KING: Oh, my congratulations, Wilde! Your play is a great success. The whole of London's talking about you. OSCAR WILDE: Your Highness, there is only one thing in the world worse than being talked about, and that is not to being talked about. [LAUGHTER] KING: Oh, very witty, Wilde. Very, very witty. OSCAR WILDE: Your Highness, do you know James McNeil Whistler? KING: Yes, we play squash together. OSCAR WILDE: There is only one thing worse than playing squash together, and that is playing it by yourself. I wish I hadn't said that. KING: But you did, Oscar. You did. [MUSIC PLAYING] AMEET DOSHI: You are listening to WREK Atlanta, and this is Lost in the Stacks, the research library rock and roll radio show. I'm FRED RASCOE in the virtual studio with Wendy Hagenmaier and Fred Rascoe. Each week on Lost in the Stacks, we pick a theme and then use it to create a mix of music and library talk. Whichever you're here for, we hope you dig it. WENDY HAGENMAIER: Our show today is called Who Invented Oscar Wilde? FRED RASCOE: That sounds like a trick question, or maybe something that could be reframed as a knock knock joke. WENDY HAGENMAIER: Well, perhaps it's a complicated question. We're going to talk about creativity and who actually creates an image. AMEET DOSHI: So is this a show about celebrity culture or, better yet, the circle? WENDY HAGENMAIER: In a way. Oscar Wilde was a prominent celebrity in his day, and one of the most famous photographs ever taken of him became the center of a copyright case that wound up in the Supreme Court. AMEET DOSHI: All right, now I see what this is all about. A copyright show. I should have known. FRED RASCOE: I guess you should have. We'll be speaking with freelance author and copyright advocate David Newhoff about his recent book, Who Invented Oscar Wilde? The Photograph at the center of Modern American Copyright. WENDY HAGENMAIER: Oscar Wilde liked to be at the center of everything. As he wrote, quote, "There is only one thing in the world worse than being talked about, and that's not being talked about." AMEET DOSHI: Can't top that. So I'll just say that our songs today are about Oscar Wilde, photographs, and creativity. Oscar Wilde helped create the stereotypical persona of a sophisticated, urbane, and witty upper-class gentleman. This persona came to be known as a dandy. So let's start with The Kinks and Dandy, right here on Lost in the Stacks. [MUSIC - THE KINKS, "DANDY"] SONG: Dandy, dandy. All right. FRED RASCOE: This is Lost in the Stacks, and joining us online is David Newhoff. He is a writer and copyright advocate, and he writes the copyright blog The Illusion of More. His first book came out last year, 2020. It's called Who Invented Oscar Wilde? The Photograph at the Center of Modern American Copyright, published by Potomac Books. David, welcome to the show. DAVID NEWHOFF: Thank you so much for having me. It's good to be here. FRED RASCOE: Well, I'm glad you're here. So we're here, obviously, to talk primarily about your book. But before we get to that, just for the sake of context, I want you to kind of, as a copyright advocate, place yourself on what we can call the copyright spectrum. Like at one end, there's copyright maximalists, which is to say strong belief that copyright protects intellectual property, and we should guard against weakening those rights. And at the other end of the spectrum is copyright minimalist or copyright skeptic, whatever term you prefer, and at that end is the view that culture should be open and freely shareable to the utmost possible degree. So where do you land on that spectrum? DAVID NEWHOFF: It's a funny question, because I think I probably only wrote maybe two or three pro-copyright pieces before somebody somewhere called me a maximalist. And I didn't know exactly what that was. And I guess first, to answer your question, yes, I advocate copyright. I think strong copyrights ultimately do benefit societies like ours. It's part of the reason I wrote the book. And I'm not terribly comfortable with the maximalist word. I think to a great extent it's been-- I think that's largely a sort of blogosphere invented pejorative that gets tossed out at anybody who likes copyright at all, and I was proof of that, because I had barely stepped into the fray before I was labeled a maximalist. And in my experience, I mean, I don't know anybody-- it's funny, I think that I start from a position of status quo and then look at more nuanced questions. Is copyright working here? Is it not working there? Or try to, anyway. I think because a lot of people assume that the maximalist view is one that wants to kind of keep extending terms and keep extending and expanding protections. But, of course, on the other side of that, if you have a lot of forces that clearly want to weaken copyright and have said so, then anything opposed to that weakening then gets sort of labeled as maximalist. So it's a little bit of a tricky label, but I hope that in at least a bunch of my blogs I reflect that I try to think about these things. [INAUDIBLE]. FRED RASCOE:: Yeah. DAVID NEWHOFF: I'm sorry, go ahead. FRED RASCOE:: And you started writing about this, as you say, before you even knew the term copyright maximalists or before you'd heard that. So, yeah. DAVID NEWHOFF: Yeah, I did. I think the first-- I really jumped into the fray in late 2011 when there was all this hype about SOPA and PIPA. Many of your listeners might not even remember what SOPA and PIPA was. But they were two anti-piracy laws that were proposed by Congress, and the internet went insane, saying this is going to destroy the world and destroy free speech and destroy the internet. And so I simultaneously got interested in copyright and internet hype and misinformation, because I would watch my friends share these memes that say, this bill will destroy the world. And I would say to some of them, are you kidding me? Even if you go ahead, read the bill, think what you want about it, but this meme is not information. This sort of shorthand is not how we learn about legislation. So that's actually where part of the blog came from. That's why I don't just look at copyright but also at sort of disinformation in the internet and whether or not social media is doing us any good. FRED RASCOE: And how did copyright become a focus of your writing and your communication to your readers? You're not a lawyer, I understand. DAVID NEWHOFF: No, no. Well, it came about sort of quasi-organically. I was talking with a good friend of mine who is a copyright expert and was then the CEO of the Copyright Alliance, and we were just chatting about some of the issues, and that was right when, as I say, the SOPA and PIPA thing were exploding. And so I just kind of became interested simultaneously in and what those bills were, which was anti-piracy. And I've never been an advocate of piracy, even going back to the Napster days. And then also, like I say, kind of what was being said about them. And I wrote a piece in the Hill. That was actually probably the second piece I published on the subject at all. And that was several months before my blog itself. And, I don't know, I like arcane details and sort of rolling up my sleeve and getting these obscure ideas and where these things come from. FRED RASCOE: And if you followed the SOPA and PIPA arguments from, gosh, I guess that was 10 years ago now, something like that, arcane detail is aplenty in those arguments. DAVID NEWHOFF: Exactly. Exactly. And meanwhile, it was just kind of-- I mean, as we saw-- I mean, back then, the subject of disinformation wasn't really getting a whole lot of play. It wasn't until after 2016, suddenly everybody said, wow, there's a lot of misinformation on the internet, isn't there? And now it's a hot topic. FRED RASCOE: So you wrote a book about-- it's your first book about copyright. Did your particular interest in copyright advocacy lead you to decide, I need to write a book about this? DAVID NEWHOFF: That's a good question. It was a combination of things. I like reading nonfiction, and I've long wanted to write a nonfiction work. And after six or seven years or whatever it was of accumulating a certain amount of knowledge about copyright, I thought, well, I might as well use this base of knowledge to try to write a book. And it also seemed to me that there was not much on the market for a general reader. That was the goal. Whether or not I met that goal is up to the reader to decide. But most of the copyright books, they're either sort of how to, how to copyright things. And then there's a lot of academic books that are written by and for academics that you would have a hard time wading through if you weren't either a law student or another kind of legal academic. And then, of course, there's a number of relatively well-known anti-copyright books. So I kind of set myself this goal of could I write something that would be engaging for a general reader and be a sampler plate of what copyright is and what it's all about, but also told through narrative and through anecdote that would engage people and not just be a litany of ideas and case law that you would otherwise have a very hard time following. And that was the ambition. And initially I thought about writing something much more comprehensive that encompassed much more of the law and many more subjects, much more media. FRED RASCOE: We'll be back with more about The Famous Photograph of Oscar Wilde after a music set. File this set under PR5810.F66. [MUSIC CLIPPED OUT] WENDY HAGENMAIER: You just heard The Picture of Dorian Gray by the King of Luxembourg, and before that Salome by Absltly. But that's spelled A-B-S-L-T-L-Y. Is that right, Fred? Those were songs inspired by the works of Oscar Wilde. FRED RASCOE: Welcome back to Lost in the Stacks. Our guest today is David Newhoff, author of the book Who Invented Oscar Wilde? The Photograph at the Center of Modern American Copyright. We asked David to explain how Oscar Wilde ended up being in a photograph that had such a profound effect on US copyright law. DAVID NEWHOFF: So in 1882, Oscar Wilde, 27 years old, comes to America for a lecture tour. And that story in and of itself, which I go into a little bit in the book, is interesting just as a Wilde story. But he sits for a photograph, a series of photographs, with who was then arguably certainly one of if not the most famous celebrity photographers in the world, named Napoleon Sarony. And the way photographers like him made their money in those days was to-- usually they would pay a subject who was famous or quasi-famous for the sitting and for an exclusive, and then they would make cabinet cards, which were like collectibles of the era, and sell those cards of a photograph to make back the return on their investment. Wilde, who was not terribly famous at the time, was nevertheless sort of a big deal when he came to America. There it was all this hype around it. And of course, in the 19th century, you could make hype about a lot of things. It was kind of a constant spectacle. FRED RASCOE: So things haven't changed is what you're saying? DAVID NEWHOFF: Well, you'd probably fight a little harder to make a splash today because there's so much going on, but you could-- put yourself in New York City in the late 19th century, and something new is going to step off the boat. In a few months it would be Jumbo the elephant. But in January it was Oscar Wilde. And even though he wasn't really terribly well known in America, and that was part of why he came. And so Napoleon Sarony took a series of photographs with Wilde. In fact, pretty much if you've seen a photo of Wilde, it's probably one of the 27. I mean, there are some others, but pretty much all of them-- And your book focuses on a specific one. I mean, we'll put it on the website and social media, but it's the very famous photograph of Oscar Wilde sitting on a couch with lots of drapery, and his foot slightly propped up and he's holding a book and his head is kind of in his chin, and he looks very dreamy. DAVID NEWHOFF: Yes, yes, he does. And that one, which is called Number 18, was infringed by a lithographic company to make postcards that were basically taking the market that belonged to Sarony. That was his interest was in selling cards, and they were making cards available, but they had sold them to department stores. And so Sarony sued, and this, even though photography had been added to the copyright law in 1865, nobody had really questioned whether it was properly a subject of copyright protection. And so this case-- FRED RASCOE: It was kind of considered like a mechanical thing. This is a machine that does a job, and an image comes out, and it's just a mechanical-- it wasn't looked at as a creative kind of-- DAVID NEWHOFF: Well, I mean, that-- FRED RASCOE: Up to this point, I guess. DAVID NEWHOFF: Well, I mean, that tension began from the moment photography became available almost. I mean, from the moment Daguerre announced the daguerreotype in 1839, artists and critics began that debate. Is this actually just a mechanical tool that records facts or is there something expressive that exists that the author, the photographer does? And that debate had already been raging on. But for the first time, that same question was going to arrive at the Supreme Court to be asked. And so, in a way, the case simultaneously asked that question of photography and also of copyright law. Because it changes the meaning of what authorship is a little bit. It's the first time that there's a machine in conjunction with a human author. And, yes, there's no question the machine is doing a lot of the work and recording facts, and at the same time the question is, is there some authorship, some creativity in this work? And the Supreme Court found that there was, and held that photography was properly a subject of copyright, as of that case. FRED RASCOE: So what was the consequence then? I mean, the title of your book is The Photograph at the Center of Modern Copyright. So that decision in your mind, really affected everything that came after. DAVID NEWHOFF: Well, sorry, go ahead. FRED RASCOE: So yeah, so just go on. DAVID NEWHOFF: Yeah, well, I don't know that I would say that it would be just to say that it affected everything, but I think it changed-- and I'm not the only one who thinks this, by the way, that it changed copyright in the sense that today we talk about what's called a low threshold of originality in copyright. The term is that a work needs to show a modicum of creativity in order to qualify for protection. And so if you think about what a photograph presents to a court or to a viewer to consider, there is often a very thin amount of authorship within a photograph. If you go out and take a picture of a landscape or something, you say, well, you didn't make the landscape. But your choices that you made in that photograph we've come to recognize as a kind of authorship, and they can be very subtle. And I would argue that they got more subtle in many ways as far as the technology changed and expanded to give people more choices. But that sort of narrowing of the analysis of what constitutes creativity I think in many ways begins with the Sarony case, and it's interesting that it happens right at the end of the 19th-- just as we're going into the 20th century, when machine made art and other mechanical devices and even our sense of what constitutes artistic expression is about to change as we go into the 20th century. Things, they kind of become more reductive and more basic, if you will. So it interested me that this case happened when it did, even though Congress had added photography right after the Civil War, it was interesting that they actually kind of fought the battle, if you will, right at the dawn of the next century. FRED RASCOE: We'll be back with more of our interview with David Newhoff on the left side of the hour. [MUSIC PLAYING] AMEET DOSHI: You're listening to Lost in the Stacks on WREK Atlanta. Do you believe in WREK? MAN: I believe in WREK. FRED RASCOE: Today's show is about the tension between the idea of a photograph as a mechanical document of fact as opposed to an artistic creation of an individual. It's a tension that's been around since the very beginning of photography. William Henry Fox Talbot was one of the first pioneers of photography, and one of his well-known works is a calotype image, similar to the daguerreotype, that depicts shelves of dishes. Here's a short passage from David Newhoff's book speaking about Talbot and the nature of creativity and intellectual authorship. Quote, "An image of 30 pieces of China arranged symmetrically on four dark shelves propose a purely mundane use of photography as an efficient means to create a record of one's possessions. But even this image has a quality of artifying the ordinary and cannot escape the conversation about the dual nature of the medium. As truth and fiction, as historic record and artistic expression, as mechanical reproduction and human authorship, demonstrating why the medium was especially vexing as a matter of legal protection under copyright." End quote. Oscar Wilde, of course, summed it up quite succinctly in his 1891 dialogue, The Decay of Lying. "The fact is that we look back on the ages entirely through the medium of art, and art very fortunately has never once told us the truth." Can't top Wilde. So let's go ahead and file this set under TR139.M285. [MUSIC PLAYING] You just heard Send Me a Postcard by The Shocking Blue. Before that, Face of 73 by The Tender Trap, and we started off with Photographer by The Pretty Things. Songs about how photographers use the images they create. WENDY HAGENMAIER: Welcome back to Lost in the Stacks. We continue our conversation with David Newhoff about how a portrait of Oscar Wilde changed how we think of authorship and creativity in photographic images. FRED RASCOE: So I want to talk a little bit about that aspect of creativity and how creativity changed because of this court ruling, which you've already talked about a little bit. But the very title of your book, Who Invented Oscar Wilde? That comes from a contemporaneous headline in a newspaper, I think. DAVID NEWHOFF: That's right. FRED RASCOE: Sorry, yeah. In a newspaper, New York Times, and it was sort of sarcastically saying, oh, you took a picture of Oscar Wilde and you're copyrighting it, so you think you invented Oscar Wilde? In a way, I mean, you could make the argument that this, as a marketing tool for Oscar Wilde, there was some relationship with inventing the persona of Oscar Wilde. He had already kind of presented himself as the dandy from England, the writer who hadn't really written much yet, and was kind of a famous for being famous at that point. DAVID NEWHOFF: That's right. I mean, that's one of the things that drew me to the story as well, and it's one of the sort of unanswerable questions. Is that a photograph of Oscar Wilde or is it a photograph of a character Oscar Wilde is playing? And then it's a question of whose character it is in many ways because, Wilde is sent by the Gilbert and Sullivan producers for a show called Patience, and that's the reason he's in town. And the reason he is on a lecture tour is essentially to give the Americans a context for this new Gilbert and Sullivan show, which lampoons what was called aestheticism or the aesthetic movement, of which Wilde was one of the central figures, if not the most recognizable figure. And so Wilde is in many ways right there lampooning himself. And some Wilde fans or Wilde historians think it wasn't a particularly good thing for Wilde in many ways. But he was there, he needed the money, he was offered the job. And so it's one of those fun questions to ask, and that's why the invention question The New York Times is asking is sort of poking at Sarony, saying, well, you didn't invent Oscar Wilde. Which is true, and not legally germane to the questions presented to the Court, but at the same time, it also does provoke what you're asking, which is, well, did Oscar Wilde even invent the Oscar Wilde that we see in this image? Or is it sort of a combination of Wilde and Gilbert and Sullivan's version of a character that they sent him to America to play? So it's sort of a strange existential moment to look at that photograph. FRED RASCOE: Copyright and creativity, they've gone hand in hand, but there's also a tension between them. And so how do you feel about the relationship between copyright and creativity? Does copyright enhance creativity? Does the fact that we have copyrights enhance the creativity of people in our culture or is it more stifling of creativity? It could be both, and, or. This is not Twitter, so we have room for nuance. DAVID NEWHOFF: Yeah. I don't know if copyright per se contributes to, say, an individual author's creativity. I guess one way to look at that would be to ask the question if you believe, as I do, that copyright does promote more production overall, that there's a relationship between nations that have strong copyright laws and nations that happen to produce a lot of creative work. And if you buy the premise that living in a creative society that has an abundance of creative work inspires other people to their creativity, then I guess I would say that copyright has that relationship on a broad scale, more than say, I know I can copyright my next book and therefore I'll be more creative. It's not that kind of relationship I don't think. But I do think that having an abundance of work does inspire. And also that, and this has been discussed by a number of people, that the boundaries of copyright do force people to be creative. Any boundaries does. Any artist in any medium will tell you that it is often boundaries and the overcoming of obstacles that forces you to sort of step back and think about how you want to do something that produces that creative idea you didn't even know was coming. There are a million obstacles that any kind of artist face, from time, money, personal challenges, anything. And copyright can be one of them. Is to say, well, I don't want to copy what so-and-so did. I'm inspired by what they did, but working around it actually often leads to a result you didn't see coming, and it's often a wonderful creative result. FRED RASCOE: Right. Personally, when I think about copyright and creativity, I don't really want to see copyright as, hey, that's a boundary that we can put in place for artists so that artists can go around it and work within those boundaries or break through those boundaries. I see uses for copyright in lots of different ways. That might not be one of them. But one of the famous examples that you talk about in your book is the fact that Shakespeare was not bound by copyright and freely borrowed from other things that were freely borrowed that were borrowed from other things, and created. But now, of course, you know we have playwrights in the US, very much restricted by copyright law, even more prolific than Shakespeare. DAVID NEWHOFF: Yeah. Yeah, Shakespeare is one of those kind of go-to for I think a lot of copyright critics, as they say, well, Shakespeare didn't have copyright. Look how much he wrote. And it's one of those sort of easy ones, because everybody thinks Shakespeare genius, ergo. But as I mentioned in the book, I mean, and as you just said, for one thing, Shakespeare, even in his own time, was sort of modestly prolific. And he would be modestly prolific today. And that, sure, he's sort of famously thought of as somebody who didn't invent many stories, which is true, although not as true as some people think it is. But what he brought to the English language was words, the way that he put something, which in a modern context is actually what copyright would protect much more than the idea of the plot line, for example. So if he were writing Romeo and Juliet today and that same underlying work were under copyright, for one thing he could license it and still do what he did, or he'd say, OK, I can't use that story right now. So he'll come up with another one. He didn't lack for the ability to invent stories. He mostly lacked for any time. So, I mean, it's one of those comparisons that isn't strictly a comparison. FRED RASCOE: Is your next book going to be about copyright? DAVID NEWHOFF: Ah, no, absolutely not. In fact, The next thing I'm writing isn't even nonfiction. I'm writing a novel right now. We'll see how that goes. But if nothing else, I know I don't have to do footnotes or an index, and those are two reasons enough not to do it. I do have another nonfiction in mind, but it won't have anything to do with copyright. FRED RASCOE: Our guest today was David Newhoff. He is a writer, a copyright advocate, and author of the recent book, Who Invented Oscar Wilde? The Photograph at the Center of Modern American Copyright, published by Potomac Books. David, thank you so much for being on the show. DAVID NEWHOFF: Oh, thank you so much for having me. This has been a lot of fun. FRED RASCOE: File this set under KF2994.N49. WENDY HAGENMAIER: That was Cookie Bay by The High Lamas, and before that Famous by The Magnetic Fields. Songs about creating the myth from an image. [MUSIC PLAYING] FRED RASCOE: Today's show was all about Oscar Wilde and how one famous photo of him taken by Napoleon Sarony changed copyright law. WENDY HAGENMAIER: Wilde died 121 years ago, but Sarony's stunning photographic portrait of him lives on, depicting him forever at 27 years old and on the cusp of worldwide fame. FRED RASCOE: According to US copyright law, the artistry in the expression in that image was the creation of the photographer, not the person being photographed. WENDY HAGENMAIER: In other words, while Oscar Wilde may have been a captivating subject, the artist here was Napoleon Sarony. He did not invent Oscar Wilde, at least not as he was in reality. What Sarony did was to invent a way to depict him to the public. FRED RASCOE: As Oscar Wilde wrote, no great artist ever sees things as they really are. If they did, they would cease to be an artist. AMEET DOSHI: And Oscar Wilde gets the last word again. Roll the credits. [MUSIC PLAYING] WENDY HAGENMAIER: Lost in the Stacks is a collaboration between WREK Atlanta and the Georgia Tech Library. Written and produced by FRED RASCOE, Amanda Pellerin, Charlie Bennett, Fred Rascoe, Marlene Gibbons, and Wendy Hagenmaier. FRED RASCOE: Today's show was edited and assembled by me. Well, by the time you hear this hopefully I will have edited and assembled it. WENDY HAGENMAIER: You must have, otherwise, we wouldn't be hearing it now. Anyway. FRED RASCOE: Good point. WENDY HAGENMAIER: Legal counsel and a prism through which we can refract the complete copyright spectrum were provided by the [INAUDIBLE] Intellectual Property Law Group in Atlanta, Georgia. AMEET DOSHI: Special thanks to David Newhoff for being on the show, and thanks as always to each and every one of you for listening. WENDY HAGENMAIER: Find us online at lostinthestacks.org, and you can subscribe to our podcast pretty much anywhere you get your audio fix. FRED RASCOE: Next week, we're going to talk about the bomb and why you should stop worrying and learn to love it. OK, we're actually going to talk about music inspired by the Cold War. Are you ready for that great atomic power? AMEET DOSHI: I know that tune. Time for our last song today. As we've mentioned throughout the show, it's hard to top Oscar Wilde, so we're not even going to try. Instead, let's close with a song about the wit of Oscar Wilde always winning out in the end. This is Cemetery Gates by The Smiths. You know, Keats, Yates. Right here on Lost in the Stacks. Have a great weekend, everyone.