State v. Charles Conroy: New York City Photographers' Battle for Free Speech in the Late Nineteenth Century

In 1884, photographer Napoleon Sarony won an important victory in the United States Supreme Court. The case began when Sarony sued the Burrow-Giles lithographic firm for printing 85,000 unauthorized copies of his portrait, Oscar Wilde, No. 18 [figure 1]. In creating his masterpiece, Sarony had put to use his famous innovations in staging and styling subjects, and orchestrating dramatic compositional and lighting effects. On March 17, the court recognized and rewarded those artistic efforts when it ruled in Sarony's favor. To justify its decision, the court quoted Nottage v. Jackson, a British court decision of the previous year, in which "Lord Justice BOWEN [said] that photography is to be treated … as an art, and the author is the man who really represents, creates, or gives effect to the idea, fancy, or imagination."¹ This deference to British jurisprudence may seem unusual so late in the nineteenth century, but in fact American courts at the time still relied substantially on English Common Law, which had served as the basis for the American legal system since the colonial era. In importing the language of Nottage, the Supreme Court handed a great victory not only to Sarony but also to the nation's photographers: For the first time, the law recognized that they were "originators" of intellectual property, and therefore deserving of copyright protection for their works.²

While the Burrow-Giles case has been widely discussed, what is much less well known (indeed, not discussed in scholarship at all previously) is

Figure 1.

Napoleon Sarony, Oscar Wilde, No. 18, 1882. Albumen silver print, 30.5 x 18.4 cm. Gilman Collection, Purchase, Ann Tenenbaum and Thomas H. Lee Gift, 2005. Metropolitan Museum of Art.

that Sarony was back in court just eight months later, this time protesting an obscenity trial in concert with other New York City photographers. This criminal prosecution today is almost entirely forgotten; however, in several ways, the case of New York v. Charles Conroy was equally important in establishing the rights of photographers in that moment of time. Conroy effectively galvanized photographers to go one step further than Burrow-Giles and assert their own distinct professional expertise in recognizing art in their field, rather than ceding such determinations to government censors, judges, or juries. Recovering the lost history of New York v. Conroy permits us to celebrate the contribution of New York City photographers to the cause of expanding artistic freedom in the United States, and to explore the role this case played in the expansion of copyright protection to a broader array of creative works.

Figure 2.

Jose Maria Mora, Self-Portrait, ca. 1885. Albumen print, 13 x 7 1/2 in. Museum of the City of New York.

The event that triggered N.Y. v. Charles Conroy occurred on November 24th, 1884, when Anthony Comstock arrested an old nemesis on the charge of distributing obscenity. The item that triggered Comstock's prosecutorial ire was a single photographic actress card depicting Annie Sutherland, taken by the photographer Jose Maria Mora [figure 2]. Newspaper readers across the country knew Anthony Comstock quite well. As Secretary of the New York Society for the Suppression of Vice and an Inspector for the United States Post Office Department, Comstock held broad authority to prosecute obscenity crimes. His powers stemmed from both state and federal laws passed beginning in 1873 that designated many more images and objects, birth control, and abortifacients obscene and therefore illegal, but also for the first time created an infrastructure for policing these alleged crimes.

New Yorkers who read the newspapers regularly also knew Charles Conroy. For decades, he had been in and out of court for the crime of peddling obscene books and photographs from a street stand on Broadway and West Fourth Street. His alleged crimes were hardly unusual, but he was particularly notorious in Gotham as the defendant who sliced a four-inch gash deep enough into Comstock's...