The Lingering Effects of Copyright's Response to the Invention of Photography

72 Pages Posted: 9 Aug 2006 Last revised: 8 May 2009

Christine Haight Farley

American University - Washington College of Law


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.

Keywords: Copyright, Intellectual Property, Photography, History, Art, Authorship, Legal History, Inventions

Suggested Citation

Farley, Christine Haight, The Lingering Effects of Copyright's Response to the Invention of Photography. University of Pittsburgh Law Review, Vol. 65, 2004. Available at SSRN:

Christine Haight Farley (Contact Author)

American University - Washington College of Law ( email )

4300 Nebraska Avenue, NW
Washington, DC 20016
United States
202-274-4171 (Phone)
202-274-0830 (Fax)


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