Page:Thaler v. Perlmutter, Response to Motion for Summary Judgment.pdf/21

 of [an] author.” Id. In its opinion, the Court emphasized the photographer had a “mental conception” of the photograph, given form by decisions such as “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, and from such disposition, arrangement, or representation” creating the image. Id. at 60. Human creativity was essential: had the photograph been a “mere mechanical reproduction” that “involve[d] no originality of thought or any novelty in the intellectual operation,” then “copyright [would offer] no protection.” Id. at 59.

Contrary to Plaintiff’s argument, nothing in Sarony requires registration of the Work at issue in this case. Unlike the Work here, which Plaintiff claims was created “autonomously,” Dkt. 13-2 at US_0000001, the human photographer in Sarony made creative choices such as how he arranged the subject and altered the lighting of the scene. See 111 U.S. at 60. The Court’s ruling in Sarony was not based on a free-flowing policy exercise untethered from the statute as Plaintiff’s desired result would demand in this case. Rather, copyright law at the time “name[d] photographs among other things for which the author, inventor, or designer may obtain copyright.” Id. at 55; contra Dkt. 16 at 13 (suggesting that Sarony construed statutory text that “preceded the invention of photography”). As the Court in Sarony noted, absent human authorship, the photograph would not be entitled to copyright protection. See 111 U.S. at 60.