”. Property as well as intangible
property came to be viewed as limited (not absolute) rights to valuables.
Chapter five explores nineteenth-century British copyright as an early source of
publicity rights. Cooper presents materials that indicate that:
the commercial value of the sitter’s face or likeness was protected by photo-
graphic copyright, in a manner akin to a modern-day publicity right . . ..
This occurred through the manner in which studio trade practice, premised
on the physical exclusivity of the sitter’s “face” intersected with the general
rule of the 1862 Act (vesting copyright in the author) and was enforced by
another feature that distinguished artistic copyright from literary copyright:
the broad jurisdiction of magistrates.
The social context of this underpinning of trade practices by copyright law was the
coming together of fame and face in the early beginnings of modern visual culture.

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 210 The Cambridge Law Journal [2019]

Early acknowledgement of a pecuniary interest of celebrities in their own image has

long been part of the narrative of US law. Cooper’s study adds the British experi-
ence to the history of publicity rights.
Chapter six looks at how “public interest” consideration came to affect rules per-
taining to infringement in nineteenth-century artistic copyright. Interestingly, the
public interest was pleaded in debates over the use of art reproductions by adverti-
sers who claimed that they were the poor man’s picture gallery and access to
education of taste. In the image-dependent culture of today it remains a nice ques-
tion whose interests copyright law should serve. As the media theorist Marshall
Mcluhan said, the “medium is the message”: any new technology needs a response
from the law. Cooper’s book may be a place to start when looking for an appropriate
response. Art and Modern Copyright is recommended to scholars of intellectual
property law, art history, media studies and intellectual history as well as to practi-
tioners of law and the lawmakers of today.

STINA TEILMANN-LOCK
COPENHAGEN BUSINESS SCHOOL

The Foundations of Anglo-American Corporate Fiduciary Law. By DAVID KERSHAW.

[Cambridge University Press, 2018. xxx + 518 pp. Hardback £110.00. ISBN
978-11-07092-33-4.]

How does legal doctrine form, why does it change and why do doctrines with a
common starting point, in legal systems with a shared heritage, diverge? David
Kershaw addresses these questions by examining the development of corporate
fiduciary law in the UK and the US. Kershaw charts the evolution of corporate
fiduciary law in each system and, comparing the two, explains how and why
each legal regimes evolved as it did. Though written for both UK and US audiences,
the book weighs in on contested US scholarly debates, confronting the common
claim that doctrinal change is less, or less directly, the product of internal logic
or strict precedent than a response to extra-legal factors, including interest group
politics, policy concerns and state competition for corporate charters. Kershaw
rejects this claim, offering alternative accounts for the production of US corporate
fiduciary law and for Delaware’s lead in attracting incorporations.
The book considers the evolution of four categories of directors’ duties: business
judgments, care, self-dealing and corporate opportunities. In the English legal schol-
arly tradition, the analysis is precise and artfully phrased, with nuanced statements
of law, close attention to the text of judicial opinions, and astute criticism. Perhaps
more in the US scholarly tradition, the book also intervenes forcefully in debates
with novel and provocative claims, tightly reasoned but expressed with less nuance.
For example, while US scholars see Delaware’s as a system producing sophisticated
corporate law, by dint of experienced judges and attentiveness to policy concerns,
Kershaw sees it as a system that “fossilize[s]” fiduciary law, borrows from other jur-
isdictions but “refus[es] to acknowledge external sources” and produces “significant
legal contortion that generates a neutral substantive effect”. The work is full of sur-
prises for US-educated lawyers, who will quickly learn their debt to English law.
In four parts, one dedicated to each of the four categories of directors’ duties, the
book examines UK and US law in turn. Since US corporate law is a matter of state
law, the book also considers differences across the most influential states, usually
those that have attracted the most incorporations – before the early 1920s,

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