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

Citation:111 U.S. 53, 4 S.Ct. 279, 28 L.Ed. 349
Case Date:March 17, 1884
Court:United States Supreme Court

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111 U.S. 53 (1884)

4 S.Ct. 279, 28 L.Ed. 349




United States Supreme Court.

March 17, 1884


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[4 S.Ct. 279] David Calman, for plaintiff in error.

Augustus T. Gurlitz, for defendant in error.



This is a writ of error to the circuit court for the southern district of New York. Plaintiff is a lithographer, and defendant a photographer, with large business in those lines in the city of New York. The suit was commenced by an action at law in which Sarony was plaintiff and the lithographic company was defendant, the plaintiff charging the defendant with violating his copyright in regard to a photograph, the title of which is 'Oscar Wilde, No. 18.' A jury being waived, the court made a finding of facts on which a judgment in favor of the plaintiff was rendered for the sum of $600 for the plates and 85,000 copies sold and exposed to sale, and $10 for copies found in his possession, as penalties under section 4965 of the Revised Statutes. Among the finding of facts made by the court the following presents the principal question raised by the assignment of errors in the case:

'(3) That the plaintiff, about the month of January, 1882, under an agreement with Oscar Wilde, became and was the author, inventor, designer, and proprietor of the photograph in suit, the title of which is 'Oscar Wilde, No. 18,' being the number used to designate this particular photograph and of the negative thereof; that the same is a useful, new, harmonious, characteristic, and graceful picture, and that said plaintiff made the same at his place of business in said city of New York, and within the United States, entirely from his own

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original 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 the plaintiff, he produced the picture in suit, Exhibit A, April 14, 1882, and that the terms 'author,' 'inventor,' and 'designer,' as used in the art of photography and in the complaint, mean the person who so produced the photograph.'

Other findings leave no doubt that plaintiff had taken all the steps required by the act of congress to obtain copyright of this photograph, and section 4952 names photographs, among other things, for which the author, inventor, or designer may obtain copyright, which is to secure him the sole privilege of reprinting, publishing, copying, and vending the same. That defendant is [4 S.Ct. 280] liable, under that section and section 4965, there can be no question if those sections are valid as they relate to photographs.

Accordingly, the two assignments of error in this court by plaintiff in error are: (1) That the court below decided that congress had and has the constitutional right to protect photographs and negatives thereof by copyright. The second assignment related to the sufficiency of the words 'Copyright, 1882, by N. Sarony,' in the photographs, as a notice of the copyright of Napoleon Sarony, under the act of congress on that subject.

With regard to this latter question it is enough to say that the object of the statute is to give notice of the copyright to the public by placing upon each copy, in some visible shape, the name of the author, the existence of the claim of exclusive right, and the date at which this right was obtained. This notice is sufficiently given by the words 'Copyright, 1882, by N. Sarony,' found on each copy of the photograph...

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