Happy World Photography Day!
Napoleon Sarony was the most famous celebrity photographer of the late 19th century. His studios in New York City, especially his final location at Union Square, were visited by actors, politicians, artists, writers, military leaders, et al. whose portraits were made into cabinet cards—a popular collectible of the era. Not everyone knows Sarony’s name as a photographer, but every copyright expert knows his place in copyright history—one whose relevance endures into the many discussions now being had about generative artificial intelligence (GAI).
Every artist is thinking about GAI today. On one hand, many artists feel tremendous anxiety, even anger, about protected works used to train the models—especially if the products might be used to eliminate creative jobs. At the same time, artists are already experimenting with certain GAI tools that may expand rather than constrain creative possibilities. As that story unfolds, and the various copyright implications are worked out, we wanted to highlight why the history of photography and copyright is at the center of discussion on AI policy.
Historians may quarrel over whether Louis Daguerre or James Talbot deserves credit for inventing modern photography, but there is no doubt that the daguerreotype was rapidly popularized beginning in 1839, and that the world of visual arts was changed forever. It was not until 1865 that photographs were added to the protection of U.S. copyright law, and almost 20 years later, the constitutionality of that addition was challenged in a landmark case called Burrow-Giles Lithographic v. Sarony.
At issue was Napoleon Sarony’s photograph of Oscar Wilde (“Oscar Wilde No. 18”), which the lithographic company had copied and reproduced as tens of thousands of cabinet cards. Sarony filed suit in 1882, and the defendant argued that photographs were made by machine–not by human “authorship”–and that Congress had, therefore, exceeded its constitutional authority to protect the medium under the Copyright Act. In 1884, the Supreme Court unanimously decided that despite the machine (camera), which caused the image to be fixed on the plate, Sarony’s photograph of Wilde revealed clear evidence of human authorship.
The reason this landmark case is relevant in context to GAI is that the nature of “authorship” is again being challenged. Some parties have argued that human authorship is not required for copyright rights to attach to a work, but we believe that argument will continue to be rejected by the Copyright Office and the courts. More complicated is the question of how to assess creative expression when AI tools are used by the human artist. This naturally reprises the question faced by the Court when it sought to understand Sarony’s means of expressing his “mental conception” through the mechanical medium of the photograph.
When Napoleon Sarony was a teenager, he worked as a lithographer, and the word “invent” was still used in copyright law to describe the illustration of a print. He could hardly have imagined that his name would still be invoked a century later in context to machines that can autonomously “invent” expressive elements in new works. Going forward, as copyright experts, Congress, and the courts seek to strike a new balance between protected creative works and unprotected GAI outputs, you will hear or read Sarony’s name often because the conversation we’re having today began with photography.
RightsClick co-founder David Newhoff is the author of a book about the Sarony case, entitled Who Invented Oscar Wilde?: The Photograph at the Center of Modern American Copyright.
