October 1, 2018
Wrongful Convictions
The Nineteenth-Century Droit d’Auteur and Anti-Authorial Criticism

In 1842, painting’s specificity went on trial in a French appellate courtroom. The case of Héritiers baron Gros et Vallot C. Gavard was meant primarily to determine whether or not a posthumous, reproductive engraving of the Romantic artist Antoine-Jean Gros’s monumental painting, The Battle of the Pyramids, represented an infringement upon his heirs’ inherited droit d’auteur (author’s rights)

Fig. 1. Jean Jacques Frilley, after Antoine-Jean Gros, Bataille des pyramides, 21 Juillet 1798, 1838. Steel engraving on chine collé, 30.6 x 37.8 cm. Library of Congress, Washington, D.C.

Fig. 1. Jean Jacques Frilley, after Antoine-Jean Gros, Bataille des pyramides, 21 Juillet 1798, 1838. Steel engraving on chine collé, 30.6 x 37.8 cm. Library of Congress, Washington, D.C.

Nevertheless, it resulted in a judgment on the medium’s particularity that had yet to be established in French law and which remained in effect until the early twentieth century. Defining painting on expressly materialist grounds, the court’s ruling against Gros’ heirs concluded that authorship—even the author’s immaterial idea or pensée—originated in the realized work itself and not from within the artist’s person, and so the sale of a work without reserve could and should entail a total transfer of an author’s rights to it, including incorporeal ones like copyright.[1]  This ruling complicates standard accounts of nineteenth-century authorship found in twentieth-century anti-authorial criticism. It consists in neither an appeal to some antecedent personality, nor to the author’s cultural prestige. Instead, it opens onto a significant body of French property law that defined author’s rights in order to advance the interests of a different class of individuals other than a work’s author: its proprietors.

By analyzing the Gros case in greater detail and then relating it to additional nineteenth-century French law concerning the droit d’auteur, this essay offers evidence against one of the central historiographical postulates advanced in anti-authorial criticism: that the displacement of an interest in an author’s meaning onto a reader’s productive activities represents or would have represented a subversive blow to the modern proprietary regime of authorship. More specifically, I will dispute the plausibility of certain supposedly critical alternatives to the author, be they Roland Barthes’ modern scriptor or his emboldened readers, by demonstrating that the criticality of these positions depends upon a mistaken view of what historical authorship entailed and, more tendentiously, by suggesting that these same alternative “authors” had already been furnished with rights of their own. Finally, I will conclude by examining a late-nineteenth-century critique of author’s rights as expressed by a writer who was considered to be one of the droit d’auteur’s chief proponents—Victor Hugo—in order to retrieve the then-perceived and still-potential radicality of theorizations of works of art that regard their author’s meaning as intrinsically unavailable to private appropriation.

In 1809 the French Senate commissioned Antoine-Jean Gros to produce a grand tableau of the Battle of the Pyramids to decorate its Salle de Séances. The work was first shown at the 1810 Salon to qualified praise, but it would soon exit from public sight during the Restoration due to its Napoleonic verve. In March 1835, the work was again sought out by the French State and was purchased by the Musée de Versailles with a request that it be enlarged. Three months later, the painter tragically drowned himself, and so it would be up to his student, Auguste-Hyacinthe Debay, to complete the commissioned enlargements for his deceased teacher.

Fig. 2. Antoine-Jean Gros, enlargements by August-Hyacinthe Debay, The Battle of the Pyramids (Bataille des Pyramides, 21 juillet 1798), 1810. Oil on canvas, 389 x 311 cm. Musée national des châteaux de Versailles et de Trianon, Versailles.

Fig. 2. Antoine-Jean Gros, enlargements by August-Hyacinthe Debay, The Battle of the Pyramids (Bataille des Pyramides, 21 juillet 1798), 1810. Oil on canvas, 389 x 311 cm. Musée national des châteaux de Versailles et de Trianon, Versailles.

It was only in 1838, after the publisher Charles Gavard produced a reproductive engraving of the painting for the Musée de Versailles, that the terms of the painting’s authorship came into dispute.

Upon seeing the Gavard print, Gros’s heirs and an engraver named Philippe Joseph Vallot, who had been previously commissioned by the painter to reproduce the work, brought suit against the editor, accusing him of authoring a counterfeit copy of the painting and of infringing upon their inherited or contracted copyright. The case was argued and appealed multiple times until it finally arrived in front of France’s highest court, the Cour de Cassation, in 1842. In each instance, the trial attorneys and judges grappled with how best to interpret and implement a revolutionary statute passed in 1793, which had established the first intellectual property rights (the droit d’auteur) in France. As the art historian Molly Nesbit has demonstrated, the passage of this droit d’auteur marked a radical flattening and consolidation of the cultural sphere under the rubric of authorship, since it granted without distinction the same copyright to any art recognized as being authored.[2] It was precisely on the basis of this law’s vagueness and generality that the plaintiffs were able to build their case.

Their attorney, Louis Nachet, defended authorship on putatively idealist grounds, arguing that the artist’s conception (his pensée) was what really contained the substance of a work of art and, therefore. ought to serve as the locus for his authorial rights. To rephrase things in terms used in court, it was argued that an author’s rights to his work originate in an immaterial idea, which “is an essential part of his personality,”and this meant that incorporeal rights to a work, such as copyright, ought to remain attached to the artist’s person even after the sale and transfer of the physical painting.[3] By introducing the artist’s personality into a discussion of copyright, the plaintiffs were engaging with a particular feature of the French droit d’auteur. Unlike in Anglophone common law, French intellectual property rights are understood to be composed of two distinct orders of right—one economic (patrimonial) and the other moral (extra-patrimonial).[4] Though moral rights had already been posited in French case law as early as 1814, it was not until the end of the century that rights of personality were treated as central legal concerns for literary or artistic property regulation.[5] The delayed statutory codification of moral rights is perceptible in both national law and supranational convention. For instance, it was only in 1928, more than 40 years after the 1886 ratification of the Berne Convention on literary and artistic practice, that an Italian delegation urged the international community to formally recognize the personal (moral) rights of the author.[6] Prior to such formalization, moral rights in France were largely derived from statutes concerning economic rights and determined by case law. Thus, throughout the nineteenth century, copyright disputes could and did impact the moral definitions of an author’s rights, most frequently by coming into conflict with what would later be codified as rights of divulgation (publicity), rights of paternity, and rights of reputation. In the Gros case, the plaintiffs argued that rights of reproduction were incorporeal and rights of possession were material, and in so doing claimed that the former ought to be seen as stemming directly from the author’s naturally endowed “jouissance intellectuelle.” The logic of this defense was that the artist’s intellectual rights would naturally supersede the painting’s complicated history of contracts, alterations, and transfers, and so its copyright would remain with his heirs.

Nachet goes further, however, in declaring that by not benefitting from rights of reproduction as incorporeal, painters would find themselves uniquely bereft of privileges that were already granted to writers and inventors under the current understanding of the droit d’auteur. “The writer that sells his book, the inventor that sells the object for which he is attributed, neither loses their privilege of reproduction. By what unjust contradiction is the painter, in selling the material sign of his creation, the only one to have transmitted by the sale, at the same time, the right to reproduce it.”[7] The issues at stake in the trial, then, were still functionally pecuniary, but rhetorically advanced so as also to impact the core moral dimensions of intellectual property law.

The court was ultimately unpersuaded by these arguments. André Dupin, the procureur-générale du roi, begins his summary of the case by apologizing to the plaintiffs. He admits that by necessity “the prestige of art disappears”[8] under a legal interpretive framework. “All this prestige,” he continues, amounts to nothing more than “very beautiful oratorical moments” and a rhetorical “jeu d’esprit to delight vaporous imaginations but which have really nothing of value in terms of the law.”[9] His task was not to determine an author’s imaginative prowess or even to understand a work’s meaning, but only to disentangle the terms of its communicability. Thus, he was bound “not to consider the moment that the painter, the poet or the composer conceives of his work” but rather only “the moment the work [tableau] is finished [achevé].”[10] Author’s rights were not located in a subject’s person or even in an idea antecedent to the work, since the author emerges as a subject of property law only once his work is completed. The same can be said, Dupin clarifies, for the medium of painting: “painting does not give way to canvas; it is canvas that gives way to painting.”[11] Though this latter point was meant first and foremost to discredit the plaintiff’s incorporeal analogizing of a painting to a literary manuscript, it also provides an account of painting’s ontology that seems to anticipate later Modernist theorizations of mediums, particularly the now-canonical, reductionist version espoused by Clement Greenberg.[12] No longer incidental materializations of immaterial ideas as the plaintiffs argued, the court determined that distinct mediums and their literal physical constituents were the necessary conditions for judging a work’s pensée in the first place.

Dupin, then, goes on to make matters even worse for Gros’ heirs, since he found that even the antecedent idea cited for this particular painting had originated in the contract terms of the Senate commission, and so it had arguably never been the painter’s to claim in the first place; the court’s definition of an idea, at least insofar as the idea made itself relevant in court, was clearly more transactional (originating in the commission brief of the Senate) than transcendental (originating in the author’s imagination). Dupin offers a further stipulation: that even if this idea were uncontestably Gros’ to claim, he would still have had to secure a réserve at the time of sale for he or his heirs to retain exclusive copyright after the sale of the painting. Over and over, the procureur général’s judgment resists determining authorship on the basis of anything other than a tangible object of property.

As a result of these materialist parameters, Dupin — and ultimately the court — ends up rejecting both the plaintiffs’ idealist conception of authorship and the supposedly incorporeal basis for copyright they had derived therefrom.

Although these [authorial] rights are not perceptible when they aren’t detached from the property, we nevertheless conceive of them as though they can be separated and constitute distinct rights with the proper names [noms particuliers] that characterize them, when they are sold to third parties. But so long as they are not detached, they exist in essence in the property right, which remains complete, in as much as there has not been a dismemberment of it. Therefore, the principle that states that whenever a thing is sold without reserve, it is sold in full alongside everything that constitutes it, comes from the very essence of property. The right is absolute because the owner not only has the right to exercise all manners in which we could appreciate the use of a thing [la jouissance d’une chose], but also has the right to abuse [le droit d’abuser]; he can destroy his own thing; he is the absolute master of it: suae quisque rei moderator et arbiter.[13]

 

 

Whereas the plaintiffs built their case for copyright by positing its emergence from natural, moral rights of personality, the court actively restricted itself to common law concerns. This did not, however, prevent its judgment from encroaching on incipient case law concerns of moral rights. For instance, the earliest case after 1793 to specify explicitly an author’s moral rights (Tribunal de La Seine, 17 August 1814) took place in the context of publishing.[14] Here, the tribunal had determined that writers had the inalienable right to have their manuscripts reproduced exactly as they had submitted it to a publisher and with their name included somewhere in the printed work. To justify this decision, the judge used the pecuniary concept of usufruct [usufruit], and so even in this case, the court had relied upon on economic instruments to ground moral determinations of author’s rights. Unlike in the 1842 Gros case, this trial determined that literary authors did not necessarily commit themselves to a total transfer of their rights upon the sale of their works.[15]

Following from this, it should be understood that natural, moral rights like artistic paternity or the integrity of a work were not, for most of the century, applied evenly across all mediums. The legal scholar Gustave Huard confesses as much in his 1903 treatise on French intellectual property law. After detailing the inalienable rights of paternity as they had been established for copyrighted manuscripts, he asks:

But what about in cases where a person acquires a painting, a statue or a building? Is she free to remove as she pleases the author’s signature? In our opinion, one must answer affirmatively. The owner of a work of art certainly has the right to destroy it, since it is her property; following from this, it would be illogical to decide that having the right to destroy a work, she does not have to right to erase the signature that appears upon it.[16]

 

Huard based his opinion on four different French court decisions dating from 1858 to 1885 and so it should not be read as if it were a supposition without precedent. However, even if his remarks are accepted as purely hypothetical, they still help a contemporary reader of the Gros transcript to make sense of what kinds of owner’s actions might have expected court protection under its category of a droit d’abuser. Owners were empowered to take any kind of enjoyment in their acquired work that they wished. This explicitly included the unlimited right to copy, abuse, or destroy it. On what grounds, then, Huard wondered, could these pleasures not also be said to include those an owner might enjoy from treating his work as if it had no author? The 1842 trial transcript alludes to precisely this same point. Citing a 1777 law that prevented engravers from attributing a reproductive engraving to any other artist other than the original work’s author, Dupin explains that although this activity was clearly fraudulent in this particular context, that this law had absolutely no bearing on the rights of third parties, whom he felt should, following age-old convention, accord some authority to a work’s author, but were not legally required to do so. On this basis, the court found that even authors of literary manuscripts were not naturally endowed with rights that would prevent a total transfer of their author’s rights, just that they typically participated in an artistic form in which the sale of copyright for a manuscript did not usually entail the sale of the manuscript itself.

This Gros case is of significant interest for contemporary art history and art criticism, since it challenges the credibility of a set of historiographical claims that are frequently advanced in critiques of authorship, especially those that construe anti-authorial theory and author critical practice as somehow subversive of or substantively alternative to the nineteenth-century proprietary regime. In what follows, I will consider the 1842 ruling and other nineteenth-century intellectual property laws in relation to perhaps the most influential critique of authorship: Roland Barthes’ foundational “The Death of the Author.”

For Barthes,“[t]he Author, when we believe in him, is always conceived of as the past of his own book.”[17] Following from this assertion of the subject’s categorical antecedence, Barthes argues that the author could be replaced by a modern writer, or “scriptor,”who was distinguishable from his “predecessor” by emerging “simultaneously with his text [and who] is in no way provided with a being which precedes or transcends his writing.”[18] The Gros case offers a clear instance in which neither of these claims should be accepted as necessarily valid, since, as already cited, the court’s determination of authorship obliged it “not to consider the moment that the painter, the poet or the composer conceives of his work” but only“the moment the work [tableau] is finished [achevé].”[19] These two subjects—the court’s author and Barthes’s scriptor—are not simply rhetorically similar; they are also theoretically compatible, save for one key feature. Both contest the prestige of art, one by reducing literature to writing, and the other by lowering painting “au rang des choses.”[20] Both ignore an author’s meaning and admit a multiplicity of texts into the determination of an individual work, one by appreciating the iterative nature of writing, the other by citing a painting’s contractual terms and admitting to the general imitativeness of all artistic pursuits.[21] Finally, both present themselves as alternatives to a pre-existent metaphysical account of authorship, Barthes by providing an image of a writer’s hand severed from a voice, and the court by claiming it was tasked with restoring the body to a work, but not its soul.[22] The principle difference, then, comes down to beliefs about the author’s meaningfulness, which the court excludes from its property judgments but never fully denies. The scriptor, on the other hand, “having buried the Author,” stops believing in a transcendental account of authorial meaning and, “consequently, making a law of necessity, he must emphasize this delay and indefinitely ‘polish’ his form.”[23] Following from this description, however, the scriptor can no longer be taken to emerge in simultaneity with his text, since Barthes now construes the text’s production as the logical, reflexive consequence of a necessarily pre-existent subject’s recognition of the author’s death and the attendant loss of conviction that follows therefrom. A problem arises in either instance. Either one discards the distinguishing factor of belief so as to retain the scriptor’s historical difference from Barthes’s “Author,” in which case the issue becomes how to maintain this distinction as empirically valid given the evidence that authors had been and could be determined as subjects emerging in simultaneity with their work; or, one accepts Barthes’s theoretical account of a scriptor’s disbelief, in which case the subject can no longer be thought of as having no “being preceding or exceeding the writing.”[24] From the perspective of its modern writers, “The Death of the Author” does not actually sustain its own description of a mode of criticism that would exclude explanatory recourse to an author’s intentions. The author always remains the necessary past for writing and also for writing’s co-original subject, the scriptor.

To be clear, I am not the first art historian to question the criticality of Barthes’s essay in relation to nineteenth-century law. Molly Nesbit’s path-breaking article, “What Was an Author?” also persuasively demonstrated how the law had advanced indifferently to the Mallarméan impersonality Barthes had praised. Her essay presented a highly original intervention into the history of authorship by introducing material relevant to the visual arts and visual culture into a then predominantly text-driven field. Nesbit’s central thesis—that the nineteenth-century droit d’auteur re-entrenched an ideological antinomy between the cultural and industrial spheres—depends upon the most significant economic privilege she believed the 1793 law to have afforded to such a culturally distinguished subject. As she writes, “after 1793 authors were unlike other laborers: the law had given them some rights to their work; even as it moved through the economy, their work remained their property.”[25] This interpretation of the law’s authorial subject is flawed, since it partially misstates the legal record, both in terms of who the author was and which economic privileges it had actually been afforded.[26] In its most attenuated form, an author as defined by French law was the nominal equivalent for any number of rights bearing property holders, such as in an 1844 statute establishing patent rights, which granted to inventors in its very first sentence the rights to their work as authors of them.[27] This completely flat usage of the term is instructive, since it is so clearly distinguishable from the subject that actually interests Nesbit and most other historians of authorship, but not in terms of who was or wasn’t called an author, and why they were or weren’t considered to be one.[28] Instead, it suggests that different modes of authorship advanced different kinds of property claims and, therefore, required different statutory regulations.[29] The 1842 ruling is only one such influential occasion where authors had been refused treatment as anything other than contracted laborers and in which idealistic defenders of authorship actively aligned cultural labor with a supposedly disprivileged industrial sphere.

As a result of this thesis, Nesbit ends up objecting to only part of Barthes’s essay, since she still accepts a vision of “responsible” authorship that fully accords with his post-modern aesthetics: that advanced works of art should effectuate a displacement of interest in an author’s meaning onto readers or spectators whom they claim as co-producers. Much more than the scriptor, who at best seems to refer to an author who intends to create an authorless work, or even any particular strategy of writing— Attic theater, Balzac’s novels, and Surrealist automatic procedures are all cited to advance his claims about textuality—it was Barthes’s reader who initiated a fundamentally different theory of (non)interpretation, since a text’s writer would no longer be claimed as its ultimate cause. For Barthes, it is the reader and not the author who represents “that someone who holds together in a single field all the traces by which the written text is constituted.”[30] Quite often, this reader is taken to have replaced the author in determining a text’s meaning; this is partly true, but risks failing to capture the subject’s theoretical exemplarity. Barthes believed that “writing ceaselessly posits meaning ceaselessly to evaporate it, carrying out a systematic exemption of meaning” and so the reader is determinative only of a “text’s unity,” which for him is a structure that carries no “ultimate meaning.”[31] It is on this basis that the theoretician considered the reader to be “truly revolutionary since to refuse to fix meaning, is, in the end, to refuse God and his hypostases—reason, science, law.”[32] By theorizing writing as a practice constituted in reading, Barthes finally arrived at a strong description of the simultaneity he had initially imputed to the scriptor, in which “every text is eternally written here and now.”[33] Relieving the critic from the chronic anteriority of the author, the reader made the search for a text’s meaning (which Barthes likened to a metaphysical substance behind the work) far less relevant than an analysis of its structural properties. Nineteenth-century authorship laws were also generally uninterested in interpreting a work’s meaning. In the Gros case, for instance, the painter’s pensée was utterly irrelevant to the judge’s ruling, except inasmuch as it could be determined to have materialized in an object of property. So was the painter himself. After all, he was dead.

Remarkably, however, empowered readers were already enshrined in French law and were even capable of acquiring author’s rights of their own for works they had not actually conceived of. My claim here is not that nineteenth-century readers or intellectual property laws advanced a commensurate theory of indeterminate meaning — they didn’t—but only that they conducted and condoned the necessary practices described by Barthes in fulfillment of one. I take his claims about writing in general and about the determination of a “text’s unity” to impose a fairly minimal requirement for establishing the existence of active readers. They don’t have to believe that they are actually the new authors or writers of a work, since they don’t have to contest a work’s origins, only to serve as its literal destinations; and they can also be perfectly competent readers in the traditional sense of interpretation, such as the spectator of Greek tragedy Barthes refers to, “who understands each word in its duplicity and who, in addition, hears the very deafness of the characters speaking in front of him.”[34] All of this is to stress that the following evidence is not meant to have any immediate bearing on the validity of Barthes’s theoretical position, but it should, I believe, call into question the plausibility of his claim that an endorsement of reader’s rights following from the death of the author would be “truly revolutionary.”

An 1805 Napoleonic code stated that “the owners by succession or by other title [this includes trustees, purchasers, or heirs] of a posthumous work have the same rights as the author, and the dispositions of the laws concerning the exclusive property of authors and of the duration for which they are applicable.”[35] Thus, in these cases it was a text’s reader, and not its writer, who became a work’s author, or at least rightfully identical to her.[36] It is worth stressing that this interpretation of the statute is perfectly consistent with how jurists of the day had understood it, such as when the appellate attorney Jean Pataille writes of the “law having wanted to provoke the publication [of posthumous works] by protecting the publisher and treating him as if he were the author himself.”[37] The anti-authorial potential latent in such legislation, even though it was written expressly in support of the cultural dignity granted to the author, becomes clearer if one considers the economic incentives it sets up for a text’s reader to publish posthumous works, regardless of whether or not they had been intended for publication, were considered to have been completed, or were at the time of death still felt to be in need of an editorial eye.[38] Unlike in the Gros case, these individuals who had inherited or acquired posthumous works were claiming much more than an author’s copyright; they were also claiming a set of moral rights that included the author’s original right of publication. Living authors were expected to have an a priori right to determine when and how they wished for their work to be published, and this would eventually be recognized in their ability to break contracts (with financial penalty), instead of executing a commissioned work. The law’s respect for these heirs or owners’ rights as author’s rights is quite striking, since a posthumous work’s attendant copyright duration extended from their person, and not from the dead author’s. As Eugène Pouillet made clear in his 1879 summary of earlier court cases and statutes in France relating to posthumous works, the French state held an unflagging belief that unedited, unpublished works ought to enter into the public domain authored.[39] In the hypothetical case of a found or purchased, unsigned manuscript, a second moral right—that of paternity—could also be found to be at stake, since the living author of the putatively anonymous work would have had the ability when alive to decide whether or not to maintain anonymity, to adopt a pseudonym, or to affix her real signature to the published work. Even in reverse, however, in cases where the state upheld the moral right to oppose unauthorized publications, such a provision would still turn out to entail a reader’s determination of a text, since for 10 years after the author’s death (at least in 1805), heirs could “exercise in his place”[40] an opposition to posthumous publication, and a court would acknowledge the primacy of this right even without any written evidence that this was the writer’s intention. Moreover, such a move could still hypothetically result not from an effort to accede to some interpreted authorial will but rather could be deployed to supersede it in the pursuit of one’s own, since the inherited literary property right was by the 1880s deemed to take priority over another individual’s competing (and nearly identical) authorial right to posthumous publication (the example the text cites is of a publisher who happened to have also been given a manuscript copy of a posthumous text by a writer and who wished to pursue the publication of it).[41] What is important, then, is that whether or not posthumous works were actually published or their publications were opposed, both decisions could be determined by the interpretations of a text’s reader acting with her own author’s rights under the sign of a dead author’s name. These author’s rights, which were really just owner’s rights, were, in effect, a culturally privileged class of reader’s rights.

Posthumous texts could, finally, be arranged in ways that their authors had never intended, since their reader-proprietors were now considered capable by their inherited or otherwise acquired droit d’auteur of deciding what did and did not count as the text. For instance, when confronted with the question of how to treat a cluster of seemingly related, but as yet unpublished texts, the law sought to encourage their publication in the same edition, thereby amplifying the reader’s writerly efforts as an exercise in textual bricolage. If such a reading practice fantasmically perpetuated the author’s signature, it did so only under the sign of its iterability, rather than its presumed self-presence. Following from all of this, it must be admitted that Barthes’ most radical conclusion was absolutely correct. Reader’s rights really were to be won “at the cost of the death of the author,” but these readers didn’t attack the law so much as they were fully consecrated as text-producing subjects by it.[42] The displacement of a text’s causes from a biographical authorial center onto its discursive conduits did not, in any event, render a significant blow to the author function. It re-entrenched it.

It might be argued that all of the actions I have just described do not represent significant changes to the meanings of works, and only amount to literal transformations of them—that they just entail the creation of some new and different text.[43] I would not disagree, but such a claim would still run counter to Barthes’ central theoretical postulate, which is meant explicitly to challenge the belief in any stable, pre-existent, and interpretable unity of a writing prior to its having been read. Reader’s rights are endorsed precisely because anti-authorial critics hold the meanings of texts to be available to external determinations and, indeed, to be contingent upon them. Either they are, in which case the legal history of posthumous works ought to trouble the conviction that such activities are substantively critical ones; or they aren’t, and we can still appreciate the difference between a reader’s activities and those of an author’s, in which case the death of the author should no longer serve as a dispositive event in our theories of interpretation.

~

Before it arrived at the Musée de Versailles, The Battle of the Pyramids was exhibited for a second time at the annual Salon of 1836. Given the artist’s recent, untimely death, the painting tended to serve more as an occasion to speak about its author, than it did as an object of sustained critical judgment. Consider Alfred de Musset’s assessment in his Salon review.

It is with respect and grief that one must pronounce Gros’ name. These must have also been the same two feelings that affected M. Debay, his student, when he finished the work of the greatest painter of our generation, leaving it imperfect. The work hardly measures up to the others, but it is the final page of a terribly beautiful book, and its single likeness to the rest must now ennoble and consecrate it.[44]

 

At first blush, De Musset’s text resembles precisely the mode of criticism rejected by Barthes in  “The Death of the Author,” in which “the explanation of a work is always sought in the man or woman who produced it.”[45] In De Musset’s prose, the painting becomes a metaphor for the final page of its maker’s biography. However, it is in this very turn of phrase that the critic confronts his reader with a decidedly Barthesian question: who is it that really speaks in this “terribly beautiful book”? Is it Gros, the artist whom we know not to have actually finished the enlargements for the work that now offers testament to his life and to his death? Or perhaps it is his respectful and grieving pupil Debay, whom De Musset feels had left the completed painting visibly imperfect? And aren’t these two sentiments of respect and sorrow really De Musset’s own that he had projected onto Debay after his own viewing of a work that didn’t quite measure up, save for a “single resemblance,” to the name that he and Debay feel, nevertheless, compelled to pronounce? For Barthes, the answer would have been clear. The book reveals nothing other than the inherent multiplicity of writing itself, and The Battle of the Pyramids the inherent textuality of all painting. “Writing is that neutral, composite, oblique space where our subject slips away, the negative where all identity is lost, starting with the very identity of the body writing.”[46] For De Musset and Debay, on the other hand, a feeling of obligation to call this painting a work by Antoine-Jean Gros never meant denying the posthumous activities of those that survived him. It seems, instead, to have been meant to affirm what remains of a work—let’s call it its pensée—to which no one but its author could ever stake a rightful claim; not his heirs, not his students, and not even his critics.

It was, I want to stress, Auguste-Hyacinthe Debay who completed The Battle of the Pyramids by enlarging it before it entered into the collection of the Musée de Versailles. He was paid for his work and continues to be publicly credited by the museum for it. His enlargements, however, did not and do not constitute his authorship of the painting, and so only his activities, but not his name, were ever mentioned in the 1842 trial transcript. I have done much the same in this essay when addressing the work of the author of “The Death of the Author.”[47] I have consulted and cited Stephen Heath’s translation of Barthes’ work, but I have addressed my objections exclusively to Barthes and not to Heath. Even in its first public appearance in the English-language publication Aspen, this foundational critique of authorship depended upon the activities of one of its writer’s readers, in this case Barthes’s earlier translator Richard Howard.[48] De Musset and Debay’s mournful acknowledgement of Gros as the author of his enlarged painting is no more ridiculous than Heath or Howard or my own recognition of Barthes as the author of his text that pronounced the author dead. De Musset’s imagined book of Gros, for which the final marks did not and could not bear the literal trace of its subject’s body, still undoubtedly carried his signature.

The principles of auteurist styles of interpretation grant artists and writers a fundamentally different kind of authority over their work than they gained historically by acquiring author’s rights, since an interest in what someone means is not the same as an interest in what someone possesses, and not even what an author possesses. This latter point was one that the writer Victor Hugo was keenly aware of. In his impassioned speech to the Congrès litteraire international in June 1878, he designated a work’s meaning (its pensée) as that which was truly exempt from private appropriation. Significantly, he does so through a contrast with his vocation’s most literal medium: the book. “The writer’s thought, at least as much as it is a thought, escapes from any entity that might wish to seize it; it migrates from soul to soul; it has this gift and this power—virum volitare per ora—but the book is distinct from the thought; as a book, the work can be, and sometimes is seized.”[49] This idealist pensée, which the liberal Hugo (mistakenly) associated exclusively with an authorial moi (“la pensée, c’est le moi”), serves as a powerful guarantor for a work’s public-ness against private (or governmental) interests. For Hugo, this necessarily includes the moi, since, being just as incapable of seizing the work after having chosen to let it migrate from soul to soul (publishing it), the author can only take responsibility for it, and must otherwise share in the collective experience of its publicity. Thus, Hugo could write in a private note from 1870 with his singular egotism, but without any meaningful contradiction, that “what I write does not belong to me. I am a public thing.”[50]

Hugo’s beliefs about author’s rights were very different from those adopted in the 1886 Berne Convention. He advanced a vision of a socially oriented domaine public payant and believed that, when in conflict, the public’s right to knowledge ought to supersede an author’s rights to property. He also argued that heirs, whom he denigrated as “neutre, et passif,” should not be able to claim any posthumous author’s rights.[51] They should, at most, receive a five to ten percent royalty for future publications. Moreover, he believed that posthumous sales of works should actively contribute to the opening up of the artistic sphere to economically disadvantaged individuals, both financially through a program of mutual support and also by contributing to a work’s increased circulation. For some, including Jules Simon, the man who served as the first education minister of the Third Republic, such restrictions on literary property had only one appropriate name: “communism.”[52]

A commitment to the author, at least as Hugo understood it, need not, therefore, represent a retreat from many of the same central critical concerns espoused by anti-authorial theorists and historians.  His views on authorship were not, in the end, enacted as policy, and author’s rights provisions of the 1880s resulted in the extension of an author’s heir’s posthumous rights, as well as a retrenchment of the cultural sphere’s filiation with class privileges. (Hugo’s heirs have themselves since attempted to exacerbate this retrenchment.)  Somewhat counter-intuitively, however, it is the birth of the reader hypothesis, which, in spite of all of its putative claims on behalf of art’s public, turns out to be much more closely aligned with those most ideologically-inflected rules governing nineteenth-century intellectual property. Like all of those owners and heirs deemed to have inherited or even to generate for themselves upon purchase of a work the same rights to it as its actual creator, anti-authorial critics claim that a text is always already reconstituted by every reading of it, which, at least following from the most radical of these readerly articulations, amounts to nothing short of an actual re-writing of it. Turning meaning into a contingent matter of private possession, this style of interpretation and of aesthetic practice evacuates the work of what may be most shareable (and also least appropriable) about it. Now in the twenty-first century, when reader-activation, reader-response, and productive consumption represent an overlapping language for some of the most nefarious of marketing practices and some of the most stultifying of artistic works, it may be time to reconsider our suspicion of the author, or at least to admit that we may not have fully grasped the meaning of this thoroughly modern subject.

 

Notes:

I would like to thank the anonymous reader and Marnin Young at nonsite for their constructive feedback, which greatly improved this essay’s clarity. My thanks go as well to my adviser, Jonathan Crary, for his support and mentorship; to Jeffrey Lieber for his keen editorial eye; and to Stephen Best, Anna Levine, Anna Shechtman, and Zachary Woolfe, each of whom offered to read through this essay at various stages of its completion.

 

[1]For a useful discussion of this trial and for a more complete history of artistic property law, see Frédéric Rideau, “Nineteenth Century Controversies Relating to the Protection of Artistic Property in France,” in Privilege and Property: Essays in the History of Copyright, ed. Ronan Deazley, Martin Kretschmer and Lionel Bently (Cambridge: Open Book, 2010), 241­–54, and Rideau, “Commentary on the Court of Cassation on Paintings (1842),” in Primary Sources on Copyright (1450–1900), ed. Lionel Bently and Martin Kretschmer (2008), http://www.copyrighthistory.org/cam/tools/request/showRecord?id=commentary_f_1842

[2]In 1793 this included writings of all genres, musical compositions, painting and drawing. See Molly Nesbit, “What Was an Author?” Yale French Studies73 (1987): 229­–257. For a thorough cultural history of revolutionary intellectual property law, see also Carla Hesse, Publishing and Cultural Politics in Revolutionary Paris, 1789–1810 (Berkeley: The University of CaliforniaPress, 1991).

[3]Louis Nachet, as quoted in “Héritiers baron Gros et Vallot C. Gavard,” in Armand Dalloz, Recueil périodique et critique de législation, de doctrine et de jurisprudence (Paris: Bureau de la jurisprudence générale du Royaume, 1842), 299: “une partie essentielle de sa personnalité.”

[4]See Charles A. Marvin, “The Author’s Status in the United Kingdom and France: Common Law and the Moral Right Doctrine,”The International and Comparative Law Quarterly 20, no. 4 (October1971): 676; and also, Stina Teilmann, “British and French Copyright: A Historical Study of Aesthetic Implications,” (Ph.D.diss., University of Southern Denmark, 2004), 110­–121.

[5]French attorney and legal scholar Hélène Raizon offers a detailed and clear history of these developments in her dissertation, “La contractualisation du droit moral de l’auteur.” Raizon cites publications from 1878 and after as particularly crucial for the concept of a double-natured authorial right gaining legal traction. See Raizon, “La contractualisation du droit moral de l’auteur” (PhD diss., Université d’Avignon et des Pays de Vaucluse, 2014), 43–66.

[6]Sam Ricketson and Jane C. Ginsburg, International Copyright and Neighbouring Rights: The Berne Convention and Beyond, 2d ed. (Oxford: Oxford University Press, 2005), 223–229.

[7]Nachet, as quoted in “Héritiers baron Gros et Vallot C. Gavard,” 299.

[8]André Dupin, as quoted in ibid., 301: “la prestige d’art s’évanouit.”

[9]Ibid.: “[T]out ce prestige d’imagination[…] pouvait donner lieu à de trés-beaux mouvements oratoires[…] C’est là une abstraction, une pure subtilité, un jeu d’esprit propre à délecter les imaginations vaporeuses, mais qui véritablement n’a aucune valeur comme point de dorit, aux yeux jurisconsultes.”

[10]Ibid.

[11]Ibid.: “la peinture ne cédera pas à la toile; c’est la toile qui cédera à la peinture.”

[12]In particular, see Clement Greenberg, “After Abstract Expressionism,” in The Collected Essays and Criticism, vol. 4: Modernism with a Vengeance, 1957–1969, ed. John O’Brien (Chicago:University of ChicagoPress, 1993), 121–134.

[13]Dupin, as quoted in “Héritiers baron Gros et Vallot C. Gavard,” 302: “Quoique ces droits ne soient pas sensibles quand ils ne sont pas détachés de la propriété, cependant nous concevons qu’ils peuvent en être séparés, et constituer des droits distincts avec les noms particuliers qui les caractérisent, dès qu’ils sont vendus à des tiers. Mais tant qu’ils ne sont pas détachés, ils existent en germe dans le droit de propriété, qui reste complet, tant qu’il n’y a pas eu de démembrément. Ainsi, le principe qui veut que lorsqu’une chose est vendue sans réserve, elle soit vendue avec plenitude, avec tout ce qui la constitue, tient à l’essence même de la propriété. Ce droit est absolu; car le propriétaire n’a pas seulement le droit d’user de toutes les manières dont on peut concevoir la jouissance d’une chose, mais il a aussi le droit d’abuser; il peut anéantir sa propre chose; il en est le maître absolue: suae quisque rei moderator et arbiter.

[14]This case involved a writer’s unsuccessful attempt to sue a publisher for altering his manuscript in a second edition. The court’s ruling found that some editorial additions were permissibly trivial, but it still endorsed the extra-patrimonial right of the integrity of a work. The case is cited and analyzed in Teilmann, “British and French Copyright,” 12 and 112.

[15]Dupin, as quoted in “Héritiers baron Gros et Vallot C. Gavard,” 303.

[16]Gustave Huard, Traité de la propriété intellectuelle (Paris: Marchal et Billard, 1903), 295: “Mais que dire au cas où une personne acquiert un tableau, une statue, un edifice? Est-elle libre d’effacer à son gré la signature de l’auteur? A notre avis, il faut répondre affirmativement. L’acquéreur d’une oeuvre d’art a certainement le droit de la détruire, puisqu’il en a la propriété; dès lors, il serait illogique de decider qu’ayant le droit de la détruire, il n’a pas celui d’effacer la signature dont elle est revêtue.”

[17]Roland Barthes, “The Death of the Author,” Image, Music, Text, trans. Stephen Heath (1977; London: Fontana Press, HarperCollins Publishers, 2010), 145.

[18]Ibid.

[19]Dupin, as quoted in“Héritiers baron Gros et Vallot C. Gavard,” 301.

[20]Ibid.

[21]Ibid., 303: “En général, il existe pour les arts une facilité d’imitation et pour les idées une facilité de transformation, qui portrait chacun à imiter, à copier, à produire, à repeater ce qui avait été une fois dit, montré, promulgué.”

[22]Ibid.: “l’esprit de cette loi (de 1793) […] a voulu matérialiser l’art, afin de lui donner non pas une âme, il l’avait déja, mais un corps.”

[23]Barthes, “Death of the Author,” 146.

[24]Ibid., 145.

[25]Nesbit, “What Was an Author?,” 235.

[26]I have intentionally described my objection to Nesbit’s arguments about the author as partial. This is because her essay progresses in such a way that later statements seem logically, if only tacitly, to qualify previous ones, such as when she refers further along in her article to the restrictions on a painter’s property claims should his or her work enter into a public museum. This would implicitly qualify her claim about authorial rights as they pertained to a work’s economic circulation, since it points to an instance in which the most important institutional consecration of a painter as author would functionally disqualify him from the supposedly unreserved economic privileges that distinguished what authors actually were. I also say partly because I believe that my critical aims are in substantive accord with her most general characterization of the legally defined author—as a figure that never fully inheres in any clear conception of aesthetics or cultural meaningfulness.

[27]“Loi du 5 juillet 1844,” in Brevets d’invention: loi du 5 juillet 1844, modifiée par celles des 31 mai 1856 et 7 avril 1902, arrêté ministériel du 11 août 1903 (Paris: Chevalier et Rivière, 1903), 1: “Toute nouvelle découverte ou invention dans tous les genres confère à son auteur, sous les conditions et pour le temps ci-après détermines, le droit exclusive d’exploiter à son profit ladite découverte ou invention.”

[28]Even for mediums, such as drawing, for which Nesbit very clearly establishes legal distinctions between the cultural and industrial spheres, period case law complicates the acceptability of her viewing their relationship to one another as ideologically antinomic.  For instance, an 1891 trial in Besançon determined that (apparently poor) drawings of mechanical watches produced by an industrial draughtsman could claim protection under the 1793 law, but not under a 1806 law drafted explicitly to regulate industrial designs. The arguments put forth by the tribunal even suggest an alternative aesthetic rationale for judging works in the same medium differently, one that had nothing to do with any pre-conceived ideological values attached to the fine arts or to the author. This is because the difference as observed in the Besançon case was determined neither on the basis of formal quality (they make clear that the 1793 law imposed no such criteria for the admissibility of drawings) nor on its subject matter (drawings protected by the 1806 law and drawings protected by the 1793 law could all be drawings of watches) nor on any claim about personality (all of the drawings were acknowledged to index the same hand), but rather on whether or not the draughtsman sought protection for the drawing as a representation of an object in the public domain (in which case the author made no proprietary claim for the object represented, but instead for the drawing as a drawing) or whether he sought protection for it as an invention or a discovery (in which case the draughtsman was actually securing a proprietary claim for a drawing that was less relevant for its being a drawing than for its functional antecedence to any number of potential industrial techniques, be it the fabrication of an object or the reproduction of a motif on fabric or wallpaper). Rather than define authorship in order to affirm cultural privileges, the court seems to have attempted, instead, to name two distinct orders of intentionality for two objects with (to adopt a Duchampian term) only infrathin differences. See “Cour de Besançon, 13 juillet 1892 et 22 novembre 1893. –Boussion c. Loiseau et Cie et Jacquin,” in Annales de la proprieté industrielle, artistique et litteraire, ed. Jean Pataille (Paris: Arthur Rousseau, 1894), 119–131.

[29]Literary historian David Saunders has argued that the best way to approach such questions is by dropping a subject-oriented approach entirely, given the irreducibility of this history to any imagined cultural personage. See Saunders, Authorship and Copyright (London: Routledge, 1992).

[30]Barthes, “Death of the Author,” 148.

[31]Ibid., 147.

[32]Ibid.

[33]Ibid., 145.

[34]Ibid., 148.

[35]“Texte du décret du 1er germinal an XIII,” as quoted in Eugène Pouillet, Traité théorique et pratique de la propriété littéraire et artistique et du droit de representation, 3d ed. (Paris: Marchal et Billard, 1908), 437: “les propriétaires, par succession ou à autre titre, d’un ouvrage posthume, ont les mêmes droits que l’auteur, et les dispositions des lois sur la propriété exclusive des auteurs et sur sa durée leur sont applicables […].”

[36]Not literally of course, since no one mistook them for the work’s original writer, but these individuals did become the very first person to hold author’s rights over the posthumous work and the law recognized these rights, which were moral and economic, in relation to their own person (in terms of duration) rather than to those of the text’s actual author.

[37]Jean Pataille, “Avis de M. Pataille sur la propriété littéraire et le décret de l’an XIII,” in Émile Collet and Charles Le Senne, A Propos d’André Chénier. Étude sur la propriété des oeuvres posthumes (Paris: G. Charpentier, 1879), 167: “la loi ayant voulu provoquer la publication [d’une ouvrage posthume] en protegeant le publicateur et en le traitant comme s’il en était l’auteur direct.”

[38]Art historian Caroline A. Jones has recently discussed related concerns in an analysis of what she calls the “posthumous artist-function.” For Jones, “We all take part in the unfinished operations that constitute the working of the art. We all participate in the artist-function.” (149) Given that her article’s focus is really on the materiality and not the meaning (or pensée) of posthumous works of art, I find these two claims perfectly plausible. I hesitate, however, to accept that either of them supports her earlier interpretive argument that posthumously revealed works may produce different kinds of authors than had existed before. In her chosen example of Robert Smithson, all that seems to have occurred is that a posthumous work led her to a better explanation of an achieved one. See Jones, “The Artist-Function and Posthumous Art History,” Art Journal  76, no. 1 (Spring 2017): 139–149.

[39]Pouillet, Traité théorique, 302.

[40]Cited in Gustave Huard, Traité de la propriété intellectuelle, 307: “exercent à sa place.”

[41]By this point, the rightful delay had been extended to a period of 50 years after the author’s death. See Huard, Traité de la propriété intellectuelle, 306.

[42]Barthes, “Death of the Author,” 148

[43]Steven Knapp and Walter Benn Michaels have addressed a similar “problem” of encountering the “same” text with different meanings in their response to literary critic Emile Hirsch. See Knapp and Michaels,“A Reply to Our Critics,”Critical Inquiry 9, no. 4 (June 1983): 790–800. Also relevant to this argument would be Michaels’s discussion of editorial decisions and original manuscripts in the introduction to his The Shape of the Signifier: 1967 to the End of History (Princeton: Princeton University Press, 2004). For Michaels, a seemingly contrasting fidelity to the materiality of works (as opposed to an activist reader/editor) results in a theoretically compatible account of authorless meanings.

[44]Alfred de Musset, “Le Salon de 1836,” Revue des deux mondes 6 (April 1836): 162: “C’est avec respect et avec douleur qu’il faut prononcer le nom de Gros. Ce doit être aussi avec ces deux sentimens [sic] que M. Debay, son élève, a terminé l’oeuvre, laissée imparfaite, du plus grand peintre de notre temps. Elle ne vaut pas, à beaucoup près, les autres; mais c’est la dernière page d’un si beau livre, que sa seule ressemblance avec le reste doit l’ennoblir et la consacrer.”

[45]Barthes, “Death of the Author,” 143

[46]Ibid., 142

[47]I am grateful to my anonymous reader for pointing out this crucial irony in the essay’s history and reception.

[48]As Molly Nesbit, Gwen Allen, and, most recently, John Logie have all discussed, the particular 1967 issue of Aspen in which the “The Death of the Author” first appeared was devoted to the topic of minimalism. It was released only months after the publication of Michael Fried’s influential and controversial essay “Art and Objecthood,” and, as Logie explains, was meant to counter his defense of Modernism by establishing its own object-hood through its various modes of readerly/spectatorial solicitation. Considered in this context, the art historical and art critical dimensions of Barthes’s essay should become all the more apparent. See Allen, Artists’ Magazines: An Alternative Space for Art (Cambridge, MA: MIT Press, 2011); Logie,“1967: The Birth of ‘The Death of the Author’,” College English 75, no. 5 (May 2013): 493–512; and Nesbit, “What was the Author?,” 241–244.

[49]Victor Hugo, as quoted in Congrès litteraire international de Paris, 1878. Présidence de Victor Hugo. Comptes rendus in extensor et documents (Paris: Bureaux de la Société des gens de lettres, 1879), 106: “La pensée de l’écrivain, en tant que pensée, échappe à toute main qui voudrait la saisir ; elle s’envole d’âme en âme ; elle a ce don et cette force, — virum volitare per ora — ; mais le livre est distinct de la pensée ; comme livre, il est saisissable, tellement saisissable qu’il est quelquefois saisi.”

[50]Victor Hugo, note, 1870, in Oeuvres complètes: Choses vues, vol. 2 (Paris: Imprimerie nationale, 1904–1952), 160: “[c]e que j’écris n’est pas à moi. Je suis une chose publique.”

[51]Hugo, as quoted in Congrès litteraire, 213.

[52]Jules Simon, as quoted in Édouard Romberg, Comte rendu des travaux du Congrès de la propriété littéraire et artistique (Brussels: Émile Flatau, 1859), 120.

 

About the Author

Alex Weintraub is a PhD candidate in Columbia University's Department of Art History and Archaeology. He is currently at work on his dissertation, “Authoring Art in Nineteenth-Century France,” which explores how a group of ambitious painters and writers—Élisabeth Vigée Le Brun, Eugène Delacroix, Victor Hugo, Vincent Van Gogh, and Émile Zola—confronted period concerns surrounding art's authorship in their secondary practices. His research has been supported by the Netherland-America Foundation, the Fulbright Program, and the Georges Lurcy Charitable and Educational Trust. Alongside his art historical writing, Alex regularly contributes to the Los Angeles Review of Books as a film critic.


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