#20 ‘The Dead Bismarck’ by Daniel McClean

Bismarck auf dem Totenbette


1. The photograph

The shocking image of the dead German Chancellor, Otto von Bismarck (1815–1898), lying dishevelled, propped-up on his deathbed may be the world’s first ‘paparazzi’ photograph. The clandestine photograph was taken by two young photographers, Max Priester and Willy Wicke on 30 July 1898. They broke into Bismarck’s chambers by bribing a servant and photographed his corpse only a few hours after his death: in fact, the deceased Chancellor’s family had only just paid its last respects and left the bedroom when the photograph was taken.

This grainy black and white photo of Bismarck’s corpse turned out to be the final image of the great leader – no ‘official’ death mask or post-mortem portrait were made. Bismarck’s emaciated face peers out from above a sea of bed covers and pillows, exposed in the cruel, bright ray of magnesium light used by the photographers to illuminate the scene. Save for a protruding right hand, Bismarck’s collapsing body lies invisible beneath the bed sheets. In this iconoclastic image, Bismarck – the national hero who unified Germany – is revealed in a frail and un-heroic state: a chamber pot at his bedside, he slips from the world, much as his body slides underneath the sheets.

Like the photographers who sell their images to the world’s media today, Priester and Wicke tried to hawk their newsworthy ‘scoop’ featuring the dead ‘celebrity’ to the German newspapers, who declined to publish it. They advertised the image in the newspaper, Tagliche Rundschau on 2 August 1898, “[f]or the sole existing picture of Bismarck on his deathbed, photographs taken a few hours after his death, original images, a buyer or suitable publisher is sought.”

Priester and Wicke’s behaviour caused public outrage in Germany. It led to the confiscation of their plates by the police and to civil and criminal legal proceedings being brought against them in 1899. In the end, Priester was sentenced to five months in prison and Wicke received eight months. Their censored plate was handed over to Bismarck’s family where it remained invisible for a long time, though remarkably, it was not destroyed. Instead, it was to resurface after World War II, to circulate in a context where such images did not seem so shocking in the wake of the War’s atrocities. Today, the image can be found readily available on the internet.

2. A law of image rights

The image of the dead Bismarck marks one of the first encounters between the Law and photography. At the heart of this encounter, we find what might be described as three categories of image ‘offence’, all of which are conflated in the taking, content and (attempted) distribution of this disturbing photograph.

The first offence is the manner in which the photograph is ‘taken’ – seen here in the duplicitous intrusion by the photographers into the ‘sacred’ realm of Bismarck’s home. The second offence is the ‘content’ of the photograph – the intimate and undignified image of the dead Bismarck – a sight which was only supposed to be visible to Bismarck’s family members (even Kaiser Wilhelm II was denied access by Bismarck’s family to view his dead body).  The third offence is the ‘distribution’ of the photograph – the way in which the photographers sought to exploit it by selling or licensing it for profit, thereby transforming the dead Bismarck into a commodity.

The Law has grappled with these three image offences (often instigated by paparazzi and the media) in different manifestations throughout the 20th/21st centuries. This has led to the construction of a law of privacy rights driven largely by image disputes. In some instances, the Law has focused on specific image offences to the exclusion of others. In 2004, for example, Princess Caroline of Monaco was able to persuade the European Court of Human Rights that the media’s publication of largely anodyne photographs of her in ‘public’ places infringed her “reasonable expectation” of privacy. At stake were image offences based on the taking and distribution of the photographs rather than on their specific content.

It is, perhaps, no accident that the scandal caused through the explosive elision of all three image offences in Priester’s and Wicke’s photograph would directly lead to the passage of one of the first laws of image rights: section 22 of the German Copyright Act (1907), though the French courts had granted image rights over photographs earlier in the 19th century. In this law, German legislators troubled by the wound caused by the scandal, devised a way to grant subjects ‘rights’ over their image to protect their personality. From now on permission of the subject portrayed would be required when photographs of them were taken and disseminated – though an exemption was granted for public persons or ‘figures of contemporary history’ who would have lesser protection. These rights could persist even after their death and be exercised posthumously by their family relatives. By contrast, when Priester and Wicke had been prosecuted no such rights existed and Bismarck’s relatives/the German state had to rely artificially upon trespass to the Bismarcks’ property.

3. Photography, death and the Law

The Bismarck case reveals the Law’s preoccupation with the fate of the photograph, and its intervention to regulate its circulation and visibility. At the same time, it also reveals the need for the Law to move backwards to find a ‘subject’ to ascribe rights to over the photograph in order to control its fate.

This subject may lie within the photograph (the privacy rights of the subject in the photograph), behind the photograph (the right of the creator of the image, for example copyright or freedom of expression) or in front of the photograph (the rights of the audience or society not to be offended as reflected in obscenity laws). Whatever the context, the construction of a legal subject in relation to the photograph is contingent and unstable: often the Law has to decide in favour of the rights of one subject (e.g. the depicted) against those of another (e.g. the photographer).

Yet what does it mean for a person in a photograph to ‘own’ its image? The law of image rights rests upon two assumptions: the first is that the appearance of the subject can become its property; the second is that a person’s property in its image can be appropriated through (un-authorised) photographic reproduction.

Both assumptions are problematic. As the Marxist theorist, Bernard Edelman observes, the notion of a person ‘owning’ its appearance relies upon that person being seen paradoxically by the Law as the ‘author’ of its appearance: in this way the body (nature) is transformed into ‘likeness’ an attribute of personality (culture). It is, perhaps, for this reason that German lawyers first classified image rights within the law to protect authors; the German Copyright Act.

At the same time the Bismarck scandal reveals that the origin of the law of image rights is not founded upon the image of a living subject, but instead upon the image of a corpse! That the law of image rights should be founded upon the site of death would seem again deeply paradoxical. How can a dead person protect its likeness? On what basis can personal image rights be exercised by others?

The rationale often provided for the post-mortem exercise of image rights is that the dignity of the deceased must be protected in order to avoid suffering to their living relatives – as exemplified in the harm caused to Bismarck’s family. But this only tells part of the story. This paradox only makes sense when the law of image rights is considered contextually in relation to widely held social and cultural taboos concerning photography’s mimetic capacities and its ability, in particular, to appropriate the souls of the deceased.

Taboos concerning the photographic representation of the dead co-existed alongside common 19th century practices of photographing the ‘dignified’ dead, particularly images of dead children. When the deceased were photographed (without dignity) these taboos often came to the fore. Just as in Germany, the law of image rights would be founded much earlier in France (1858) in another case involving the photographic representation of the dead; in this instance, the image of a famous actress portrayed on her deathbed (the so-called Rachel case). In this case, without identifying the legal foundation of the right, the French civil court held that the “right to oppose this reproduction is absolute; it flows from the respect the family’s pain commands”. Yet it is difficult not to infer that taboos relating to death and its photographic image were also at work here.

Roland Barthes famously observed that death is the eidos of photography – all photographs are indexical traces of lost time or dead moments. Yet this is only part of the picture: defined by reproduction and distribution, photography looks forwards as well as backwards in time. The Law mirrors photography’s ‘double bind’: looking backwards to find a subject in order to control the photograph’s fate, the Law finds a subject, but a subject that is a corpse.


Daniel McClean is a lawyer, writer and independent curator. He is head of art and cultural property law at Howard Kennedy FSI (London). He is the co-curator of The Corrupt Show and the Speculative Machine by Superflex, currently on show at the Museo Jumex in Mexico City.

#9 ‘Photographing Apples’ by Daniel C. Blight

‘Windfall’, by Melanie Stidolph.


One of these apples is no longer attached to this tree. It was thrown into the camera’s view and an image was made as it crashed through the branches and presumably fell to the ground, with some noise. The photograph was not taken by a human hand, but rather by a motion detector; triggered by a single, unattached apple moving vertically through the frame.

Looking at this picture I know it is a photograph, and therefore I know the apple tree is dead. There is an absence in this image that attracts me to it. Like other interesting photographs, this one thinks. Like all other photographs, this one lies. I enjoy this picture because I know there is nothing more difficult to photograph than an apple, but in some unavoidable way, I am lying too: if I think photography has nothing whatsoever to do with truth then any reflection upon it cannot contain a modicum of certainty.

In 1912 Gustav Klimt painted an apple tree. The tree fills most of the canvas; its rounded form practically inseparable from a background of other foliage dabbed out in oil paint. Klimt’s painting is confusing, dense, noisy even. His ritualistic brushstrokes render him present: they are incessant in some frustratingly colourful manner. The apples are alive in Klimt’s painting, as are the flowers growing in the foreground. The painting does something that a photograph cannot; it keeps the apple tree alive.

Apple maggots bury themselves in the core of ripe apples still attached to the tree. Their birthed larvae eat the fruit from the inside out, causing it to rot and bruise. When an apple is rotten, it falls to the ground. An apple maggot, now fully grown into a fly, emerges from the apple’s inside only to mimic a jumping spider – so it may disguise itself before flight. The fly emerges from the apple, denies its crime, announces itself as something that it is not and disappears.

This photograph alludes to a particular state of photography: that supposed end-point at which a photographer seems completely unable to remove their falsely trusting desire to create an unexplainable and rhetorical emotional response within a photograph; something that ‘pricks’ at its viewer. In similar words Roland Barthes, in Camera Lucida, called this phenomenon the punctum; in exact words Barthes also admitted that “The punctum shows no preference for morality or good taste: the punctum can be ill-bred.” Barthes offers two different types of possible expansion for the punctum as a phenomenon, neither of which helps us to understand the meaning of photography, I would argue. This photograph successfully removes the possibility of a punctum within it, and therefore its expansion, because to know this photograph is to acknowledge it exists to disrupt the reliance on emotional response we so often have when viewing photographs, and to think beyond the need for a punctum at all. By taking away something in the making of this photograph, we are offered  something dead and rotten with no sharp ends. The picture allows us to think politically: to think beyond one human and one response and instead to the wider social function of a particular form of photographic technology as it relates to the authority of images.

At the end of the First World War, Léon Theramin invented the earliest motion detector. The device, given the name Radio Watchman, was what we would colloquially now call a burglar alarm. The device that led to the development of the motion-sensor-triggered-camera-shutter was designed to alert one individual to the presence of another, possibly one attempting to steal something from the other. In this sense one could read the nature of this form of technology within the context of photography, as existing to mechanically capture, yet immediately prohibit, the long presence of an individual or object. If a subject were unaware of the presence of the device when approaching an area where one has been set-up, a brief shock or moment of surprise would ensue. Click – that sense of immediate personal insecurity that many of us experience when being photographed. When a moving subject triggers the device, an alarm is sounded – this alarm is the shutter itself. The camera as alarm: technology left to its own devices, with no human operator, wards off the presence of a moving subject. This invention, traced historically from the end of the First World War to the present day, essentially seeks to banish or inhibit the presence of human subjects: within the context of photography it seems to state: ‘Click, get away from here, your presence has been noted.’

Human agency is stripped away here in part. The photographer sets up the possibility for the camera to trigger itself with the onset of movement, but the camera then takes the timing and the image capturing under its own control. Camera technology, without the properly manual intervention of a human hand, becomes a strange mechanical-natural cause: a series of deterministic processes.

What is a photographic image rendered entirely by the technology that produces it, with no human intervention at the point of capture? Since the invention of the mechanical motion detector, this is a genuine point for photography’s consideration. As the motion detector – a small piece in the larger puzzle of technological development – has contributed to the revealing of photography as a potentially humanless form of picture making, there are further questions revealed about the state of photographic images. There are differences between an individual controlling the camera, and the camera being left alone under the stipulations of a particular mechanical or digital setting, to take a picture of its own accord.

The manual, hands-on taking of a photograph is a complicated choice; a perfect mix of individual and social determination. A person captures an image of the world beginning at a chosen time and lasting for a particular duration. This act of photographing is instigated by the individual, but carried out by the camera. The resulting picture exists as a synthesis of human individuality and social influence (agency and structure). A triangle is formed here between a human, a camera and the rest of society: human agency is mediated by technology to give a photographic impression of the (social) structure of our world. The ritual of human agency within photography is consumed by technology, perhaps to the benefit of its proper exposition. One might recall Walter Benjamin at this point: “For the first time in world history, mechanical reproduction emancipates the work of art from its parasitical dependence on ritual.” If a photograph is a work of art, its mechanical reproduction frees it from its dependence on human agency. Human agency, as individual ritual, is exposed by the act of photographing. The further the auto-mechanical essence of photography is accelerated, the more this ritual is exposed, in Benjamin’s words, as a parasite.

This parasite has a name: the punctum. It is the presence of human ritual in every photograph: it obscures the proper understanding of the relationship between social and technological phenomena. To remove the affective pinprick from a photograph is to cure photography from the parasite of human agency: the punctum, as doxa, embedded under emulsion or ink. This parasite is human narcissism itself, made clear by Roland Barthes mournful, solipsistic Camera Lucida. Like the definition of a parasite, the punctum ‘eats at the table’ of authenticity, fattening itself on the meal of another. The ‘other’ in this analogy is the relationship between the auto-mechanical and society.

Photographs taken with the mechanical motion detector are photographs emancipated from their dependence on human ritual. The punctum emerges from the photograph, denies its crime, announces itself as something that it is not and disappears.


Daniel Campbell Blight is a writer, curator and academic based in London. He currently works in the education department at The Photographers’ Gallery and is a dissertation supervisor in photography at the University of Brighton.