“To lose one parent, Mr. Worthing, may be regarded as a misfortune; to lose both looks like carelessness. … The fact is, Lady Bracknell, I said I had lost my parents. It would be nearer the truth to say that my parents seem to have lost me.”
– Act I, The Importance of Being Earnest, 1895
“To say that it is scintillant – the one bright line and one brilliant epigram and inversion of ordinary speech into something extraordinarily comic, follows after another, is merely to repeat what has been said about the play from the beginning.”
– “Oscar Wilde Comedy Revived at the Lyceum”, New York Times, 15 November 1910
Wilde enthusiasts may recall that February 14 marks the anniversary of the debut of The Importance of Being Earnest–A Trivial Comedy for Serious People. The play opened on that date in 1895, at St. James Theatre in London. Leonard Smithers undertook publication of the work a few years later, with a first edition run confined to 1000 copies. (In 2007, the BBC reported that #349 had been found in a charity shop, “appropriately inside a handbag.”)
Copyright enthusiasts have added reason to dwell upon Wilde; his image sparked a pivotal discussion on authorship and originality, the effects of which are felt to this day. In 1882, during a lecture tour of the United States, Wilde sat for a series of photographs with celebrity portrait photographer Napoleon Sarony. When one of the photographs was later incorporated, without permission, into a department store advertisement, Sarony claimed infringement.
That the American courts should have agreed with Sarony seems no matter for surprise today. But at the time, the issue arose as to whether a photograph could be considered the work of an author and thus be eligible as copyrightable material. In The Lingering Effects of Copyright’s Response to Photography (2004), Christine Haight Farley (Associate Professor of Law at Washington College of Law, American University) examines this case against her detailed study of the culture of photography. She writes:
It is not at all surprising that the Supreme Court could appreciate the beauty of the Sarony portrait of Wilde, and with the economic interests at stake at that moment in the history of the photography industry, the result was all but a foregone conclusion. What is, however, remarkable is how the Court could seemingly articulate a standard that could differentiate between high and low art; between art and science (p.389-390).
“Oscar Wilde, No. 18.” Image courtesy of the Museum of Metropolitan Art
Farley explains that the courts were in an awkward predicament. Photography had been lauded as a mechanical process that captures a scene entirely by technology. An absence of human intervention implied an inviolate image of record. Such accuracy carried great merit, adding value to news reporting, documentary publications and evidentiary processes. To argue that a photograph be regarded as a creative work required another interpretation of photography.
The court found such an interpretation by locating creativity in the composition of the scene. According to Sarony’s own brief, he chose the lighting, props, costumes, position, and even the expression of the subject. The Supreme Court uncritically took such a proposition as evidence of authorship, but also took care to limit their decision, “… These findings, we think, show this photograph to be an original work of art (emphasis in original).” The specificity allowed other photography to remain as purely mechanical.
However, the language of the decision reveals an inconsistency within the Court’s reasoning. When refuting the argument that Congress had erred in situating photographs as copyrightable material—that the Constitutional Clause which secures “…for limited times to authors and inventors the exclusive right to their respective writings and discoveries…” does not support protection of photographs as writings—the Court identified an author as “he to whom anything owes its origin.” Yet the Court refused to entertain the idea that the composition of the picture lay in the activity at the camera, even though, as Farley writes:
The person operating the camera always exercises choice in producing a photograph. There are creative choices in the precise timing to click the shutter, the angle of the shot, the frame, the focus, the distance from the subject, the centering of the subject, etc. (p.434).
Farley continues and explains the inconsistency:
[The] Court would have some difficulty relying on this possible act of authorship because Sarony did not actually operate the camera. Sarony was not a photographer in the modern or technical sense. He was not interested in the camera work. Instead, he regularly employed a cameraman, Benjamin Richardson, to work the camera. There is no evidence that Sarony, as directorial as he was, had given any direction to Richardson about these technical choices. There is no indication that Sarony cared about that dimension of choice (p.434-435).
Biographer and historian Roy Morris Jr. indicates that, not only did Sarony not care about technique, he took pains to distance himself from such details. In Declaring His Genius: Oscar Wilde in America (2013), Morris writes:
In action, Sarony was a very hands-off photographer. He took no photos himself, delegating the task to his assistants while he gazed distractedly out the window. Nor did he develop the finished products, bragging that he did not know anything about the developing process (p.35-36).
Indeed, the developing process could also have been a place to locate creativity. As was also the selection of which photographs to register and publish. Farley explores all these avenues in detail and returns to the challenge the Court faced in ensuring photography’s standing as an untampered record of truth. Over the next century, courts would slowly recognize that the activity at the camera and laboratory had a place in the examination of authorship, but Farley’s work illustrates that the rationale employed in Burrow-Giles has surprising staying power.
Returning to The Importance of Being Earnest; readers likely know that the play marked the apex of Wilde’s career and his world would begin to unravel within a few days of the opening night. Soon after, he was charged and convicted of indecency—as per Victorian sensibilities of the day. He received the maximum sentence possible, two years of hard labour in prison, but it would be more accurate to say he received a life-sentence of permanent banishment. In a letter written from prison, he laments:
My tragedy has lasted far too long : its climax is over; its end is mean; and I am quite conscious of the fact that when the end does come I shall return an unwelcome visitant to a world that does not want me (p.22).
Sadly, Wilde’s pronouncement of the world of his lifetime proved to be accurate. Shunned and impoverished, he died with little fanfare in 1900. That his work would be held in such esteem in the century that followed, likely never crossed his mind.