The study of history is essential for understanding the present. This goes for the study of legal history too. Contemporary law is living history; it is the result of past law and the root of future law. We can learn from past mistakes and successes and against this background make better law. As Elena Cooper demonstrates in her excellent volume on the history of artistic copyright in the UK, in the period from 1850 to 1911, there are lessons to be learned from her study that relate to present-day legislative policy as well as to current application of copyright law in new technological and cultural contexts. This is important: as a key regulator of the arts, the existence of rational and operative copyright law is crucial for a viable cultural domain. Artistic copyright must respond to digital transformations and to a World Wide Web, which is at present threatened by creeping monopolisation by Big Tech. Examples of what artistic copyright must address today include the case of a painting created by artificial intelligence and sold at Christie's for $432,500 (can a machine be an author under copyright law?) and a selfie taken by a monkey (can the photographer who facilitated the selfie claim copyright when he or she did not take the photograph himself or herself?). Google Images is another case in point (are the thumbnails presented in search results unauthorised copies of the images they point to?). Looking to copyright's history will teach us prudence in legal responses to new technologies.

Art and Modern Copyright: the Contested Image is a fine example of the rich scholarship that has come out of the last two decades’ mobilisation of a field with productive new approaches to the study of copyright history. The book is published in the Cambridge Intellectual Property and Information Law series, the first title in which was Brad Sherman and Lionel Bently's The Making of Intellectual Property Law: The British Experience, 1760–1911 in 1999. That work, along with other ground-breaking work (important samples of which were represented in Martha Woodmansee and Peter Jaszi's edited volume The Construction of Authorship: Textual Appropriation in Law and Literature (1994)) set the scene for a wave of interdisciplinary and theory-informed scholarship on copyright law. In 2008, the free digital archive Primary Sources of Copyright (1450–1900) (http://www.copyrighthistory.org/cam/), which makes available core documents (and commentary thereon) from copyright history in multiple jurisdictions, was launched. This paved the way for research to give a much fuller picture of the histories of copyright than conventional accounts that have too often been driven by a whiggish search for “origins” or “foundational moments” of copyright law. Importantly, copyright historiography bears witness of a leap towards far stronger theoretical and methodological footing today in the literature on the history of copyright. Turning away from grand narratives and teleology and instead towards case-studies, discontinuities, genealogies and social and cultural contexts, the legacy of the Annales School as well as a recent turn to legal empirical studies is felt in a volume like Art and Modern Copyright Law. In the extensive bibliography given at the end of the book the reader may inform herself or himself of the many recent contributions to the research of an emergent discipline.

The book is based on the author's doctoral work on photographic copyright and on further archival work, which has brought to light interesting new materials on artistic copyright more generally. There is an overall ambition that gets unfolded in the chapters of Art and Modern Copyright. In particular, this study of artistic copyright is motivated by a concern with blind angles that have arisen from the fact that the history of copyright has been written from the perspective of literature, not art (the copyright historian Kathy Bowrey is cited in the introduction for having made this observation in 2002). We are told that contrary to claims made in the existing literature that developments that took place in nineteenth-century British copyright – including the introduction of artistic and photographic copyright by the 1862 Fine Arts Act – may be explained as an expansion of subject matter from literature to visual art based on the comparability between the genres, a premise of Art and Modern Copyright is that the fundamentally different logics of, respectively, literature and visual art came to play a productive role in the making of copyright law. Previous studies have tended to gloss over differences between literature and art. By contrast, in this study they are zoomed in on in an attempt to highlight the gaps, divergences and conflicts that marked the historical development of copyright in flat art: a favoured genre in the nineteenth-century art market, both aesthetically and economically. Not only does this add further depth to our understanding of the particularities of artistic copyright: it serves to explain some of the paradoxes that have been handed down to us in the application of the law. A prominent example discussed at length in the book is the schism between “mechanical labour” and “mental labour”. Modern copyright's rationale is to protect original mental and creative labour. However, as the scrutiny of photographic copyright's history reveals when pressing for the inclusion of photography as an object of copyright protection, in the mid-nineteenth century, photographers advanced:

As we learn, the Lords’ debates on artistic copyright from the time of the passing of the 1862 Fine Arts Act emphasised mental labour as the foundation for copyright. Yet, the fact that the 1852 Copyright Act – which protected visual art as works of mechanical labour – was left unrepealed by lawmakers in 1862 meant that until the early twentieth century this dual – and paradoxical – basis for artistic copyright was in play. This is an illuminating and original point made by Cooper.

Chapters two and three of Art and Modern Copyright are dedicated to “Art, Copyright and ‘Authors’”. In these chapters the dynamic relationship between art and copyright is explored in the context of social status-building associated with authorship. There is a focus in the chapters on the struggles of photographers to protect their profession both in terms of legal and social recognition. While it might be objected that in this volume the history of artistic copyright gravitates unduly towards the history of photographic copyright, it is nonetheless always rewarding to turn our attention to new media and the bastard genres (rather than the canonised genres) for an understanding of the ways that law has defined art. Anomalies of the classificatory system of the arts including photography, artistic craftsmanship, fashion and more expose legislators’ and society's tacit assumptions and have a tendency to challenge the legal conceptual frameworks. This is where legal innovation takes place. When studying legal history against the grain we can fully appreciate how the ruptures and inconsistencies were part and parcel of what looks in hindsight as an almost natural historical development. A point also made by Cooper is that in the nineteenth century, artistic copyright “added something new to the ‘logic and grammar’ of copyright: a mechanical paradigm of copyright protection, which made no reference to creative authorship”. We may go one step further here and suggest that art was a catalyst of copyright law rather than just new subject matter to be cultivated by the existing logics of law. In a number of ways modern copyright's all-embracingness and flexibility is a product of laborious efforts to make misfits of art fit in, socially as well as legally.

Drawing on a variety of sources including those stemming from Cooper's original archival research into the papers of artists, art institutions, collectors, professional organisations and on the legal as well as the art historical literature, the two opening chapters on art, copyright and authors take the reader through interesting convergences and divergences between aesthetics and the law from the mid-nineteenth century until the early twentieth century. For example, we learn that early in that period, within the art community, photographers employed copyright as a social lever in the hierarchy of the arts. However, by 1911 copyrightability had ceased to be a marker of status among artists.

Chapter four discusses the “wrongs that artists commit” in the period from 1850 to 1911. In particular, it looks at the wrongs that artists may have been perceived to commit against collectors, the purchasers of artists’ works. The chapter brings to light conflicts between ownership of the physical artwork and ownership of intangible rights in it: “what is long forgotten today, [is] in particular the view that copyright's purpose was to regulate artists, that is, to provide a legal underpinning to a moral code that curtailed artists’ freedom to replicate their own work so as to protect the pecuniary interests of collectors in the physical object”. Today the conflict is resolved to the extent that copyright in works of art belongs to the artists. In nineteenth-century artistic copyright the picture was, so to speak, more muddled. As we learn, it remained a contentious topic whether copyright was to follow the artwork or the artist until the twentieth century. By the turn of the twentieth century, Cooper points out, an interesting dynamic between legal debates and a development in artistic norms took place. A shift in aesthetic preference from narrative genre painting to modernist l'art pour l'art with textured surfaces that defied replication “brought the parameters of the copyright debates into line with more general changes surrounding legal thinking about property”. Property as well as intangible property came to be viewed as limited (not absolute) rights to valuables.

Chapter five explores nineteenth-century British copyright as an early source of publicity rights. Cooper presents materials that indicate that:

The social context of this underpinning of trade practices by copyright law was the coming together of fame and face in the early beginnings of modern visual culture. Early acknowledgement of a pecuniary interest of celebrities in their own image has long been part of the narrative of US law. Cooper's study adds the British experience to the history of publicity rights.

Chapter six looks at how “public interest” consideration came to affect rules pertaining to infringement in nineteenth-century artistic copyright. Interestingly, the public interest was pleaded in debates over the use of art reproductions by advertisers who claimed that they were the poor man's picture gallery and access to education of taste. In the image-dependent culture of today it remains a nice question whose interests copyright law should serve. As the media theorist Marshall Mcluhan said, the “medium is the message”: any new technology needs a response from the law. Cooper's book may be a place to start when looking for an appropriate response. Art and Modern Copyright is recommended to scholars of intellectual property law, art history, media studies and intellectual history as well as to practitioners of law and the lawmakers of today.