publicity shots. See In The Waking Dream: Photography’s First Century 339–40 (M. Hambourg, et al. eds, Metropolitan Museum of Art 1993). In 1882, twenty-seven-year-old Oscar Wilde came to the United States at the invitation of theater producer Richard D’Oyle Carte as part of the production of Gilbert & Sullivan’s operetta “Patience,” satirizing Wilde’s “aesthetics” movement. Eager to be in the limelight, Wilde sought out Sarony for a series of publicity photographs to use on his tour of the United States:
Wilde appeared in Sarony’s studio dressed in the attire he would wear at his lectures: a jacket and vest of velvet, silk knee breeches and stockings, and slippers adorned with grosgram bows—the costume he wore as a member of the Apollo Lodge, a Freemason society at Oxford. Sarony took many photographs of Wilde, in a variety of poses. Here, his features not yet bloated by self-indulgence and high-diving, Wilde leans forward toward the viewer as though engaging him in dialogue, the appearance and calculated pose of the dandy secondary to the intelligence and spontaneous charm of conversation.
In The Waking Dream: Photography’s First Century at 339–340.
In all, Sarony took more than twenty photographs of Wilde and registered them with the Copyright Office. Defendant Burrow-Giles, a lithographer, sold a staggering 85,000 copies of one of Sarony’s photographs, “Oscar Wilde No. 18,” without Sarony’s permission. See Burrow-Giles, 111 U.S. at 54, 4 S.Ct. at 279. Because substantial similarity was not an issue, Burrow-Giles mounted a direct constitutional attack on Congress’s authority to protect any photograph. Burrow-Giles asserted that “writings” under the Constitution were limited to literary productions and that photographs did not involve authorship since they were the result of a mechanical process. See Burrow-Giles, 111 U.S. at 55, 4 S.Ct. at 280. Only the latter argument is relevant to this case.
Burrow-Giles argued that photographs were “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 its visible reproduction in [the] shape of a picture.” Burrow-Giles, 111 U.S. at 59, 4 S.Ct. at 281. Once the image was captured on the photographic plate, the resulting photograph followed mechanically and inevitably. The Supreme Court did not reject Burrow-Giles’ attack entirely, observing that a lack of originality may be “true in regard to the ordinary production of a photograph …. [I]n such a case a copyright is no protection.” Burrow-Giles, 111 U.S. at 59, 4 S.Ct. at 282. However, the Court found that Sarony’s “Oscar Wilde No. 18” was no “ordinary” photograph and that Sarony was an author based on the trial court’s findings that a photograph was a:
new, harmonious … and graceful picture, … that plaintiff made … entirely from his own 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.
Burrow-Giles, 111 U.S. at 60, 4 S.Ct. at 282.
Two general principles emerge from Burrow-Giles. First, an author is someone who creates the work himself, i.e., does not copy it from someone else. Second, an author must imbue the work with a visible form that results from creative choices. In the case of Oscar Wilde No. 18, these creative choices included the particular pose (the unique features of which are recounted above in the quotation from
