Case 1:22-cv-01564-BAH Document 17 Filed 02/07/23 Page 20 of 34
term expires, the copyright term is measured from the human author’s death. Id. Nothing about Congress’s treatment of the term of protection for anonymous and pseudonymous works supports Plaintiff’s argument that Congress intended the Act to protect non-human creations.
| | | 2. | Supreme Court Precedent Supports the Office’s Decision |
The Office was correct to rely on the Supreme Court’s decision in Burrow-Giles Lithographic Co. v. Sarony, which held that photographs could be protected because they contained sufficient human creativity to qualify as “works of authorship.” Dkt. 13-8 at US_0000034. The case arose after Congress had amended the relevant copyright statute to include photographs, and the defendant had infringed a copyright in a photograph of Oscar Wilde. See Sarony, 111 U.S. at 54–55. The defendant challenged the constitutionality of the law, arguing that Congress may only protect the “writings” of “authors,” under U.S. Const. art. I, § 8, cl. 8, and that photographs were ineligible because “a photograph is not a writing nor the production of an author” because they are created by the camera. Id. at 56 (defendant argued that photographs were merely “reproduction on paper of the exact features of some natural object or of some person”). The Supreme Court disagreed, finding that the term “writings” in the Copyright Clause broadly means “the literary productions of those authors,” and “Congress very properly has declared these to include all forms of writing, printing, engraving, etching, etc., by which the ideas in the mind of the author are given visible expression.” Id. at 58.
The Court held that photographs were copyrightable creation of “authors” because they reflected creative choices by humans. Id. at 57–59. The then-copyright statute protected the creation of “authors” and the Court construed an “author” as “he to whom anything owes its origin; originator; maker; one who completes a work of science or literature” and found that photographs were protected by copyright as “representatives of original intellectual conceptions
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