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‘Whistler’s Woman in White’ through the Lens of Copyright History: CREATe lecture at ARCadia and for the Institute of Art and Law

Posted on    by Elena Cooper

‘Whistler’s Woman in White’ through the Lens of Copyright History: CREATe lecture at ARCadia and for the Institute of Art and Law

By 22 November 2022No Comments

Earlier this year, a new exhibition of the work of the artist James McNeill Whistler (1834-1903) opened at the Royal Academy of Arts, London, before transferring to the National Gallery of Art, Washington: ‘Whistler’s Woman in White: Joanna Hiffernan’, curated by Prof. Margaret MacDonald and Anne Dumas. One of the many visitors to the RA exhibition was Dr Elena Cooper (Senior Research Fellow, CREATe and author of Art and Modern Copyright: The Contested Image, CUP, 2018). In recent talks at the ARCadia Festival in September (Advanced Research Centre, University of Glasgow) and for the Institute of Art and Law in October (hosted at New College, Oxford), Elena argued that copyright history offers a new lens on this innovative exhibition. In this blog, Elena gives some insight into these perspectives, drawing on her fully-illustrated article about the RA exhibition published in The Burlington Magazine, now freely available to readers of this blog for a limited 14-day period: click here.What I really enjoyed about visiting the exhibition Whistler’s Woman in White, is the way in which the curators pose open and contextual questions. Instead of a narrow focus on artist and work, the curators place centre-stage the relationship between Whistler and a relatively unknown sitter: Joanna Hiffernan (1839-1886). Hiffernan, we learn from the exhibition, was a red-headed Irish girl, from a desperately poor background. She met Whistler in London in 1860, when she was 17 years old and was Whistler’s principal model, muse and romantic partner in the 1860s.

The exhibition innovates as a matter of art history, in adopting a ‘more humanistic understanding of how these exquisite paintings… were made’ (Catalogue, p.7); ‘a portrait does not just happen. It results from a collaboration between artist and model or sitter’ (Catalogue, p.33). The exhibition, then, is the first ‘fully to acknowledge the role Hiffernan played in Whistler’s career and the first to consider their creations and collaborations’ (Catalogue, p.7)

What new perspectives can a copyright lawyer bring to this exhibition?

For copyright lawyers today, the idea of ‘collaboration’ between sitter and artist, might immediately call to mind aspects of the joint authorship test in copyright law today (s.10(1) CDPA 1988) which, after the ruling in Kogan v Martin (CA, 2019), is more inclusive and therefore favourable to minor contributors where there is an informal relationship between the parties. There is, of course, no record of the precise interaction between Whistler and Hiffernan as regards the creative process (that one would need to consider today’s joint authorship test). This is unlike certain other historic examples: the actress Sarah Siddons, for instance, claimed in her autobiography that she both determined her dramatic pose in Joshua Reynolds’ portrait Sarah (Kemble) Siddons Tragic Muse (1783-4) and to have ‘intervened’ to stop Reynolds from ‘applying a wash of colour to her face and neck’. However, in opening up the relationship between Hiffernan and Whistler for re-interpretation, and referring to Hiffernan as a creative collaborator, the exhibition plants the seeds of the idea that a sitter today might be a joint author with, for example, a painter. This has the potential to counterbalance traditional power-relations in the visual arts; while a court today may grant a minor joint author a smaller share of copyright, all copyright owners must consent to the exercise of exclusive rights (e.g. reproduction) or to an assignment (i.e. transfer of ownership) of copyright to a third party.

However, as I have shown elsewhere, joint authorship of a painting was not something considered in the nineteenth century (probably due to the controversies that would be raised by the use of studio assistants, at the time when a painting was valued according to the hand that painted it). Therefore, the deeper legal insights to be gained from the exhibition, lie not by reflecting on copyright law today, but rather than with copyright history.

Legal history is like a process of time-travelling: a legal historian immerses herself in the understandings of a particular time, with a view to recover a deep sense of the ideas and full possibilities of action of that time. Accordingly, in the lectures for ARCadia and the Institute of Art and Law, I invited attendees to ‘time-travel’ back to the summer of 1862.

Summer 1862, we learn from the exhibition, was an important time for art history; it was a ‘revolutionary moment’ in art, in the first public exhibition of a highly controversial painting by Whistler, that signified Whistler’s rejection of Victorian art conventions: Symphony in White No.1, originally titled The White Girl (1862). The painting was exhibited in summer 1862 at the Berners Street Gallery, London, having been rejected by the selection jury for the Royal Academy of Arts’ summer exhibition. The painting broke new ground: it is a full-length portrait suggesting a sitter of dignified status, yet Hiffernan was unknown and informally presented. Also, defying Victorian expectations, the painting lacked narrative content; Hiffernan simply stares at the viewer without expression.

Symphony in White, No. 1: The White Girl (1862), portrait of Joanna Hiffernan. The National Gallery of Art, Washington, D.C.

Copyright history provides another lens through which to view the radicalism and ambiguities of Whistler’s art. Summer 1862 was also the time of the passage of the Fine Arts Copyright Act 1862, which was, amongst other things, the first legislation to protect painting by copyright (section 1) and also introduced a statutory provision on art fraud (section 7). In the lectures for ARCadia and the Institute of Art and Law, I considered again the controversies surrounding Symphony in White No.1 through the lens of nineteenth century copyright categories.

Sitters complicated debates on copyright in the nineteenth century, not as possible joint-authors, but as subjects depicted in a painting, and in the copyright debates, there was a repeated distinction made between copyright rules applying to public ‘grand manner’ portraits, on the one hand, and ‘private’ portraits on the other, categories which are ambiguous in Whistler’s work. These ambiguities (as regards copyright categories and Whistler’s work) are further accentuated by legal documents included in the exhibition: a power of attorney that empowered Hiffernan to deal with Whistler’s affairs in his absence (which would include the power to control the reproduction of her image).

In the lectures, I also recounted the story of the titling of the painting told in the exhibition. Whistler’s choice of title – Symphony in White No 1 originally The White Girl – was intended to emphasise the painting’s abstract qualities and lack of narrative content. Yet managers at the Berners Street Gallery sought to advertise it as ‘Whistler’s Woman in White’ suggesting it illustrated the mysterious character Anne Catherick in Wilkie Collins’ then popular sensation novel of the same name (first published in book form in 1860). The art fraud provisions of section 7 included acts relating to a painting that had been ‘altered’ without the authorisation of a painter, and later in the nineteenth century this was contemplated to include changing a work’s title where the narrative (or story) was also changed. Whistler’s titles though, raised the question of whether changing a title, also changed the work itself by changing the very meaning of art that a title signified. These were questions, then, of both legal as well as aesthetic significance.

 Those interested to find out more can read the full article: E. Cooper ‘Whistler’s Symphony in White No.1 through the Lens of Copyright History’ (Vol. 164, p.p. 486-491), available to readers of this blog for free for a limited 14-day period: please click here. Elena will be presenting themes from her article in a public lecture at the Victorian Picture Gallery, Royal Holloway University of London next term (details to follow via the CREATe blog).