New Addition to Professor Ann Bartow Copyright Litigation Collection

Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 (1884)

Napoleon Sarony, the plaintiff in this case, was America's most famous portrait photographer in the latter half of the 19th Century. Before picking up the camera, he was already well-known as an accomplished lithographer. Oscar Wilde is one of the most famous Irish authors of all time, renowned for works like The Picture of Dorian Gray and The Importance of Being Earnest. In the early 1880's, before these books were even published, Wilde had already become famous for his public lectures. In 1882, Wilde crossed the U.S. on a wildly successful speaking tour. During this time, he posed for the infamous photo. A retail store in New York City, Ehrich Brothers, commissioned Burrow-Giles Lithographic Co. to print an advertisement for hats, in which it used this photo. Over 85,000 copies of the ad were made by the time Sarony brought the publishers to court.

Sarony brought suit against Burrow-Giles, alleging that Burrow-Giles had violated Sarony’s copyright of the photograph under section 4952 of the Revised Statutes of the United States (Revised Statutes), which protected photographs with works such as musical compositions, engravings, and paintings. The district court found for Sarony. The United States Supreme Court granted certiorari.

The Supreme Court affirmed. The Supreme Court found that a wide variety of things are subject to copyright, not just books. They held that Congress can authorize copyright in all forms of writing "by which the ideas of the mind of the author are given visible expression... so far as they are representative of original intellectual conceptions of the author." The Court found that Sarony gave his "mental conception" form by posing Oscar Wilde, choosing the lighting, wardrobe, etc. All of that made the photograph the author's original work of art, even though the photograph was mechanically produced.

The Supreme Court's opinion firmly resolved the question of whether a photograph could be copyrighted. It is unknown if Wilde ever knew of his involvement in one of the biggest copyright cases in United States history. Unfortunately, years later, Wilde was publicly disgraced after being convicted and jailed for "gross indecency" (i.e. having a homosexual relationship). After being released from prison, he died penniless in a Paris hotel.