Images, Ownership of

Early Photography Ownership

Claiming ownership in a photo was not always a given, particularly during the beginnings of photography in the late nineteenth century. While commercial photography existed as early as the 1830s, it wasn't until March 1865 that the U.S. Congress passed a law giving photos copyright protection. In amending the 1831 Copyright Act, Congress agreed that photographers should receive a copyright in their work “upon the same conditions as to the authors of prints and engravings.”

Reasons for the delay in protecting photographs may never be fully understood. Increased post-Civil War commercial popularity of portraiture photography by suc h famous photographers as Mathew Brady (c a. 1823–96) led to widespread piracy and calls for protection. But painters and other artists criticized photography for its mimicry and inability to rise to the level of “true art.” As Christine Farley noted, “at that time, the photograph was not seen as the product of an author, but rather the product of a machine. The photograph was seen as having the ability to represent nature; to produce an unme-diated copy of the real world. The medium itself was transparent.” Such views probably contributed to the delay. Indeed, the sense that photography merely reproduced life rather than interpreted it led some to conclude that photography lacked sufficient originality to warrant copyright protection.

Such was the heart of the dispute challenging Congress's amendment in the Supreme Court case Burrow-Giles Lithographic Co. v. Sarony in 1884. Burrow-Giles is frequently cited in copyright law for its discussion about standards of originality. [Page 734]Prominent portrait photographer Napoleon Sarony (1821–96) sued the Burrow-Giles lithographic company for violating his copyright on a photo titled “Oscar Wilde 18.” While Burrow-Giles sold 85,000 copies of the photo without Sarony's permission, they argued that photographs did not deserve copyright protection because they did not involve authorship. They were, the lithographer argued, simply a result of a mechanical process: “… the mere mechanical reproduction of the physical features or outlines of some object, animate or inanimate, and involve no originality of thought or any novelty in the intellectual operation connected with is visible reproduction in [the] shape of a picture.”

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