Have a drink with: Gilbert Stuart
The one dollar bill.”

Ask him about: Chinese knockoffs

In August of this year, news outlets reported that the White House opened the door for the United States Trade Representative (an executive agency that advises on global trade policy) to conduct an investigation of potential Chinese intellectual property abuses. Citing the possibility of significant harm to American interests in the research-intensive technology sector, the President’s memorandum requested examination of laws, policies or practices that may be unreasonable or discriminatory and that may be harming American intellectual property rights, innovation, or technology development.”

China has long been regarded as particularly flexible in the intellectual property space, with one commentator calling local law and practice a “decades-long assault on the intellectual property of the United States and its allies.”

Nor is this a recent development, only relevant to modern topics like copycats, trade secret theft and brand piracy – Gilbert Stuart, who painted the iconic dollar-bill likeness of George Washington we spend every day (making him the most-reproduced artist ever) was the subject of something a lot of modern artists would find disappointingly familiar: unauthorized foreign knockoffs of his work. In 1802 Stuart, frustrated with an opportunist dealer shipping his works off to China for reproduction, went to Pennsylvania court to claim his copyright and seek an injunction.

Gilbert Stuart painted about a hundred portraits of the President, most of them replicated from a handful of originals for which Washington had sat in person. This did not even begin to satiate the tremendous demand for portraits of Washington in the post-Revolutionary era.

John Swords had a solution. According to a court pleading to the Eastern District of Pennsylvania in 1802, Swords had asked to purchase a portrait of Washington from Stuart, claiming that he wanted the work for an unidentified “gentleman in Virginia.” Stuart, well aware of the hazards of the market, delivered the painting on one condition: Swords was not to make any copies of the work.

Stuart came to the court complaining that Swords, notwithstanding his promise, promptly took the painting with him to China, “and there procured above one hundred copies thereof to be taken by Chinese artists and hath brought the same copies to the United States, and purposes to vend the same to your orator’s great injury.”

This was a long time in the making: Stuart had delivered his work to Swords in March of 1801, and his court filing is dated May 14, 1802. Considering the many months it would take in early America to safely ship an oil painting to China, commission and execute a hundred copies (many of them done in a technique that involved reverse painting the image on a pane of glass), and return them to the United States for sale, it is staggering that the practice was both appealing and economically viable. So great was the demand for Washington imagery that such a long game was attractive.

Why did Stuart care? The artist was a free spender and thanks to his extravagance was frequently on the edge of bankruptcy; he valued not only his reputation but the access to important people it afforded him; and one can only assume he disliked seeing people assault the uniqueness of his work in the marketplace (and make easy money in the process).

The artist asked that the court issue an injunction to prohibit Swords from sale of any reproductions, and require him to hand over all remaining copies for disposal – presumably, destruction – at the court’s discretion.

The judge issued an injunction that same day, threatening Swords and his associates with a two thousand dollar penalty (in excess of $40,000 in modern terms) should they attempt to sell the Washingtons.

Stuart’s case was one of America’s first legal actions to address intellectual property and the creative marketplace, and speaks sharply to questions we’re still trying to work out today. What sort of uses are sufficiently transformative, innovative, creative, to properly create new intellectual property rights? How are creative rights fairly stimulated and protected? How much do we care about an artist’s specific skill and execution, versus the instant gratification afforded by reproductions, fast fashion and trend-hopping?

Washington himself signed the Copyright Act of 1790 and lauded “the exertions of skill and genius” in his State of the Union address that year. I doubt he’d be surprised to learn that skill and genius are as hard to pin down today as they were in America’s youngest days.

Fun Facts:

Reverse-painted glass reproductions of Stuart’s work are both beautiful and historical in their own right, even as one can see exactly why they would have made the artist see red in the early 1800s. For an example, see the wonderful Foeiqua painting of Washington in the collections of the New Britain Museum of American Art.

Popular and mercurial, Stuart was a study in contradiction: he could be a speedy painter but often dragged his feet on commissions (particularly if bored); drew huge fees but spent too freely; and was both highly skilled and inconsistent in his output. (John Quincy Adams rolled his eyes at Stuart’s idiosyncrasy, claiming: “Mr. Stuart thinks it the prerogative of genius to disdain the performance of his engagements.”) Scholars have suggested that Stuart suffered from bipolar disorder, thereby explaining not only his dark moods and personality quirks, but the variability in tone and quality from one portrait to another.

Why was the court so decisive? They appear to have decided for injunctive relief more on equitable grounds than anything else, as American intellectual property law was then very much in its infancy. The 1790 Act, largely modeled on the English Statute of Anne (1710), was the first federal effort to codify and enforce copyright protection in the U.S., but it was not the sort of law that made life easy for content creators. In contrast to modern law, which automatically grants protection once an idea is affixed in tangible form, the 1790 law required authors to register their work with the government, pay fees and file with the Secretary of State’s office. As a result, the majority of artistic work in the early United States was not formally copyright protected. So while we retroactively think of Stuart’s case as a “copyright suit,” it really wasn’t.

Copyright, fair use and the ethics and commerce of reproduction are very much compelling issues in the modern era: for example, consider Shepard Fairey’s famous “Hope” poster.

Additional Reading:

Carrie Rebora Barratt and Ellen G. Miles, Gilbert Stuart, Metropolitan Museum of Art (2004)

Dorinda Evans, The Genius of Gilbert Stuart (1999)

E. P. Richardson, “China Trade Portraits of Washington After Stuart,” Pennsylvania Magazine of History and Biography, v.94, n.1 (January 1970)