CITE:  111 U.S. 53
CMON:  March 1884
PLAIN: Burrow-Giles Lithographic Company
DEFND: Sarony
COURT: United States Supreme Court
DATE:  March 17, 1884



This was a suit for an infringement of a copyright in a photograph of one
Oscar Wilde. The defence denied the constitutional right of Congress to confer
rights of authorship on the maker of a photograph; and also denied that the
surname of the proprietor with the initial letter of his given name prefixed
to it ("N. Sarony") inscribed on the photograph was a compliance with the
provisions of the act of June 18th, 1874, 18 Stat. 78. The essential facts
appear in the opinion of the court. The judgment below was for the plaintiff.
The writ of error was sued out by the defendant. 

It is within the constitutional power of Congress to confer upon the author,
inventor, designer, or proprietor of a photograph the rights conferred by
Rev. Stat. Section 4952, so far as the photograph is a representation of
original intellectual conceptions. 

The object of the requirement in the act of June 18th, 1874, 18 Stat. 78, that
notice of a copyright in a photograph shall be given by inscribing upon some
visible portion of it the words Copyright, the date, and the name of the
proprietor, is to give notice of the copyright to the public; and a notice
which gives his surname and the initial letter of his given name is
sufficient inscription of the name. 

Whether a photograph is a mere mechanical reproduction or an original work of
art is a question to be determined by proof of the facts of originality, of
intellectual production, and of thought and conception on the part of the
author; and when the copyright is disputed, it is important to establish
those facts. 

  Photographs are writings and therefore copyrightable.



This is a writ of error to the Circuit Court for the Southern District of
New York. 

Plaintiff is a lithographer and defendant a photographer, with large
business in those lines in the city of New York. 

The suit was commenced by an action at law in which Sarony was plaintiff and
the lithographic company was defendant, the plaintiff charging the defendant
with violating his copyright in regard to a photograph, the title of which is
"Oscar Wilde No. 18".  A jury being waived, the court made a finding of facts
on which a judgment in favor of the plaintiff was rendered for the sum of
$600 for the plates and 85,000 copies sold and exposed to sale, and $10 for
copies found in his possession, as penalties under section 4965 of the
Revised Statutes. 

Among the findings of fact made by the court the following presents the
principal question raised by the assignment of errors in the case: 

"3. That the plaintiff about the month of January, 1882, under an agreement
with Oscar Wilde, became and was the author, inventor, designer, and
proprietor of the photograph in suit, the title of which is 'Oscar Wilde No.
18', being the number used to designate this particular photograph and of the
negative thereof; that the same is a useful, new, harmonious, characteristic,
and graceful picture, and that said plaintiff made the same at his place of
business in said city of New York, and within the United States, entirely from
his own original mental conception, to which he gave visible form by
posing the said Oscar Wilde in front of the camera, selecting and arranging
the costume, draperies, and other various accessories in said photograph,
arranging the subject so as to present graceful outlines, arranging and
disposing the light and shade, suggesting and evoking the desired expression,
and from such disposition, arrangement, or representation, made entirely by
the plaintiff, he produced the picture in suit, Exhibit A, April 14th, 1882,
and that the terms 'author', 'inventor', and 'designer', as used in the art
of photography and in the complaint, mean the person who so produced the

Other findings leave no doubt that plaintiff had taken all the steps required
by the act of Congress to obtain copyright of this photograph, and section
4952 names photographs among other things for which the author, inventor, or
designer may obtain copyright, which is to secure him the sole privilege of
reprinting, publishing, copying and vending the same. That defendant is 
liable under that section and section 4965 there can be no question,
if those sections are valid as they relate to photographs. 

Accordingly, the two assignments of error in this court by plaintiff in
error, are: 

1. That the court below decided that Congress had and has the constitutional
right to protect photographs and negatives thereof by copyright. 

The second assignment related to the sufficiency of the words "Copyright,
1882, by N. Sarony", in the photographs, as a notice of the copyright of
Napoleon Sarony under the act of Congress on that subject. 

With regard to this latter question, it is enough to say, that the object of
the statute is to give notice of the copyright to the public, by placing upon
each copy, in some visible shape, the name of the author, the existence of
the claim of exclusive right, and the date at which this right was obtained. 

This notice is sufficiently given by the words "Copyright, 1882, by N.
Sarony", found on each copy of the photograph. It clearly shows that a
copyright is asserted, the date of which is 1882, and if the name Sarony
alone was used, it would be a sufficient designation of the author until
it is shown that there is some other Sarony. 

When, in addition to this, the initial letter of the Christian name
Napoleon is also given, the notice is complete. 

The constitutional question is not free from difficulty: 

The eighth section of the first article of the Constitution is the great
repository of the powers of Congress, and by the eighth clause of that
section Congress is authorized: 

    "To promote the progress of science and useful arts, by securing,
    for limited times to authors and inventors, the exclusive right to
    their respective writings and discoveries." 

The argument here is, that a photograph is not a writing nor the production of
an author. Under the acts of Congress designed to give effect to this section,
the persons who are to be benefited are divided into two classes, authors and
inventors. The monopoly which is granted to the former is called a copyright,
that given to the latter, letters patent, or, in the familiar language of the
present day, patent right. 

We have, then, copyright and patent right, and it is the first of these
under which plaintiff asserts a claim for relief. 

It is insisted in argument, that a photograph being a reproduction on
paper of the exact features of some natural object or of some person,
is not a writing of which the producer is the author. 

Section 4952 of the Revised Statutes places pohotographs in the same class as
things which may be copyrighted with "books, maps, charts, dramatic or musical
compositions, engravings, cuts, prints, paintings, drawings, statutes,
statuary, and models or designs intended to be perfected as works of the fine
arts." "According to the practice of legislation in England and America",
says Judge Bouvier, 2 Law Dictionary, 363, "the copyright is confined to the
exclusive right secured to the author or proprietory of a writing or drawing
which may be multiplied by the arts of printing in any of its branches." 

The first Congress of the United States, sitting immediately after the
formation of the Constitution, enacted that the "author or authors of any map,
chart, book or books, being a citizen or resident of the United States,
shall have the sole right and liberty of printing, reprinting, publishing and
vending the same for the period of fourteen years from the recording of the
title thereof in the clerk's office, as afterwards directed." 1 Stat. 124, 1. 

This statute not only makes maps and charts subjects of copyright, but
mentions them before books in the order of designation. The second section of
an act to amend this act, approved April 29, 1802, 2 Stat. 171, enacts that
from the first day of January thereafter, he who shall invent and design,
engrave, etch or work, or from his own works shall cause to be designed and
engraved, etched or worked, any historical or other print or prints shall have
the same exclusive right for the term of fourteen years from recording the
title thereof as prescribed by law. 

By the first section of the act of February 3d, 1831, 4 Stat. 436, entitled
an act to amend the several acts respecting copyright, musical compositions
and cuts, in connection with prints and engravings, are added, and the
period of protection is extended to twenty-eight years. The caption or
title of this act uses the word copyright for the first time in the
legislation of Congress. 

The construction placed upon the Constitution by the first act of 1790, and
the act of 1802, by the men who were contemporary with its formation, many of
whom were members of the convention which framed it, is of itself entitled
to very great weight, and when it is remembered that the rights thus
established have not been disputed during a period of nearly a century,
it is almost conclusive. 

Unless, therefore, photographs can be distinguished in the classification
on this point from the maps, charts, designs, engravings, etchings, cuts,
and other prints, it is difficult to see why Congress cannot make them
the subject of copyright as well as the others. 

These statutes certainly answer the objection that books only, or writing in
the limited sense of a book and its author, are within the constitutional
provision. Both these words are susceptible of a more enlarged definition than
this. An author in that sense is "he to whom anything owes its origin;
originator; maker; one who completes a work of science or literature."
Worcester. So, also, no one would now claim that the word writing in this
clause of the Constitution, though the only word used as to subjects in regard
to which authors are to be secured, is limited to the actual script of the
author, and excludes books and all other printed matter. By writings in that
clause is meant the literary productions of those authors, and Congress very
properly has declared these to include all forms of writing, printing,
engraving, etching, &c., by which the ideas in the mind of the author are
given visible expression. The only reason why photographs were not included
in the extended list in the act of 1802 is probably that they did not exist,
as photography as an art was then unknown, and the scientific principle on
which it rests, and the chemicals and machinery by which it is operated,
have all been discovered long since that statute was enacted. 

Nor is it to be supposed that the framers of the Constitution did not
understand the nature of copyright and the objects to which it was commonly
applied, for copyright, as the exclusive right of a man to the production of
his own genius or intellect, existed in England at that time, and the contest
in the English courts, finally decided by a very close vote in the House of
Lords, whether the statute of 8 Anne, chap. 19, which authorized copyright for
a limited time, was a restraint to that extent on the common law or not, was
then recent. It had attracted much attention, as the judgment of the King's
Bench, delivered by Lord Mansfield, holding it was not such a restraint, in
Miller v. Taylor, 4 Burrows, 2303, decided in 1769, was overruled on appeal in
the House of Lords in 1774. Ibid. 2408. In this and other cases the whole
question of the exclusive right to literary and intellectual productions had
been freely discussed. 

We entertain no doubt that the Constitution is broad enough to cover an act
authorizing copyright of photographs, so far as they are representatives of
original intellectual conceptions of the author. 

But it is said that an engraving, a painting, a print, does embody the
intellectual conception of its author, in which there is novelty, invention,
originality, and therefore comes within the purpose of the Constitution in
securing its exclusive use or sale to its author, while the photograph is the
mere mechanical reproduction of the physical features or outlines of some
object animate or inanimate, and involves no originality of thought or any
novelty in the intellectual operation connected with its visible reproduction
in shape of a picture. That while the effect of light on the prepared plate
may have been a discovery in the production of these pictures, and
patents could properly be obtained for the combination of the chemicals, for
their application to the paper or other surface, for all the machinery by
which the light reflected from the object was thrown on the prepared
plate, and for all the improvements in this machinery, and in the materials,
the remainder of the process is merely mechanical, with no place for novelty,
invention or originality. It is simply the manual operation, by the use of
these instruments and preparations, of transferring to the plate the visible
representation of some existing object, the accuracy of this representation
being its highest merit. 

This may be true in regard to the ordinary production of a photograph, and,
further, that in such case a copyright is no protection. On the question as
thus stated we decide nothing. 

In regard, however, to the kindred subject of patents for invention, they
cannot by law be issued to the inventor until the novelty, the utility, and
the actual discovery or invention by the claimant have been established by
proof before the Commissioner of Patents; and when he has secured such a
patent, and undertakes to obtain redress for a violation of his right in a
court of law, the question of invention, of novelty, of originality, is always
open to examination. Our copyright system has no such provision for previous
examination by a proper tribunal as to the originality of the book, map, or
other matter offered for copyright. A deposit of two copies of the article or
work with the Librarian of Congress, with the name of the author and its title
page, is all that is necessary to secure a copyright. It is, therefore, much
more important that when the supposed author sues for a violation of his
copyright, the existence of those facts of originality, of intellectual
production, of thought, and conception on the part of the author should be
proved, than in the case of a patent right. 

In the case before us we think this has been done. 

The third finding of facts says, in regard to the photograph in question, that
it is a "useful, new, harmonious, characteristic, and graceful picture, and
that plaintiff made the same . . . entirely from his own original mental
conception, to which he gave visible form by posing the said Oscar Wilde in
front of the camera, selecting and arranging the costume, draperies, and other
various accessories in said photograph, arranging the subject so as to present
graceful outlines, arranging and disposing the light and shade, suggesting and
evoking the desired expression, and from such disposition, arrangement, or
representation, made entirely by plaintiff, he produced the picture in suit." 

These findings, we think, show this photograph to be an original work of art,
the product of plaintiff's intellectual invention, of which plaintiff is the
author, and of a class of inventions for which the Constitution intended that
Congress should secure to him the exclusive right to use, publish and sell,
as it has done by section 4952 of the Revised Statutes. 

The question here presented is one of first impression under our Constitution,
but an instructive case of the same class is that of Nottage v. Jackson,
11 Q.B.D. 627, decided in that court on appeal, August, 1883. 

The first section of the act of 25 and 26 Victoria, chap. 68, authorizes the
author of a photograph, upon making registry of it under the copyright act of
1882, to have a monopoly of its reproduction and multiplication during the
life of the author. 

The plaintiffs in that case described themselves as the authors of the
photograph which was pirated, in the registration of it. It appeared that
they had arranged with the captain of the Australian cricketers to take a
photograph of the whole team in a group; and they sent one of the artists
in their employ from London to some country town to do it. 

The question in the case was whether the plaintiffs, who owned the
establishment in London, where the photographs were made from the
negative and were sold, and who had the negative taken by one of their men,
were the authors, or the man who, for their benefit, took the negative.
It was held that the latter was the author, and the action failed,
because plaintiffs had described themselves as authors. 

Brett, M. R., said, in regard to who was the author: "The nearest I can
come to, is that it is the person who effectively is as near as he can be,
the cause of the picture which is produced, that is, the person who has
superintended the arrangement, who has actually formed the picture by
putting the persons in position, and arranging the place where the people
are to be -- the man who is the effective cause of that." 

Lord Justice Cotton said: "In my opinion, 'author' involves originating,
making, producing, as the inventive or master mind, the thing which is to be
protected, whether it be a drawing, or a painting, or a photograph;" and Lord
Justice Bowen says that photography is to be treated for the purposes of the
act as an art, and the author is the man who really represents, creates, or
gives effect to the idea, fancy, or imagination. 

The appeal of plaintiffs from the original judgment against them was
accordingly dismissed. 

These views of the nature of authorship and of originality, intellectual
creation, and right to protection confirm what we have already said. 

The judgment of the Circuit Court is accordingly affirmed.