Dürer’s The Glorification of the Virgin: Copies, Consumers, & Confusion
“Beware, you envious thieves of the work and invention of others, keep your thoughtless hands from these works of ours” wrote Albrecht Dürer, German Renaissance painter and printmaker, in his 1511 edition of the woodcut series The Life of the Virgin. The artist wrote this impassioned plea in response to the numerous unauthorized copies of this series created and distributed throughout Europe, including those made by printmaker Marcantonio Raimondi. Marcantonio first encountered Dürer’s prints as a young printmaker in Venice around 1506/1508 when he decided to copy them in engraving. When Dürer heard about these copies appearing in Venice, he allegedly brought suit against Marcantonio before the Venetian Senate, which ruled that Marcantonio could not copy Dürer’s monogram but could copy the rest of the work.
One copyright expert has suggested that Marcantonio’s use of Dürer’s monogram to “fool the public as to the source of the print” is addressed by today’s law under the Lanham Act’s unfair competition provision, section 43(a). (Patry 2005). This provision codifies a federal cause of action against one party misrepresenting its own products or services as those of a competitor. The application of this cause of action to the Dürer v. Raimondi case, however, mischaracterizes the relationship between artistic creation and reproduction during the Renaissance. Careful consideration into the relationship between the various roles in art production during this period reveals that Marcantonio’s acts were not as criminal as may seem in the twenty-first century but instead mark the evolution of a new concept of the artist.
Dürer, Marcantonio, & The Glorification of the Virgin
Albrecht Dürer, German painter and printmaker (1471-1528), revolutionized printmaking by expanding the tonal and dramatic range of the medium. Collected throughout Europe, even during his lifetime, Dürer’s prints display a “technical virtuosity, intellectual scope, and psychological depth.” (Wisse 2002). Many of these prints carried Dürer’s distinctive “AD” monogram; Dürer was one of the first artists to systematically sign his works. (Korey 2005, 34).
One of the woodcuts that Dürer designed between 1503-1505 for his The Life of the Virgin series, The Glorification of the Virgin depicts Mary and the Christ child surrounded by saints and angels with some cherubs playing in the foreground. Marcantonio’s engraving of The Glorification of the Virgin represents a rather accurate copy of Dürer’s woodcut in not only composition but also style with a few variations in tone due to the differences in medium. In addition to Dürer’s “AD” monogram and Marcantonio’s “MAF” monogram, art historians have attributed the remaining ciphers to Marcantonio’s publishers, Niccolò and Domenico dal Jesus. (Pon 2004, 53).
Marcantonio’s many collaborations with artists such as Raphael helped establish engraving as a reproductive medium during the Renaissance. (Bohn 2003). While Marcantonio made during this career over 300 prints, “all apparently based on designs of other artists,” his creative contributions and modified compositions of these reproductions accorded these copies with significant individuality. (Bohn 2003); (Ehrenfest 1949, 60). Very little biographical details about Marcantonio Raimondi have survived the centuries. Historians, however, do know that early in his career he traveled from his hometown in Bologna to work in Venice between 1505-1509. Marcantonio first encountered Dürer’s prints on sale in the Piazza San Marco during this period. Inspired by the master’s work, Marcantonio, according to the Renaissance writer Giorgio Vasari, spent all of his money to purchase the woodcuts and meticulously engraved copies of the composition.
Lanham Act’s Section 43(a)
While the Lanham Act was enacted almost 450 years after Dürer v. Raimondi, the policies behind the Lanham Act stretches beyond the modern era to the basic principles of consumerism. The Lanham Act’s primary purpose is to protect consumers against deception and confusion as to the origin of goods and services and to protect trademark owners from those that would take advantage of the owner’s goodwill.
A violation of the Lanham Act’s section 43(a) occurs when the defendant makes some form of false misrepresentation that is likely to cause consumers to believe that the defendant’s goods or services come from, are sponsored by, or affiliated with the plaintiff, commonly known as “passing off.” (15 U.S.C. § 1125(a));(See Liquid, 802 F.2d at 940). This practice not only misleads the public as to the source of the goods but also harms the plaintiff’s reputation and may result in the loss of sales and goodwill. (Gilson § 7.02(b)). “Passing off” has its basis in the tort of fraud and deceit from early nineteenth-century British-American common law. (McCarthy § 25:1).
For a successful passing off claim, the plaintiff must prove that the likely effect of the defendant’s actions was to induce the public to believe incorrectly that the defendant’s product originates with the plaintiff. (Blinded Veterans, 872 F.2d at 1046). Under the Supreme Court’s opinion in Dastar Corp. v. Twentieth Century Fox Film Corp., “origin” refers to the producer of the tangible goods that were offered for sale and not the author of any idea or concept embodied in the goods. (Dastar, 539 U.S. at 31). The plaintiff must also demonstrate that the defendant is capitalizing on the public’s association of the product with the plaintiff and thus reaping the benefits of the plaintiff’s goodwill by passing off his products. (Blinded Veterans, 872 F.2d at 1046). Upon evidence of passing off, a court may order the defendant to distinguish its goods from the plaintiff’s in a particular manner to avoid confusion, such as through the use of a disclaimer. (Blinded Veterans, 872 F.2d at 1047).
Consumers, Confusion & Copies
Regardless of the centuries time difference, the application of section 43(a) to the Dürer v. Raimondi case would be incongruous because the law fails to account for the nuances and norms associated with the creation, production, and dissemination of Renaissance prints.
The Lanham Act’s section 43(a) provides a federal cause of action against a party whose actions have led to consumer confusion as to the origin, sponsorship, or affiliation of goods or services. Deterring consumer confusion benefits both the consumer and the creator by allowing the consumer to purchase confidently and efficiently while providing an incentive for the creator to introduce his products and brand into the marketplace. But were the consumers of Renaissance art likely to have been confused as to the source of Marcantonio’s prints? Relying on art historical evidence, one needs to look through the eyes of a prospective purchaser of Renaissance prints.
Sixteenth-century artist/author Giorgio Vasari wrote that Marcantonio’s copies were executed in a manner so similar to Dürer’s that people bought them thinking they were buying prints by the German master (“erano credute d’Alberto, e per opera di lui vendute e comperate”). (Viljoen 2003, 223). Marcantonio’s copies were generally the same direction and size of the original woodcut. (Golahny 1975, 30). However, Marcantonio copied Dürer’s compositions in a different medium: engraving. The different line shapes and the resulting tonal variations produced by each technique leave clues on the paper itself as to the particular medium. But could consumers at that time discern the differences? Although writing in 1707, Roger de Piles, a French engraver and art critic, noted that Marcantonio’s copies were more popular than the originals and “were received in Rome with so much admiration that they were [thought] to be more beautiful than the originals". (Cohn 1975, 10). Perhaps the different technique contributed to the copies’ beauty and individuality in the eyes of some consumers.
But what about an even more probable source of potential consumer confusion: the presence of Dürer’s “AD” monogram on Marcantonio’s copies and the target of the Venetian Senate’s ruling? The artist’s signature or monogram functions as a unique source-identifier and can signal a certain artistic quality. (Lastowka 2005, 1179);(Gioconda 2008, 69). Dürer was one of the first artists to systematically sign his works, and thus “AD” was likely a strong mark of Dürer’s technical and artistic skill and correspondingly the work’s quality. (Korey 2005, 34). But closer inspection of the monograms on the copy somewhat exculpates Marcantonio’s actions. In addition to the “AD” monogram, some reproductions of The Life of the Virgin Series, including The Glorification of the Virgin, also carry “MRF” and other ciphers. Art historians have attributed “MRF” to Marcantonio and the other ciphers to his publishers, as an effort to distinguish this particular copy as coming from their shop. (Pon 2004, 61-62). But some historians have more precisely connected the non-Dürer ciphers not to Marcantonio’s hand but that of the publishers due to the “sloppiness” of the marks. (Pon 2004, 62). A Renaissance consumer may, thus, understand that the combination of these ciphers does not signal Dürer as a direct source of the print but as belonging to a different collaboration.
Details about the market including the comparative prices for the original and copy may offer additional compelling evidence of consumer confusion for Lanham Act claims. While historians have not yet identified the relative market prices of Dürer’s originals and Marcantonio’s copies, engravings at that time were generally more costly to produce than woodcuts and sold for higher prices. (Golahny 1975, 30). Historians also do not yet understand the prevalence of Dürer’s prints in the Italian market and the corresponding market overlap and demand that would lead to a greater likelihood of confusion. (Korey 2005, 36). While more research into the mechanics of the Renaissance print market is needed, one cannot assume that the sixteenth-century consumer would have been confused as to the source of Marcantonio’s prints to such a degree or in the same manner as the twentieth-century consumer.
A Copyist’s Intent
While the plaintiff does not need to show the defendant’s intent but his actions for a section 43(a) claim, understanding Marcantonio’s actions does require some exploration into his intentions behind copying the prints. (See Blinded Veterans, 872 F.2d at 1045-46). Some art historians have characterized Marcantonio’s profession as a “reproductive printmaker” who primarily reproduced prints based on designs of other artists. (Bohn 2003). But in the context of Dürer v. Raimondi, he likely possessed other motivations for copying besides merely duplicating another’s works.
In his account of the case, Vasari mentioned honor and profit as the incentives for Marcantonio’s copying of Dürer’s The Life of the Virgin series purchased in Venice. (Korey 2005, 35). The presence of Marcantonio’s prints on the market, in addition to the high price for “original” prints incentivizing copies at that time, supports profit as a likely motivator. (Cohn 1975, 7). But Marcantonio, so early in his career, also likely copied Dürer’s woodcuts to learn about composition and technique from a master. Vasari used the term “contrafare” to describe Marcantonio’s reproduction of Dürer’s prints, which does not denote fraudulent copying but copying in order to learn. (Pon 2004, 142). Artistic education during the Renaissance was rooted in the practice of copying. (Zorach and Rodini 2005, 3). For example, apprentices in workshops learned the trade by copying from the head of the workshop. (Pon 2004, 26).
The “honor” mentioned by Vasari as a motivator for Marcantonio may have referred to the need to prove or demonstrate artistic skill. Marcantonio, like other Renaissance reproductive printmakers, chose certain elements to retain or alter in the reproductions, employing significant technical, conceptual, and artistic skill to establish their places within the art community. (Korey 2005, 32). Marcantonio did not duplicate all of the details in The Life of the Virgin series but altered facial expressions and minor features. (Golahny 1975, 30). Marcantonio’s copies reveal significant talent and may have been considered art in their own right; certainly his works appear in renowned collections today. (Golahny 1975, 30). As a combination of all of these factors likely motivated Marcantonio to copy Dürer’s The Life of the Virgin series, Marcantonio was probably not acting as an “envious thief” as accused by Dürer, and, therefore, his actions do not resemble the typical deception by a defendant for a section 43(a) claim. (Pon 1998, 41).
The Copied Artist
After considering Marcantonio’s motivations and actions, Dürer’s role in this case also deserves some consideration. According to the U.S. Supreme Court in Dastar, the Lanham Act seeks to address confusion as to the origin of goods with origin referring to the producer of the tangible goods that were offered for sale and not the author of any idea or concept embodied in the goods. (Dastar, 539 U.S. at 31). Since the decision in 2003, legal practitioners and commenters alike have debated the application of this holding to potentially limiting the availability of certain Lanham Act claims. Not delving into this legal debate here, the Dastar decision does highlight an important distinction within the production process of a Renaissance print. What constitutes the source or origin of a Renaissance print?
Printmaking was a team effort with each member (painter, designer, printmaker, publisher) contributing a particular skill and expertise. (Zorach and Rodini 2005, 9). Even the prints of a master such as Dürer were not the product of one hand. Dürer did not do all of his own woodcutting; in 1500-1505 with an expanded workshop, Dürer trained his assistants to do the cutting but did do some “knife work” himself if the work was of special significance. (Panofsky 2005, 95). Art historians have identified that The Life of the Virgin was likely cut under Dürer’s closest supervision and in some cases personally by the master himself. (Panofsky 2005, 95).
While Dürer may not have been the sole “hand” in creating the original, Marcantonio’s copy of The Glorification of the Virgin triggers discussion as to the meaning of the work’s “origin” similar to the interpretation by the Supreme Court in Dastar and the distinction between physical goods and intangible ideas. Niccolò and Domenico dal Jesus, Marcantonio’s publishers, primarily published devotional images, for which the particular “author” or source did not matter. The typical and accepted practice for publishing these works included text copied from earlier book versions published outside of Venice. (Pon 2004, 62). The publishers likely produced/reproduced The Life of the Virgin for the common devotional image and not as a particular artistic expression by Dürer. Copying the “AD” monogram and adding additional monograms in the case of The Glorification of the Virgin was not a “plagiarist’s blunder” but an acknowledgment of all those involved – the source of that particular copy and the image. (Pon 2004, 62).
The concept of the single artist being the sole source or origin of an artistic work and thus the possessor of the image was only beginning to percolate at the time of Dürer and Marcantonio. As evident in the Venetian Senate’s ruling in Dürer v. Raimondi, the system at that time did not prioritize the originating author over others producing the work. (Pon 2004, 58). But instead a different conception of the artist’s relationship to his work prevailed. (Pon 1998, 42). The artist was not thought of as a legal possessor of his work but as part of one component in the overall production. (Pon 2004, 58). The Dürer v. Raimondi case represents the collision between Dürer’s efforts in constructing an artistic identity based on the legal possession of artistic output with a production system based on copying and not prioritizing the first artist’s work over others in the process. (Pon 1998, 42).
Copier, Copied, and a Right to Copy?
An intriguing paradox existed during the Renaissance: the rise of the individual genius creating unique masterpieces (consider Michelangelo, Raphael, Dürer), compared to the simultaneous development of engraving, a medium that produced multiple images encompassing a collaborative process among various artists and artisans. (Pon 2004, 1). Understanding this paradox encourages us to view Marcantonio not as an “envious” thief” but an artist working within this particular context. Marcantonio’s mode of operation and complicated intentions underpinned an important relationship between source and user, in which the distribution of images enabled by the reproductive medium, fostered the painter’s reputation as a renowned and skilled artist. This collaboration eventually helped to mold the concept of an individual artist as the “sole source and originator” and “possessive author” of images. (Pon 2004, 154). The development of this concept of the artist would lead to the copyright laws that offer the legal protection and redress for which Dürer so passionately advocated.
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Blinded Veterans Assoc. v. Blinded Am. Veterans Found., 872 F.2d 1035 (D.C. Cir. 1989).
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