Photography has exploded into the most accessible mode of creative production of
our time: Over one trillion photographs will be taken this year. Yet despite the
medium’s dramatic expansion, catalyzed by advances in technology, the copyright-
ability of photography remains controlled by a Supreme Court precedent that is
over one hundred years old, Burrow-Giles Lithographic Co. v. Sarony. The long-
standing interpretation of Burrow-Giles in the lower courts has rendered nearly
every litigated photograph copyrightable, even though the factual foundation of
Burrow-Giles is remarkably inconsistent with how most photography is produced
today. With protracted, low-value, and often frivolous copyright litigation over
photographs increasingly clogging up federal courts’ dockets, it is high time to
reconsider photography’s copyright.
This Note argues that a revitalization of copyright’s merger doctrine—long ignored
or dismissed in the realm of photography’s copyright—could be the vehicle for this
reassessment. Theorizing photographs as mergeable does not render the medium
per se uncopyrightable, but captures the spirit of the Supreme Court’s now 150-
year-old instruction to permit photography’s copyright, while correcting for
changes in photographic technology to better uphold the Court’s simultaneous
mandate that “ordinary” photographs should not receive copyright protection.
