We All Remember the Iconic Photo of the Last Spike, But Who Was the Photographer?

Photo by author: Revelstoke Railway Museum

A lot of discussion recently has revolved around AI technology and its impact on artistic, musical, and literary creators. This is an evolving and important issue. However, for this week’s blog, I am going to go back to an earlier technology, photography, and look at its connection to creativity and copyright, especially in the Canadian context.

Photography’s entry into the copyright world was not without controversy. For some it was merely a mechanical process, not worthy of protection. But unlike AI-created works (as opposed to works created by humans with some assistance from AI), photography did and does allow human creators to express and interpret the world around them, albeit using a mechanical device.

As many know, in the US it was the arresting Civil War photos of Mathew Brady that convinced the US Congress to add photography to the list of works protected by copyright in 1865,  but it was not until almost twenty years later that this was confirmed by the courts in the Burrow-Giles Lithographic Company v Sarony case in which professional photographer Napoleon Sarony convinced the US Supreme Court this his posed photographs of Oscar Wilde embodied protectable elements of creative expression. The lithographic company had reproduced and sold 85,000 prints of Sarony’s photo without authorization.

In Canada, although photographs were first officially referenced in Canadian legislation in the Copyright Act of 1868, enacted right after Confederation, legal scholar Myra Tawfik, in her meticulously researched new work, “For the Encouragement of Learning”, notes that even though photographs were not mentioned in legislation they were accepted for copyright registration as early as 1859 and in fact became the second largest genre of protected works in the period from 1859 to 1867. (Tawfik, 254-55). Photography also allowed visual artists to gain some protection for their artwork since at the time, prior to 1868, the law did not protect paintings and sculptures. For example, well known artist Cornelius Krieghoff registered photographic representations of a number of his paintings.

One famous photograph that I do know was copyrighted was the famous 1885 depiction of Donald Smith, (later graced with a somewhat more esoteric honorific moniker as Lord Strathcona), driving the supposed last spike of the CPR (Canadian Pacific Railway) to complete Canada’ first transcontinental railway. The copyright was likely registered by the man behind the camera, Alexander (Alex) Ross. I have seen this particular photograph many times as it is one of the more iconic photos in Canadian history. It was seized on by historian Pierre Berton as the inspiration for his 1971 book, The Last Spike, once a popular read along with many of his other historical works. However, I was never aware the photo was copyrighted, nor had I ever seen it labelled as such, nor did I know anything about the photographer, until I stumbled over it in the Revelstoke Railway Museum this past summer.

Back in the day, Revelstoke was a major maintenance centre on the CPR mainline where eastbound steam engines prepared for their long ascent through the mountains. It still plays an important role in track maintenance for the mile long freight trains that now roll through town. It has an interesting museum, with a steam locomotive, various bits of rolling stock and lots of artifacts. In one of its halls, I came across the familiar Last Spike photo, with the word “Copyright” clearly marked on it (as you can see from my photo of the photo). This immediately caught my eye and made me wonder about the person who had been up in the mountains that day (November 7, 1885) and captured this event for posterity.

In the photo, Smith is seen pounding in the last spike (an ordinary iron spike; no precious metals for the cash-strapped CPR) at Craigellachie (45 kilometres west of Revelstoke) in the Monashee Mountains to complete the CPR’s coast-to-coast construction. Smith was a senor Director of the CPR and the most senior company representative present, with neither the company president nor the Governor-General, the Marquess of Lansdowne (whose actual name was Henry Charles Keith Petty-Fitzmaurice, a tad fancier than just plain Mr. Smith), being available to travel to BC for the ceremony. Smith had already had a successful business career by this point and later went on to achieve further prominence through politics and philanthropy, personally raising a cavalry regiment for the South African War, named after him. Lord Strathcona’s Horse is now a regular-force armoured regiment in the Canadian Army. Smith (Strathcona) also served for many years as Canadian High Commissioner to the UK. Others in the photo are the white-bearded stern looking railway engineer and surveyor Sandford Fleming (with top hat), later known as the “Father of Standard Time Zones”, William Cornelius van Horne, the American General Manager of the CPR (later its President) and Sam Steele of the NorthWest Mounted Police, who later became the first Commanding officer of the Strathcona’s when they were formed in 1900. (Fleming, van Horne and Steele were all later knighted by Queen Victoria). There is also a young boy, Edward Mallandaine, who had thrust himself into the picture just before the photographer snapped it. Mallandaine, who was actually 18 at the time although looking much younger, went on to a career as an architect, and was a founder of the City of Creston, BC, living until 1949. All these facts, names and faces are quite well known, but what of the photographer?  

According to the Canadian Encyclopedia, Calgary-based Alexander Ross was a last minute stand in for the expected photographer who did not show up. Ross (born 1851) was originally from Pictou, Nova Scotia and took up photography in his twenties and with his younger brother formed Ross Brothers Photography. It was successful and in 1878 won first prize for photography at the Nova Scotia Provincial Agriculture and Industrial Exhibition in Truro. He subsequently left Nova Scotia and moved west, joining a partner, John Best, to form Ross, Best and Company. In the latter half of the 1880’s Ross became well known for many photographs of Indigenous peoples, particularly from the Blackfoot nation. Many of these photos are an indelible record of a seminal time in history. However, Ross closed his studio in 1891 and died at the early age of 43 three years later. The CPR must have licensed the photograph from Ross as it disseminated the image widely to promote the railway, or perhaps the company owned the copyright as a commissioned work. At the time Ross took the photo, it would have remained under copyright until 1913 with a possible extension to 1927. Under new legislation introduced in 1921 and enacted in 1924, the copyright would have been extended to 1935. But of course, it is now in the public domain, notwithstanding the prominent display of the word “copyright” on the print in the Revelstoke Museum. The Museum’s copy must be an old one, probably inherited from the former CPR passenger station.

In Canada, copyright registration was first entrusted to the Department of Agriculture when the Dominion government was established in 1867 and legislation (The Copyright Act of 1868) was passed to protect “any book, map, chart or musical composition, or any original painting, drawing, statuary, sculpture or photograph”, as well as etchings, designs, engravings or prints for a period of 28 years from the date of creation, with the possibility of adding an addition 14 years (for a total of 42) if applied for prior to the expiration of the original term. This was consistent with British legislation current at the time.

The 1921 Canadian Copyright Act extended the term of protection to 50 years from date of creation and in the late 1990s further revisions provided photographs with the same degree of protection as other forms of creativity, that is to say the lifespan of the author plus 50 years. Further revisions were made in 2012 to place copyright ownership of commissioned photographic works taken by freelance photographers in the hands of the photographers by default rather than in the hands of clients. Previously, freelance photographers had to request that clients assign the copyright of commissioned works to them as part of contractual terms. (The copyright on photographs taken for an employer as part of an employment contract remains with the employer). More recently, (December 30, 2022) the term of protection in Canada was extended to the lifespan of the author plus 70 years.

Early photographers in Canada, such as Ross and Geraldine Moodie (“Geraldine Moodie and her Pioneering Photographs: A Piece of Canada’s Copyright History”) took all the appropriate steps to protect their work, in the case of Moodie going to inordinate trouble given her remote location. We are lucky they did. Photographic images bring history to life and without the person behind the camera capturing the scene with their artistry, the image of the Last Spike would not be there to remind us of the enormous nation-building and business enterprise that came into being 150 or more years ago at Craigellachie.

© Hugh Stephens, 2024. All Rights Reserved.