CHAPTER 2 from: Contested Cultures
Photography "Surprises" the Law
The PORTRAIT OF Oscar Wider
by Jane Gaines
Oscar Wider The Picture of Dorian Gray ( 1884), often considered a discussion of the differences between painting and literature, is not that at all. It is really a metaphor for photography. But not because the author, as his biographer Richard Ellmann tells us, was prone to "brood ing" about self-portraits and images in the period of his life before he wrote the short novel. 1 The novel is a metaphor for photography because, to put it bluntly, I choose to use it that way. My case, then, will rest entirely upon the utility of that metaphor, but also on the fortuity of historical circumstances. For as it happens, the very year the book was published, the photographic portrait of Oscar Wider became the object of a copyright infringement suit heard before the U.S. Supreme Court.
I am not going to imply, as is often done, that the author of The Picture of Dorian Gray had an early insight into the issues that I will raise. If he seems to have had any insight into those theoretical developments, it is merely because as a critic I am in a position to make it appear as though he had anticipated contemporary theories of representation. In reality, of course, he could not have foreseen the following interpretation. From what I have read about him (which is not the same as what I truly know about him) it would seem that my discussion is in the spirit of Oscar Wilde; but the possibility of his approval of my project finally doesn't matter. Another author might have served as well as an example, although if I am successful, my reader will disagree.
There are, as I see it, four ways in which the narrative of Dorian Gray works to elucidate problems posed by the invention of photography. Two of these are fairly predictable in their dramatization of the relationship between the painting and its object, suggesting as they do an analogy between photographic and painted portraiture. But the second two issues raised by the metaphor are less obvious routes to my main concern in this chapter: authorial originality as a claim to ownership in a work. How did this claim come to have viability in the face of the other claims historically asserted against it? And, at what expense has authorship as the basis for ownership been maintained, if it has been maintained at all?
Before addressing these questions, I want to show how this narrative is a parable about the perverse relationship between the photograph, the photographed, and the photographer, that love-hate triangle in Dorian Gray that ends in the death of all three. In the narrative, the youth Dorian (the subject of the portrait) changes places with the painting, which physically ages while his body remains as youthful as it was when Basil Hallwood painted his likeness. While the living painting has a soul, the static Dorian is soulless. We have in Dorian, then, the much-discussed phenomenon of photographic preservation, the photograph's awe-inspiring capacity to "mummify" the body, as André Bazin puts it, "to snatch it from the flow of time, to stow it away. . . in the hold of life." 2 In the nineteenth century, this preservative capacity of photographic representation was even understood as a triumph of mortal life over the certainty of bodily decay. In Dorian Gray, however, we have the fleshly mortification and decay of the representation and the preservation, instead, of the body itself. In other words, in this story, the representation and its object, so easily confused in the tradition of aesthetic realism, seem to have changed places. Perhaps they are even the same thing. In Dorian Gray we have an illustration of Bazin's "mummy complex," but in reverse. And we find as well its companion formation, what Bazin calls the "resemblance complex." 3 For Hallwood's portrait of Dorian embodies the highest aspirations of representational art: to achieve lifelike resemblance. The novel imagines the logical conclusion of those aspirations when the portrait that resembles its subject actually becomes that subject. For Hallwood, the portrait reveals the truth of the soul of its subject ( Dorian); it is "the real Dorian." 4 The live model thus becomes the photographic "work" fixed in time while the representational image hanging on the wall becomes the living being.
The exchange of places between the body and its image raises questions of preservation and resemblance. But it is the revelation of the self in the work that opens up the main considerations of this chapter. First, what is the origin of the notion that a person, whether author or subject of the work, is "revealed" in that representation? And second, how is the epistemological claim that a personality is "revealed" in the work then translated into the legal claim of ownership in the work? How do we find the author in the photographic work in order to establish that he, rather than the machine, created the photograph itself? The famous preface to The Picture of Dorain Gray states the problem for us in inverted form: "To reveal art and conceal the artist is art's aim" (p. 7).
Dorian Gray reminds us that a work of portraiture can reveal as much or more about the subject of the portrait as it does about the artist-creator. (It is Dorian Gray, not Basil Hallwood, whose soul is illuminated, exposed, and displayed on the canvas.) And yet, the narrative suggests as well that Dorian the monster is the expression of Hallwood's personality. If that is the case, both Dorians (the living representation and the lifelike portrait) are Hallwood's original conception, not only given visible form but in fact made flesh. It is the artist's soul, expressed through the work, that is laid bare. But is this expression of the artist's soul displayed in the living portrait, or in the soulless, photographic Dorian who eventually murders the artist and stabs the living portrait? Since the portrait and its subject are now one and the same, the soulless Dorian dies and the image is restored to lifelikeness-locked-in-time. In Dorian Gray, then, we find a metaphor for the shifting relationship between the photographed, the photographer, and the photograph, a relationship that illustrates the problem of the attribution of creativity. The "soul," or "personality," which inheres in its creation, rather than residing in any one of the three positions, is passed among them, referred to three possible points of origin.
From a contemporary point of view, we may be quite comfortable with this circularity, which constantly shifts the point of origin (as well as the blame) of meaning from one term to another. The circuit is shorted, however, when the question of ownership is introduced. When Lord Henry Wotten asks Hallwood if he will sell the image of Dorian to him, the portraitist explains that it is not his to sell; it is Dorian's property (pp. 35-36). Since no monetary exchange has taken place between the artist and the subject of the portrait, the issue of ownership seems to be decided on the basis of the congruence between Dorian and his image. Or, the physical likeness itself stakes out a property claim by means of its self-evidence. Shouldn't the subject portrayed have property in the one thing he indisputably owns, that is, property in himself? At the same time, it can be argued that the artist Hallwood himself is the source of the work, the originator of the conception. For aesthetic theory, the question of ownership dramatized in Dorian Gray is an interesting ambiguity. But for legal doctrine it is an ambiguity that must be resolved; intellectual property law must know whether or not there is personality in the work. And yet, as we will see, the property right question historically took the answer it wanted from aesthetic debates, while at the same time it went its own way, under pressure from social, economic, and technological factors.
To explain how it was that aesthetic theory and Anglo-American intellectual property doctrine, once entwined, came to part company (while still seeming to be allied), I need to consider the other possibilities that might have provided a basis for ownership in the image. As I see it, there were other contenders for the coveted position of the origin of the photographic work. These other claimants were nature (the source of light), convention (other works), the photographic apparatus, and the subject photographed. The invention of photography, as Bernard Edelman has shown, took French law by surprise, and during the ensuing period of disequilibrium, French courts debated the ways of establishing ownership in the image. How was it, then, that the other contenders were dismissed one by one in favor of the photographer-artist?
The Law "Seized" by Photography
In his introduction to the English edition of Edelman book Le droit saisi par le photographie, Paul Hirst says that the original title contains a pun, suggesting that the law was "seized" and "caught by" new technologies: photography and cinema. 5 In legal terms, saisi also refers to an attachment of goods or a seizure of money owed to a creditor. 6 But although this sense of the tables turned on the law has its appeal, there are even more provocative ways of looking at the title, given that the verb saisir also means "to perceive," so that we get the impression that the law is seen or grasped through photography. 7 But finally, if we consider the figurative meaning of saisir, it has to do with shocking or startling. As Edelman himself frames this, "The eruption of modern techniques of the (re)production of the real -- photographic apparatuses, cameras -- surprises the law in the quietude of its categories."8Le droit saisi suggests the lethargy, unpreparedness, and unresponsiveness of the French legal system, but it also carries some sense of the way this technological innovation jolted a social institution, catching it off guard. The new technologies did not produce a communications "revolution" in any sense, but they did pose problems that required institutional adjustments without which defects in the ideological mortar would begin to show. 9
The law does not easily accommodate such challenges; there is no better illustration of this than the attempt of nineteenth-century French law to decide whether or not the photograph was the artistic creation of the photographer. As Edelman describes it, when French law was first asked whether the photographer could be afforded the same protection for his work as a painter was for his, the courts balked. As Edelman puts it, "The law is first surprised by the question and its first answer is in 'resistance.' " For French law, the crucial question was whether or not the mechanical product could be said to have anything of "Man" in it at all. An authored work (it was argued) is imbued with something of the human soul, but a machine-produced work is completely "soulless."10
No sooner had the French courts issued this dictum than they began to reverse it. This bald-faced contravention is dramatized in the statements by French minister Alphonse Lamartine in the 1840s: "It is because of the servility of photography that I am fundamentally contemptuous of this chance invention which will never be an art but which plagiarises nature by means of optics. Is the reflection of a glass on paper an art? No, it is a sunbeam caught in the instant by a manoeuvre. But where is the conception of man? Where is the choice? In the crystal, perhaps. But one thing for sure, it is not in Man."11 But this same minister who saw photographic reproduction as "plagiarising nature" would later declare photography to be "better than art; it is a solar phenomenon in which the artist collaborates with the sun."12 What had happened? As it became clearer between the middle and the end of the nineteenth century that many thousands of French people made a living by means of photographic technologies and that France exported photographic images, protection of the product against infringement came to seem essential. As Edelman explains, "The soulless photographer will be set up as an artist and the film-maker as a creator, since the relations of production will demand it".13
Crucial to Edelman's theory is the idea that in order for the law to protect the photographic work, the photographer (the creative subject who had disappeared into the machine), had to be reintroduced into the equation; a soul had to be found in the mechanical act, the "soulless labor" of operating a camera. The subject (and here all of the grand potential of humanism's "Man" is unfolded) "invests" the photograph with something of himself, with the combination of humanness and particularity that we have come to call the "original conception." In this original conception, the creative subject and his work, intertwined as they are, become "indivisible." 14 Noting the way in which the landscape scene before the camera becomes an original work of art, Edelman asserts, "In order to 'intellectually' appropriate what belongs to everyone, I must not reproduce it, for then I shall do no more than expose what belongs to everyone, but I must produce it." 15 Here we have made a quantum leap in the same click of the shutter. As Edelman's critique testifies, what was simply a machine act of retrieval and duplication ( Lamartine's "plagiarism") of the real world before the camera suddenly becomes an original production of that real world. As the creative subject is brought to bear on the object before the lens, a a wholly new thing is produced from the merger of creative subject and object. And this new thing is the artistic or intellectual property.
And yet, as Edelman argues, in order for the legal subject to claim protection for this new property he had produced, the face and body of the work had to evidence a mark that, although invisible, could be recognized in law. And so it was that around 1862, the French courts translated the expression of the creative soul into the more serviceable concept of the "imprint of personality," a legal means by which the work could be seen as something indelibly etched with this sign of its author. 16 But shouldn't we be suspicious of the declaration that something is there in the photographic product that was not there before? How is it that the photographer could be suddenly transformed from a mindless mechanic into an artist and a creator, even a genius? And how can we account for the fact that the same "rote movement" -- the click of the shutter -- is now elevated to the status of the stroke of the pen or the brush? We may be credulous, but the French courts, apparently, were not. So Edelman's account reminds us, new technologies may "surprise" old categories, but only to be reformed according to existing conceptions of the world. Science and engineering may produce technologies that outstrip human capabilities, but these strange inventions are soon reconceived -- domesticated and humanized -- as they are put to use.
This theme has been developed in contemporary film theory's critique of the way in which technological developments have been historically claimed for an idealism that seems incompatible with purely mechanical functions. First advanced by French film theorists in the early seventies, and coincident with increasing interest in the work of Louis Althusser, this critique began with a description of how the camera itself was historically built to reproduce an aesthetic perspective based on the single eye of humanism's man. Much of this critique derived from an emerging French poststructuralism, which argued that the humanist project had been reinforced by linking it with technological advances. For these critics, the early film theorist André Bazin was said to have claimed each new technological change in cinema as confirmation of an idealist metaphysic -- as evidence of a divine plan in the "natural" world that could finally be replicated in every detail by science. 17
For contemporary film theory, however, technological change is no longer viewed as the forward movement of bourgeois progress, but rather as a series of junctures at which new technologies suggest ways to construct the world anew. These technologies are not employed to transformative ends but are instead harnessed to existing conceptions. Consider how the contemporary French critique might reread the late-nineteenthcentury prehistory of cinema and the inventions of Eadweard Muybridge and Etienne Jules Marey. After the camera's original challenge to the visible world as "seen" by the "human eye" (that supremely ideological organ), the motion picture camera ceased to be an instrument for the analysis of movement (through its elongation or abbreviation). Although it held the potential for teaching us to see the natural world a different way, it became instead an instrument for representing the time and space continuum as it was believed to be. Rather than challenging "the real" as it was already understood, the camera ended up confirming that real. 18
Edelman has looked at another such juncture: the period in European history that was faced with the question of whether photography was the creation of an artist or the product of a machine. French legal discourse was thrown into a state of confusion by the introduction of a technical novelty with unforeseen capabilities -- a machine that turned out copies of the natural world without the aid of the "human hand" or, for that matter, the human eye. Just as the eye would have to reassess its version of the visible, so the subject in law would have to reassess its part in the creation of mechanically produced culture. What relevance does Edelman's analysis of this momentary crisis in French legal history have for political analyses of U.S. entertainment law? To answer this question, we need to investigate the sources of Anglo-American copyright law.
U.S. Copyright Law and the Photograph
The 1709 Statute of Anne is often cited as the origin of the authorial right to the work in Anglo-American law, but in fact this right was an outgrowth of a completely different set of interests and national concerns, ones that were far removed from any concern about fairness to authors. The British statute aimed in part to dissolve the monopoly power of the Stationers Company (a kind of publishers guild holding publication rights exclusively), which effectively worked as state censorship. 19 What will be important to us here is the way in which the category of "author" -- which in the 1709 statute allowed the London publishers or booksellers to justify their publication rights -- is turned to the advantage of writers after the expiration of the twenty-one-year copyright extensions given to Stationers in the original statute. Not until the "Battle of the Booksellers," the controversy surrounding Donaldson v. Becket ( 1774), did the issues begin to undergo the realignment that somewhat resembles the now familiar Anglo-American authorial copyright.
In the U.S., the original 1790 copyright act passed by the First Congress gave protection to charts and maps and then books. In 1802 the act was amended to include the engraving or etching and what the amendment called "prints," and an 1831 amendment mentioned "copyright" for the first time in reference to musical compositions in their engraved or printed form. 20 In 1865 photographs and photographic negatives were officially added to the list of copyrightable forms -- a change that some legal sources have attributed to the Civil War popularity of Mathew Brady's photographic works. Five years later, drawings, paintings, chromolithographs, statues, and fine art models or designs were added. After 1870 we find a long hiatus: Between the significant 1909 Copyright Act revisions, which reorganized protection into eleven categories, and the complete revision in 1976, the U.S. Copyright Act was amended only twice. First, in 1912, it was expanded to cover moving pictures; and then, almost sixty years later, in direct response to an outbreak of sound tape piracy in the early seventies, "sound recording" was added as a copyrightable work. 21 U.S. intellectual property doctrine has written its own history within Supreme Court decisions, and it has historically characterized itself as responsive to technological change, particularly when that change translates into economic imperatives. Chief Justice Burger's statement for the majority in Goldstein v. California ( 1973), the preeminent position on state protection of "sound recording," summarized this self-characterization:
The history of federal copyright statutes indicates that the congressional determination to consider specific classes of writings is dependent not only on the character of the writing, but also on the commercial importance of the product to the national economy. As our technology has expanded the means available for creative activity and has provided economical means for reproducing manifestations of such activity, new areas of federal protection have been initiated. 22
This statement stands in conspicuous contrast to the arguments first advanced in French law on behalf of protecting a new technology. As we know from Edelman's critique, French law focused on the artist and not the industry, even if it worked to the eventual benefit of that industry. But the U.S. House Report on the proposed 1912 amendment that added motion picture photoplays to the copyrightable category was quite specific about the economic stakes in the extension of protection: "The money invested therein is so great and the property rights so valuable that the committee is of the opinion that the copyright laws ought to be amended as to give to them distinct and definite recognition and protection." 23 It may at first seem that the French example, so thoroughly critiqued by Edelman, could have no relevance for the treatment of mechanical and electronic technologies in U.S. copyright law. After all, as Paul Hirst reminds us in his commentary on Edelman, French copyright law is historically based on the author's right (le droit d'auteur), whereas the parallel Anglo-American law is based upon the right to copy. 24 And it could be argued as well that Anglo-American law, unlike its French counterpart, was not "surprised in the quietude of its categories" by the new photographic technologies, because Britain had already assimilated photography into its copyright law in 1862, three years before the U.S. followed suit. 25
We should note, however, that in the histories of both French and American intellectual property, the case of photography reveals the absolute importance of authorship as prerequisite to ownership. In French law, Edelman reminds us, the photographer had to "invest" the real with his personality; similarly, in American copyright law the human author had to put "something" of himself into the real in order to turn it into property. 26 In both cases, the investment of personality is the crucial authorial deposit that turns preexisting material and immaterial property into intellectual property. But once the author-subject, as I will call him, originates the work, his contribution is negated and his position evacuated. If the intervention of the author-subject is easier to see in French law, the evacuation of the author-subject is more pronounced in U.S. doctrine. While in nineteenth-century French law we find the legal subject first intervening in photographic production, in U.S. copyright law we see the legal author-subject gradually removed from the work.
My argument depends upon a reading of the U.S. Supreme Court decision in Burrow-Giles Lithographic Co. v. Sarony ( 1884), a case that has particular historical significance because of its challenge to the constitutionality of the 1865 Copyright Act amendment, which covered photography. Moreover, Burrow-Giles remains a definitive statement on "originality" in manually as well as mechanically produced work. In this case, we find the pattern of origination and evacuation that I mentioned above played out in detail: "originality" is elaborated as a defense of Sarony's photographic artistry at the same time that it is reduced to nothing more than a point of origin.
Others may argue that Burrow-Giles is a moot case as far as contemporary copyright practice is concerned. It was made redundant by Bleistein v. Donaldson Lithographic Co. ( 1903), a case that involved the copyrightability of circus posters produced by chromolithography and that declared reproductions of this kind to be protectable regardless of the degree of artistry expended in their production. The implication, of course, is that if all photographs and lithographs are copyrightable whether they are artistic works or not, then the more elaborate defense of Napoleon Sarony's artistry would seem to be superfluous to copyright law. A current edition of a basic text on intellectual property, for instance, tells us that Bleistein is more relevant to questions regarding the photograph than Burrow-Giles is:
At least since Burrow-Giles Lithographic Co. v. Sarony. . . photographs of real-life situations have been copyrightable. The justification for protection was that the photographer had invested his pictures with serious artistic consideration and creative effort. But after Bleistein, it is apparent that such a claim is unnecessary and that photographs are copyrightable not because of any artistic creative effort but simply because they are the work of "one man alone." 27
And yet the definition in Burrow-Giles of an author as an "originator," or "he to whom anything owes its origin," remains a valid characterization of what constitutes authorship in U.S. copyright law. Perhaps the most dramatic illustration of the definition of originality set forth in BurrowGiles is its application in Time Incorporated v. Bernard Geis Associates ( 1968), to which I will return in more detail. 28 Here the question of who owned the Super 8 mm footage of the Kennedy assassination rested not only upon seeing the hand of one amateur filmmaker pushing the button (after Bleistein's "one man alone") but upon the filmmaker's conferral of "originality" on the mechanical work by virtue of his intervention in the creative act as a legal subject. Commenting upon these conditions of "originality" in Time Inc. v. Geis, the authors of the intellectual property text to which I have been referring observe, "The combination of happenstance and fate that led to these films amplify [sic] the fact that originality is minimal indeed." 29 The requirement that there be maximum originality in the photographic work is also the minimum requirement -- that there be no originality at all.
Let me start with the maximum of originality. Of the hundreds of celebrity photographs reproduced illegally in the 1880s (that is, reprinted in disregard of the photographer's copyright), only one provides us with a full statement on authorship in mechanical works in American copyright law. The test case arose when New York photographer Napoleon Sarony filed suit for copyright infringement against Burrow-Giles Lithographic Company, charging it with producing 85,000 unauthorized copies of "Oscar Wider, No. 18," one of the twenty images the photographer took at a sitting in January 1882 (fig. 1). In April 1883, the Circuit Court of New York, Southern District, decided the case in Sarony's favor. 30
There is no doubt that the protection of industrially produced culture in the U.S. has its origins in the Turkish carpet that was arranged at the feet of Oscar Wider. And these origins can be traced as well to his curious lapdog pose, to the assumption of his own signature gesture (the fingers to the face), and to the way he holds the small book poised on his knee. Finally, they are in the whimsical arrangement of Wilde's legs thrust forward to display the silk stockings and shiny patent leather shoes tied with fancy bows. And they are in the shallow depth-of-field of the photograph, which produces a hazy, ethereal soft-focus space above his head. Here, the work and the author's description of his own process of conception fit hand in glove. And the U.S. Supreme Court, in accepting Sarony's description of authorial creation as a valid argument, reauthorized it as law. The court agreed with Sarony that the photograph of Oscar Wider was [a] useful, new, harmonious, characteristic, and graceful picture, and that the plaintiff made the same. . . entirely from his own original mental conception, to which he gave visible form by posing the said Oscar Wider in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging and disposing the light and shade, suggesting and evoking the desired expression, and from such disposition, arrangement, or representation, made entirely by plaintiff, he produced the picture in suit. 31
The elaborated position on originality within this Supreme Court decision also trades upon connotations of aesthetic density because it analogizes "photography" with authors' "writings": "By writings in that clause is meant the literary productions of those authors, and congress very properly has declared these to include all forms of writings, printing, engravings, etc., by which the ideas in the mind of the author are given visible expression." 32 In extending the category of "writings" to lithography and printmaking, the court offered the photographic print legal protection. 33 But there is another legal analogy at work here, namely the French comparison of the photographer and the painter, both of whom may be creative subjects "arranging," "disposing," "suggesting," and "evoking representation." The American theorization of original artistry in the photograph, then, is the product of the convergence of at least three analogies: the written composition, the painted canvas, and the printed lithograph.
Against Sarony's argument in support of photography as an original work of authorship, Burrow-Giles Lithographic Company took the position that the photograph was not copyrightable because it was a purely mechanical operation. In a sense, this important challenge to the constitutionality of the 1865 amendment (which recognized the photograph as a "work of authorship") was a recapitulation of the French debates, but with this difference: The "merely mechanical" argument was deployed in the U.S. to dislodge the already-positioned subject, rather than to squeeze him out from the start. The lithographic company's argument, as restated by Justice Miller, echoed the early French debates:
But it is said that an engraving, a painting, a print, does embody the intellectual conception of its author, in which there is novelty, invention, originality. . . while a photograph is the mere mechanical reproduction of the physical features or outlines of some object, animate or inanimate, and involves no originality of thought or any novelty in the operation connected with its visible reproduction in the shape of a picture. 34
Was this argument, which effectively denied legal protection to the photograph, convincing in a suit for infringement, a suit heard, moreover, during a period that was a heyday for photographic piracy? How could the "merely mechanical" argument stand in light of the emergence of so many self-styled photographic artists in both both France and the U.S., of which Napoleon Sarony was only one of the more prominent examples?
Apparently it couldn't, because the Supreme Court did, in fact, produce a judgment in Sarony's favor. Burrow-Giles, however, has been considered somewhat problematic by legal commentators. Even though the court found sufficient evidence of Sarony's authorship to uphold the protection of photographs in which some degree of personality was invested, it did not take a position in regard to the production of what it termed "ordinary" photographs. The court declined to decide on this issue, and Justice Miller's statement discouraged any attempt to look to this decision for such authority. As for the legal status of the photograph produced by "merely mechanical" means, he said: "It is simply the manual operation, by the use of these instruments and preparations, of transferring to the plate the visible representation of some existing object, the accuracy of the representation being its highest merit. This may be true in regard to the ordinary production of a photograph, and that in such case a copyright is no protection. On the question as thus stated we decide nothing." 35 Burrow-Giles would in time be interpreted as a case that produced an equivocal statement on the copyrightability of the photograph. It could not provide a clear standard for all photographs -- that was not produced until the Copyright Act of 1909. As Judge Learned Hand later put it, the significance of the 1909 clarification was that it allowed protection of photographs "without regard to the degree of 'personality' which enters into them." 36
Burrow-Giles, as evidenced in its description of Sarony's work process, obviously contains the provision for the protection of works in which authorial "personality" is abundantly displayed. But it also provides for works invested with a zero "degree of personality," since it defines the author as nothing more than the point of origin of the work -- as "he to whom anything owes its origin; originator; maker; one who completes a work of science or literature." Later opinions, in fact, have tended to rely on Burrow-Giles not for its articulation of authorial "personality" but for its statement of the minimum requirement of originality in other "works of authorship," photographs notwithstanding. 37 What I am suggesting, in other words, is that the very theorization of the legal author-subject in the case of the photograph (the legal prototype for the mechanically produced work) is at the same time an important step in the gradual displacement of the author-subject from his secure position before the work. To put it another way, in U.S. intellectual property law, the intervention of the subject in the photographic work also marked the point of exclusion of the subject.
To provide a picture of what is at stake, it may be useful here to review the sweep of developments from 1709 to 1968, to which I have referred in this section. In the concluding chapters of Lyman Ray Patterson Copyright in Historical Perspective -- one of the few historical treatments of Anglo-American copyright law -- these developments are read in relation to contemporary concerns about the dangers of the monopoly vested in copyright. In Patterson's view, British and American courts during this period misunderstood the monopoly problem; in an attempt to curtail monopolies on the right to copy (in the interests of the public good), the courts limited the author's right. But, in fact, they should have limited the publishe's right, since in current practice publishers, not authors, are owners of copyrights. As Patterson explains it, the courts saw two interests, "author" and "public," when they should have considered a third: "publisher." 38 The contemporary situation that Patterson describes has come almost full circle, back to similar conditions in the eighteenth century when the publisher-monopolists invoked the author's-right provision of the Statute of Anne in an attempt to regain their hold on the rights they no longer held in perpetuity. 39 These rights, the publishers discovered, could be held with more security if they were attached to the "natural right" of the author who had sold the work to them. Patterson characterizes the eighteenth-century publishers' strategy as remarkable for its "transparency." 40 But what of the contemporary situation, in which the publisher-owner acquires the author's lifetime monopoly in the work in order to extend and fortify a right that might have otherwise been limited? What of the example of Time Inc. v. Geis, in which the publisher is able to claim a monopoly on the Super 8 mm footage of the Kennedy assassination by means of the authorial right of Abraham Zapruder? Patterson's history reveals a pattern of monopoly effected by using the author as a kind of pawn. But it also shows us a reversal of the outcome of the eighteenth-century battles. For copyright, as he points out, "instead of being a limited right in connection with a work for an unlimited period of time,. . . became an unlimited right for a limited period of time." 41 Patterson may be correct that the House of Lords as well as the booksellers used authors' rights (absent any authors themselves) to different ends, the former to dissolve and the latter to reconstitute monopoly rights. But Patterson takes this historical background in a predictable direction that negates the logic of his own research. He employs the historical findings that authors' rights were an invention on behalf of an argument for a proper authorial right in Anglo-American copyright law. 42 In this he anticipates the current movement on behalf of a restitution of the author-subject in American law on the model of the French droit moral ("moral right"). 43 I am willing to follow Patterson only until he uncovers the historically opportunistic uses of author's right. But what Patterson cannot answer is how the authorial creator can be used to construct a legal subjecthood with an attendant "natural right" to an end that does not benefit Patterson's own third interest, the "public."
Patterson's focus on the author's right obscures the historical construction of the legal subject who can have property in his person, a formation that predates and makes possible the construction of the author as owner of his writings. In Burrow-Giles, the case under discussion, the author's right obscures the contradictory evidence offered by the technology itself, the evidence that photography is mechanical. Authorship in the photograph is a requisite fiction. But then so is authorship in the literary work.
Origin and Originality: "One Man's Alone"
It is true that in intellectual property "originality" has a pragmatic charge. The concept is used to prevent competing claims to ownership in a work. Nevertheless, within the common law, conflicting claims have arisen because of the admitted ambiguity of "originality," and it is this ambiguity that I now want to investigate. 44 Although copyright law does maintain the distinction between the original and its copy, familiar from the criticism of fine art, legal doctrine recognizes many more total works as "original" and views many more kinds of products as "works of authorship." This is so, in part, because while aesthetic theory disparages copying, copyright law encourages copying at the same time that it polices it. It may appear, then, that we are not talking about the same concept, but what I want to show is that these two concepts of originality grow out of the same philosophical root: property in the person. The ambiguity of "originality" complained of by judges and legal commentators can be explained by the divergent histories of legal theory and aesthetic theory in the last two centuries. While the two "originalities" are still connected at the root, the apparent similarity that this produces in the two discourses has an ideological function: to mask the threat that each conception of originality poses to the opposite discourse.
The pressing question for us, of course, is why originality, which in 1884 was required in abundance (as the description above of Sarony's method attests), has become reduced more and more to the blunt fact of origin. To answer this question, I need to tell a somewhat longer story of how "originality" -- over "individuality," "uniqueness," "novelty," or "creativity" -- came to be the crucial determining concept in intellectual property, so that -- and again I cite the contemporary word on intellectual property -- "originality does not imply novelty; it only implies that the copyright claimant did not copy from someone else." 45 A kind of doubleness, in other words, evolved in the legal concept of originality: On the one hand, the law retained the connotations of artistic creativity and the ideal of the singular work; on the other hand, "creativity" came to refer simply to the work's point of origination, not to the unique, soul-invested nature of the work itself. Before we consider the precarious legal status of artistic "creativity" in the contemporary period, however, we need to examine how and under what circumstances the notion became crucial to assessments of how the work of culture is produced. What we will find is that the concept of authorial "creativity" has a long and varied history of appropriations and that its use as a means of legally securing property is only one of its more recent manifestations. From this perspective, the appearance of the "creative" subject in relation to the photographic act should have surprised no one, since this subject has appeared historically at so many other times in the service of so many different interests.
Long before the creative subject was ushered into the process of producing the photograph, this subject was inserted into the process of producing objects that had previously been the product of one or more artisans. It is true that the phenomenon of the singular artist who is fully responsible for the work as a whole is first visible in Renaissance Italy at the end of the fifteenth century. But the notion of "creation" in relation to art does not fully emerge until the eighteenth century -- and then with a vengeance, as a calculated strategy in opposition to industrial production. Raymond Williams reminds us that the idea of the "creative" artist emerged as the once divine capacity of creation became attributable to humans. And in the current century, Williams continues, "creativity" has become synonymous with innovative, original, and novel, but at the expense of undergoing some devaluation. 46 It is impossible to disregard the striking historical parallel between this linguistic devaluation and the delimitation of the legal concept of "originality."
The impossibility of ever reconciling the two poles of the original/copy dichotomy has become clear for aesthetic theory only in its recent postmodern frame of thought. 47 Historically, the showdown between the original and the copy has been staved off, first and most successfully by the Romantic movement, which attempted to ameliorate the deleterious effects of the industrial revolution. The Romantic view of art as transcendent and of the artist as a superior being evolved as a means of rescuing the artist's work from the market and from the hostile public for whom mass production might make the work available as it had never been before, but at the price of turning it into an industrial product. The Romantics countered the commodification of the work by elevating the artist, but, ironically, the artwork came to be seen as the product of creative genius in proportion to the loss of status of artists in general. 48 The strategy of the Romantics was to project the "humanness" of the creative subject (which they perceived to be under attack) onto the works themselves. As Williams describes it, this amounted to "an emphasis on the embodiment in art of certain human values, capacities, energies, which the development of society towards an industrial civilization was felt to be threatening or even destroying." 49 In short, cultural products were endowed with the same rare and unique qualities that their singular human creators were said to possess. And as the Romantic poets elevated themselves above other humans, they confirmed not only their own originality but also that of their creations, the better to separate those works from mass-produced products. 50 As we retrace this process, it is useful to recall that the Romantics' insertion of the subject into the work was an artificial one in its time. If poets were only servants of the divine who held a mirror up to nature, then the personal touch of the poet as individual creator could only be intrusive. The pre-Romantic concept of artistic work, as M. H. Abrams reminds us, allowed no space for individual vision, and it therefore left "limited theoretical room for the intrusion of personal traits into [the writer's] product." 51 For Abrams, the Romantic premium on the personality of the writer was a "strange innovation" when it appeared in the nineteenth century. 52
To see authorship in the work of art as "strange" is difficult today. The notion has become so thoroughly naturalized over the ensuing century as to engender a reverent metaphysics of the existence of the author in his product that would blind the appreciators to the evidence of anything else in the work, especially to the evidence that there is nothing actually in the work at all. As an antidote to a persistent but now exhausted Romanticism, we need to remind ourselves of an earlier era when a literary or fineart work was seen not as the product of a producer at all, but rather as transpersonal and in flux. 53 From a pre- and post-Romantic vantage, we can see that the analogy between the human author and the work is really a kind of anthropomorphism, one that begins to reveal the motives behind the Romantics' historical opportunism. For as they resisted commodification by projecting the personal traits of the author onto the work, the Romantics effected a reification of their own -- one through which "the difficulty of the market was not solved," as Williams puts it, "but cushioned, by an idealization." 54 The Romantics' idealization may have temporarily postponed the market restructuring of the work-author relation, but it did so only by legitimizing the same forces that the poets had opposed. It was only a matter of time before the author-subject came to encourage and facilitate mechanical copying.
The Author as Owner
I have already identified the early- eighteenth-century moment in Anglo-American copyright law when the author was introduced into the literary work as the basis of the right to copy. Technically, the author owned the copyright in the work, but because the bookseller/publisher functioned as proprietor, this fact of ownership remained submerged for three-quarters of the century. I now want to show how these two ends (authorship and ownership) came to be tied together, producing the preconditions for the new compatibility between the author and the market. Authorship and mass production, two strands originally separate, became bound together after the late-eighteenth-century "Battle of the Booksellers." It is here, at the outset of the industrial revolution, that I want to resume my historical overview.
In his recent essay on the history of the author as proprietor and the birth of the literary "work," Mark Rose provides a valuable critique of the arguments surrounding the 1774 hearings on literary property in the House of Lords as they took shape in the case of Donaldson v. Becket. 55 Rose reads these debates as a confluence of developments that made possible legal ownership and literary authorship as we know them today. At this early stage, often lost in later accounts, aesthetic and legal issues were so thoroughly intertwined as to seem indistinguishable: The aesthetic was marshaled in the service of the legal, and the legal applied in reverse to the aesthetic. Both issues were clearly wedded and, it would seem in retrospect, were by chance decided at once. The House of Lords ruled against the booksellers, who ironically were supporting the author's right to the fruits of his labor, the better to reinforce their own monopoly position at the time. In these debates, Rose argues, the author as proprietor became available to link up with the Romantics' theorization of the originality of the author's work, which was just emerging as a new idea at this time. One of the strains that Rose hears in these arguments around literary authorship is, as we might expect, the Lockean articulation of property as derived from the person, a concept that merges in these debates with the idea that the author's personality, his distinctive identity, is imprinted upon his work or expressed through his writing. Coming out of this meeting we have the now familiar combination: authorial property right, originality in the work, and right to copy or reproduce. 56
This meeting might be mistaken for an inevitability until we look closely at the first attempts to forge the connections among author's right, originality, and copyright that we now take so much for granted. Here, Rose shows us how this combination was produced by means of an almost imperceptible shift in rhetoric. In his 1774 pamphlet, Argument in Defence of Literary Property, Francis Hargrave starts with the problem of how one written composition is to be distinguished from another. In this context he reflects upon two related issues: first, the relationship between the author and the composition; and second, the determination of originality. About the authorial stamp on the composition, Hargrave says:
The subject of the property is a written composition; and that one written composition may be distinguished from another, is a truth too evident to be much argued upon. Every man has a mode of combining and expressing his ideas peculiar to himself. The same doctrines, the same opinions, never come from two persons, or even from the same person at different times, cloathed wholly in the same language. A strong resemblance of stile, of sentiment, of plan and disposition, will be frequently found; but there is such an infinite variety in the modes of thinking and writing, as well as in the extent and connection of ideas, as in the use and arrangement of words, that a literary work really original, like the human face, will always have some singularities, some lines, some features, to characterize it, and to fix and establish its identity. 57
What is remarkable about this passage, says Rose, is the way it subtly moves from describing the composition to describing the author -- from the property to the proprietor. 58 This shift from property to proprietor is most evident in the analogy between the literary work and the human face. Which is to say that a conflation of the work, the face, and the personality has produced what has been the ruling paradigm in arts criticism and Anglo-American intellectual property law for more than two centuries! We begin to see the shared root structure of the two discourses, but also the ascendance of the author over the work, which, in the end, is the category that loses out.
Rose finds an additional rhetorical sleight of hand in Hargrave's defense of property in literature. For it is not clear whether in 1774 "originality" refers only to the composition that is not someone else's (not a copy) or to the new Romantic sense of something wholly innovative and unique. 59 On the eve of the union between the author as individual and the Romantic notion of the authored work as individuated and unique, the two concepts still seem oddly paired. Hargrave's conflation of the individual author with the individual work produces the corollary that every literary composition is different because every author is. If we supplement this with the Lockean philosophy that man is the origin of property, then we have the basis for the Anglo-American copyright doctrine definition of authorship set forth in Burrow-Giles: All works originating from an individual are individual works of authorship.
In Hargrave's crude early statement, we see the construction of a tautology that has operated historically at the very heart of intellectual property law: All works of authorship are oniginal. 60 Why? Because they originate with authors. As Barthes describes the function of tautology, it is always a temporary "aphasia," which, like the "faint at the right moment," rescues us from having to make the explanation that is not forthcoming. 61 The interchangeable reference to authorship and origin, then, operates in intellectual property law like an automatic lapse, a memory blackout. The law has, in fact, forgotten, and must continue to forget, that before the writer had rights in his literary production, literary property and writer were separate and unbridgeable categories. The long-forgotten alternative, however, may be found in the position against which Hargrave was arguing, in the proposition that the work is "a set of ideas which have no bounds or marks whatever." 62
In this forgotten proposition, we find the corollary to poststructuralist theories that would come into vogue two hundred years later, theories that would take issue with the Romantic theorization of some works as more original than others. This, then, is where intellectual property doctrine and traditional literary theory each represent a potential undoing of the other. But the threat that literary authorship poses to copyright is only hypothetical. The return of the real author to the work does not mean the imposition of a test of freshness and complexity impossible for courts to administer. 63 Copyright doctrine poses a greater danger to traditional literary theory, since it negates the contradictory philosophical foundations of traditional literary theory. That is, if the individual author produces property in the work in the Lockean sense, then every act of production is an act of origination, every work is an original work, regardless of whether it is aesthetically unoriginal, banal, or, in some cases, imitative. Every individual person is also a potential "author" whose "writings" will be as "original" as those of a renowned or acclaimed literary figure.
As Paul Hirst remarks on the consequences of this structure in AngloAmerican copyright law: Companies coexist within the same framework of rights with individual subjects, football fixtures are defined in the same terms and enjoy the same rights as Finnegan's Wake. The law singularly fails to depend on the (supposed) attributes of individual subjects for the foundations of its provisions and persists in treating of legal subjects with indifference to any formal doctrine of subject. Football clubs and heroes of modernism are considered on the same terrain. 64
Copyright's minimal point of origin requirement, which considers light fixtures and belt buckles as "works of authorship," performs a critique of traditional theory's notion of authorial originality. 65 Copyright law is a great cultural leveler.
As this example indicates, the coexistence of the two overlapping concepts of "originality" is denied in legal discourse. And in traditional aesthetic theory the parallel contradiction -- what Rosalind Krauss calls art criticism's "originality/repetition dichotomy" -- is similarly accommodated by a kind of "repression." 66 But there is a difference. In high culture aesthetic discourse, the disruptive potential of copying is repressed. But in intellectual property discourse, the Romantic mythos of uniqueness is not repressed but rather persists, cropping up right where it is abolished. Here, then, is what I would say in answer to Hirst's lament about the equal treatment that copyright offers football clubs and heroes of modernism: We should not be surprised that Anglo-American intellectual property law is formally unaccommodating to the human subject bearing natural rights, because copyright doctrine is nothing more or less than a right to prohibit copying by others. Actual authors, in other words, are irrelevant to the operation of a copyright system.
But while maintaining this centuries-old right-to-copy structure, intellectual property, certainly after 1774, began to accommodate the coexistence of the old prohibition against copying and the newer Romantic conception of the authorial property. And this uneasy coexistence produced, in turn, what might be called the positive and negative sides of "originality." On the negative side, there is the definition of originality that is nothing more than not having copied. The point of origin, not to mention uniqueness, is not even relevant here. On the positive side is Justice Holmes's 1903 dictum in Bleistein v. Donaldson, the expectation that the work will contain some "irreducible" aspect of the author's personality. This positive definition of originality contains none other than the rationale for authorial ownership in the work based upon the analogy between the individuated human being and his writings. Only in Holmes's opinion it is the analogy between the person and his handwriting style that is advanced as an argument for property in the work: "The copy is the personal reaction of the individual upon nature. Personality always contains something unique. It expresses its singularity even in hand-writing, and a very modest grade of art has in it something irreducible, which is one man's alone." 67 This famous dictum is a curious restatement of the 1774 formulation that the author's right is based on his singularity, his separateness from other humans, and it is remarkable in two ways. First, in his phrase "one man's alone," Holmes gives us personality as a formula rather than as depth and complexity of character, and it is this formula that makes possible the apparently contradictory legal argument that a copy is an original work of authorship. Second, Justice Holmes's opinion, appropriately enough, is as mystifying as the Romantic concept of creativity itself; "something" in the work doesn't tell us what is to be found, and since the superfluity of creative artistry is stated in the negative ("irreducible"), we are given nothing specific to look for in the authorial product. 68 This irreducible something is the undissolved golden nugget of genius, and it is all that is left in intellectual property doctrine of Sarony's artistry. 69 If the concept of "originality" is ambiguous in intellectual property law, it is because, although the Romantic notion of authorial creation did provide part of the foundation of Anglo-American copyright law, some of its structures have dissolved. Other parts of the Romantics' unfinished project, however, remain undigested in the common law, producing the lumpy ambiguity of the doctrine of originality.
Where Is the Personality in the Work
With this background on the interrelationship of the two conceptions of originality in mind, I want to return to the problem that the photographic apparatus posed for French law. We have seen that in Anglo-American law, the literary author claimed proprietorship in the work by means of an analogy between the writer and the written composition. Almost a century later, in French law, the mechanical mediation in the photographic act put that kind of analogy between author and work in jeopardy. Let us return to Edelman's analysis of how the French courts put the subject into the photographic work in order to make him author of it. The French courts, Edelman says, used the mediation of technique to "invest" the subject in the real; photography was thus "wrested" from the machine by the concept of the "imprint of personality." 70 What Edelman means may be better understood if we consider what follows from the position that the subject does not intervene. If the personality is not in evidence in the photograph, the subject "disappears" into the machine, or "disintegrates" into the mechanical. 71 The threat of the machine, in other words, is the threat of the loss of the legal subject, who is not just relegated to the status of the mechanic but who is also totally missing in the creative act. (And is thus unable to provide the basis for protection.) The concept of "imprint of personality" restores the subject to the photographic work, but it does not tell us how it is that the soul found its way from the author through the apparatus and into the photograph. A somewhat closer consideration of the nineteenth-century French discourse around the protectability of the photograph reveals that to some degree the creative process had to be rethought in order to accommodate the photographer as author. And it is in this reformulation -- in which all phases of photographic production are subsumed under the rubric of "conception" -that "nature" and "the machine," those other contenders for authorial contribution, are written out of the process.
In conjunction with the record of Sarony's circuit-court-level trial hearing against Burrow-Giles Lithographic Company in 1883 (the year before the U.S. Supreme Court heard Burrow-Giles), the Federal Reporter published a summary of legal documents pertinent to the lower court decision. Among these documents is an English translation of the chapter on photography from Pouillet Propriété Littéraire et Artistique, which, the Federal Reporter explains, is reprinted in this context because the issues relevant to copyright in the photograph had been so widely discussed in France. 72 Pouillet analyzes the positions relevant to the artistic status of photography that were advanced within French legal theory after around 1860. Since, under the French law of 1793, a photograph had to be established as an artistic work in order for it to claim protection along with the painting, the metaphor of painting shapes this discourse. And we hear it faintly echoed in Napoleon Sarony's claim.
In the position for the protection of authorial rights in the photograph, Pouillet's own position, we find that the analogy between the author and the work becomes so submerged that it is, in fact, assumed. It enables the "no two men" formulation (later Holmes's "one man's alone"), which makes it unnecessary to find individuality or personality in the work, simply because individuality in the work is guaranteed by the notion of the individual as subject: "We have said many times already that the author's right was derived from the creation which gives to the work its character of individuality. Is this individuality lacking here? Is it not certain that two photographers, reproducing each for himself, the same scene or the same model, will obtain two pictures capable of being distinguished?" 73 But the problem with extending the "no two men" test (which worked for ownership in the written composition) to the production of the photograph is that two different men may very well produce identical photographs using the same apparatus identically positioned. What is more, many different individuals can produce the same photographs from the same negative. In order to make the photographer an author, then, the redefinition of the artistic process had to emphasize the prephotographic (and invisible) stage of photographic production. Photographic artistry, then, had to be rethought as something having less and less to do with the mechanical device, that black hole of authorship where all men are undifferentiated mechanics. As the analogy between the photograph and the painting began to break down between 1793 and 1883, the mechanical part of photography had to be circumvented. And once that happened, all aspects of photographic production merged: thinking, making, and end product became one. "Is it not the conception, however expressed, which constitutes the artistic work?" asks Pouillet. 74
This merger of the material and the immaterial in the notion of "conception" is part of an important ideological rescue mission in the evolution of intellectual property doctrine. For in this doctrine, the immaterial will have to be recognized as the material. As Edelman discusses this operation, it is performed by a juridical fiction, a form of what Marx and Engels identify as the illusion that the law and not the relations of production is the basis of real property. 75 According to Edelman, here is what happens:
Through its own functioning this fiction permits the transition from the invisible -- "intelligence," "creation," "genius," -- to the visible -real estate, the "tangible," the "true," the transition from the immaterial to the material. The functioning of the fiction denounces its role. It is a matter of giving to the invisible -- the thought of man -- the character of the visible -- private property. People knew already, without knowing it, even though it was impossible for them not to know, that the invisible was what is the visible, since it presents itself in the visible. Such, then, is the effectivity of the fiction. 76
To put it another way, the notion of artistic conception rewrites the process of origination to make the artistic act interchangeable with the only means through which we can know it: the thing produced. Physical acts and mental acts intermingle and become indistinguishable, and labor of mind and labor of hand become equally material. This is what we find in the court's judgment in Burrow-Giles, in which Sarony is said to have "given visible form" to "his own original mental conception" by "posing" Oscar Wider. But well before the U.S. Supreme Court case, Pouillet describes picture-taking as a process in which mental and physical activity are undifferentiated: "The photographer conceives his work; he arranges the accessories and play of light; he arranges the distance of his instrument according as he wants, in the reproduction, either distinctness or size; thus, also, he obtains this or that effect of perspective. After that, what matters the rapidity, the perfection, the fidelity of the instrument with which he executes what he has conceived, arranged, created?" 77 (emphasis mine) In support of his position, Pouillet quotes a complementary argument advanced by the legal figure Imperial Advocate Bachelier, which stresses that the means of obtaining the picture do not matter. (After all, Advocate Bachelier argues, even when the mechanical diagraph or pantograph devices were used to aid illustration, the resulting drawing was a protectable work of art.) Shades of Hegel (in which the human will produces property), all that is required is an "exercise of the will," as seen in that smallest of gestures. And this small gesture of will (which went so far to advance the cause of ownership of the image) is none other than "choice." So that in the photographer's "choice" of subject or time of day to shoot, in Sarony's "selecting," "arranging," "disposing," and "evoking," we have the human investment of labor in the thing, the private property-producing gesture. 78
The arguments both for and against authorship in the photograph depend upon the hand-mind duality. But while the former dissolves the role of the hand into that of the head, the latter separates the two in time. The argument against authorship in the photograph stood its ground against the dissolution of manual and mental labor by dividing the photographic act into two steps. Pouillet cites Thomas, Imperial Advocate at the time, as the primary exponent of the position against authorship in the photograph. Although Thomas did not deny that the photographer conceptualized, he argued that this mental labor took place before the actual production of the photograph: "The law of 1793 does not protect the labor of thought previous to execution; not that kind of invention which is the work in the mind alone, but it protects the mental labor in its material product." 79 It is in the transmission of this mental labor that Thomas finds the difference between photography and the traditional fine arts, in which "it is always the intelligence of man expressing what his intelligence has conceived, guiding his brush or his graver, and contending with them against material difficulties." 80
But how, again, is the author's "personality" suddenly found in the work? Thomas's answer is that if the painter's intellect "directed his hand," then that individual irreducible "something" may be seen as organically flowing through the body and directing the conformation of the material object or the vehicles of expression to the shape of his conception. But the personality cannot flow from the subject through the photographic apparatus. The apparatus must be circumvented. If it is not, the authorial credit is voided. Since personality cannot mix and mingle or flow through the machine in any way, it must make its mark without touching. Although the "imprint of personality" is never actually found in the work, it is everywhere else -- in choice, technique, artistic practice, and, as we will see, in the life and personal style of the artist-subject.
For Thomas, after the apparatus is set up the photographer "remains a complete stranger" to the process, because, says Thomas, "light does its work; a splendid but independent agent has accomplished all." 81 And in support of this position the acting Imperial Advocate summarizes the decision of an 1864 tribunal, which found that "although the talent of the operator may contribute much to the success of the portraits or views which are desired, it is none the less certain that these products or views are mechanically made, by the action of light upon certain chemicals, and, in this operation, genius can have no effect on the result obtained." 82 As this decision suggests, the reticence of the French courts to understand the photographer as authoring the image may in part be explained by the competing claim for the authorship of nature, enhanced by European discourses on photography that stressed the agency of light. The version of photography as light-drawing, as the creation of nature, after all, reigned for at least twenty-five years after Louis-Jacques-Mandé Daguerre's 1839 discovery. Daguerre's perfected photographic process, as Beaumont Newhall describes it, answered the yearning for a pure image of the world produced by the "pencil of nature," an image that would be superior to the "intrusion of the pencil of man." 83 Typical of the period is one reviewer's comment on William Henry Fox Talbot The Pencil of Nature ( 1844), which praised the way the photographic plates reproduced in the book seemed "an effect of sunshine, and the microscopic execution sets at nought the work of human hands." 84 Or again, Joseph-Nicéphore Niépce, who later collaborated with Daguerre, named his earliest successful experiment heliography (sun-writing). As the title of his instructional manual attests, the human author-subject was written out of the earliest descriptions of the technology: On Heliography; or, A Means of Automatically Fixing, by the Action of Light, the Image Formed in the Camera Obscura. 85
These two features of photography -- the work of natural light and the automatic functioning of the device -- were to be reiterated often in the French legal discourse as they were in the formative stages of the technology. This version of how photography worked was reinforced in the published statements of the inventors. By Daguerre's account, the two most remarkable features of his invention were that "anyone can take the most detailed views in a few minutes" and that the daguerreotype was "a chemical and physical process which gives Nature the ability to reproduce herself." 86 But if the image were produced sheerly by the magnanimity of nature, then no requisite exclusivity could be asserted and no fortunes could be made. During the short period in French history when the unique and delicate image on tin was thought to be indifferent to the camera operator and a humanly uncontaminated product of the sun, Daguerre sold his invention to the government. 87 The means for reproducing the works of nature would belong to the French people.
Sarony's Artistry
If the photographer wanted to claim authorship in the work, he could not allow either that "anyone can take the most detailed views in a few minutes" or that the image was nature's miraculous self-reproduction. Both the claim of the machine and the claim of nature were easily dismissed. So for the latter, by the time the apparatus made "anyone and everyone" into photographers, the issue of authorship in the photo had been settled. Between photography's formative years and January 1882, when the Wilde photograph was taken, the emergence of the photographic portraitist altered the popular conception of photographic technique, so much so that by the time Sarony argued for his authorial right, he had a ready-made rationale based on an extremely lucrative trade already flourishing in Paris, London, and New York. In addition, the visual conventions and the institutional practices of portrait photography were thoroughly indebted to traditions of full-length portrait painting -- a connection reinforced by the elaborate parlorlike decor of the studios, the ritual of the sitting, and the eccentric theatrics of the photographer. These conventions and practices camouflaged the instantaneity, the effortlessness, of photographic production, but, most of all, they denied photography's multiplicity and reproducibility. As we will see, the history of photography in the nineteenth century reveals an inverse relationship between the mechanical and chemical improvements that increased the speed and ease of image reproduction and the claims made in the name of uniqueness.
The discourse on portrait photography that Sarony inherited originally centered mainly on the pose and the iconography, although sometimes the photographer is credited with using mirrors to manipulate the existing light, which, before the introduction of electric lights, flowed in from the studio skylight. 88 Borrowing the terminology of fine art criticism that photographic portraiture inherited from painting, Justice Miller agreed that Sarony was responsible for "arranging and disposing the light and shade." But curiously absent from Sarony's argument and from the discourse on photography is the labor that actually most resembled that of the painter: retouching, retracing, coloring, and, as advocated by the Pictorialists, printing and rephotographing. Equally strange is the absence of reference to chemical processes, especially given the importance in this period of the advances of the collodian process over the older wetplate process, and since the new process was having its impact upon photographer and patron alike. But the chemical processes remain the most mysterious aspects of photography in both U.S. and French legal doctrine, in part because they seemed to remain independent of the human hand, a part of nature that could not be absorbed into the process of "conception."
"Conception" was taken out of the recesses of the head and made concretely visible in the personal style and the studio manner of the photographer, who modeled himself after the artist-genius. In fact, Sarony's version of how his personal conception found form in the image resembles nothing so much as the familiar accounts of how the old masters worked with their assistants, whose work was subsumed by the great artist's conception because they "knew" what he wanted. As Sarony described how he relayed ideas to his camera operator: "If I make a position, and his camera is right, my longtime assistant here, Richardson, is able to catch my ideas as deftly and quickly as necessary." 89 If the requisite authorial "personality" could not be detected in the work itself, it could nevertheless be inferred through artistic choice and practical technique.
But especially in cases like Sarony's, the inference of personality in the work was made on and through the body of the artist himself. Napoleon Sarony, whose physical stature was similar to that of his famous namesake, cultivated a volatile temperament and a flamboyant personal style that was epitomized in the red fez he always wore and in the bold red embossed signature on his work. And Sarony's mystique was only enhanced by reports about the posing session. Crucial to the mystique of the photographer as author was the artist-patron relationship, which made up in intensity for what it lacked, compared with the painted portrait, in duration. The pioneer in this tradition of photographic portraiture was Gaspard-Felix Tournachon ("Nadar"). Nadar admitted that the techniques of photography could be easily learned, but he ascribed the superiority of his method to his artistic sensibility, which could be seen in his lighting effects but especially in his capacity for empathy. This empathetic sensibility, the "moral grasp of the subject," enabled him to draw out a likeness much as a theatrical director commanded a performance. 90 Thirteen years after Nadar opened his studio in Paris, Sarony situated his own to take advantage of the Broadway trade, and in that location he perfected the theatrics of photography and established the popularity of the theatrical photograph in the U.S. 91
It is important to distinguish between the high art aspirations and the ethereal quality of the French portrait school ( Nadar, Etienne Carjat, Pierre Petit, Anthony Samuel Adam-Solomon), on the one hand, and on the other, the theatrical photography of Sarony's Broadway studio period. Between Nadar's start and Sarony's heyday, the popular potential of portrait photography was fully realized in Adolphe-Eugène Disdéri's carte de visite, which had a short-lived success in France in the years 185460. 92 Sarony's Wilde image, however, was taken as a cabinet photograph and was much larger (5 1/2" by 4") than the tiny carte de visite that it superseded in popularity. 93 "Oscar Wilde, No. 18" is on the verge of presenting the more psychological effect made possible by placing the photographic subject closer to the camera. The cabinet card aesthetic, with its foregrounding of facial expression, was clearly distinguishable from the aesthetic of the carte de visite, whose subject was crowded into the frame stuffed with material possessions. 94 What is significant about the Sarony photographs in particular is that they represent a combination of the aesthetics of the portrait tradition and the wild popularity of the mass-produced carte de visite -- a merger that encouraged and thrived upon the emergence of the star system in the American theater. 95 In fact, what Sarony largely did was to photograph actors in their roles: Joseph Jefferson in Rip Van Winkle, Lillian Russell in Tzigane, James O'Neill in The Count of Monte Cristo, and Lily Langtry in As You Like It.
So it seems that at least two "personalities" mingled their artistry in the photographic work. But how, then, can copyright law deal with two conceptions, two labors of mind and body in the work, when this doctrine is based on a vision of the work as "one man's alone"? Why did the photographer, rather than the celebrity subject, emerge as the creator of the image? There are two broad facets of this question of two artists vying for authorship of the same image: one having to do with authorial power, the other with conventions of representation on the popular stage as they intersect with photographic portraiture. These issues are summarized in an anecdote about Sarony's posing session with the popular melodrama star Adah Isaacs Menken, who came to his studio in Birmingham, England, in 1865. Menken's reputation had been made in her role in the melodrama Mazeppa, largely because of the scandalous nature of the scene in which, costumed in pink tights and brief tunic, she rode across the stage tied to the bare back of a horse. Since 1859 she had been promoting herself with cartes de visite, which were distributed in conjunction with her performances, but she told Sarony that she had never been satisfied with the photographs taken of her in the role of Mazeppa. As Sarony recalled it, he challenged her by suggesting that she pose herself in eight images, after which he would pose her in a different eight. Much to Sarony's satisfaction, the actress was disappointed in the eight poses she had arranged herself, but she liked his arrangements, which portrayed her in stages of recline, languishing on a fur mat. 96
Posing, as Sarony's claim implies, involves placing the subject's body in front of the camera in particular positions, eliciting facial expressions, and directing bodily attitudes. In this relatively abbreviated period before shorter exposure times encouraged the myth of spontaneity and chance in photography, the photographer's work consisted, in no small part, of fixing poses that subjects might have to hold for fifteen to sixty seconds. And in this regard, the eye rest and the posing machine (appui-tête) are emblematic of the way the subject was made malleable. 97 Having one's picture taken meant being told what to think to encourage an expression and where to look while one was held in the invisible grip of the prosthetic device that shaped the body. 98 In the descriptions of the work of portraiture during the period, it is difficult to tell where the body of the subject as material for arrangement leaves off and where the "costume, draperies, and other various accessories" begin -- all of which, in Sarony's argument, are employed to the ends of "evoking representation." But Sarony's artistic practice might better be described as "provoking" a representation in his patrons, since he often threw tantrums and left the room during the photographing session if a subject refused to cooperate with his vision. In Sarony, we see the unsettling implications of the concept of artistic evocation, a concept that suggests there can be no representation unless it is summoned from the subject who, held in the posing machine, yields up an image that is extracted as though it were a confession.
The power relations at work in the posing session suggest a structure of gender relations as well. Certainly the concept of the author as father of the work, which evolved in the Romantic notion of literary genius, could only complement the powers of the new proprietal author emerging at the end of the eighteenth century. Feminist criticism has historically theorized the writer or fine artist as fathering the work by means of the phallic pen or brush and chisel. 99 In contemporary feminist theories of photographic representation, however, the camera is not strictly analogous to the writing or drawing "instrument"; it is instead a dimension of the (male) photographer's instrumental "look," which merges with the camera's view. This controlling and constituting "look," originally theorized as a gendered trajectory, requires a female body as its object. 100 Applying this theory to the power relations involved in photographic sitting, Craig Owens suggests that the photographer's command of the body before the camera produces a power differential: "If, posing for a photograph, I freeze, it is not in order to assist the photographer, it is in some sense to resist him, to protect myself from his immobilizing gaze." 101 But despite the volume of work based on the paradigm of the look in film theory, later applied to still photography, painting, dance, and even literature, little has been done to explain not the controlling eye but the controlling hand. By "controlling hand" I mean the authorial positioning work, the staging and blocking of the theatrical and the motion picture director, and the compositional arrangement of the photographic and fine art portraitist. 102 The gender analysis suggests that there is a relay from eye to hand and from there to the controlling rights in the work.
In the mid- to late nineteenth century, we still find each man entitled to claim the inert matter over which he has exerted his will, in this case the body of the subject before the camera. And in 1882 -- seventeen years after Congress had recognized copyright in the photograph on the analogy with lithography -- we see a strong case emerging for understanding the photographer as more than a servant of his technology. 103 But at least one case was made against the authorial right of the photographer on behalf of the authorial contribution of the subject in the photograph. In this particular case, Benjamin Falk, a New York photographer and Sarony's chief competition, filed suit against Donaldson Lithographic Company for producing a lithograph of the actress Julia Marlowe. Falk argued that the mass-produced lithograph infringed upon his rights to the photograph that he had taken in 1887 of Marlowe in the role of Parthenia in Ingomar, the Barbarian. Although the judge decided in favor of Falk, citing Burrow-Giles as precedent, Donaldson's case, which rested on the defense that the photograph was unprotectable because the photographer was a mechanic, contested the artistry of the photographer by proposing a competing artistry -- that of the actress. Rephrasing the argument as it was put to him, the trial judge summarized: "An examination of the photograph shows that it is the work of an artist. The question is whether the artist was Miss Marlowe, or the complainant. How far the artistic contributions are to be attributed to the talent of Miss Marlowe, it is impossible to say." 104 In weighing the contribution of each artist, the judge read the image itself in an attempt to determine the creative share contributed by each. In answer to the "test" of originality put forward in Burrow-Giles, Donaldson argued that it was "absurd to suppose that the complainant ( Falk) could have suggested to a trained actress like Miss Marlowe either costume, facial expression, or pose." And they went on to offer the testimony of a gas man working at the Bijou Theatre who had seen the actress on stage in the same pose. Further, they argued that the Greek dress was the conventional costume for playing such a part. And finally, the actress's hair was styled in the mode of the day (and therefore could not be seen as the creation of the "photographist"). 105
In support of his decision that Julia Marlowe's pose was the "work" of Falk, the judge argued that the side view represented in the image could only be a pose produced by someone other than Marlowe, who could not have judged on her own how to turn her body or raise her hands "so that the lights and shadows might best reveal the beauties of face and figure." Finally, the judge discovered, in a comparison between two photographs of Marlowe in similar poses, that Falk's interpretation could be detected: "[I]n the one, a pretty woman is standing for her picture; in the other, she has lost her personality in the character she has assumed, as interpreted in the pose chosen by the complainant." 106 The question here is "whose interpretative artistry" is at work? If the photographer emerges here as author with such ease, it may be because of the irony that the personhood of the photographic subject is made invisible by the artistry of the actor who convincingly portrays a character. 107 Later in history, this artistry would have to be reasserted, as I will discuss in later chapters. This uneven relationship between photographer and photographed in the theatrical portrait business before the turn of the century is paralleled by the economic relations that obtained between them. Lithographers and photographers who claimed authorship in their work on the basis of originality and singularity were nevertheless artist and industrial mass producer in one. They sold theatrical photographs wholesale to salesmen who turned around and sold them in theaters and hotels or by mail order. 108 But, most important, photographers such as Falk and Sarony could make fortunes in this business because they retained the copyright in the theatrical portrait long after actors had contractually signed away any rights they might want to claim. Some actors received royalties later, but the most popular personalities (whose images were called "sure cards" in the trade) often had to be paid royalties in advance. A few of the spectacularly famous commanded large payments for sitting, and in effect challenged, in economic terms, the singular authority of the photographer. Actress Lily Langtry, for instance -- to whom Sarony paid $5,000 for exclusive rights to her image -- would not be melded into the photographer's interpretation of her, and she was reputed to have uncooperatively asserted her own vision during sittings. 109
We still need to comprehend the potency of the ideology of authorship, which, after dismissing the challenge posed by a technology that recreated the world, would successfully assert itself over the evidence made visible on the face and surface of the work itself. While the subject-sitter posed the greatest threat to the fatherhood and legal subjecthood of the artist, the power relations between the two could be adjusted in favor of the artist by means of the contract. And in their indifference to similarities between works, both aesthetic theory and intellectual property doctrine have ignored generic or conventional features in favor of differences between works, distinguishing marks that could be attributed to an artistoriginator. By the next century, intellectual property doctrine would become so accustomed to similarity that it would pretend less and less to find distinctions in the work and would be satisfied more and more with the mere fact of origin in the settlement of disputes.
This development should not be surprising, because what the notion of authorship always denies, as Foucault reminds us, is intertextuality, the connections between works. 110 The very concept of authorship overrides the generic and conventional indebtedness that would mark works as the product not so much of individuals as of societies. What the case for authorial copyright in the theatrical portrait must deny is the connection between the photographer's image and theatrical acting styles, the existence of a ready-made character (already invested with meanings), and iconographic conventions (a hybrid mix of high and low art). As in traditional aesthetics, these low origins are denied in the emulation of high art. And in the legal commentary on the Oscar Wilde photograph, the same holds true: Outside allegiances to popular conventions are overruled in favor of commonalities with the style of portrait painting that the photograph emulates.
In the arguments for their authorship of the pose, for instance, photographers Falk and Sarony cannot admit the influence of the traditions of melodramatic acting style, which dictated the fixedness of the actor's body, nor can they acknowledge the theatrical convention of concentrating emotional material in the fixed pose, the better to provide a summary for the audience. And perhaps the characteristic vacant look of the subjects of these photographs (in which we see more eyeball than pupil) may be attributed not only to the bodily rigidity required by the slower camera lenses but also to the tradition of acting as a kind of embodiment in which the physique was puffed up with emotion as a balloon with air. 111 (Hence the hardness and the absolute solidity of these bodies before Sarony's camera.) And perhaps it was the Delsartian method of acting, so popular at the time, that made each pose equal to an entire separate emotion, so that in this hieroglyphic language each stance was eloquent and complete unto itself. 112
Most of all, though, there is in Sarony's work from this period the unmistakable echo of the theatrical poster -- that vehicle for publicizing popular amusement that tended toward the hyperbolic -- its imagery bulging with connotations. In Sarony as well there is a strong tendency toward the broad and the overblown in his more intimate portraits, many of which would have been sold outside theaters as companion pieces to the theatrical poster. In both works, the uses of costume and props (accessories) depend upon the widest knowledge of social types. The circus performer is summarized with the trapeze and the strong man with a leopard skin, the actress playing Lady Teazle in The School for Scandal is more powdered wig than face, the Shakespearean actor sits in a sixteenthcentury chair, the actress in Greek dramas is photographed beside ivyentwined columns, and the poet Wilde holds a leather-bound volume. Typification may speak more loudly than individuation (as it characteristically does in popular forms), and it is no wonder that we see the broad gesture and the emblematic accessory in the photographic portraits of Napoleon Sarony, who in his earlier lithographic work, in fact, helped to define the aesthetic of the theatrical poster in the U.S.! 113
But there was no ready-made discourse of prestige or property attached to Sarony's skill as a showman or his success as a mass producer. For the prestige that went with it, he increasingly identified himself, even as he brought suit against Burrow-Giles, with the Aesthetic Movement in photography. His homage to the full-length portrait in the style of Sir Joshua Reynolds and Thomas Gainsborough was certainly in the spirit of the Pictorialist emulation of the old masters. And in 1870 he was, in fact, compared to Rembrandt:
Discarding those few formal poses so familiar and so oppressive in photographs, he is able to make true and characteristic portraits in positions so various and so free that they rival not only those of the portrait painters, but those in which figures are represented in genre or historical paintings. He is master of light and shade, and produces heads which repeat the startling effects of Rembrandt's etchings with a truthfulness to the facts of nature that Rembrandt in the attainment of his effect sometimes disregarded. 114
The rhetoric of Henry P. Robinson Pictorial Effect in Photograpby ( 1869) was available at the time, and Sarony's work went on to follow the pattern set by those Pictorialists who transcended photography by reworking the mechanically produced image by hand as though it were a drawing or a painting. 115 Although much of Robinson's unusual work was created by exploring the technology -- by rephotographing and reprocessing -- Sarony preferred "photo-painting" -- elaborate hand-coloring and retouching. 116 Two years before he died in 1896, he published the portfolio Sarony's Living Pictures, which was considered superior to his theatrical portraits -- but as much because of the classical subject as his own handpainting technique. 117 Finally, Sarony's own tortured outbursts attest to the degree to which the photographer must have been fatally summoned by the discourses on art circulated by the Pictorialists of his time: Think what I must suffer . . . fancy my despair. All day long I must pose and arrange for those eternal photographs. They will have me. Nobody but me will do; while I burn, I ache, I die, for something that is truly art. All my art in the photograph I value as nothing. I want to make pictures out of myself, to group a thousand shapes that crowd my imagination. This relieves me, the other oppresses me. 118
The courts may have technically settled the question of artistry in the photograph, but the aesthetic debates in both Europe and the U.S. would continue for almost a century, "devious and confused," as Walter Benjamin has described them. 119 In arguing for the analogy between the photograph and the painting, in attempting to establish photography as an art form, early theorists of the photograph made a strategic but predictable error. As Benjamin points out, their position was doomed from the outset, "for they undertook nothing less than to legitimize the photographer before the very tribunal he was in the process of overturning." 120
Sandwich Man for Authors' Rights
More than a century after Burrow-Giles, what strikes us first about the portrait of Oscar Wilde, as I have said, is the cardboard pose he assumes. We now know that the argument for authorship in the image hinged on Sarony's "posing the said Oscar Wilde" as well as his "disposing the light and shade." Such findings led the Supreme Court to conclude that the image of Oscar Wilde was an "original work of art," the product of Sarony's "intellectual invention" in a category in which he could claim exclusive right. But what also strikes us more than a century later is that while "Oscar Wilde" is represented by his photographic image, the photographer is represented by the signature "Sarony" in the lower left-hand corner. What does the one author have to do with the other? Both subjects have by now vacated the image itself as well as the right to it, so why is it, then, that this particular photograph should still stand for ownership in the image? Why is it reproduced on a full page as an illustration accompanying the text of Burrow-Giles in the leading law school casebook on U.S. entertainment litigation? 121 The answer is in the posture, the position, the pose.
It is well known that Oscar Wilde's famed 1882 lecture tour of the U.S. grew out of producer D'Oyly Carte's use of him to promote the New York production of Gilbert and Sullivan Patience. London theatergoers would have known that the Reginald Bunthorne character in the play was a caricature satirizing Whistler and Wilde as representatives of the excesses of the new Aesthetic Movement. But since the debates that inspired the mockery were unfamiliar to Americans, Wilde's tour was devised to supplement their knowledge, if not to pique their interest in cultural diversions imported from Britain by introducing them to Wilde as entertainment in and of himself. The British press may have lampooned D'Oyly Carte's intention to use Wilde as "a sandwich man for 'Patience,' " 122 but one account of the tour suggests that D'Oyly Carte's sponsorship of Wilde helped to reinforce the producer's ownership in the Gilbert and Sullivan property in the absence of American recognition of his copyright. Wilde was positioned to guarantee the originality of the Carte production against the pirated versions that were inevitabilities in New York. 123
But if Wilde's pose was a front for Carte's theatrical copyright, in another way it was a promotion for Sarony's photographic copyright, and in this it functioned as an advertisement for authorship in the work. And it is in this sense that we might say that Wilde was a "sandwich man for authors' rights." Wilde's lecture tour is a remarkable example not only of how elite culture discourses on authorship depend upon the discourses of the popular but also of how the very circulation of elite culture en masse threatens to turn it into its opposite. For as Wilde took the attitudes of elite culture to American town halls and literary societies, he became the subject of parody in the local press, where cartoonists produced the long hair, velvet jacket, knee breeches, silk stockings, and lilies as popular signs of "affectation." At least three popular songs were written about him, and his poems were pirated and sold for ten cents a copy. 124 From the moment he arrived in New York and announced to the customs officer, "I have nothing to declare but my genius," he began to produce signs that could be doubly inflected as either a proclamation of intellectual superiority or a caricature of that proclamation. Wilde encouraged the production of the literary figure as celebrity in his remarks about the requests for autographs and locks of his hair, 125 and his dedication to "assuming a pose" tells us that he constructed himself as a "work." 126 But my main point is that Wilde could not have been thus constructed without the public articulation of the eccentric artist-type that preceded him. The 85,000 unauthorized photographs in circulation actually advanced not only Wilde's cause but also Sarony's in the long run, because they helped to popularize a paradigm: the opposition between the original and its copy. Wilde was the original for the Bunthorne "copy" of himself and for all those popular parodic copies of the artist type. He was also the source of "original" ideas and sayings that no other man or woman could utter without laying himself or herself open to the charge of having copied Wilde. And finally, Oscar Wilde is aligned with the original negative from which thousands of copies were printed -- some of which became the "originals" from which the 85,000 infringing copies were produced.
But that is not all. The existence of a property to be exchanged requires a subject in law. An object is not property unless it is produced by a (creative) subject -- by an author who intervenes in the mechanical-industrial production of the photograph, who "invests" his personality in the real before the camera. Without this "investment," the product of nature and the machine could not be claimed as private property. And although property in the self can be transferred to another party via a contract (so that the facial image may be owned by a second legal entity), the legal subjecthood of the person in the image still stands as a guarantee of personal property right in the abstract. In Edelman's theorization, because both photographer and photographed are in possession of themselves (and can sell their labor power), each can claim property in the image that contains "personality." As Kingdom and Hirst comment on the paradox: "The logic of the right of the photographer over his photograph also sanctions the right of the photographed over his image. In both cases the right derives from the subject being always-already possessor of itself and its attributes." 127 The author-subject in law, in other words, is a position-holder who makes ownership possible. So it is that Oscar Wilde's own subjecthood in the photograph secures Sarony's copyright in the photograph because they both inhabit identical positions as subjects in law.
But in American copyright doctrine, this legal position-holder produces its antithesis: the author-subject is evacuated from his privileged position in relation to his product. The photographic image may be owned by a second, succeeding party by virtue of the property-producing individuality of the first. There is a contradiction lurking in this formula, and we glimpse it in the foreseeable possibility that the creator might sell an "original work" and then try to reclaim it on the basis that it was his personality that made the work protectable in the first place. This hypothetical scenario, in fact, was tested in a 1914 copyright dispute that confirmed ownership over authorship in the photograph in U.S. intellectual property doctrine. In Gross v. Seligman, the photographer-artist Rochlitz posed a nude model sitting in profile with her arms around her knees. He sold the rights to this photograph, which he called "Grace of Youth," and it subsequently became popular. Two years after he took the first photograph, the artist produced a second photo, "Cherry Red," using the same model in a similar pose, but this time she held the stem of a cherry in her mouth. The owner of the "Grace of Youth" copyright sued the publisher of "Cherry Red" for infringing his right, arguing that the second photograph was not a new and original conception, but rather a copy of the first. The appeals court upheld the owner's argument. 128
The court's decision was based on the premise that the photographer did not create a new image but copied one that no longer belonged to him, even though it was originally his own creation. To quote the court, "The identity of the artist and the many close identities of pose, light, and shade, etc., indicates very strongly that the first picture was used to produce the second." 129 The same signs of artistic conception (posing, the arrangement of "light and shade") used in Burrow-Giles to argue for the creativity of the photographic work are used to prove "copying." Here originality is suddenly turned against the originator. The artist's first exercise of individuality (the wedge into the work that makes it possible for the owner to charge the artist with infringement) makes it impossible for the artist either to produce or to reproduce the second original conception. 130
From the point of view of Edelman's theory, then, the "Oscar Wilde" before the camera inhabited a cardboard position: the subject in law. Because his right to property in himself mirrors the photographer's right to property in his product, Oscar Wilde, too, is a place-holder for capital. Now the most difficult question of all: To what degree does this category of legal subjectivity impinge upon other categories of subject construction outside the law? What, for instance, does it have to do with the position constructed for the ideal subject viewer in representation? And what, if anything at all, does this have to do with what has been called the deconstructive turn of the gay sensibility and the transgressive edge of Wilde's fiction as well as his criticism, asserted with even more radical significance in his outrageously unconventional life-as-work than in his "life's work"? Does Wilde's embrace of the "pose" as a way of life and as a critical category suggest a detachability from legal categories as well as from the categories of "masculinity" and "femininity" proposed for us, to us, in representation? 131 Is it possible that we may be more thoroughly inscribed in and through one kind of position than in and through another? That whereas (because of the distanciation of a gay sensibility) one might refuse the culture's proffered positions of sexual difference, one might still be repositioned as a legal subject whose separate self-possession is requisite to the functioning of not only the legal system but the capitalist state itself? Aesthetic and legal discourses meet again and again in the photograph at different historical junctures. Do they confirm or undo one another? At the same time that the photographic portrait appears as the fundamental confirmation of self-possession (the proud banner and badge of property in the self), do the multiple selves we have via the photographic image destroy the old self-containment of the (humanist) self we thought we had?
