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

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

Personal Use Copying vs. Bootlegging

Star Wars Movie Poster

Today there is only one first run movie theatre chain in the whole of Canada, so even the most successful movies only play for a matter of weeks.

But back in the 1970’s there was still competition among Canadian movie theatres so Star Wars actually played on Canadian movie screens for over a year. When the first Star Wars movie was released I was so caught up in it that I ended up going out to see it in a variety of movie theatres thirteen times during that first year.

I am a huge Star Wars fan.

I bought all the Star Wars merchandise that I could afford. In those days there were no DVDs or downloads. VCRs had just come on the market and they were prohibitively expensive.

So at first those of us who were not indescribably wealthy had to content ourselves with purchasing vinyl record albums that ran at 33 1/3rd rpm on an old fashioned machine called a record player. I bought the music in the form of the John Williams Star Wars soundtrack album, as well as a record called “The Story of Star Wars”, a synopsis of the story narrated by C3PO with audio clips from the film. To this day any time I hear the 20th Century Fox music tag I flash on the “real” Star Wars opening.

And today the George Lucas’s Star Wars empire continues to make money in new ways. I don’t have a problem with that. It is a business after all.

I still love Star Wars, particularly the first one. And this article in no way intends any disrespect. I’m telling you about my connection with Star Wars because the incredible success that Star Wars had makes it a good example. That, and because Star Wars was the very first videotape movie I saw played on a VCR in a private home.

What I really want to do today (besides procrastinate from working on my NaNoWriMo novel) is to look at personal use copying as a copyright infringement issue.

The Copyright Lobby makes no distinction between commercial bootleggers who distribute illegal copies for profit and legal purchasers who seek to make a back-up copy or digital format shift for personal use. Because they insist it is all the same thing, the Copyright Lobby has been pressuring governments the world over in an attempt to criminalize personal use copying.

I think there is a problem with the terminology here because calling both things by the same name is horribly misleading. Both activities involve digital copying, but that is where the similarity ends. Just as apples and oranges are both fruit but they are really not the same at all.

apples and oranges

applesOne thing the Copyright Lobby calls “piracy” would be more accurately called “Bootlegging”. Bootleg music recordings have been around as long as audio recording technology has existed. People have smuggled recording devices into concerts and made copies which they have then sold around the world. There have also been professional bootleggers who have copied recorded music and repackaged it to sell illegally. These activities have resulted in lost revenue for music distributors, and in fact should be illegal.

orangesThe other thing the Copyright Lobby calls “piracy” is what I call “Personal use copying”. This covers a much wider range of activities, but the chief defining factor of personal use copying is the fact that this digital copying is not for profit. Rather than resulting in lost revenue for distributors, personal use copying relieves the burden of format shifting from the manufacturer to the consumer. When shared through p2p networks personal use copying serves as a means of promoting these commercial products in the same way that radio and television broadcasts have done under the traditional business model. This type of copying should be legal.

The Copyright Lobby’s effort to criminalize this type of copying simply alienates the customer base. Like DRM or SOC methods, it does absolutely nothing to stem the flow of bootlegging.

When did the idea of ownership change?

It used to be that when you bought something you owned it. You were free to do with it what you liked. Even if it was something covered under copyright law… like a book, you were entitled to read that book as many times as you wanted to.

  • You could loan it to a friend.
  • You could quote from it in an essay
  • You could read it aloud to your blind grandmother.

And at the end of the day it was still your book. Unless you decided you no longer wanted it, at which time you could legally sell it to a used book store.

Now lets look at what’s been happening so far in the information age. Manufacturers of recorded music and movies have their materials covered under copyright. They want us to not make copies for our own personal use, even though we have paid them the price they ask.

Personal use copying is not the same thing as bootlegging for commercial gain.

The Problem

Original Star Wars Betamax videotape
When videotape and VCRs first came on the market, it cost on the order of $100 to purchase Star Wars (I refer to the “real” Star Wars movie… back in the days of ancient history when there was only one which was simply called Star Wars… “Star Wars Episode One” did not yet exist).


If you purchased Star Wars in the Sony Betamax version back then, you would have found yourself out of luck a few short years later when Sony stopped making Betamax VCRs. When your Betamax machine became inoperable, you could no longer buy a new one, which of course rendered the tape you purchased in good faith unplayable. No one warned the unfortunate consumers that invested in Betamax tapes and Betamax equipment. I never heard of anyone getting refunds from the movie companies. Or the MPAA. Or Sony. Etc.

Star Wars on VHS
So now the copy of the Star Wars movie is no longer playable. Obviously, you thought that you would be able to keep playing that movie whenever you wanted to for the rest of your life. The same way that you will be able read your paperback copy of Anne of Green Gables as many times as you like for as long as you live.


Now you can’t. So what do you do if you really loved Star Wars?

You go out and buy it again. This time on VHS.

The rest of your life, eh? I know that’s what I thought. Didn’t you?

Did Twentieth Century Fox ever offer to reimburse you for the useless hunk of plastic and tape (that you have now purchased twice for your own use) that is now deteriorating? And suddenly it’s near impossible to buy a new VHS machine because there is yet another new technology– now movies are on DVD. Even if you can find a new VHS machine, we’ve all learned that a VCR will be lucky to last for five years anyway. And of course the VCRs you can find now are far more expensive than DVD players. So what’s a fan to do. Oh right.

You go out and buy Star Wars again on DVD.

Star Wars on DVD

[Of course, this particular example is extra irritating because George Lucas hasn’t stopped tinkering with the thing, and since he’s vowed to never release the REAL version (the one that actually played in theatres in 1977) on DVD, so I will never have the version I want no matter how many times I’ve paid for it. *sigh*]

But you’re a fan.

So you go out and buy the movie AGAIN on DVD.

At least you have it in a form that will last.

Now HD is gone too.

Or not.

Because then along came HD DVD.  The media manufacturers were a little surprised that we didn’t all rush out and buy HD machines.

Replacing our entire video library. AGAIN.

Oh… you were one of those suckers who got conned into converting to bought into HD? Ooooops!  Didn’t anyone tell you that the technology you were supposed to back was Blu-Ray?

I could go through the same process to look at the parallels in the music industry: piano rolls, gramophone cylinders, ’78’s, LPs, 8 track tapes, cassette tapes and CDS… all over the course of a single century.

Funny, I have a working gramophone older than I am which will play ’78’s. Yet our modern day electronic equipment will be doing well to work after a decade.

I don’t know about you but I am tired of buying the same movies over and over again.

Copyright is an agreement between the creator/manufacturer and the consumer.

The media distributors have NOT kept their part of the bargain, expecting consumers to pay for the same material over and over again. It should be legal to be able to watch the movie you have purchased in good faith as many times as we want to, for the rest of our lives.

Consumers have not been given any protection by governments the world over.

At the very minimum customers need to be given the right to copy the products they have purchased onto the piece of technology needed to play it.

We believe we own what we have purchased.
They want us to believe that we don’t.

Fortunately our government representatives are in an excellent position to look out for the Canadian consumer interests as they redraft our copyright law for the benefit of Canadians.

[At last: my copycon submission made it to the copyright consultation website.]