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Legal tests of photography-as-art: Sarony and othersWilliam AllenPublished online: 01 Oct 2013.

To cite this article: William Allen (1986) Legal tests of photography-as-art: Sarony and others, History of Photography,10:3, 221-228, DOI: 10.1080/03087298.1986.10443113

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Legal Tests of Photography-as-Art: Sarony and Others

by William Allen

I n the nineteenth century the idea that photography might be an art and the photographer an artist consisted

of at least two notions: the one a highly self-conscious assertion on the part of a relatively small number of photographers and critics, the other a largely unquestioned popular assumption that all professional portrait photographers were artists, and that what they produced was, in fact, art. This view was doubtless the result of a number of influences, including advertising, that placed great emphasis on 'artistic results', and the painterly trappings of the commercial studio portrait. There was actually a popular desire to believe in the commercial portrait as art, since such a designation added prestige to the portrait and thus to the sitter. In fact, much of the commercial work of the nineteenth century was 'artless', and the popular esteem of the standard photographer naive. Towards the end of the century the increasingly exclusive attitudes of the serious art photographer had to do battle with the popular attitude (among other things) in order to stake and define their claim. 1

At least three American court cases from the 1880s shed some light on the matter. Once in the Supreme Court of the United States, and once each in the highest courts of the states of Tennessee and Louisiana, questions were raised with regard to the legal status and rights of the professional photographer. While none of the courts was specifically required to answer the question, 'Is photography an art?', each found it necessary to describe photography and, in so doing, found it convenient, if not necessary, to couch its decision in words that left little doubt of the fact that the common sense of the law viewed photography as an art and, accordingly, the professional photographer as an artist.

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The most celebrated of the American court cases involving photography as an art was the one that grew out of the Burrow-Giles Lithographic Company's unauthorized copying of a Napoleon Sarony portrait of Oscar Wilde (Figure 1). The case reached the United States Supreme Court in December 1883, and was decided in March of the following year. Some technical points were raised with regard to the form of the copyright notice, but one of the issues in the case was more philosophical. 2 Burrow-Giles contended that the 1865 Act of Congress that extended copyright protection to photographs was unconstitutional because photographs, being mechanical reproductions of nature's image, failed to embody the original human thought that the constitution had intended to protect by copyright. In summarizing the Burrow-Giles argument the court said:

But it is said that an engraving, a painting, a print, does embody the intellectual conception of its author, in which there is novelty, invention, originality ... while the photograph is the mere mechanical reproduction of the physical features or outlines of some object animate or inanimate, and involves no originality of thought or any novelty in the intellectual operation connected with its visible reproduction in shape of a picture. 3

Sarony's argument, which the court accepted, stressed the creative process involved in arranging the sitter within the studio. Sarony's counsel contended that the portrait of Oscar Wilde:

is a useful, new, harmonious, characteristic, and graceful picture . . . made . . . entirely from [Sarony' s] own original mental conception, to which he gave visible form by posing the said Oscar

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Figurt 1. Napol.ton Sarony, 'Oscar Wilde No. 18 ', 1882, cabina card. Coll.tction of tht Library of Congrw. Tht identifying numhtr is locattd along tht right tdgt of tht photograph, at about tht !rot! of Wilde's anlcl.t.

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 14th, 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.+

The court took the position that, indeed, it was possible to produce a photograph that was the result of nothing

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more than 'manual operation'. Such photographs, it said, had 'no place for novelty, invention or originality', but used the photographic process simply to transfer 'to the plate the visible representation of some existing object, the accuracy of this representation being its highest merit.' The opinion suggested that such photographs probably could not enjoy copyright protection. 5

No trace has been found of the offending lithograph. However, the practice of reproducing images was common, and Sarony the businessman was willing to sell lithographic reproduction rights. A variant portrait, 'Oscar Wilde No. 12', was copied and distributed by an unknown maker, and includes a conspicuous permission line in the lower right comer (Figures 2 and 3). 6

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Figurt 2. Napouon Sarony, 'Oscar Wildt No. 12 ', 1882, cabimt card. By pnmission of Harvard Tkatrt Coluction.

Sarony's battles in court were tied directly to the issue of individual creativity as private property entitled to the protection of the law. To him and others engaged in the development of the vital relationship between celebrity and photography the issue was not only important, but financially crucial. For example, Sarony was willing to pay $5000 for the right to photograph Lily Langtry. The photographs were reported as selling briskly at $5 each in New York with substantial orders arriving from the European market as well. On the other hand, Wilde's manager charged Sarony nothing for his client's co­operation in producing a set of marketable Wilde portraits, testimony to the fact that Sarony's portraits also helped to establish celebrity status for a sitter. 7 The reported 85,000 Burrow-Giles edition of the pirated portrait suggests the seriousness of the issue to Sarony.

Convincing as Sarony's claims may have been, it is interesting to note that to some photographers the

HISTORY OF PHOTOGRAPHY. VoLUME 10, NuMBER 3, JuLY-SEPTEMBER 1986

designation of artist was seen, not as a mark of distinction, respect, and fmancial protection, but as a costly burden. While the disputes in Story v. Walker (Tennessee) and New Orleans v. Robira (Louisiana) had eventually to be decided by their respective state supreme courts, they were essentially local, with none of the far-reaching consequences of the Sarony decision. What makes them especially interesting is that in each of those cases a professional photographer insisted that he was not an artist, but rather a mechanic. In each case the court decreed otherwise.

In the Tennessee case, decided in April 1883, J. H. Story sought to protect his photographic equipment from seizure by a creditor. Story's plea was based on a Tennessee law that exempted from execution one set of 'mechanics' tools' to any mechanic in the state whose property was being seized. 8 The court, finding against Story's plea, noted that 'the legislature of this state has not treated photographers as mechanics, but as photographic artists

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· .. · •.. "-' ' ~; ~ ' :t: .' ~-

Figuu 3. Unlcnown m.alcer. Lithographic portrait of Oscar Wilde, after

Sarony 's 'Oscar Wilde No. 12 ', 4 !1 x 9 ln. By pmnission of Harvard

Tluatre Collection .

. ' Continuing, the court added: The photographer is an artist, not an artisan, who takes impressions or likenesses of things and persons on prepared plates or surfaces. He is no more a mechanic than the painter, who by means of his pigments covers his canvas with the glaring images of natural objects. And his tent, bins, camera-stand, camera-box, head-rest, bath holder, etc., are no more tools within the meaning of the exemption

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laws than the tent, stool, easel, hand-rest, brushes, pigment-box and paints, glaze, etc., of the painter. 9

In 1889 Louis Robira, a portrait photographer in New Orleans, sought to exempt himself from a license tax levied on professionals in that city . 10 The law exempted mechanics, among others, and it was under the mechanics' exemption that Robira attempted to place himself. 11 To the contrary, however, the court said: 'A photographer is

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Figurr 4. Lows Rob ira, Confirmation portrait of boy, 1885-1888, cabinrt

card. From the collrctions of the Louisiana Seau Musrom.

an artist who practices an occupation in which the mind is chiefly concerned, the hands and body being less so.' The court contrasted the characteristics of what it regarded as a mechanical skill with an intellectually-based pursuit. To be mechanical ' ... the occupation must be one by which the object realized is not dependent for its confection

on the exertion of a controlling intellect, but rather on the adaptation of some helping mechanism, or use of some auxiliary tool, or instrument.' Continuing, the court made

clear that, not only was photography a skill requiring a controlling intellect, but that it was an art akin to the traditional arts:

A polite or liberal art is that in which the mind or imagination is chiefly concerned, as poetry, music, and painting . . . A painter is defined to be one who represents the appearance of natural or other objects, on a surface, by means of colors. There may, and surely there does, exist a marked and

HISTORY OF PHOTOGRAPHY, VoLUME 10, NuMBER 3, JuLY-SEPTEMBER !9B6

honorable difference between a painter and a photographer, though they both be artists, as more dexterity is required in the former than in the latter. Some painters enjoy a celebrity to which photographers cannot aspire. Certainly, in both painters and photographers, the hand and the sense of sight are controlled by an unusual exertion of a superior intellect, which, to direct and accomplish properly, must be distinguished and actuated by a rare knowledge, ability, and practice not found in, or acquired by, first comers. 12

The court went on to describe in considerable detail the skills required in making a successful photograph. 13 Then, in conclusion, the court delivered a final blow to Robira's hope of being declared a non-artist, and added insult to

mJury: It is worthy of note that it is not pretended that all this is accomplished by the spontaneous action of

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Figure 5. Louis Robira, Confirmation portrait of girl, 1885-1888, cabinet card. From the collections of the Louisiana State Museum.

the apparatus, for evidently the process can be and is actually gone through only by the agency of the photographer, who, to operate successfully, must necessarily be, and prove himself, a most intelligent artist, calling into activity, not only his hands, senses, and body, but also and chiefly, in order to control them, his scientific aptitudes and superintending mind. It strikes common sense that the defendant is not an automaton, but is one who, practicing a science or a liberal art, is a scientist, or an artist, although of an inferior grade. 14

The Tennessee bench felt little need to justify its assertion that Story was an artist, contenting itself simply to note that the Tennessee legislature had already declared photographers in general to be so classified. Its cursory notice of the paraphernalia of photography suggested that the equipment of the photographer was sufficiently similar

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to the equipment of the painter to make nearly self-evident that the two occupations bore close resemblance, especially since the end results of both occupations were pictures. In the Louisiana case considerable weight was given to the fact that the photographic process was complex, and required a scientific aptitude to be successfully employed.

The issue of a controlling intellect links the Robira decision directly to the earlier Sarony decision. In Burrow­Giles v. Sarony, the issue of photography's status had nothing to do with scientific skill or control of complex apparatus. Whether or not the court was aware of Sarony' s aversion to the technical concerns of photography is not known. 15 However, the nature of the suit was such that technical concerns alone could not decide the issue. The attack on copyright privilege forced the court to consider whether or not a photograph embodies more than technical skill. In its decision the Supreme Court enthusiastically

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Figurt 6. Louis Robira, mmst of figurt 5, card cksign of Rob ira's studio. From the collections of the Louisiana Stau Musrom.

declared that Sarony's Wilde was based on the photographer's mental conception, and that the portrait was its visible form •

REFERENCES AND NOTES

1. ULRICH F. KELLER, 'The Myth of Art Photography: A Sociological Analysis', History of Photography, 8 (October 1984), pp. 249-75.

2. Burrow-Giles Lithographic Company v. Sarony, United StaU.r Reports, Vol. 111 (1884), pp. 53-61. The suit was commenced by Sarony who won a verdict that his rights had been violated (Sarony v. Burrow-Giles Lithographic Company, Federal Reporter, Vol. 17 (1883), pp. 591 ff.) In a second case, the Burrow-Giles Lithographic Company not only sought to challenge the right to copyright photographs, but also sought to demonstrate that, even if the copyright protection extended to photographers, Sarony had not established his right, because he failed to include his full Christian name in the claim, instead printing 'Copyright, 1882, by N. Sarony.' The court found that the identification was complete enough to warrant full notice. The court affirmed the judgment of the origmal case '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 ... ' For a description of the shooting session with Wilde, see BEN L. BASSHAM, Tht Theairual Photographs of Napoleon Sarony, Kent State University Press, Kent, Ohio (1978), p. 74.

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Legal Tests of Photography-as-Art

3. Burrow-Giles v. Sarony, pp. 58-59. Copyright was embodied in the us Constitution, Article 1, Section 8. Congress extended copyright protection to photographs in an act of 3 March 1865 (Statutes at Largt, Vol. 13, pp. 540-41). Laws and court and agency decisions regarding copyright (including photographs) to the end of the nineteenth century are conveniently gathered in THORVALD SoLBERG (compiler) Copyright Enactmmts, 1783-1900, Government Printing Office, Washington, DC (1900). A more exhaustive treatment of court cases may be found in Dmswns of 1M United States Courts Involving Copynght and Litrrary Propmy, 1789-1909, Bulletins nos. 13-16, Copyright Office, Library of Congress, Washington, DC (1980).

4. Burrow-Giles v. Sarony, pp. 54-55. April 14th may refer to the date of first distribution of the portrait. In any event, it does not refer to the date on which the portrait was made. The same court report stated (p 54) that the photograph was taken 'about the month of January, 1882', a date confirmed elsewhere; see LLOYD LEWIS and HENRY juSTIN SMITH, Oscar Wiuu Discovrrs America, Harcourt, Brace and Company, New York (1936), p. 39, reprinted Benjamm Blom, Inc., New York (1967).

5. Burrow-Giles v. Sarony, p.59.

6. Although the court record indicated that 85,000 copies of the lithograph had been printed, none has survived in the major Wilde collections in the United States. It seems likely that undistributed copies would have been destroyed following the Supreme Court judgment. However, in 1886 Sarony was again in court seeking damages from a third party who had, according to Sarony, distributed 70,000 copies of the print Sarony lost this case despite what seems to be the

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sympathy of Justice Coxe of the Circuit Court, Southern District of New York:

No authority has been cited to sustain the proposition that when the piratical prints are out of the possession and beyond the control of the infringer the proprietor of the copyright can recover of him their value in an action at law It would require an exceedingly strained construction, almost a distortion of the act, to make it fit the present circumstances. It is no answer to say that the remedy provided by law is ineffective; that the wrong­doer may escape the consequences of his infringement; that the opportunity for redress diminishes in proportion to the success of the infringement, and ceases wholly when the wrong is fully consummated. These arguments might, with great propriety, be addressed to the law-making power, and congress could, perhaps, be induced to render effectual, by a few simple amendments, provisions which in their present form are so obviously defective and madequate. With these considerations, however, the courts have nothing to do. They must deal with the law as it is, not as it ought to be. But even though the statute should be construed in accordance with the plaintiff's contention, it is not easy to see why the proposition advanced by the defendants, that he has already recovered the value from the lithographic company, and cannot, therefore, recover it again, is not well founded. The defendants are entitled to judgment.

Sarony v. Ehrich and others, Federal R~rln", Vol. 28 (1886), pp. 79-80.

7. LEWIS and SMITH, Oscar Wzlde Dzscovtrs Amtrica, pp. 39, 418-19

8. Story v. Walker, Ammcan &ports, Vol. 47 (1883), pp. 305-06.

9 Story v. Walker, p. 306.

10. City of New Orleans v. Robira, Southern Rtportn", Vol. 8 (1890), pp. 402-04.

11. According to the biographical notes compiled by the Louisiana State Museum from New Orleans city directories, Robira first appeared as an operator at the Samuel Anderson gallery in 1868. Between 1868 and 1877 he was variously listed as an independent photographer and as an operator at establishments of other firms. By 1877 Rob ira had joined the Theodore Lilienthal firm as an operator, a position he held with some interruptions until1885 when he opened his own studio at 245 Royal, a location he retained throughout 1888. Robira's printed logos for the period note 'late With Theo. Lilienthal', suggesting that Robira may have bought out the Lilienthal studio. In 1889 and 1890 his studio was listed as 243 Royal. Robira is mentioned in MARGARET DENTON SMITH and MARY LouisE TucKER, Photography zn New Orleans: lk Early Years, 1840-1865, Louisiana State University Press, Baton Rouge and London (1982), pp. 148-50, 169. The same work discusses Lilienthal, whose establishment is also the subject of KATHLEEN CoLLINS, 'The Late General

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Hood's Family', History of Photography, 8 (1984), pp. 99-102. 12. New Orleans v. Robira, op. cit p. 403.

13. New Orleans v. Robira, p. 403. The court described the process with these words:

Quite exceptiOnal knowledge and skill are required to understand the apparatus and the TTWdus optrandi, and to operate with it and its accessories. It takes special aptitudes to understand all that has to be known regarding the camera, the lenses, the adjusting screws, the sensitized plates, the posing of the subject, the arrangement of the light, the adjustment of the camera, the msertion of the plate-holder, the exposure of the plate, the reflection of the rays of light on the subject, the chemical changes in the substance spread on the plate, the resulting image, the subsequent transfer of the plate to the dark chamber, for development and fixation by chemical process. It appears that, after the development of the image, the plate is left to dry, and a proof print is made and submitted for approval. It is next varnished and retouched with a metallic pencil, to remove the hard lines, subdue the shadows, and make the picture a pleasant one. The printing is made on prepared and sensitized paper, by exposing the plate in contact to the strong rays of the sun. The photographer sensitizes the paper himself by placing the albuminized side in contact with a solution of nitrate of silver. Then the paper is dried and exposed in a close receptacle to the fumes of ammonia, and cut to the required size. When the printing is completed, the printings are washed and chemically treated, so as to fzx the printed image on them The prints are next pasted on cards of the proper size and thickness, and the picture is mounted It IS afterwards dried and lubricated, with a mixture, and passed through the burnishing machine, consisting in a pair of heated iron rollers which subject the picture to pressure, after which it is ready for delivery.

14. New Orleans v. Robira, p 403 15. Sarony's clear vision of himself as a creative artist must have

derived at least partially from his estrangement from the technical process that produced his photographs. Sarony is known to have insisted that he knew nothing of photographic chemistry, and did not care to know anything about it, and that he employed a full-time operator for the camera itself. See, for example, 'Some Interviews with Mr. Sarony', Wilson's Photographic MagaziM, 30 (1893), pp. 9-15.

Question: Do you use the headrest, as a rule? • Answer: I do not, except for very nervous people. If I make a position and his camera is right, my long-time assistant here, Col. Richardson, is able to catch my ideas as deftly and quickly as necessary (p.11 ).

Sarony' s denial of knowledge of photographic chemistry is also mentioned in 'Highlights in Photography, No. 4: Napoleon Sarony', Photo-Amnican, vol. 5, no. 11 (September 1894), pp. 323-27: 'About chemistry of photography he knew nothing and cared less ... ' (p. 323).

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