# The Camera Has an Author: Burrow-Giles Lithographic Co. v. Sarony

> How an 1884 Supreme Court case about a portrait of Oscar Wilde established that photographs can be copyrightable original works authored by the photographer's creative choices.

Topic: Copyright  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/burrow-giles-v-sarony-photograph-authorship/


In 1882, the celebrated New York photographer Napoleon Sarony posed the visiting Oscar Wilde for a studio portrait, arranging the writer's pose, costume, and lighting with theatrical care. When a lithography company mass-produced roughly 85,000 unauthorized copies of that portrait, Sarony sued — and the case climbed to the Supreme Court, which had to decide whether a photograph could be the work of an "author" at all. In *Burrow-Giles Lithographic Co. v. Sarony*, 111 U.S. 53 (1884), decided March 17, 1884, the Court, speaking through Justice Samuel F. Miller, held that it could. The opinion is the foundation of photographic copyright and, more broadly, of the principle that authorship lies in human creative choices, not in the machine that records them.

## At a glance

- **Case:** *Burrow-Giles Lithographic Co. v. Sarony*, 111 U.S. 53 (U.S. Mar. 17, 1884).
- **Court:** Supreme Court of the United States; opinion by Justice Samuel F. Miller for a unanimous Court.
- **Posture:** On error from a judgment for Sarony in the Circuit Court for the Southern District of New York, after a finding that the lithographs infringed his copyrighted photograph.
- **Holding:** Photographs that embody the photographer's original intellectual conception are "writings" of an "author" within Congress's constitutional power, and Congress validly extended copyright to them.
- **Significance:** Established the constitutional basis for copyright in photographs and located authorship in human creative choices rather than the recording device.

## A portrait of Oscar Wilde and 85,000 copies

The subject of the dispute was a photograph titled "Oscar Wilde No. 18," one of a series Sarony made of the writer during his American lecture tour. Sarony had registered a copyright in the image. The Burrow-Giles Lithographic Company reproduced it without permission, selling tens of thousands of lithographic copies. Sarony sued for infringement and won below, with damages and a finding that the copies violated his rights.

Burrow-Giles took the case up on a constitutional theory. The Constitution empowers Congress to secure to "authors" the exclusive right to their "writings." A photograph, the company argued, is neither: it is a mechanical and chemical reproduction of whatever stands before the lens, produced by the camera, not authored by a person. On that view, the 1865 statute extending copyright to photographs exceeded Congress's power. The Court thus confronted a question that sounds strikingly modern — whether a work produced with the help of a machine can have a human author.

## Authorship as original intellectual conception

Justice Miller answered by reframing what "author" and "writing" mean. An author, he wrote, is "he to whom anything owes its origin," and writings include all forms by which the ideas in an author's mind are given visible expression. The constitutional terms were not frozen to the technologies of 1787; they extend to new modes of expression, including photography, so long as a human mind originates the work.

The Court then grounded its holding in the specific facts. Sarony's portrait, the findings established, was the product of his own original mental conception: he posed Wilde, selected and arranged the costume and draperies, chose the setting and accessories, arranged the light and shade, and evoked the desired expression. Those deliberate choices made the photograph "an original work of art" and Sarony its author. Because the image embodied human creative decisions, it fell squarely within the class of writings Congress could protect, and the statute was constitutional as applied.

## What the Court reserved

Crucially, Justice Miller did not hold that every photograph is automatically copyrightable. The Court emphasized that its decision rested on Sarony's demonstrated originality and expressly declined to decide whether "the ordinary production of a photograph" — one involving no such creative authorship — would qualify. By tying copyright to original intellectual conception rather than to the photographic medium as such, the Court planted the seed of a distinction that endures: copyright protects authored expression, not mechanical capture.

That reservation has proven prescient. The same logic — that protection follows human creative choice, not the tool — animates modern debates over works produced by automated and artificial-intelligence systems, where the Copyright Office and courts again ask whether a human author originated the protectable expression. *Burrow-Giles* supplies the analytical starting point: identify the human creative decisions, and ask whether they gave the work its origin.

## Open questions

- **How much creative choice is enough?** *Burrow-Giles* found Sarony's choices ample but did not fix a minimum, leaving the originality threshold to later cases.
- **What about purely mechanical images?** The Court reserved whether a photograph lacking creative authorship qualifies, a question now echoed in disputes over automated and machine-generated outputs.
- **Where is the line between the idea and the protected expression?** The opinion protects Sarony's particular arrangement, not the idea of photographing Wilde, presaging the idea-expression distinction.

## Implications

- **For photographers:** Your creative choices — posing, lighting, composition, timing — are what the law protects. Document them, because originality is the basis of the copyright.
- **For users of images:** A photograph's apparent simplicity is no safe harbor; even a portrait reflects authored choices that copyright protects.
- **For the doctrine of authorship:** The case locates authorship in the human mind, not the machine, a principle that recurs whenever a new technology mediates creation.
- **For AI and automation debates:** *Burrow-Giles* is regularly invoked for the proposition that copyright requires human authorship, making it newly central to questions about machine-generated works.
- **For litigators:** To establish copyrightability of a photograph, build the record on the creator's specific creative decisions, as Sarony did.

## Frequently asked questions

**What did *Burrow-Giles v. Sarony* decide?**
The Supreme Court held that photographs can be constitutional writings of an author and therefore eligible for copyright, upholding the statute that extended copyright to photographs. Sarony's portrait of Oscar Wilde reflected his original intellectual conception, so he was its author.

**Why did the lithographic company argue photographs could not be copyrighted?**
Burrow-Giles argued a photograph is merely a mechanical reproduction of reality, not the writing of an author, so Congress had no constitutional power to grant it copyright. The Court rejected that view where the photograph embodies the photographer's original creative choices.

**Does *Burrow-Giles* mean every photograph is copyrightable?**
Not necessarily. The Court rested its holding on the originality reflected in Sarony's posing, lighting, and arrangement. It left open whether a purely mechanical photograph with no creative authorship would qualify, a distinction that still matters today.

## Authorities and sources

- Supreme Court opinion (Library of Congress, U.S. Reports): https://tile.loc.gov/storage-services/service/ll/usrep/usrep111/usrep111053/usrep111053.pdf
- Justia case page: https://supreme.justia.com/cases/federal/us/111/53/
- Cornell Legal Information Institute, full text: https://www.law.cornell.edu/supremecourt/text/111/53
- Encyclopedic background: https://en.wikipedia.org/wiki/Burrow-Giles_Lithographic_Co._v._Sarony