First Legal Test of Photography as an Art Form

[tgtaylor]

Photography's status as a true art form was first established in copyright infringement proceedings in Federal Court over the above portrait of Oscar Wilde by Napoleon Sarony.

See:

Sarony v. Burrow-Giles Lithographis Company, Federal Reporter Vol. 17 (1883): 600
Burrow-Giles Lithographic Company v. Napoleon Sarony, United States Reports, Vol. III (1884):55

Thomas

[Steven Ruttenberg]

Interesting. Seems a no brainer though that it would be covered by copyright and an art form. Guess we just take it for a given in today's world.

[tgtaylor]

During the Daguerreotype era there was a lucrative market for celebrity portraits and it was a common practice among many photographers to purchase another photographers daguerreotype of a celebrity, copy it, and then market the copy under their own name. Back then a sitting cost $1 - $3 but a copy of a celebrity portrait sold for $5 - $25. It wasn't until 1865 that Congress extended the copyright laws to photographs.

Thomas

[cowanw]

Having said that about Sarony, copyright was actually first extended to photographs in 1865, albeit not as an art form.

[Maris Rusis]

There is also this French case:

1861 in France saw photographers Mayer and Pierson bring a copyright action against the photographic duo of Betbeder and Schwabbe. The ruckus was over pirated pictures of Lord Palmerston. Mayer and Pierson claimed copyright protection under the French copyright laws of 1793 and 1810. The catch was that those laws protected only works of art so the courts decision hinged on whether photography was art.

Mayer and Pierson lost! Photography apparently was not art according to the judgement of 9 January 1862.

Mayer and Pierson appealed the decision on 10 April 1862. Their lawyer, a Monsieur M.Marie, gave an eloquent defence of the art of photography using many of the ideas circulated from time to time in this forum. The court reversed its previous decision and declared on 4 July 1862 that photography was art.

The battle was not over. Later in 1862 a group of famous painters including Ingres petitioned against the decision. The arguments they used bear a striking resemblance to the anti-art-photography sentiments that also occasionally circulate in this forum.

Finally on 28 November 1862 the French court threw out the painters' petition and photography has enjoyed secure status as art ever since; at least in France it has.

Even more curious was the famous Paris Salon art show of 1863 which admitted photographs (via a back door entrance) but excluded all the soon to be famous Impressionist painters. Art and argument go together; as always.