It was late October when the man from LIFE was called down from his office. He wasn’t sure why he was going to meet with Mr. Whittier, an agent of the Meek Advertising Company and its client, Huyler’s Fine Chocolates, knowing only that he was about to be presented with some sort of proposition. Perhaps he should have been warier, for one of his colleagues had warned him that this matter had been “entirely out of his province.” When Whittier appeared, he was carrying a package; from it he produced a painting. The man took one look at it and realized instantly what was happening. “The minute I saw it,” he reported later, “I said not in your life.”Footnote ¹

It was 1909, and the two men were meeting at the headquarters of the Life Publishing Company, at which the man from LIFE worked. The unfurled painting depicted a man and a woman in an embrace, with her face barely visible and his facing away; her arms were draped around him, probably in a muddy brown palette. It was going to be used for an advertisement, as a sign for Huyler’s Fine Chocolates. It was not scandalous—that was not the problem. The problem was that to the man from LIFE, it looked a great deal like an illustration by C. Coles Phillips called Arms and the Man, and also a cover and copyrighted image of Life magazine (fig. 1).Footnote ² Whittier, from the Meek Company, knew that. His client, Huyler’s, also knew that, having purchased a print of Phillips’s original, which was then presumably used to make their new piece. That was why Whittier was here. His proposition was really only a simple question: Was this all okay?

Figure 1:

C. Coles Phillips, “Arms and the Man,” Modern Graphic History Library, Washington University in St. Louis. Accessed at http://library.artstor.org/asset/SS7731863_7731863_12357256. Coles’ illustration was used as the July 8, 1909 cover of Life.

It was not.

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Life magazine—the first Life magazine, before Henry Luce of TIME bought the title in 1936 and discarded everything else—was one of the most significant media institutions of its era.Footnote ³ A publication of general interest and satire, its pages were graced by illustrations, prose, poetry, and verse; its opinions both visual and verbal were so widely disseminated that they influenced national trends. Readers of the magazine were among the first to be introduced to a large cohort of famous American illustrators, including Charles Dana Gibson, C. Coles Phillips, and James Montgomery Flagg.Footnote ⁴ This was no small thing in the era that one commentator described as being under the “tyranny of the pictorial.” Gibson’s illustrations alone were said to cause millions of American women to rethink the way they dressed and posed.Footnote ⁵ During the so-called Golden Age of Illustration, LIFE’s pictures defined their era.

But if the magazine was influential, it was also a paradox. Its circulation numbers paled in comparison with other, more well-known magazines: in the first decade of the twentieth century, when The Saturday Evening Post and Ladies Home Journal passed the one million mark, Life’s subscriptions likely numbered close to one hundred thousand at most.Footnote ⁶ At the same time, however, it was not one of the so-called little magazines, renowned for their sophistication and modernism—with its larger subscription list and far-broader appeal, it was a far cry from The Seven Arts. It would be tempting to call Life middlebrow, but it predates both the term and the phenomenon.Footnote ⁷ It was too small to be large, and too large to be small. It was modern, but familiar; it was crass, yet genteel. And it was also, according to George Harvey of Harper’s Weekly, “the most successful ten-cent weekly. It is crisp as a doughnut and full of spice as a cooky [sic].”Footnote ⁸

Scholars have almost begun to pick up on the scent. Turn-of-the-century magazines have increasingly been of academic interest as scholars of American studies, cultural critics, and cultural theorists have sought to understand the strange space that mediates between the massified and the rarified.Footnote ⁹ Feminist scholars, in particular, have been interested in both the illustrated and editorial contents of Golden Age magazines, focusing on how images of femininity may have shaped women’s behavioral norms.Footnote ¹⁰ Consequently, there have been many studies of certain magazines, particularly the Ladies Home Journal. Life, being of smaller stature and more ambiguous leaning than its competitors, has largely escaped scrutiny.Footnote ¹¹

Much of this scholarship, meanwhile, has focused on content over operations, presupposing that one can be fully understood without the other. A study of LIFE’s business operations shows this supposition to be fraught: the magazine’s content and cultural influence can only be understood in concert with the business practices and environment that shaped them. Two factors, then, account for this oversight. First, many scholars have operated under the assumption that that all mass-market magazines operated similarly, according to what Richard Ohmann describes as “a formula of elegant simplicity”: price the magazine below the cost of production so that it acquires a large subscription base, and then leverage that subscription base to make money from advertisements.Footnote ¹² In fact, this was not the extent of LIFE’s business model. Second, the business records of only a few magazines survive, and even among those that remain, the information is partial. As a result, we know little about how these magazines were actually run. Many of LIFE’s contracts, however, have been preserved, leaving behind a surprisingly detailed picture of how the company functioned.Footnote ¹³

But the paradox remains. How ought we to understand Life, a medium-sized magazine that seems to have done enormous things? How can we pair our understanding of the magazine’s national influence with its middling subscription numbers? The answers to these questions reveal something much more intriguing about the nature of the turn-of-the-century media world. For Life was more than a magazine: it was the flagship publication of a company that poked, prodded, and probed at an emerging concept of intellectual property—often operating beyond the understanding of its staffers, and sometimes beyond the actual legal possibilities of its era. Its wares were pictorial ideas as much as prints; its medium was copyright, not paper. And even at the dawn of the age of mass publication and media; even during an era when one historian has suggested that, “topical magazines achieved a centrality in American life never duplicated before or since,” LIFE was doing something new.Footnote ¹⁴ For when other magazines were selling issues, LIFE was selling pictures.

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Life was the brainchild of John Ames Mitchell, a peripatetic, overeducated man from Massachusetts. In 1882, the thirty-eight-year-old Mitchell had already studied at Harvard and in Paris, twice—once at the Ecole des Beaux Arts, once in the Académie Julian. He had been an architect for several years, and was now an illustrator, but seems to have been perennially dissatisfied. And so, being newly in the of possession of a good fortune, he found himself in want of a magazine.Footnote ¹⁵

In 1882 he set out to make one. Relying on his Boston connections, Mitchell came into contact with Andrew Miller, another Harvard alum who became the magazine’s business manager.Footnote ¹⁶ Miller had worked a brief stint at the New York Daily Graphic, the country’s first illustrated daily paper, and Mitchell had next-to-no publishing experience at all. Overcoming a great deal of skepticism from business partners and printers, the two were able to cobble together the magazine’s first issue on January 4, 1883.

LIFE struggled despite early good press from other publications. It took the better part of a year before the magazine broke even, and beyond that point, Mitchell recalled, “with every number the sales increased, not fitfully and with variation but with big, even strides.” By 1910, Life began to pay Mitchell and Miller each a substantial salary of $54,000 and $18,000, respectively—on top of the dividends they reaped as shareholders. By 1912, these were increased to an astounding $144,000 and $48,000 before being reduced by half several years later, just before the two died. LIFE was Mitchell’s project, and he owned the vast majority of the company’s shares.Footnote ¹⁷ To the editors of the magazine throughout his tenure, there was never any doubt about who was in charge: the company was Mitchell’s, and so was its vision.Footnote ¹⁸

Life’s audience was, like Mitchell, upwardly mobile members of the new professional middle class. This social category was very much in flux at the time of Life’s publication, as an older order of white-collar clerks was becoming destabilized and simultaneously complemented by the increasing numbers of professionals and middle managers.Footnote ¹⁹ The magazine referred to its audience as “the class of better people,” and deliberately did not compete with more popular publications like The Saturday Evening Post. Footnote ²⁰ It was purposefully a ten-cent weekly, rather than a more affordable (and thus more popular) five-cent magazine like the Post and (initially) the Ladies Home Journal. Footnote ²¹ But at the same time, Life pointedly and sometimes viciously satirized both the nation’s social and economic elites and purveyors of high culture.Footnote ²² It railed against the Metropolitan Museum of Art and the Haymarket rioters alike.Footnote ²³ It was not a muckraking periodical, a few smaller crusades notwithstanding (fig. 2).Footnote ²⁴ Its satire was not always entirely direct, or entirely in straight prose: much of its page space was taken up by illustrations with amusing captions, or verse, or imaginary dialogues with prominent figures. And evidently it managed to offend—enough so that someone once left a bomb on the magazine’s doorstep.Footnote ²⁵

Figure 2:

An illustration of “Life’s targets” in the magazine’s 1893 retrospective Jubilee issue. Life, January 1983, Jubilee Number, 11.

Interspersed among the verbal satire were pictures, which often as not had little or nothing to do with the prose on the same page. To the turn-of-the-century audience these were what made the magazine so fascinating. Charles Dana Gibson’s eponymous girl offers the clearest illustration of the phenomenon; in Life’s pages, this “popular middle-class ideal” became both unavoidable and irresistible.Footnote ²⁶ Other popular image tropes (like C. Coles Phillips’s fade-away girl, seen in Arms and the Man) followed suit, and over time, the magazine became a familiar institution, and its pictorial content, a cultural touchstone. Certainly it seemed that way to a Toronto judge who, upon reviewing obscenity charges against the magazine, noted in his opinion that “I may tell you that I have heard of discussions which have taken place in social circles about this periodical. It has come to my knowledge that quite a number of young ladies of this City about whose morality I can have no question and of whose purity of mind I have not the faintest doubt … exhibited a great deal of curiosity to see [LIFE’s] picture.”Footnote ²⁷

This was what made the magazine stand out. Unlike its competitors—at least at first—Life was beautifully illustrated, the result of the substantial resources Mitchell poured into the magazine’s presentation. Life was among the first popular magazines to use the zinc etching image reproduction technique, allowing the faithful reproduction of its artists’ lines. As a result, Life’s pictures had more stylistic verve and originality than other magazines by the late 1880s.Footnote ²⁸ This was intentional: Mitchell was the only former illustrator to own a periodical during the Golden Age of Illustration. His experience informed his business and editorial decisions, but even more than that, it ultimately shaped the peculiar way in which the magazine was run.

____

When Mitchell and Miller reincorporated LIFE in New Jersey in 1893, the first provision of the company’s new certificate of incorporation read as follows:

This was the difference between Life Publishing Company and—just to name one example—the Curtis Publishing Company, which owned The Saturday Evening Post and the Ladies Home Journal: the primary purpose of the new Life Publishing Company was not to sell magazines—it was to sell what we might now call content. LIFE sold pictures. And it was fairly agnostic as to how.

An early audit of the company’s ledger books reveals this operational philosophy at work. In 1903, when the Gibson Girl fad was at the height of its popularity, Life (the magazine) lost money, even including revenue from advertisements. Yet LIFE (the publishing company) still made a profit. The margin was made up entirely in the sale of image licenses and house-published books.Footnote ³⁰ These two practices made up the margin of LIFE’s profitability in its early years, before the magazine’s growing subscription list allowed the company to reach the point of self-generating profitability. In turn, both practices helped the magazine to circulate its images far beyond the auspices of its pages—which was the heart of how LIFE did business.

LIFE arranged for the publication of books of its illustrations—like, for example, 1912’s Life’s Gallery of Girls—in a peculiar way. Sometimes the magazine self-published, but often as not it contracted out to third-party publishers, like R.H. Russell, Scribner’s, or Doubleday.Footnote ³¹ These books were quite popular and were a large revenue source for the company. Book profits, in turn, depended upon the company’s ownership of the images contained therein—if LIFE’s book of Gibson Girls was not the only such book, there would be little reason to buy it and not a competitor’s version. As a result, LIFE’s contracts with its illustrators were quite strict. Typically, illustrators for the magazine worked for hire, meaning that they did not retain any ownership of the images that they produced for the magazine. Unusually, however, LIFE’s contracts almost always contained two clauses about book publication. The first was fairly straightforward and even generous, granting illustrators and authors royalties in the event that the company decided to publish a book including their work. The second was somewhat more confounding: LIFE would permit its illustrators to publish books of their own work, for their own profit—so long as they had the company’s permission.Footnote ³²

This stipulation seems to contradict the entire purpose of work for hire as a contractual practice. Why would an organization that derived so much of its profits from controlling and selling its illustrated images allow its illustrators to publish their own work?

There are several possible answers to this question. It could be that Mitchell’s background as an illustrator was to blame, or that the company desired to curry favor with the freelancers it frequently employed (no small thing, considering the egos sometimes involved and the competition from other, more generous potential employers), or simply an attitude of noblesse oblige. But it seems more likely that allowing artists to publish their own work simply coincided with the company’s desire to encourage the circulation of its images as much as possible. There was little to lose outside of the unlikely event of a bestseller—and if LIFE thought a bestseller was possible, it likely wouldn’t grant permission—and much to gain: more circulating LIFE images meant more interest in the flagship publication, and where someone else was willing to take the financial burden and risk of publication, so much the better. Just as long as Life didn’t see enough of an opportunity itself, that is.Footnote ³³

This same logic extended to LIFE’s numerous image licensing deals, in which the company allowed other companies and individuals to reuse its images, and in turn both encourage the circulation of those images (and thus the magazine’s “brand”) and insulate itself from potential losses. Where this scheme worked, it created a feedback loop: the magazine propagated its images; the images circulated elsewhere and advertised the magazine; people bought the magazine or goods from which the company derived royalties and profits; and Life’s cultural influence and profits multiplied accordingly. When licensed images did not sell particular goods, only the licensor stood to lose.Footnote ³⁴ And when the royalties generated from the license were not sufficient for LIFE’S liking, the magazine company simply moved the license to another potential partner.

LIFE appears to have adopted this practice fairly early into its run, in 1893, when it first began to advertise “Life’s Monthly Calendar.” The third-party licensor in this case was a man named James Metcalfe.Footnote ³⁵ LIFE’S terms were simple: Metcalfe could assemble and publish a calendar of LIFE’s images in return for one-third of the profits he earned. LIFE, itself, printed the calendars for Metcalfe, for which he presumably paid. And if the endeavor failed to make more than $6,000 total, it would be canceled for the following year.

It was not canceled. LIFE’s licensed calendar business exploded throughout the turn of the century. By 1914 there were at least three varieties of LIFE calendars printed at one outside company alone. About eleven thousand were printed of this run, and they retailed for two dollars each. Almost all were sold.Footnote ³⁶

This was the typical arrangement for the company: LIFE would allow a third-party seller to make use of its images for a minority share of the profits derived. In 1901, LIFE made a deal to produce Gibson Girl embroidery and stencils.Footnote ³⁷ In 1902, it was Gibson Girl wallpaper for 10 percent of sales.Footnote ³⁸ Later, it was cloth goods from an illustration by C. Allan Gilbert.Footnote ³⁹

Image licensing evolved beyond the branding of goods to include the direct sale and syndication of art concepts and works. In 1907, LIFE traded the rights to reproduce several Gibson Girl illustrations to the New York World, in exchange for some advertising space in the paper. Two years later, they traded Gibson Girl illustrations to the Evening Mail for cash. Next it was the Kansas City Star. Footnote ⁴⁰ The list expanded dramatically when the magazine joined the Wheeler Syndicate, spreading its pictures from Saginaw to Spokane.Footnote ⁴¹

These images were not always current: LIFE had a large stock of both published and unpublished images ready to monetize. In 1913, for example, LIFE licensed a Balfour Ker illustration to the Anheuser Busch Brewing Association that had been published in the magazine close to a decade earlier.Footnote ⁴² Older images were a special case, as the company believed that images lost much of their value if they were used as advertisements.Footnote ⁴³ Consequently, images had a certain life cycle: first, purchased by Mitchell and added to the company’s stock; second, used in the magazine; third, either printed or resold in the form of an image-centric product like a LIFE calendar or book; and fourth, finally, licensed again—possibly years later—for reuse in third-party advertisements. At nearly every stage the magazine company stood to profit.

Whether this strategy was entirely and deliberately articulated is difficult to say, though Mitchell and Miller may have been among the only people to fully understand what they were doing. After Mitchell died, one of his editors, Thomas Masson, memorialized his passing by noting one of his habits:

To Masson, it only looked as if Mitchell was collecting pictures without any regard to the magazine’s actual page-space needs. He did not seem to realize that Mitchell was purposefully building a stockpile.Footnote ⁴⁴

LIFE’s business people, however, were more aware of what they were handling. In 1902, when the M.H. Birge Company was attempting to negotiate down the price and royalties demanded by the magazine company for a wallpaper license, they were swiftly denied. Noted LIFE:

LIFE knew exactly what it was selling—what it here called a “design” but what we might call a visual idea, or intellectual property.Footnote ⁴⁵ And it knew just how much it was worth.

The company was also interested in spreading its wares beyond the domestic market. In 1913, a French magazine called La Pratique Automobile & Aeronautique paid the company 500 francs for the use of 250 images. In 1914, LIFE worked with Scena Illustrata, licensing its images and even providing the Florentine magazine with plates. In 1920, it worked with Vida Illustrada, of Buenos Aires.Footnote ⁴⁶ Image licenses were extended to manufacturers of consumer goods overseas, as well: in 1921 there was an internationally distributed version of Life’s Illustrated Calendar, for which the magazine derived a lower royalty rate. And in 1918, Robert Watson & Sons of Belfast, Ireland, sent the magazine $75 for the use of six images—mostly of dogs—to use on the tops of handkerchief boxes.Footnote ⁴⁷

The result of these licensing deals was that LIFE images appeared on an astounding number of consumer items. There were LIFE-branded calendars—many varieties of them, every year. There was Life pyrography—Gibson Girls burned into leather. There were LIFE movies.Footnote ⁴⁸ There were greeting cards, Christmas cards, and valentines. There were LIFE linens alongside LIFE wallpaper. LIFE images were found on beer bottles and umbrellas and parasols. They were found on picture frames and book covers. In the new world of consumerism, LIFE was ubiquitous.

LIFE’s images circulated in astonishing numbers. One particularly eye-popping incident involved a single retailer ordering between six and seven hundred thousand of “Life’s Series No. 1 Post Cards”—at a time when the magazine’s subscription list was less than 150,000.Footnote ⁴⁹ And this retailer may have been only one of many. Calendars were printed in the tens of thousands. Prints of LIFE images could sell in similar numbers, and oftentimes the demand was high. In fact, writing to Huyler’s, LIFE indicated that it anticipated that Arms and the Man, the piece over which the two companies were in dispute, was poised to sell close to twenty-five thousand prints (fig. 3).Footnote ⁵⁰

Figure 3:

An advertisement for Life’s prints published within the magazine. Note that Arms and the Man is the central image, and that it’s still being sold three years after its original printing. Life, July 4, 1912, no. 1549, 1371.

Even the Metropolitan Museum of Art, a frequent enemy of the publication in the 1890s, wanted to associate itself with the popularity of Life’s images. Henry Watson Kent, the rising administrative star at the museum, wrote to LIFE in the early years of the century asking for an image license for an Orson Lowell illustration entitled “Is Soda Mixing Bad for the Heart.”Footnote ⁵¹ He wanted to use it to advertise one of the museum’s programs.Footnote ⁵² So popular were the magazine’s images that one of the country’s leading bastions of high culture—and frequent target of the magazine’s satire—could not resist. Neither, apparently, could LIFE, which obliged.

But ubiquity and its attendant profits were only possible because buyers of LIFE’s images knew to look to the publishing company for high-quality images—the sorts of images that were not merely attractive, but also would endow their products with some of the magazine’s carefully cultivated caché. And that, in turn, was only possible because the magazine adopted a new and revolutionary pictorial branding strategy that foregrounded its illustrators and their distinctive styles.

It started in 1883, the first year of the magazine’s publication. In September of that year, Mitchell departed from the industry standard practice of reusing the same cover image on every magazine issue.Footnote ⁵³ Instead, Life began to feature a new illustration on its covers. By the end of the year—years before many other magazines followed suit—Mitchell had devised a new system: a new, signed illustration would grace the cover of every issue of Life, elegantly framed by a newly created frame-shaped LIFE logo (fig. 4). Over the next several years, Life began to favor certain artists for its cover and centerfold pages, helping to make their styles both more recognizable to the magazine’s subscribers, and more associated with the magazine in subscribers’ minds.Footnote ⁵⁴

Figure 4:

An early Life cover. Note the frame-shaped masthead—by Mitchell—surrounding the cover illustration, in this case by Charles Dana Gibson, whose signature is visible in the lower right. The illustrator and his individual work and style is thus prominently featured, but also indelibly associated with Life’s brand. Life, July 18, 1889, no. 342, cover.

This became the crux of the strategy: at some point, Mitchell must have realized that in each illustrator lay not just artistic labor but also a discrete and marketable style. Knowing this, LIFE could work to generate popularity for its illustrators by featuring them in its pages as distinct and worthy entities—and in so doing associate their growing popularity with itself. It could then simultaneously capitalize on and reinforce that popularity by selling specific artist-branded consumer goods. So: what started out as a general Life calendar in 1893 was by 1914 a whole series of calendars branded by the magazine’s most famous artists—in addition to the flagship Life version, there were also Gibson, Phillips, and Flagg calendars.Footnote ⁵⁵ And so: after the first book of Gibson illustrations was published (and advertised in the magazine’s pages) in 1894, numerous other books by LIFE illustrators followed.Footnote ⁵⁶

This was a very different approach from the anonymized image manufacturing process of Frank Leslie’s, or even the incidental fame of the illustrators of Harper’s Weekly. Footnote ⁵⁷ LIFE appears to have actively worked to promote the artists it hired, developing first Gibson, and then eventually Flagg, Phillips, and others into household names. The publishing company could then sell different “product lines,” each associated with an artist and their style. In turn, this gave the magazine company a greater incentive to feature those individual artists (to bolster their popularity) and to expand its roster of artists with new offerings and newer styles.Footnote ⁵⁸ The magazine built up the illustrators; the illustrators built up the magazine, and each contributed to LIFE’s reputation as a purveyor of cleverness, freshness, artistic quality.Footnote ⁵⁹ In other words, it was no accident that LIFE and Huyler’s were arguing over an illustration by C. Coles Phillips. LIFE had made him known over scores of magazine covers, calendar pages, and cards (fig. 5).Footnote ⁶⁰

Figure 5:

C. Coles Phillips cards from a LIFE series. Box 11, folder 108, Life Magazine Records, Manuscripts and Archives Division, New York Public Library.

Phillips’ images may have appeared in board games, too. LIFE worked with Parker Brothers to try to develop a LIFE-branded board game, years before the company would acquire Monopoly. The relationship, however, was not entirely smooth: it took three years, from 1911 to 1914, to develop the game, and sales were never extraordinary. By 1919, the two companies decided to abandon the venture.Footnote ⁶¹ But declining sales were not the first problem that LIFE’s game encountered. The first edition of the game included playing cards featuring LIFE illustrations. It did not, however, feature copyright notices on each individual card. Parker Brothers did not understand the issue, figuring that a single notice on the game’s cover was sufficient.Footnote ⁶² LIFE, meanwhile, was incensed.

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Because LIFE’s success depended so heavily upon its control of its vast stock of popular images—and because the value of those images ostensibly depreciated upon certain varieties of reuse—the company had to find some way to protect its illustrations against unauthorized reproduction. And so it did: copyright was the lynchpin of LIFE’s business model. Disagreements like the one with Parker Brothers’ were common, as the company sought to guard its intellectual property with an almost religious zeal. One LIFE staffer put it plainly: “We would say that we guard our pictures very jealously.”Footnote ⁶³

Indeed they did. The magazine company’s licenses were often very restrictive, limiting the use of licensed images to a narrow range. In 1924, for example, when LIFE licensed several of its images to the Luis F. Dow Company of St. Paul, Minnesota, the magazine company was sure to stipulate repeatedly that transferred copyright was only valid if used precisely for blotters and calendars—meaning that using the licensed images to advertise the calendars that contained them was prohibited.Footnote ⁶⁴

LIFE was liable to get testy about such matters, as it did with Parker Brothers; even the Metropolitan Museum of Art did not escape a lecture on proper use and marking.Footnote ⁶⁵ This anger was apparently warranted, as the magazine’s images were frequently copied. In 1914, fed up with years of violations, Life featured a column (aptly titled “Life and Its Copyrights”) on the matter explaining both its annoyance and its position, and threatening would-be violators with hellfire:

True to its word, when the magazine found violations, it could be relentless in demanding reparations. Only several months after LIFE published the above column, the magazine caught the National Herald of the Pennsylvania Wholesale Liquor Dealers League using two of its illustrations without permission. The magazine angrily wrote to the paper. Startled, the National Herald stammered back: “We can only pledge that nothing like it will occur again, so far as the National Herald is concerned. Really, it seemed to us that we were doing you a service when we reproduced them in a paper owned, managed, and controlled by the distillers and wholesale liquor dealers of this country, by placing them before nearly 6,000 of them. …”Footnote ⁶⁷

LIFE was neither appeased nor amused. It wrote back to the National Herald reminding of them of its “inflexible rule”—and demanding $50 in payment for each violation. In fact, the magazine explained, it was being merciful in not asking for more, noting that if the National Herald was taken to court the penalty would be substantially higher.Footnote ⁶⁸ Indeed it could be: in 1912, Life had won $1,043.14 from the New York Mail and Express, which had also pirated only two drawings.Footnote ⁶⁹ As much as the magazine wanted its images to circulate, it only wanted them to do so on its own terms—and that meant that where LIFE thought its images could demand monetary value, it expected to profit from their distribution.

But copyright was an unreliable foundation for the company’s profitability. It was, to start, incredibly complex and unwieldy: a contemporary account of copyright law by magazine magnate Richard Rodgers Bowker memorably begins one section by noting that “Copyright law is exceptionally confused and confusing,” and the confusion was particularly acute as it related to illustrated images. It did not help matters that copyright law changed substantially several times throughout the Gilded Age and Progressive Era.

Legal complexity, in turn, meant that it was not always clear that the staff of LIFE really knew how to do what it was trying to do. One letter from 1898 indicates that the magazine had been copyrighting its images incorrectly for the last several years: it had been attempting to copyright them as “drawings,” when, according to its lawyers, it was preferable to protect them as “prints” or “engravings.” Another note from LIFE’s legal team from 1902 explained to an apparently surprised management that, contrary to their beliefs, reuse rights were not automatically obtained with payment for work.Footnote ⁷⁰

These problems only compounded as the law changed, making the status of illustrated images somewhat more confounding. Prior to 1909, United States copyright law comprised of an amalgamation of earlier nineteenth-century statutes (many of which were primarily concerned with the written word) and international reciprocal treaties and conventions.Footnote ⁷¹ The result was a sort of legal morass: in 1906, for example, an American judge decided that an illustrated advertisement was best copyrighted not as a picture, but as a book.Footnote ⁷² In 1909, Congress passed a new act meant to bring clarity to the country’s intellectual property law. It was a mixed success. The new act established eleven categories under which intellectual property could be properly protected, three of which—works of art and models or designs for works of art, reproductions of a work of art, and prints and pictorial illustrations—could potentially apply to LIFE’s images. The distinctions between these categories were vague enough that a single image might qualify for several.Footnote ⁷³ It did not help matters that the final category, pictorial illustrations, seemed to be the most applicable but was also the most elusive. It was defined merely as “all printed pictures not included in the various other classes enumerated above.”Footnote ⁷⁴

But ambiguity aside, the larger problem for LIFE was that copyright law in the United States at the turn of the century, particularly as it applied to mass-produced illustrations, did not do exactly what Mitchell and Co. hoped it would. To illustrate, we must return to the matter of Arms and the Man, Mr. Whittier, and the man from LIFE.

In late 1909, Huyler’s candy company bought an illustrated advertisement from the Meek Company, an advertising firm. The advertisement looked suspiciously like C. Coles Phillip’s Life cover Arms and the Man. Perhaps detecting that something was wrong—and perhaps feeling a little guilty—Huyler’s advertising manager sent Mr. Whitter of the Meek Company to LIFE to ask for either permission or forgiveness. This is where our story starts: with Whittier meeting with an unnamed LIFE employee.

The meeting did not go well: rather than permission, Whittier got “not in your life.” Whittier offered several explanations as to how the images could look so similar and may have accidentally let slip that Huyler’s had purchased a print of Arms and the Man. Footnote ⁷⁵ To LIFE, this seemed to indicate that the original painting had been copied directly—not that there was much doubt, considering the striking visual similarity. The matter was doubly troubling considering that LIFE believed that images lost their value when used as advertisements. And Arms and the Man was a popular print.

Both sides sought counsel. The magazine escalated, writing to Huyler’s that “we beg to inform you that any publication of the picture by you will be at your peril.”Footnote ⁷⁶ The lines were drawn, and it appeared that LIFE had an undeniable legal advantage. But LIFE’s lawyer did not think that the magazine had a case.

The problem was that copyright law did not fully protect ideas, as LIFE hoped it would. Instead, it protected ideas as they were tangibly and precisely realized. And so Arms and the Man was protected … as long as it was not morphologically changed. Intellectual property ownership was still absolute for visual art: under the new 1909 Act, holders of a copyright in art held sole rights to profit from the sale, exhibition, and reproduction of their works.Footnote ⁷⁷ It was all or nothing, and consequently there were limits to copyright’s ability to cope with visual ideas that were similar to and yet somehow different from an original. The law had little notion that visual ideas could be modified without losing their essential character. Visual works were protected from copying, yes—Richard Rodgers Bowker’s Copyright: Its History and Its Laws, noted that “a copy is not less an infringement because it alters details, provided there is copying of a substantial part”—but at the same time, “a substantial alteration, or adaptation of an existing work, may in itself be copyrightable.”Footnote ⁷⁸ What constituted an altered detail versus a substantial alteration was unclear but seemed to favor a narrow reading. If an image had been altered enough, it was no longer protected.

According to LIFE’s lawyer, this is precisely what had happened to Arms and the Man. The problem was that Huyler’s advertisement was not perfectly identical to Phillips’s cover. The changes were slight but to the lawyer, substantial: he noted that “the girl’s head was on the other shoulder; that you could see the girl’s face; that there were rings on the girl’s fingers and part of her clothing showing at the elbow.” The fact that the Meek Company also offered to change the image’s color to blue did not help matters.Footnote ⁷⁹ These changes, seemingly so trivial, might have been enough to void LIFE’s claim. In other words, copyright did not protect the idea of Arms and the Man (or the wit of its visual pun); it protected its specific design.

Or, as LIFE’s lawyer explained, “The idea of a woman embracing a man was an old one and was not likely to be termed by any Court or jury as an original idea with Mr. Phillips, our artist. Furthermore he stated that it was not possible to copyright any idea …”Footnote ⁸⁰

LIFE’s lawyer could not separate the design of Arms and the Man from the general idea that described it. It was either that LIFE held a copyright on the design of the piece (that is, a man and a woman in a certain pose, with certain adornments, in certain specific colors), or a copyright on the much more general idea of a man and a woman embracing—and copyrighting the latter was not legally permissible. It was not possible, at least in LIFE’s lawyer’s understanding, to own the visual idea—the wit, the concept—that Phillips had produced. And because enough alterations to Phillips’s design had been added to the Meek advertisement, the advertisement was legally distinct. In fact, the Meek Company also held a copyright on their image. The Library of Congress seemed to agree with LIFE’s lawyer: the case was hopeless.

… Except, apparently, the legal staff at Huyler’s thought the same thing about the other side’s case. After some brief negotiations, the candy company capitulated.

_____

It is difficult to say why Huyler’s gave in to LIFE’s demands, especially considering that both companies seem to have a fairly limited grasp of the law.Footnote ⁸¹ Perhaps Huyler’s lawyers were likewise convinced that they would lose the case, possibly on account of the losses LIFE claimed it would take if the value of Arms and the Man depreciated after being used in the candy company’s sign. This was the argument that LIFE’s lawyers were going to advance, its dubious merits notwithstanding.

Or perhaps Huyler’s gave in because in the end, it got a very good deal. LIFE granted the chocolate company an image license for Arms and the Man for only $500—a bargain, considering how much LIFE stood to lose from diminished print sales. Of course, Huyler’s could not have known this before they capitulated. And even afterwards, the candy company did not seem particularly grateful or gratified.Footnote ⁸²

Perhaps the clearest explanation for Huyler’s capitulation can be found several years later, in another magazine entirely. In a 1911 issue of McClure’s Magazine appears an image that subscribers to Life would have found very familiar (fig. 6).

Figure 6:

“Marketplace of the World,” McClure’s Magazine, October 1911, 75.

It was another advertisement for Huyler’s, this time featuring the Gibson Girl, LIFE’s breakout character image. Huyler’s evidently still needed images. There was a twist, though: the drawing that Huyler’s used was not originally from Life.

Instead, Charles Dana Gibson’s illustration had first been printed in Collier’s magazine, one of Life’s weekly competitors. Collier’s had poached Gibson from Life in the early years of the twentieth century, and with him, they apparently also took some of LIFE’s business practices: in small type, right next to the image, there is a small notice: “by permission of Collier’s.”Footnote ⁸³ The image, The Eternal Question, had originally printed ten years earlier and now had likely reached the final stage of its depreciation cycle; Collier’s was cashing in by selling it for use in an advertisement. What LIFE had pioneered, others could copy.

But not perfectly. Gibson’s popularity was beginning to fade by 1911, in favor of younger artists like Flagg, Harrison Fisher, and Arms and the Man’s C. Coles Phillips.Footnote ⁸⁴ All of them worked for LIFE, sometimes exclusively. In fact, it was LIFE that had made them famous. Mitchell had never stopped collecting, and LIFE had not stopped boosting its illustrators.

And that is why, ultimately, it is not very important that the rules of the turn-of-the-century copyright law did not favor LIFE. Instead, the Huyler’s dispute shows what LIFE thought should be possible—and in so doing, reveals what the company believed itself to be doing. At least on some level, LIFE thought that ideas could be visual, and visual ideas were what it drew from its illustrators, promoted, and sold. And further, it believed—knew, even—that there was much to be gained by doing just that.

LIFE was, in other words, preempting the primacy of the visual over the written word that would so typify the twentieth century across magazines and movies and television. LIFE seemed to realize that visual ideas were what it dealt in; they were what captivated the imagination; what the future would prize. And it understood the link between artist, concept, and popularity and profits necessary to inhabit that future, much as later media institutions would come to understand the same.

And Huyler’s seems to have understood that, too. Had it so desired, the candy company could have alienated LIFE. But that might have meant alienating the surest source for new and popular designs —and for a company like Huyler’s, for which images had become indispensable, that would have been perilous. LIFE’s images were novel and everywhere, the result of shrewd business practices that simultaneously spread the company’s illustrators’ visual ideas and ensured that the novelty of those ideas was indelibly connected back to the magazine itself—by a fine-print “Copr. Life Publishing Company” if nothing else. Contracts like the one LIFE would ultimately sign with Huyler’s, together with a developing copyright system not quite yet able to fully fulfill the magazine’s aspirations enabled LIFE to aggressively distribute its images to the point of ubiquity and protect them with moderate success. The magazine was, as a result, so culturally significant—its pictures were so recognizable—that the chocolate company was brought to heel, fairly and legally or not. That, after all, was LIFE.