How an 1882 portrait of the flamboyant man of letters reached the highest court in the land and changed U.S. law forever
- By Mitch Tuchman
- Smithsonian magazine, May 2004, Subscribe
(Page 2 of 2)
Even with his prodigious talent for notoriety, it is doubtful Oscar Wilde could have inveigled the United States Supreme Court into featuring his image in a landmark judicial decision. But this portrait of Wilde—taken in New York City in 1882, when he was just 27 and still years from writing The Picture of Dorian Gray and The Importance of Being Earnest—would become the centerpiece of a legal dispute that ultimately resolved the question of whether a photograph can be copyrighted.
The photograph was made by the preeminent New York studio photographer Napoleon Sarony. Born in Quebec City in 1821, he moved at 15 to New York City and apprenticed with several lithographers, including Nathaniel Currier of Currier and Ives fame. Sarony abandoned lithography for photography in 1864, just as a craze for celebrity portraiture began. He attracted a clientele of notables and paid them dearly for the exclusive right to distribute photographs of them. (A session with the actress Sarah Bernhardt, for instance, cost him $1,500, the equivalent of more than $20,000 today.) Sarony specialized in dramatic, flattering images that ensured access to lucrative subjects.
Enter Oscar Wilde. In London after graduating from Oxford University in 1878, he pursued with equal vigor everyone who was anyone, and was prominent in the aesthetic movement, which advocated “art for art’s sake.” He was mentioned regularly in the humor magazine Punch and inspired a character in Gilbert and Sullivan’s lampoon of the aesthetes, Patience, which opened in New York City in 1881. The producer, Richard D’Oyly Carte, exported Wilde to America on a lecture tour, to promote regional performances of the opera. Upon entering the country in January 1882, Wilde supposedly quipped, “I have nothing to declare but my genius.”
“A picturesque subject indeed!” Sarony cried when Wilde showed up at his studio. He posed for no fewer than 27 pictures: in a fur-lined overcoat, in evening dress, and most significantly, in a velvet jacket with ribbon piping, knee breeches, silk stockings and gleaming pumps. It was an ordinary studio portrait—and yet, at second glance, a bizarre composition in which Wilde resembles a marionette, with Sarony having snipped the strings.
No one anticipated the sensation Wilde would cause in America, standing on stages from New York to California in velvet knickers and wittily extolling blue-and-white porcelain as the tasteful choice for frontier homes. Fifty scheduled lectures grew to 140. He was celebrated and caricatured. The title of his first Manhattan lecture, “The English Renaissance,” was expropriated by Ehrich Bros., a New York department store, to trumpet a line of hats; an advertisement used an unauthorized reproduction of Oscar Wilde, No. 18.
Sarony sued, accusing Ehrich Bros.’ printer, Burrow-Giles Lithographic Co., of infringing his copyright by reproducing at least 85,000 copies of the image. The district court in New York found the defendant guilty of piracy, but on appeal to the Supreme Court in 1884, Burrow-Giles argued that photographs were ineligible for copyright protection because the Constitution permits Congress to protect authors’ writings, and photographs are neither writings nor the work of authors; instead, they are mere reproductions of nature, created by the operator of a machine.
The court didn’t buy it. If Congress had intended copyrights to be so narrowly applied, Justice Samuel Miller wrote for the majority, it would not have extended protection to maps and charts in its first copyright act, in 1790 (nearly half a century before the invention of photography). And an author, he added, is simply the one “to whom anything owes its origin.” In the end, the court ruled that Sarony’s portrait of Wilde was “an original work of art, the product of plaintiff’s intellectual invention, of which plaintiff is the author, and of a class of inventions for which the Constitution intended that Congress should secure to him the exclusive right to use, publish and sell....” The ruling has made Burrow-Giles Lithographic Company v. Sarony a perennial of jurisprudence, cited by courts to this day in determining what works can be copyrighted, what is fair use of copyrighted material and how long a copyright should endure. (None of the readily available sources indicate whether Wilde, who died in 1900 at age 46, was aware of his cameo role in U.S. legal history.)
In a dramatic twist, Sarony (who died prosperous in 1896 at age 75) would illustrate the court’s opinion when its members sat for him during their visit to New York in 1890 to celebrate the federal judiciary’s centennial. In the past, photographers had generally portrayed the justices in faux library settings, amid a judicious selection of carpets, columns and book-lined backdrops. With a rumpled carpet and draperies flung over bales of hay in a fanciful conservatory, Sarony turned that solemn tradition on its ear, producing an astonishing photograph masquerading as an ordinary one. As in his Oscar Wilde picture, he subverted ordinary portraiture to create a work that, as Justice Miller had perceived, came directly from his intellectual invention.
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