COPYRIGHT AND PHOTOGRAPHY. Encyclopedia of American Journalism

For most of copyright’s history, copyright meant just what
the term would literally imply: the legal “right” to prevent
others from making “copies” of a work. Copyright was originally a trade regulation in the book publishing industry, but
the law now applies to a dizzying array of works, including photographs. [For more details, see the entry entitled
“Copyright, The Legal Issues of”.] The story of copyright’s
expansion involves changes in technology, economics, and
ideology. The story of photography and copyright fits this
pattern well.
In the first federal copyright statute, passed in 1790,
copyright protected only “books, maps, and charts.” Congress added “prints” (but, importantly, not paintings, drawings or sculptures) in 1802 and music in 1831. Those were
the only works protected by copyright when photography’s
invention was made public in 1839. With this technological advance, however, photography soon joined the list of
protected works. Congress added photography in 1865, and yet it did not add any other visual arts at the same time.
By itself, the invention of photography was not enough to
get Congress to protect it. Rather, the economic interests of
the photography industry were crucial. In an era in which
pioneering photographers like Mathew Brady were capturing images of the Civil War and the West, Congress wanted
to encourage the use of photography to capture history as
it was happening. In short, the development of the technology of photography, along with the development of an
important economic interest seeking protection, led to legal
protection.
The question of copyright protection for photographs
was not unequivocally answered in 1865, however, since
the Constitution places limits on Congress’s power; Congress may grant copyright only to “authors” as that term is
understood in the Constitution. Therefore, one of the fundamental questions that arises is whether a photograph is
an original, intellectual conception of a human “author” or
simply a direct transcription of nature. If it is viewed as the
latter, Congress may not protect it through copyright law.
Two cases, one from the nineteenth century, the second
from the twentieth, illustrate the problem and demonstrate
the way in which changes in the ideological conception
of the relationship between photographer and photograph
effected broader copyright protection for photographs.
In the nineteenth-century case, well-known photographer Napoleon Sarony sued a lithographer who had made
numerous copies of a carefully posed portrait of Oscar
Wilde. The lithographer argued that a photograph is “a
reproduction, on paper, of the exact features of some natural object, or of some person,” and is thus “not a writing
of which the producer is the author.” The essence of the
argument was that Sarony wasn’t the author of the photograph, nature was; and copyright could thus not protect
the photograph. The U. S. Supreme Court did not disagree
as a general matter, but instead concluded in 1884 that
Sarony authored the particular portrait of Wilde because
Sarony had, “entirely from his own original mental conception, … [posed Wilde] in front of the camera, selecting
and arranging the costume, draperies, and other various
accessories …, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade,
[and] suggesting and evoking the desired expression ….”
[Burrow-Giles Lithographic Company v. Sarony, 111 U.S.
53 (1884)] In short, Sarony (who did not actually operate
the camera and was thus more similar to a modern-day
movie director) was the photograph’s “author” because he
prepared the scene before the photograph was taken. The
Court was thus able to sidestep the metaphysical question
of whether an “ordinary photograph” was simply a reproduction of nature.
During the twentieth century, the legal system answered
that question firmly in favor of the view that virtually all
photographs are “authored” by a photographer, not by
nature. In 1963, Dallas dressmaker Abraham Zapruder was
taking home movies of President Kennedy’s motorcade
when Kennedy was shot. The film consisted of a series of
photographic images (frames), which in sequence made up
the film. In a case involving a book with copies of some
of Zapruder’s frames [Time Incorporated v. Bernard Geis
Associates, 293 F. Supp. 130 (S.D.N.Y. 1968)], one of the
questions the court had to address was whether Zapruder
was, in the legal sense, an “author” of the images. In contrast to Sarony, Zapruder had obviously not prepared the
scene prior to taking his “photographs.” What he had done,
and what the court considered sufficient to make him an
“author,” was to select “the kind of camera (movies, not snapshots), the kind of film (color), the kind of lens (telephoto),
… the time [at which the pictures] were to be taken, and …
the spot on which the camera would be operated.” Using
this rationale, virtually every photograph involves some
choice by a human being. Recognizing the grave importance to society of broad access to the Zapruder frames, the
court eventually ruled that the unauthorized use of them in
a book constituted “fair use” and was thus not copyright
infringement. Nonetheless, protection for photography had
come a long way from its focus on the scene-preparing
activities of Sarony. In some sense, by protecting choices
such as type of film, lens, camera and photographer placement, courts have implicitly accepted the modern notion of
photography as not merely a representation of nature but
rather as a photographer’s personal stamp on nature.
Recent case law involving different types of works suggests that Zapruder’s frames are right on the border of
copyrightability, and it may well be that, over time, choices
of the sort Zapruder made will not be protected. For now,
however, copyright law recognizes “authorship” in nearly
all photographs.
In summary, the technological development of photography and the economic interests of photographers led Congress to provide copyright protection for photography, but
it was the gradual acceptance of an ideological assumption
about human “authorship” of photographs that led to the
wide protection for photography in today’s law.
Further Reading
Burrow-Giles Lithographic Company v. Sarony, 111 U.S. 53
(1884).
Edelman, Bernard. “The Law’s Eye: Nature and Copyright”
(translated by David M. Thomas and Theodore Trefor) In Of
Authors and Origins: Essays on Copyright Law, edited by
Brad Sherman and Alain Strowel, 79-91, Oxford: Clarendon
Press, 1994.
Edelman, Bernard. Ownership of the Image: Elements of a Marxist Theory of Law (Le Droit saisi par la Photographie),
trans. Elizabeth Kingdom, London: Routledge & Kegan
Paul, 1979.
Farley, Christine Haight, “The Lingering Effects of Copyright’s
Response to the Invention of Photography.” University of
Pittsburgh Law Review 65 (2004): 385-456.
Gaines, Jane M. “Photography ‘Surprises’ the Law: The Portrait
of Oscar Wilde.” In Gaines, Jane M., Contested Culture:
The Image, The Voice, and the Law, 42-83, Chapel Hill,
N.C.: The University of North Carolina Press, 1991.
Time Incorporated v. Bernard Geis Associates, 293 F. Supp. 130
(S.D.N.Y. 1968).
Anuj C. Desai

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