quickly copied one of Sarony's photos and sold 85,000 prints without the photographer’s permission. Burrow-Giles defended its conduct on the ground that the photograph was a "mere mechanical reproduction of the physical features" of Wilde and thus not copyrightable. Burrow-Giles, 111 U.S. at 59. Recognizing that Oscar Wilde's inimitable visage does not belong, or "owe its origins" to any photographer, the Supreme Court noted that photographs may well sometimes lack originality and are thus not per se copyrightable. Id. ("the ordinary production of a photograph" may involve “no protection” in copyright). At the same time, the Court held, a copyright may be had to the extent a photograph involves "posing the said Oscar Wilde in front of the camera, selecting and arranging the costume, draperies, and other various accessories in said photograph, arranging the subject so as to present graceful outlines, arranging and disposing the light and shade, suggesting and evoking the desired expression . . . . " Id. at 60. Accordingly, the Court indicated, photographs are copyrightable, if only to the extent of their original depiction of the subject. Wilde's image is not copyrightable; but to the extent a photograph reflects the photographer’s decisions regarding pose, positioning, background, lighting, shading, and the like, those elements can be said to "owe their origins" to the photographer, making the photograph copyrightable, at least to that extent.
As the Court more recently explained in Feist, the operative distinction is between, on the one hand, ideas or facts in the world, items that cannot be
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