Burrow-Giles Lithographic Co. v. Sarony
Encyclopedia
Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884), was a case decided by the Supreme Court of the United States
that upheld the power of Congress
to extend copyright
protection to photography
.
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Famed photographer Napoleon Sarony
filed a copyright infringement
suit
against the Burrow-Giles Lithographic Company, which had marketed unauthorized lithographs of Sarony's photograph of writer Oscar Wilde
, entitled "Oscar Wilde No. 18." The company argued that photographs could not qualify as "writings" or as the production of an "author", in the language of the grant of power to Congress under article I, section 8, clause 8 of the United States Constitution
to protect copyrights, and so § 4952 of the Copyright Act of 1870, which explicitly extended protection to photographs, was unconstitutional. The federal trial court for the Southern District of New York
, though expressing some doubt over the constitutionality of § 4952, declined to invalidate it and awarded a $610 judgment to Sarony (the equivalent of just over $12,000 in 2005). The judgment was affirmed by the U.S. Circuit Court for the Southern District of New York
, and subsequently by the Supreme Court.
Miller's unanimous opinion for the Supreme Court wrote that Congress has "properly 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 Court noted that "maps and charts" were among the subjects of the first Copyright Act of 1790
, and that etchings and engravings were added when it was first amended in 1802. The members of Congress that passed these first copyright acts were contemporaries of the Framers of the Constitution, and many of them attended the Constitutional Convention itself. As such, their interpretation of the Constitution, Justice Miller wrote, "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."
Even if other visual works could be copyrighted, Burrow-Giles argued, photography was merely a mechanical process rather than an art, and could not embody an author's "idea". The Court accepted that this may be true of "ordinary" photographs, but this was not in the case of Sarony's image of Wilde. The trial court had found that Sarony had posed Wilde in front of the camera and suggested his expression, and selected his costume, the background and accessories to create a particular composition of line and light. This control that Sarony exercised over the subject matter, in the view of the Court, showed that he was the "author" of "an original work of art" over which the Constitution intended Congress to grant him exclusive rights.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
that upheld the power of Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
to extend copyright
Copyright
Copyright is a legal concept, enacted by most governments, giving the creator of an original work exclusive rights to it, usually for a limited time...
protection to photography
Photography
Photography is the art, science and practice of creating durable images by recording light or other electromagnetic radiation, either electronically by means of an image sensor or chemically by means of a light-sensitive material such as photographic film...
.
Background of the case
Napoleon Sarony
Napoleon Sarony was an American lithographer and photographer. He was a highly popular and prolific portrait photographer, most known for his portraits of the stars of late-19th-century American theater....
filed a copyright infringement
Copyright infringement
Copyright infringement is the unauthorized or prohibited use of works under copyright, infringing the copyright holder's exclusive rights, such as the right to reproduce or perform the copyrighted work, or to make derivative works.- "Piracy" :...
suit
Lawsuit
A lawsuit or "suit in law" is a civil action brought in a court of law in which a plaintiff, a party who claims to have incurred loss as a result of a defendant's actions, demands a legal or equitable remedy. The defendant is required to respond to the plaintiff's complaint...
against the Burrow-Giles Lithographic Company, which had marketed unauthorized lithographs of Sarony's photograph of writer Oscar Wilde
Oscar Wilde
Oscar Fingal O'Flahertie Wills Wilde was an Irish writer and poet. After writing in different forms throughout the 1880s, he became one of London's most popular playwrights in the early 1890s...
, entitled "Oscar Wilde No. 18." The company argued that photographs could not qualify as "writings" or as the production of an "author", in the language of the grant of power to Congress under article I, section 8, clause 8 of the United States Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...
to protect copyrights, and so § 4952 of the Copyright Act of 1870, which explicitly extended protection to photographs, was unconstitutional. The federal trial court for the Southern District of New York
United States District Court for the Southern District of New York
The United States District Court for the Southern District of New York is a federal district court. Appeals from the Southern District of New York are taken to the United States Court of Appeals for the Second Circuit The United States District Court for the Southern District of New York (in case...
, though expressing some doubt over the constitutionality of § 4952, declined to invalidate it and awarded a $610 judgment to Sarony (the equivalent of just over $12,000 in 2005). The judgment was affirmed by the U.S. Circuit Court for the Southern District of New York
United States circuit court
The United States circuit courts were the original intermediate level courts of the United States federal court system. They were established by the Judiciary Act of 1789. They had trial court jurisdiction over civil suits of diversity jurisdiction and major federal crimes. They also had appellate...
, and subsequently by the Supreme Court.
The Supreme Court's decision
Regarding the interpretation of "writings" in the Constitution, JusticeAssociate Justice of the Supreme Court of the United States
Associate Justices of the Supreme Court of the United States are the members of the Supreme Court of the United States other than the Chief Justice of the United States...
Miller's unanimous opinion for the Supreme Court wrote that Congress has "properly 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 Court noted that "maps and charts" were among the subjects of the first Copyright Act of 1790
Copyright Act of 1790
The Copyright Act of 1790 was the first federal copyright act to be instituted in the United States, though most of the states had passed various legislation securing copyrights in the years immediately following the Revolutionary War...
, and that etchings and engravings were added when it was first amended in 1802. The members of Congress that passed these first copyright acts were contemporaries of the Framers of the Constitution, and many of them attended the Constitutional Convention itself. As such, their interpretation of the Constitution, Justice Miller wrote, "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."
Even if other visual works could be copyrighted, Burrow-Giles argued, photography was merely a mechanical process rather than an art, and could not embody an author's "idea". The Court accepted that this may be true of "ordinary" photographs, but this was not in the case of Sarony's image of Wilde. The trial court had found that Sarony had posed Wilde in front of the camera and suggested his expression, and selected his costume, the background and accessories to create a particular composition of line and light. This control that Sarony exercised over the subject matter, in the view of the Court, showed that he was the "author" of "an original work of art" over which the Constitution intended Congress to grant him exclusive rights.