Lithographic v. Sarony

Citation28 L.Ed. 349,4 S.Ct. 279,111 U.S. 53
Decision Date17 March 1884
Docket NumberBURROW-GILES
PartiesLITHOGRAPHIC Co. v. SARONY. 1
CourtUnited States Supreme Court

David Calman, for plaintiff in error.

Augustus T. Gurlitz, for defendant in error.

MILLER, J.

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 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 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. It clearly shows that a copyright is asserted, the date of which is 1882, and if the name Sarony alone was used, it would be a* sufficient designation of the author until it is shown that there is some other Sarony. When, in addition to this, the initial letter of the Christian name Napoleon is also given, the notice is complete.

The constitutional question is not free from difficulty. The eighth section of the first article of the constitution is the great repository of the powers of congress, and by the eight clause of that section congress is authorized 'to promote the progress of science and useful arts, by securing, for limited times to authors and inventors the exclusive right to their respective writings and discoveries.' The argument here is that a photograph is not a writing nor the production of an author. Under the acts of congress designed to give effect to this section, the persons who are to be benefited are divided into two classes authors and inventors. The monopoly which is granted to the former is called a copyright: that given to the latter, letters patent, or, in the familiar language of the present day, patent-right. We have then copyright and patent-right, and it is the first of these under which plaintiff asserts a claim for relief. It is insisted, in argument, that a photograph being a reproduction, on paper, of the exact features of some natural object, or of some person, is not a writing of which the producer is the author. Section 4952 of the Revised Statutes places photographs in the same class as things which may be copyrighted with 'books, maps, charts, dramatic or musical compositions, engravings, cuts, prints, paintings, drawings, statues, statuary, and models or designs intended to be perfected as works of the fine arts.' 'According to the practice of legislation in England and America, (says Judge BOUVIER, 2 Law Dict. 363,) the copyright is confined to the exclusive right secured to the author or proprietor of a writing or drawing which may be multiplied by the arts of printing in any of its branches.'

The first congress of the United States, sitting immediately after the formation of the constitution, enacted that the 'author or authors of any map, chart, book, or books, being a citizen or resident of the United States, shall have the sole right and liberty of printing, reprinting, publishing, and vending the same for the period of fourteen years from the recording of the title thereof in the clerk's office, as afterwards directed.' 1 St. p. 124, § 1. This statute not only makes maps and charts subjects of copyright, but mentions them before books in the order of designation. The second section of an act to amend this act, approved April 29, 1802, (2 St. 171,) enacts that from the first day of January thereafter he who shall invent and design, engrave, etch, or work, or from his own works shall cause to be designed and engraved, etched, or worked, any historical or other print or prints, shall have the same exclusive right for the term of 14 years from recording the title thereof as...

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    ......Cooley, Const. Lim. §§ 81-85. Burrow-Giles Lithographic Co. v. Sarony , 111 U. S. 53, 57, 28 L. ed. 349, 351, 4 Sup. Ct. Rep. 279; Marshall Field & Co. v. Clark , 143 U. S. 649, 691, 36 L. ed. 294, ......
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  • Human Creativity v. Machine Autonomy In Identifying Copyright Authors Of Generative NFTs
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    ...will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 Compendium of U.S. Copyright Office Practices, ' 306. The Copyright Office further highlights that the "crucial question is 'whether the 'wor......
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    ...will refuse to register a claim if it determines that a human being did not create the work. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 58 Compendium of U.S. Copyright Office Practices, ' 306. The Copyright Office further highlights that the "crucial question is 'whether the 'wor......
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    ...producing a photograph, the photograph is eligible for copyright protection by the photographer as the author of the photograph. 111 U.S. 53, 56 (1884). The Court held that an author is “he to whom anything owes its origin; originator; maker” and referred to authors as human. Id. At 57-59, ......
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    ...copyright as "the exclusive right of man to the production of his own genius or intellect." Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 56 (1884). See also Trade-Mark Cases, 100 U.S 82, 94 (1879) (explaining that copyright law only protects "the fruits of intellectual labor" that ......
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    ...24 CREATIVITY RSCH. J. 97, 97(2012). (49) Rogers v. Koons, 960 F.2d 301, 304 (2d Cir. 1992). (50) Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 59 (51) Id. at 60. (52) L. Batlin & Son, Inc. v. Snyder, 536 F.2d 486, 491 (2d Cir. 1976). (53) Feist Publ'ns, Inc. v. Rural Tel. Sen. ......
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