This month sees the opening of a major new exhibition of the work of the artist James McNeill Whistler (1834-1903) at the Hunterian Art Gallery, Glasgow, which holds one of the largest Whistler collections in the world: Whistler: Art and Legacy (9 July-31 October 2021). In this blog, I reflect on how one painting by Whistler in the Hunterian collection (not part of the exhibition) can help us think again about the relationship between art and copyright: Brown and Gold: Portrait of Lady Eden (1894-5). Portrait of Lady Eden was the subject of a legal case decided by the Paris Court of Appeal: Eden v Whistler (1897) and that case is known today for its role in the development of the right of divulgation (or disclosure) under French law. In this blog, I uncover a different perspective: Portrait of Lady Eden helps us to understand quite different ideas about UK copyright in the nineteenth century.

James McNeill Whistler, ‘Brown and Gold: Portrait of Lady Eden’ (1894-5)

What story lies behind Whistler’s Portrait of Lady Eden? In 1892, Sir William Eden, a wealthy baronet, expressed that he would like Whistler to paint his wife Lady Eden. Whistler initially said he would charge 500 guineas, which William Eden thought to be too much. Later Whistler changed his mind and said he would agree to paint Lady Eden for between 100 to 150 pounds. Lady Eden sat for the portrait in Paris in January 1894. In February 1894, Eden saw the painting in Whistler’s studio and, as he was completely satisfied with the painting, he sent a cheque to Whistler for 100 guineas. Whistler accepted the cheque but kept the painting. Eden then travelled to India, and while he was overseas, Whistler sent the painting to an exhibition in Paris, at the National Society for Fine Arts.

When Eden returned from India, Eden demanded delivery of the painting, but Whistler refused. Whistler returned the money which Eden had paid him; Whistler considered that as he had returned the money, he was not obliged to give the painting to Eden. In November 1894, Eden started legal proceedings in Paris. While the proceedings were ongoing, Whistler painted out the face and the figure of Lady Eden, and painted, over the top, the portrait of another sitter (an American, Mrs Herbert Dudley Hale) and added a pot of flowers to the right of the sitter. Further, after the case had been decided, and the costs hearing was ongoing, Whistler is reported to have sandpapered down the picture, to reveal Lady Eden again.

Before the courts, Eden argued that the picture was complete when he saw it in February 1894 and, as he had paid the price, Whistler was therefore obliged to deliver it to Eden, as the commissioner of the picture. However, Whistler resisted this argument, on the basis that the work was unfinished. As his lawyer argued in Court: ‘you cannot oblige an artist, to give up an unfinished work and allow the incomplete creations of his heart and brain to circulate the world’ (Whistler, ‘Eden Versus Whistler: The Baronet and the Butterfly’ 1899, p.27) The first instance court decided in favour of Eden, but Whistler won on appeal: Whistler could keep the picture, so long as both the purchase price and damages were paid to Eden. Under French law, then, the case is understood today as a key development of the author’s right of divulgation or disclosure: it is fundamental to the personality of the author, for the author to decide when a work is ready to be disclosed to the public and delivered to a commissioner.

What different perspectives might we glean from the case, viewed from a UK standpoint? As I argue in Art and Modern Copyright: The Contested Image (2018, CUP), one basic premise of UK copyright law from at least the 1850s to the codification of copyright in 1911, was that there were fundamental differences between literary and artistic subject matter, and that, as a result, different rules should apply to literary works (like books) as compared with works of visual art like painting. One such difference was the inappropriateness of using ‘publication’ as part of the rules of painting copyright. By the mid nineteenth century, ‘publication’ was a corner-stone to the rules of literary copyright: the Literary Copyright Act 1842 only protected works first published in the United Kingdom and publication was key to establishing the term of protection (then for the life of the author plus seven years, or 42 years from first publication, whichever was longer). Further, the case of Jeffreys v Boosey (1854) tied qualification to publication: foreign authors would only qualify for protection under the 1842 Act if they first published their work in the UK while being resident there.

By contrast, in nineteenth century debates on copyright in visual art, ‘publication’ was thought to be problematic because of various difficulties in applying that to painting. Fundamentally, the idea of publication, was thought to imply that a work was finished and, as the story behind Portrait of Lady Eden well illustrates, that could be very difficult to determine. Accordingly, it was the indeterminacy as to when a painting is finished, that led the Fine Arts Copyright Act 1862 to depart from the principle of publication, in both the rules on term (copyright would expire 7 years after the author’s death) and qualification (determined by nationality and residence of the author alone), and then to firm resistance to any further proposals to change that approach in the late nineteenth century.

With the establishment, by the end of the first decade of the twentieth century, of principles of codification (premised on the general principle of treating all subject matter together) as well as international copyright rules based on creation (not publication), the different treatment of visual art by copyright in the nineteenth century is today long forgotten. Recovering copyright debates from the nineteenth century, takes us to a time when the question repeatedly being asked was what the specific needs of different subject matter were and how these could better be accommodated by copyright. Therefore, while the legal landscape today is very different, contemplating a time when what was different about visual art was more clearly articulated, can help us think again today about the distinct yet different challenges that visual art poses for copyright today.

Dr Elena Cooper presenting at the Hunterian Art Gallery, Glasgow, October 2019. Photograph by Lukas Powroziewicz.

Dr Elena Cooper is Leverhulme Early Career Fellow at CREATe, University of Glasgow and the author of Art and Modern Copyright: The Contested Image (2018). She presented her work on Whistler’s Portrait of Lady Eden in the Hunterian Art Gallery, before the painting itself, in a talk for the British Literary and Artistic Copyright Association in October 2019.