The Photography Copyright Story
Did you know photography, at its inception, lacked copyright protection?
At the end of the 1880s and beginning of the 1890s, when photography became available as a new technology for the mass market, a question arose: should photographs merit copyright protection, given that works originating from mechanical processes were not typically protected under copyright law?
The opinion of the majority was against this—there was no creative work to it, they argued. Photography was seen merely as a mechanical reproduction of reality, not an act of artistic creation.
However, things changed with a famous case that made its way to the US Supreme Court.
The Napoleon Sarony Case
Napoleon Sarony was a highly popular portrait photographer. He had the wonderful opportunity to photograph, amongst others, the writer Oscar Wilde. His photo of Wilde was later used without permission by Burrow-Giles Lithographic Co. in an advertisement.
In front of the court, Burrow-Giles argued that photographs cannot be protected by copyright laws as they represent merely a mechanical process rather than an art of creation.
The court accepted that this logic may be true of ordinary photographs. However, it would not apply to Sarony's image of Wilde, where the photographer had purposefully created the entire setup—selecting and arranging the costume, draperies, and other various accessories; arranging the subject to present graceful outlines; arranging and disposing the light and shade; suggesting and evoking the desired expression. From such disposition, arrangement, and representation, made entirely by Sarony himself, he produced the photograph in question.
The Supreme Court ruled in Sarony's favor in Burrow-Giles Lithographic Co. v. Sarony (1884). In a gesture of celebration, Sarony later photographed the Supreme Court itself.
Legacy
Fast forward to today, photographers across the world fully enjoy the protection of applicable copyright laws. They are free to use Adobe Photoshop, Lightroom, or any other tools to edit an image and still remain the author of the modified work.
Looking back at this pivotal moment in history, we see that technological tools were eventually accepted as part of the creative process. It all came down to the extent to which the human had creative control over the work's expression and "actually formed" the traditional elements of authorship.
The Sarony case established that photography could be an art form deserving of copyright protection—a principle that photographers continue to benefit from to this day.
