Free Culture: Phhotography as a Democratic Tool

From Lawrence Lessig, Free Culture (2004)) :

CHAPTER TWO: “Mere Copyists”

In 1839, Louis Daguerre invented the first practical technology for producing
what we would call “photographs.” Appropriately enough, they were called
“daguerreotypes.” The process was complicated and expensive, and the field was
thus limited to professionals and a few zealous and wealthy amateurs. (There was
even an American Daguerre Association that helped regulate the industry, as do
all such associations, by keeping competition down so as to keep prices up.)

Yet despite high prices, the demand for daguerreotypes was strong. This pushed
inventors to find simpler and cheaper ways to make “automatic pictures.” William
Talbot soon discovered a process for making “negatives.” But because the
negatives were glass, and had to be kept wet, the process still remained
expensive and cumbersome. In the 1870s, dry plates were developed, making it
easier to separate the taking of a picture from its developing. These were still
plates of glass, and thus it was still not a process within reach of most
amateurs.

The technological change that made mass photography possible didn’t happen until
1888, and was the creation of a single man. George Eastman, himself an amateur
photographer, was frustrated by the technology of photographs made with plates.
In a flash of insight (so to speak), Eastman saw that if the film could be made
to be flexible, it could be held on a single spindle. That roll could then be
sent to a developer, driving the costs of photography down substantially. By
lowering the costs, Eastman expected he could dramatically broaden the
population of photographers.

Eastman developed flexible, emulsion-coated paper film and placed rolls of it in
small, simple cameras: the Kodak. The device was marketed on the basis of its
simplicity. “You press the button and we do the rest.” [1] As he described in
/The Kodak Primer/:

“The principle of the Kodak system is the separation of the work that any person
whomsoever can do in making a photograph, from the work that only an expert can
do. … We furnish anybody, man, woman or child, who has sufficient intelligence
to point a box straight and press a button, with an instrument which altogether
removes from the practice of photography the necessity for exceptional
facilities or, in fact, any special knowledge of the art. It can be employed
without preliminary study, without a darkroom and without chemicals.” [2]

For $25, anyone could make pictures. The camera came preloaded with film, and
when it had been used, the camera was returned to an Eastman factory, where the
film was developed. Over time, of course, the cost of the camera and the ease
with which it could be used both improved. Roll film thus became the basis for
the explosive growth of popular photography. Eastman’s camera first went on sale
in 1888; one year later, Kodak was printing more than six thousand negatives a
day. From 1888 through 1909, while industrial production was rising by 4.7
percent, photographic equipment and material sales increased by 11 percent. [3]
Eastman Kodak’s sales during the same period experienced an average annual
increase of over 17 percent. [4]

The real significance of Eastman’s invention, however, was not economic. It was
social. Professional photography gave individuals a glimpse of places they would
never otherwise see. Amateur photography gave them the ability to record their
own lives in a way they had never been able to do before. As author Brian Coe
notes, “For the first time the snapshot album provided the man on the street
with a permanent record of his family and its activities. … For the first time
in history there exists an authentic visual record of the appearance and
activities of the common man made without [literary] interpretation or bias.”
[5]

In this way, the Kodak camera and film were technologies of expression. The
pencil or paintbrush was also a technology of expression, of course. But it took
years of training before they could be deployed by amateurs in any useful or
effective way. With the Kodak, expression was possible much sooner and more
simply. The barrier to expression was lowered. Snobs would sneer at its
“quality”; professionals would discount it as irrelevant. But watch a child
study how best to frame a picture and you get a sense of the experience of
creativity that the Kodak enabled. Democratic tools gave ordinary people a way
to express themselves more easily than any tools could have before.

What was required for this technology to flourish? Obviously, Eastman’s genius
was an important part. But also important was the legal environment within which
Eastman’s invention grew. For early in the history of photography, there was a
series of judicial decisions that could well have changed the course of
photography substantially. Courts were asked whether the photographer, amateur
or professional, required permission before he could capture and print whatever
image he wanted. Their answer was no. [6]

The arguments in favor of requiring permission will sound surprisingly familiar.
The photographer was “taking” something from the person or building whose
photograph he shot—pirating something of value. Some even thought he was taking
the target’s soul. Just as Disney was not free to take the pencils that his
animators used to draw Mickey, so, too, should these photographers not be free
to take images that they thought valuable.

On the other side was an argument that should be familiar, as well. Sure, there
may be something of value being used. But citizens should have the right to
capture at least those images that stand in public view. (Louis Brandeis, who
would become a Supreme Court Justice, thought the rule should be different for
images from private spaces. [7]) It may be that this means that the photographer
gets something for nothing. Just as Disney could take inspiration from
/Steamboat Bill, Jr./ or the Brothers Grimm, the photographer should be free to
capture an image without compensating the source.

Fortunately for Mr. Eastman, and for photography in general, these early
decisions went in favor of the pirates. In general, no permission would be
required before an image could be captured and shared with others. Instead,
permission was presumed. Freedom was the default. (The law would eventually
craft an exception for famous people: commercial photographers who snap pictures
of famous people for commercial purposes have more restrictions than the rest of
us. But in the ordinary case, the image can be captured without clearing the
rights to do the capturing. [8])

We can only speculate about how photography would have developed had the law
gone the other way. If the presumption had been against the photographer, then
the photographer would have had to demonstrate permission. Perhaps Eastman Kodak
would have had to demonstrate permission, too, before it developed the film upon
which images were captured. After all, if permission were not granted, then
Eastman Kodak would be benefiting from the “theft” committed by the
photographer. Just as Napster benefited from the copyright infringements
committed by Napster users, Kodak would be benefiting from the “image-right”
infringement of its photographers. We could imagine the law then requiring that
some form of permission be demonstrated before a company developed pictures. We
could imagine a system developing to demonstrate that permission.

But though we could imagine this system of permission, it would be very hard to
see how photography could have flourished as it did if the requirement for
permission had been built into the rules that govern it. Photography would have
existed. It would have grown in importance over time. Professionals would have
continued to use the technology as they did—since professionals could have more
easily borne the burdens of the permission system. But the spread of photography
to ordinary people would not have occurred. Nothing like that growth would have
been realized. And certainly, nothing like that growth in a democratic
technology of expression would have been realized.