The lingering effects of copyright's response to the invention of photography

Abstract

In 1884, the Supreme Court was presented with dichotomous views of photography. In one view, the photograph was an original, intellectual conception of the author - a fine art. In the other, it was the mere product of the soulless labor of the machine. Much was at stake in this dispute, including the booming market in photographs and the constitutional importance of the originality requirement in copyright law. This first confrontation between copyright law and technology provides invaluable insights into copyright law's ability to adapt and accommodate in the face of a challenge. An examination of these historical debates about photography across the domains of law, art, commerce and technology, the social sciences, and popular culture suggests that the particular contours of the author that continue to pose problems - particularly its predilection for creation over selection - can be located and attributed to this historical moment. The "author" took a particular shape in response to historically specific constraints, and the resulting doctrine has left a lasting impression on the way we read photography today.