New Zealand’s First Photographic Copyright Court Case

Friday 03 May 2019

Photographic copyright in New Zealand goes back nearly 150 years to the Fine Arts Copyright Act 1877. Before that time, there was no legal protection for photographic images and they were often copied and resold by competing photographers.

Such practices could be devastating to studios that produced the original image. In 1871, less than 2 months after her husband George’s death, Elizabeth Pulman of Auckland found that a photograph George had taken was being pirated and sold without her permission. She wrote to the editor of the Daily Southern Cross newspaper (9 June 1871) beseeching the public to refuse to buy the forgery since it was the principal source of income for her and her seven young children. This action raised the public’s awareness to the need for copyright protection for photographs but it took another 6 years for an act to be passed.

Under the Fine Arts Copyright Act 1877, securing copyright was simply a matter of registering a photograph in Wellington and paying a fee. The Pulman studio took advantage of this protection and registered many of their images. However, in 1882 Elizabeth found that one of the studio’s registered photographs was being illegally reproduced and sold by fellow Auckland photographer Charles Henry Monkton. When she found this out, she and her second husband, John Blackman, took Monkton to court.

The photograph in question was of the second Māori king, Tūkāroto Matutaera Pōtatau Te Wherowhero Tāwhiao. Tāwhiao visited the Pulman studio in January and in April the studio duly registered the image. In August, the Blackmans became aware of Monkton’s copies and accused him of breaching the Fine Arts Copyright Act 1877.

The Pulman studio produced an overwhelming amount of evidence but the judge dismissed the case on a number of technicalities, one being that it could not be proven that Monkton had copied the photograph after it was registered. It was possible, the judge noted, that Monkton had copied the photograph between January when it was taken and April when it was registered. If this were the case, there was no breach of copyright. This was a blow to the studio but they continued to register their images and legally protect their work.

King Tawhiao

King Tāwhiao. Canterbury Museum 1968.209.5

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