Becoming Property: A Review – by Paul Duro

Katie Scott, Becoming Property: Art, Theory and Law in Early Modern France, New Haven and London, Yale University Press, 2018, ISBN  9780300222791

In Becoming Property: Art, Theory and Law in Early Modern France, Katie Scott examines the relationship between intellectual property and the visual arts in France from the sixteenth century to the French Revolution. It is not often that matters of law take center stage in the study of art, and artists embroiled in law suits rarely feature as dramatis personae in art history. Certainly there have been instances—Michelangelo Caravaggio (murder), Artemisia Gentileschi (rape) and James McNeil Whistler (libel) all spring to mind. But these cases revolve around the personal involvement, as either perpetrators or victims, of artists in criminal or civil law, and not as the subjects of legislation designed to protect, and circumscribe, the rights and obligations of artists in their evolution from membership of craft-based guilds to a kind of artistic Freikorps willing to sell its labor to the highest bidder. Opening her Introduction with the assertion, “The history of intellectual property is also the history of authorship (15),” Scott delves into the complexity and contradiction these laws entail, especially in the long eighteenth century, when fundamental shifts in the conceptualization of art and art theory demanded a new understanding of the rights of the author. Most importantly, she emphasizes that intellectual property was property of a particular kind—immaterial, personal, and “closely bound up with the artist’s identity, from which [it] could not be entirely separated even when sold (103).”

The first chapter, “Ut Pictura Poesis: Matters of Privilege and Property,” elaborates on the theme of authorship that dominates the Introduction—that art-theoretical concepts were constitutive of property law and its cultural forms in early modern France (there is a list of print privileges granted to the Académie royale de peinture et de sculpture in an appendix between pages 305-318). This was something of a two-way street: if a concept like “property” gave form to art-theoretical concepts, so art theory helped define rights of authorship—especially in relation to the perennially problematic notions of emulation, imitation, and invention that are central to chapters 2, 3 and 4. The rights of authorship, inherent in the question of privilege and property, surface again in the second chapter, “Emulation: Matters of Privilege and Plagiarism,” which draws attention to one of the most pressing, if contradictory, demands on artists, especially those operating within the sphere of influence of the Académie. Naturally much hangs on the meaning of emulation: “the Académie and its artists understood emulation […] as a noble vocation and an exercise in moral improvement (94).” In other words, emulation stands atop a slippery slope as an ideal to be pursued, but those who lost their footing could quickly crash through the protective barriers of imitation and copying to land, muddied and besmirched, among the thorns of plagiarism.

While emulation may look good on paper, contradictions abound in practice. It has long been recognized that one artist’s emulation is another’s servile copy, even if neither the law nor the academies could rarely satisfactorily distinguish between them. The Académie, always jealous of its privileges and prerogatives, admitted engravers from 1663 on the grounds that their art reproduced with great clarity the outlines of the composition, especially that of the human figure in history painting—an interesting sidelight on the disegno/colore debate of the late seventeenth century. Print culture especially plays into this paradoxical equation between copying and emulation precisely because the privileges associated with prints and reproduction touches on matters of artistic property (and propriety) and the laws governing commerce. In 1755, François Boucher advised readers of the Mercure de France that a set of prints after his work offered for sale by Claude Duflos were no more than “deformed” copies of his work from the hands of his least able students, and as such he did not recognize in them his own work. As Scott remarks, “Boucher’s refusal to admit Duflos’s copies and to see himself in them suggests that he regarded his creative work as offspring and not property, as “children” – literally, here, the so-called enfants de Boucher – to be claimed or disowned but not owned (104).”

LEFT: Fig. 1. Charles-Étienne Gaucher after Charles-Nicholas Cochin fils, Portrait of Élie-Catherine Fréron, 1771. Engraving. Paris, Bibliothèque Nationale de France. Photo: gallica-bnf.fr/BnF.
RIGHT: Fig. 2. François Hubert after Charles-Nicholas Cochin fils, Portrait of Élie-Catherine Fréron, 1776. Engraving. Photo: Wikimedia Commons.

But what of copies of nature itself? Chapter 3, “Imitation: Crimes of Likeness,” raises the question in relation to portraiture—hence Scott’s punning “likeness” (as portrait and as copy) in her chapter title. As she points out, “The crux of the matter was mimesis, or the relation of the copy to its model (213).” Indeed, within the field of portraiture “likeness” raises the thorny question of verisimilitude, of what it meant to say the likeness “represented” the sitter (the case of wax effigies taken directly from the body and briefly discussed on page 217 throws these issues into sharp relief). More substantially, Scott examines the case of a portrait of the critic and man of letters Élie-Catherine Fréron, engraved in 1771 by Charles-Étienne Gaucher after a drawing by Charles-Nicholas Cochin fils of 1770 (Fig. 1, fig. 58 in the book) that had been pirated in 1776 by François Hubert for the publishers and print sellers Jacques Esnault and Michel Rapilly (Fig. 2, fig. 59 in the book). While Gaucher’s print indicated it was copied directly from Cochin’s drawing, Hubert’s engraving is a copy of a copy, since his model was another engraving and not the original drawing. As Scott remarks, law and art theory see representation differently, and what might disturb the law, such as the legal boundary between reproduction and repetition, is for the artist more a question of the order of representation, or what matters in portraiture (216). Gaucher won his case, but fidelity to the original, far from being the criterion for acceptance, exposed the work to contradictions between originality and mimesis that the law was powerless to adjudicate.

Chapter 4, “Invention: the Secrets of Colour,” extends the discussion of copyright into the arena of chromatism. While the law protected an artist’s invention—the pictorial conception articulated through line—it did not address color (in a case where law and art theory intersect, the “débats sur le coloris” of the later seventeenth century placed color in a secondary role to line in the construction of the image, an order of representation that was soon to be challenged by Roger de Piles). Scott cites Charles Le Brun’s celebrated 1667 comments on Nicolas Poussin’s Israelites Gathering the Manna to link invention with disegno, and his employment of a “vocabulary of line” to “read” the painting as if he were quoting from the Biblical text (248). With the invention of color printing it was this sensual, material process that was open to legislation (22). Because colors were built up in layers, making evident the materiality of their technologies, it was the technology that received the patent-privilege. In some instances the process of manufacture of individual colors was patented, as with Nankeen yellow and Prussian blue—properties that were located in material presence, and not in the intangibility of line (248-249).

The final chapter, “Art and Industry: Intellectual Property and the French Revolution” returns to the theme of authorship to address the commercialization of works of art through reproduction. In 1793 the National Convention passed a Décret […] relative aux droits de propriété des auteurs d’écrits en tout genre, des compositeurs de musique, des peintres et des dessinateurs (“Literary and Artistic Property Act”), colloquially known as the “Act of the Rights of Genius,” thereby fundamentally shifting legal protection to artworks from royal privilege to republican property. It was, as Scott remarks, “an Enlightenment idea of authorship fulfilled and a bourgeois form of intellectual property enshrined in law […]. In becoming property, art and its authors were brought into being and assume their modern identities (281).”

The long history of privilege legislation, the complexity of the various arguments presented, and not least the sheer volume of material the author has addressed, make summarizing this most erudite and challenging of books no easy task. As the chapter titles indicate, there are innumerable references into matters of foundational importance to the study of art in early modern France—line vs. color, the standing of the artist, art and craft, imitation, invention, copying, color theory, authorship—and when these issues are discussed Scott’s comments are invariably insightful and enlightening. But at times readers may well wish she had offered more case studies, more instances of how the law inserted itself into the always confusing spaces between the theory and the practice of art. But that would be to end on the wrong note. The overarching achievement of Scott’s Becoming Property is to draw us into an overlooked debate that lasted from the late renaissance to the French Revolution, revealing an art world in evolution. While Scott thanks a host of print historians and dixhuitièmistes for their advice and expertise, it is her scholarship that draws together so many disparate threads into a book that stands as a monument to sustained scholarship and disinterested intellectual inquiry. It is safe to say that no future historian will be able to raise the question of the legal standing of prints or the role of those who made, sold or consumed them without recourse to this book. Becoming Property offers readers the chance to follow a scholar profoundly versed in matters of eighteenth-century visual culture into the thickets of the law as it applies to art, authorship, and imitation, and to escape with nothing more than a few scratches. That seems like a good deal.

Paul Duro is Professor of Art History/Visual Culture at the University of Rochester, NY


Cite this note as:  Paul Duro, “Becoming Property – A Review,” Journal18 (September 2019), http://www.journal18.org/4128.

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