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 technology or could be expanded in unforeseen ways. But from the start photography was perceived to be a different kind of picture making—an easier version of an activity [painting] that had required a degree of talent and training not available to many. A World History of Photography at 39.

Painters, like many faced with the introduction of a new technology, feared the end of public interest in their art. Critics derided photography, declaring that the new medium “copies everything and explains nothing, it is blind to the realm of the spirit.” A World History of Photography at 210. Yet, some photographers’ skill inspired high praise. Critic Phillipe Burty, reviewing an 1859 exhibition of photography by Gaspard Felix Tournachon (a/k/a Nadar), wrote, “his portraits are works of art in every accepted sense of the word. … [I]f photography is by no means a complete art, the photographer always has the right to be an artist.” A World History of Photography at 72.

In the United States, some photographers quickly seized on the new medium as a means to express artistic as well as political and social sentiments. See Margaret Loke, In a John Brown Portrait, The Essence of a Militant, N.Y. Times, July 7, 2000, at E20 (describing a striking 1846 photograph of abolitionist John Brown by African-American photographer Augustus Washington, who touted his artistic skill and his intention of using that skill to contribute to the advancement of “the oppressed and unfortunate people with whom I am identified”).

The ambivalence and occasional antagonism toward photography expressed by painters and art critics spilled into the debate over whether to extend copyright protection to photographs. It was not until 1948 that the Berne Convention for the Protection of Literary and Artistic Works enumerated photography as a mandatory subject matter. Prior to that revision, protection was either on a reciprocal basis or extended only to “artistic,” as opposed to “ordinary” photographs. See Patry at 254. Even for “artistic” photographs, a minimum term of protection of twenty-five years from the making of the photographic work was not required until the 1971 Paris Text of the Berne Convention. See Berne Convention for the Protection of Literary and Artistic Works, July 24, 1971, art. 7(4) (Paris text 1971); Patry 253–254. The Universal Copyright Convention still does require protection for photographs. See Universal Copyright Convention, July 24, 1971, art. IV(3) (Paris text 1971). Article 12 of the Trade-Related Aspects of Intellectual Property Rights Agreement (part of the 1994 Uruguay Round of the General Agreement on Tariffs and Trade), allows member countries to exclude photographs from the general requirement of a term of protection of life of the author plus 50 years. See Agreement on Trade-Related Aspects of Intellectual Property Rights, Including Trade in Counterfeit Goods, MTN/FA II-A1C (1994). Only recently has international protection for photographs taken a significant step forward: Article 9 of the 1998 World Intellectual Property Organization Copyright Treaty forbids signatories from applying the Berne Convention’s Article 7(4). See WIPO Copyright Treaty, CRNR/DC/94 (1998). The effect is to extend the protection for photographs to the life of the author plus 50 years.

The dual standard applied by the Berne Convention—“artistic” photographs could be protected, but “ordinary” photographs could not—stemmed from doubts over whether photographs were the result of the photographer’s creativity or were instead the result of the technical process of photography. Those doubts took on constitutional significance in a challenge to the Act of March 3, 1865 in Burrow-Giles Lithographic Co. v. Sarony, 111 U.S. 53, 4 S.Ct. 379, 28 L.Ed. 349 (1884). In Burrow-Giles, plaintiff Napoleon Sarony was a successful celebrity photographer who produced inexpensive cartes-de-visite and larger cabinet cards favored by actors as