Laurel L. Russwurm

a writer, the copyfight and internet freedom

Theft by Copyright: C.T. Talman vs. W.S. Hartshorn

with 11 comments

I went searching for a photograph of Edgar Allan Poe. You would think it shouldn’t be difficult to find a photograph that can be legally shared online for a famous writer who has been dead since 1849. Even the most draconian copyright laws of today can’t possibly lock up the image of this historical figure.

Or can they?

Doing a Google search for just such an image that I might legally share online, I found this photograph:

black and white studio portrait inscribed: 1904 C.T. Talman

Edgar Allan Poe photographed by W.S. Hartshorn, 1848

The image is marked “copyright 1904 by C.T. Talman.”

Who is C.T. Talman? There is no Wikipedia page for C.T. Talman. A Google search returns barely two pages; the only real results direct the searcher back to this photograph. My best guess is that C.T. Talman was a man, since the preponderance of professional photographers of the day were most certainly male. So the Internet gives us very little information about this photographer whose only claim to immortality seems to be to have provided us with this priceless historical record: an image of the literary giant Edgar Allan Poe.

You have to admit, Edgar is looking pretty good in this portrait for a man who has been dead for fifty five years.

Well, it’s Poe, right?   He was the king of supernatural fiction after all.

All kidding aside, how could C.T. Talman have taken this picture?

The easy answer is that he didn’t.

Searching further, this very image was used as the biographical portrait for the Wikipedia article about Edgar Allan Poe, but the image is identified as the “1848 “Ultima Thule” daguerreotype of Poe.” Clearly the photograph was taken 55 years prior to the 1904 date inscribed on it by C.T. Talman.

The Wikipedia page doesn’t tell us anything about C.T.Talman on the File:Edgar Allan Poe 2 retouched and transparent bg.png page, but provides a link to the original upload of the image, which does:

A photograph of a daguerreotype of Edgar Allan Poe 1848, first published 1880.

Taken by W.S. Hartshorn, Providence, Rhode Island, on November 9th, 1848

Wikipedia: File:Edgar Allan Poe 2.jpg

The daguerreotype was made by W.S. Hartshorn and then re-photographed (copied) by C.T. Talman in 1904.

When W.S. Hartshorn made this Poe daguerreotype, U.S. copyright law did not extend to photography. Photography didn’t come under copyright until 1882 when photographer Napoleon Sarony sued the company that used one of his photographs of Oscar Wilde in an advertisement.

The Poe daguerreotype image was created and published before copyright extended to photographs, placing it in the public domain. At the time, American Copyright law required an act of registration for work to come under “copyright protection.” Yet when C.T. Talman later photographed the photograph – made a copy of this image, he affixed his own copyright on the image. Did this take it out of the public domain?

C.T. Talman unquestionably did the world of culture a great service by preserving this important historical image. At the same time, anyone looking at the image sees a copyright declaration which makes it appear C.T. Talman was the author of the photograph, when in fact, what he did was the modern day equivalent of making a scan – or a copy. As I understand it, an exact reproduction of an existing art image does not allow a photographer to assert copyright.

If I were to scan someone else’s image, and then affix my own copyright declaration, I would be guilty of copyright infringement. Back then, the only reason C.T. Talman would have made his copy of W.S. Hartshorn’s daguerreotype, was so that he could then sell the copies. This is what we know today as bootlegging, or piracy. By asserting copyright, C.T. Talman prevented others from doing so. Was this fraud? Bootlegging? Or plagiarism?

Because the worst is that by copying and then defacing this photograph with his own spurious copyright claim, C.T. Talman has secured a bit of immortality by garnering credit that should have gone to the actual photographer, W.S. Hartshorn. Most people looking at the image will see C.T. Talman’s name, and think that he was the photographer.

For myself, I am thankful that The Dark Clown shared this photograph online, because it is the only image of Edgar Allen Poe “labeled for reuse” that Google could find.

What is ironic, is that a tiny thumbnail of this image is stored in the University of Minesota’s Digital Content Library marked “Copyright: Distribution of this material is not authorized.” I would expect an educational institution to make an effort to properly attribute works in the public domain.

the worst thing

This strikes me as yet another example of copyright harming creators.

This image of Edgar Allan Poe was photographed by W.S. Hartshorn and is unquestionably in the public domain.


post script

Thanks to the comments, I’ve learned some new things, and will be revisiting this issue with a new blog article in Early September 2012.

One biggie shared by Terry Alphonse W.S.Hartshorn was actually Samuel Welds Hartshorn (1802 – 1885).


Those of us who can’t afford a surviving 1st Edition of Poe’s 1827 poem Tamerlane can read it online here.

Image Credits
W.S. Hartshorn’s original daguerreotype photograph of Edgar Allan Poe
was copied by C.T. Talman in 1904 and later shared by The Dark Clown

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11 Responses

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  1. [...] Allan Poe portrait, a daguerreotype of Edgar Allan Poe by W.S. Hartshorn in 1848, was shared by The Dark [...]

    • You actually have the initials incorrect for the photographer Hartshorn – It is S.W. Hartshorn or Samuel Welds Hartshorn. – born 1802 – 1885.

      Terry Alphonse

      August 31, 2012 at 11:08 pm

      • Thank you. As mentioned in the article, I only discovered the name through Wikipedia. Now that I know, I’ll see about getting it corrected on Wikpedia.

        Laurel L. Russwurm

        September 1, 2012 at 9:06 am

        • I see it backwards on half of the articles on the internet. I own a daguerreotype
          by Samuel Hartshorn, and it’s quite special. This caused me to dig a bit deeper
          to make sure on the name. Besides the special opportunity to photograph Poe,
          his work is not very common – I haven’t found another on the internet. Great blog.
          Terry

          Terry Alphonse

          September 1, 2012 at 9:29 pm

  2. Interesting article, but for me an further challenge seeing that I am researching the Talman family. I will look for this guy and see what I can find. It is interesting to note that my Grandfather was a C. F. Talman, and was alive at the time of this, and my brother is a professional photographer working for the Smithsonian, I myself concentrate on Architectural photography in the work that I do as a Building Designer

    Ben

    January 8, 2012 at 9:02 am

  3. Despite all of my research efforts, I have not been able to verify who CT Talman was. Obviously, he had access to the copy of this daguerreotype of Poe. The original dag has long since disappeared. This image is a reproduction of the famous Ultima Thule dag of Poe by Edwin H. Manchester, 1848, now in the possession of the American Antiquarian Society which holds the copyright (info from Michael J. Deas’s Portraits and Daguerreotypes of Edgar Allan Poe). Is this image in the public domain? In some ways, yes, but in others, no. If you copy the image owned by the AAS, you would be in violation of its copyright. But printing this image by Talman would probably be safe. Goofy situation, to say the least! Michael G. McGlasson

    MGM

    January 6, 2012 at 6:36 pm

    • Thank you for the interesting information, Michael. But work is either under copyright or it isn’t. Here’s what I think: please let me know if I’ve missed information you are privy to.

      If I read what you are saying correctly, Wikipedia has it wrong, and the original daguerreotype of Poe was not made by W.S. Hartshorn but rather by Edwin H. Manchester, in 1848. I myself am not an authority, and I have not invested a lot of time into researching this. I would like to see some authoritative authentication of who the photographer actually was, though, because I think correct attribution is far more important than copyright.

      What I have a problem with is the notion that this image is not now in the public domain.

      No matter who made the original image, it is undisputed that the image was made in 1848.

      But that wasn’t when it was published, apparently. If it was first published in 1880, as cited by Wikipedia, that should properly be the beginning of the copyright term enjoyed by the actual photographer and/or his/her publisher. At that point in history, American copyright terms were substantially shorter than they are now. But even applying the mammoth copyright terms of modern day USA, the copyright term would still have expired a long time ago.

      At some points in the history of American copyright law, American works required registration before they began to enjoy the “protection” of copyright law. So perhaps the American Antiquarian Society decided to register copyright upon another copy of the original Ultima Thule daguerreotype of Poe, the same image that this photograph was made from. If the image was already copyright by someone else, most likely the original photographer or publisher, then this would not be a legitimate copyright claim.

      If, on the other hand, the image was not under copyright when the American Antiquarian Society registered a copyright, it would have been in the public domain. Making a copy of a copyright work does not confer copyright on the copier; nor does making a copy of a work that is in the public domain.

      If anyone could just copy any works in the public domain and claim copyright, human nature is such that it is unlikely there would be any work left in the public domain. Likewise, if possession of a copy or an original was enough to confer a copyright monopoly on the posessor, nothing would be in the public domain.

      Even if the American Antiquarian Society had registered copyright recently enough to place this image under copyright protection right now, they would lose any such claim, because, as this image shows, this copy of the original daguerreotype of Poe was placed under copyright in 1904 by C.T. Talman.

      Perhaps I was wrong about C.T. Talman. If the original copyright had been renewed the one time that I believe was allowed for under American law of the time, the image would have been in the public domain by the time C.T. Talman made his/her copy. And in fact, there is also the possibility that C.T. Talman contracted for this copyright, possibly paying a princely sum for the right to copy the image and distribute the portrait. Copyright law is anything but static. So C.T. Talman might have had legitimate claim, or thought he/she did. Certainly, he/she could lay claim to the physical prints he/she himself/herself manufactured. But if any of C.T. Talman’s claim had any validity, the American Antiquarian Society could not have.

      The only way the American Antiquarian Society could possibly lay claim to copyright of the image, would have to have been before C.T. Talman’s claim. Which would make C.T. Talman a copyright infringer and a bootlegger. But even if that were the case, if it was possible for copyright to be attached to this image at such time, any copyright term anywhere in the world would now have expired. Just as any claim of C.T. Talman’s has now expired.

      The only instances I have seen of very old work coming under new copyright have been works that have been secreted by the owner in the private domain, and never published. In that case, it is only when a work, even an old work, is brought into the public view for the first time can anyone obtain a copyright monopoly on the work.

      But that is clearly not the case here. It seems very clear that the American Antiquarian Society could not possibly hold the copyright on this image.

      Have I missed anything?

      Laurel L. Russwurm

      January 6, 2012 at 8:00 pm

  4. [...] Theft by Copyright: C.T. Talman vs. W.S. Hartshorn (laurelrusswurm.wordpress.com) Share this:TwitterFacebookMoreDiggLinkedInStumbleUponRedditLike this:LikeBe the first to like this post. [...]

  5. Is there a record of flim flam for early photography on the order of what the AP did to the person who did the Hope images? Was Talman was asserting ownership to any more than his photo of the original. Talman may have used darkroom techniques to bring parts of the photo out that a mechanical reproduction would leave out, etc. I’d hate to push today’s notions of copyright maximalism back to an age that deemed player piano rolls something that people could not read and therefore not subject to copyright.

    twitter

    June 17, 2011 at 7:50 pm

    • We’ll never *know* what Talman really intended, but I think the placement of his copyright notice is telling. He didn’t placed it inconspicuously in the faded outer reaches as artists would to avoid marring their work, but rather in the dark center, where it will be wildly visible no matter how you frame the photograph.

      People today see the copyright “c” and we believe it as honest attribution. Yet copyright is all to frequently exercised and controlled by non-creators, particularly with licensing tied to income as it often is. I know of instances where copyright and attribution were given up in exchange for payment.

      Laurel L. Russwurm

      June 18, 2011 at 4:41 am

  6. Another good example of how copyright can *actually* be harmful.

    Moshe

    June 8, 2011 at 7:16 am


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