Who Invented Oscar Wilde? by David Newhoff

Author:David Newhoff [Newhoff, David]
Language: eng
Format: epub
Tags: PHO010000 Photography / History, LAW050010 Law / Intellectual Property / Copyright, LAW060000 Law / Legal History
Publisher: University of Nebraska Press

There’s that word “useful” again, linking the constitutional language for patent law to a landmark copyright decision, but the relevance of this part of the opinion was its holding that at least some photographs revealed “authorship” where the court could readily identify creative decisions made by the photographer—even if that recognition was rudimentary by modern standards. For instance, Sarony did not “select the costume” per se—it was the costume of the Apollo Lodge at Oxford that Wilde would wear often during his lecture tour—and it is possible that neither Gurlitz nor the court was necessarily aware of any of the more subtle forms of control Sarony had exerted to produce the final image. Instead, the emphasis on the more obvious selected elements—the pose, the draperies, etc.—was aided by a familiarity with painting, which provided the justices a language in which to explain authorship in this particular photograph.14 Consequently, the court had little difficulty in recognizing that of course Sarony did not invent Oscar Wilde, but that he had most certainly invented “Oscar Wilde No. 18.”

This naturally raises the question as to how this case might have gone had the photograph under scrutiny been one of the more typical portraits of the age—some figure photographed against a plain background—which might have been much more conducive to Calman’s arguments. It seems possible that a photographer in that hypothetical case might have lost his claim of copyright in the individual work but that the court still would not have held that the addition of photographs to copyright law was unconstitutional, least of all based on Calman’s reliance on the “literary” essence of the IP clause. Miller’s opinion specifically notes that many of the same men who were present at the nation’s founding also ratified the 1790 law protecting maps and charts (even ahead of books) and then amended copyright in 1802 to embrace prints, which produced no argument against the addition during the intervening eighty years. He states, “Unless, therefore, photographs can be distinguished in the classification of this point from the maps, charts, designs, engravings, etchings, cuts, and other prints, it is difficult to see why congress cannot make them the subject of copyright as well as the others. These statutes certainly answer the objection that books only, or writing, in the limited sense of a book and its author, are within the constitutional provision.”15

Although the decision in Sarony’s case against Burrow-Giles was not especially challenging for the court, it was a significant threshold bridging the premodern, literary, manual, inky world in which copyright’s raw elements first appeared and the purely metaphysical universe of the mind and a more egalitarian notion of what it means to create and own intellectual property. “Sarony was the first great copyright-meets-technology decision of the United States copyright law and sets a tone of technological neutrality that is still with us,” writes Hughes.16 Calman was correct when he argued that anyone willing to acquire a little skill could make a photograph. Even the daguerreotype, as cumbersome a

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