Burrow-Giles Lithographic Co. v. Sarony is the 1884 U.S. Supreme Court decision that established photographs as copyrightable works under the Constitution. Decided on March 17, 1884, the case held that a photograph reflecting the “original intellectual conception” of its maker is a “writing” by an “author” within the meaning of the Copyright Clause.1Justia. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 The ruling settled whether Congress could extend copyright to a medium produced by a machine, and its reasoning still governs how courts and the U.S. Copyright Office decide who counts as an author today.
The Dispute Behind the Case
The photograph at issue was “Oscar Wilde, No. 18,” taken by Napoleon Sarony in his New York studio during Wilde’s 1882 American lecture tour. Sarony posed the 27-year-old poet in a velvet jacket, knee breeches, and silk stockings, and registered the copyright with the inscription “Copyright, 1882, by N. Sarony.”2Smithsonian Magazine. Supremely Wilde
The Ehrich Brothers department store used the portrait without permission in an advertisement for hats sold under the name of one of Wilde’s lectures, “The English Renaissance.” Its printer was the Burrow-Giles Lithographic Company, a New York chromolithography firm that Sarony alleged had produced and sold at least 85,000 unauthorized copies of the image.1Justia. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 Sarony sued under Section 4952 of the Revised Statutes in the Circuit Court for the Southern District of New York and won a judgment of $600 in penalties plus $10 for copies still in the company’s possession.3vLex. Sarony v. Burrow-Giles Lithographic Co., 17 F. 591 Burrow-Giles brought the case to the Supreme Court on a writ of error.
The Constitutional Question
Burrow-Giles argued that Congress had no power to extend copyright to photographs at all. A photograph, the company contended, was a “mere mechanical reproduction” of whatever sat in front of the lens. It was not a “writing,” and its maker was not an “author,” so it fell outside Article I, Section 8, Clause 8 of the Constitution, which authorizes Congress to secure to “authors” the exclusive right to their “writings.”
Justice Samuel Freeman Miller, writing for a unanimous Court, rejected that reading.4Harry Ransom Center, University of Texas. From the Outside In: Oscar Wilde “Writings,” he held, covers “all forms of writing, printing, engravings, etchings, etc., by which the ideas in the mind of the author are given visible expression.”5Cornell Law Institute. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 Miller supported the reading with legislative history from the founding era. The first copyright act, passed in 1790 by the same generation that wrote the Constitution, covered maps, charts, and books. Prints were added in 1802, and photographs were added by Congress in 1865.6U.S. Copyright Office. Copyright Timeline: 19th Century That pattern, the Court held, showed the framers understood “writings” broadly.
What Made Sarony the Author
Defining “author,” the Court adopted a functional test: an author is “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature.”7Library of Congress. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 Drawing on the English decision Nottage v. Jackson (1883), Miller described an author as the “effective cause” of a picture, the person who superintends its arrangement and gives an intellectual conception visible form.
The Court was careful about the limits of the holding. A “mere mechanical reproduction” of a physical object might not qualify. But a photograph is copyrightable when it shows “originality, of intellectual production, of thought, and conception on the part of the author.”1Justia. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 In this case, the Court pointed to specific creative choices Sarony had made:
- Posing Wilde in front of the camera
- Selecting and arranging the costume, draperies, and other accessories
- Arranging the subject to present graceful outlines
- Directing the light and shade
- Suggesting and evoking the desired expression
Taken together, these choices made “Oscar Wilde, No. 18” a “useful, new, harmonious, characteristic, and graceful picture” and, in the Court’s words, “the product of plaintiff’s intellectual invention.”7Library of Congress. Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53 The judgment for Sarony was affirmed.
Why the Case Still Matters
The Originality Requirement
The most durable piece of the decision is its originality standard. Copyright does not reward labor or mechanical capture; it rewards the human intellectual conception that shapes a work. That principle sits at the center of modern American copyright doctrine.
In Feist Publications, Inc. v. Rural Telephone Service Co. (1991), the Supreme Court leaned heavily on Burrow-Giles to hold that copyright requires “independent creation plus a modicum of creativity.”8Justia. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 Feist rejected the “sweat of the brow” theory, under which effort alone could support a copyright, and returned to Sarony’s language: protection is limited to “original intellectual conceptions of the author,” and someone who merely gathers facts is neither maker nor originator.9Cornell Law Institute. Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340
A Low Bar for Artistic Merit
In Bleistein v. Donaldson Lithographing Co. (1903), Justice Oliver Wendell Holmes used Burrow-Giles to hold that commercial circus posters were copyrightable. Holmes wrote that even “a very modest grade of art has in it something irreducible which is one man’s alone,” and cautioned that it would be “a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.”10Justia. Bleistein v. Donaldson Lithographing Co., 188 U.S. 239 Together, the two decisions set the low originality threshold that still characterizes U.S. copyright law.
Human Authorship and Artificial Intelligence
The case has taken on new weight in disputes over AI-generated works. The U.S. Copyright Office cites Burrow-Giles as the basis for requiring human authorship, treating the photographer’s creative control over the camera as the analogue for a person’s creative control over an AI system.11U.S. Copyright Office. Copyright and Artificial Intelligence, Part 2: Copyrightability
In Thaler v. Perlmutter, computer scientist Stephen Thaler sought to register a copyright for a visual work titled “A Recent Entrance to Paradise,” which he said was autonomously generated by his AI system with no human creative contribution. The Copyright Office refused registration. A federal district court and the U.S. Court of Appeals for the D.C. Circuit affirmed, holding that “human authorship is a bedrock requirement to register a copyright.”12U.S. Court of Appeals, D.C. Circuit. Thaler v. Perlmutter, No. 23-5233 The Supreme Court denied Thaler’s appeal on March 2, 2026.13National Constitution Center. Supreme Court Denies Artificial Intelligence Authorship Claim for Artwork Copyright Burrow-Giles was cited throughout the litigation. The courts also noted that the ruling does not bar copyright for works made with AI assistance if the author is the human who created, operated, or used the system.
The Copyright Office applied the same framework to the comic book Zarya of the Dawn by Kris Kashtanova, which used the AI image generator Midjourney. The Office protected the human-written text and the overall selection and arrangement of the work but denied copyright to the individual AI-generated images, concluding that Midjourney users do not exercise the “mental control” over output that Sarony exercised over his camera. Prompts, the Office wrote, function more like “suggestions than orders.”14U.S. Copyright Office. Re: Zarya of the Dawn Registration Decision
More than 140 years after a lithographer printed 85,000 unauthorized copies of a portrait of Oscar Wilde, the test the case produced still decides who owns a picture: the human whose intellectual conception the picture embodies.