Photographs Depicting Factual Content Not Enough For Copyright Infringement

A famous photograph depicting a man wanted by the FBI (for child abduction; passing as a member of the Rockefeller family, British royalty, a Wall Street advisor, and a rocket scientist)  does not have enough copyrightable elements to meet the substantial similarity test for copyright infringement when compared with Sony’s mockup of the same photograph in a made-for-TV movie.  Harney v. Sony Pictures Television, Inc., LLC, Case No. 11-1760 (1st Cir. January 7, 2013) (available here).

Freelance photographer Donald Harney photographed a father and his daughter leaving a church service in Boston in April 2007.  Later, the photo appeared in a local newspaper naming the due as Clark and Reigh Rockefeller.  The photo became a national sensation in 2008 when the father, a German citizen by the name of Christian Karl Gerhartsreiter, abducted his daughter.  Gerhartsreiter was wanted by the FBI for the abduction, for questioning on 20 year old murder in California, and for being an imposter of the Rockefeller family, a descendant of British royalty, a Wall Street advisor, and a rocket scientist.  The FBI used Harney’s photo on a “Wanted” poster, and Harney did not object to the government’s use.  Harney did license out the photo to other publications, such as the Vanity Fair magazine.  In 2010, long after the daughter was safely returned to her mother, Sony released “Who is Clark Rockefeller,” a made-for-TV movie based on Gerhartsreiter’s life and the search for the girl.  Sony recreated Harney’s photograph using the actors from the movie.  Sony’s version was only displayed for a total of 42 seconds in five scenes and for less than one second in one of 22 television commercials for the movie.

Harney sued Sony for copyright infringement.  Sony responded by moving for summary judgment, arguing that there was no substantial similarity between Harvey’s photograph and Sony’s mockup, a required element for Harney’s copyright infringement claim.  In the alternative, Sony argued that its mockup constituted fair use under the Copyright Act.  17 U.S.C. § 107.  The lower court granted summary judgment, finding that the photographs only shared “the factual content” of the scene in the photograph, “but not Harney’s expressive elements.”  Slip Opinion p. 7.  Harney appealed, arguing that the lower court misapplied the substantial similarity test because “rather than separating out the ‘independently existing facts’ contained in the photo, the [lower] court should have focused on the photograph’s unique expression of the Rockefeller saga.”  Slip Opinion, p. 21.  The 1st Circuit was unpersuaded by Harney’s argument because Sony’s mockup differed in a number of ways from Harney’s original photo:

“The background behind Gerhartsreither and Reigh consists of a leafless tree, the church spire, and a bright blue sky.  In [Sony’s photograph], nearly all of the background consists of dark leaves on the branches of a tree, with bits of white-grey sky peeking through in spots.  The papers in Gerhartsreiter’s hand are easily identifiable as the program for the service at the Church of the Advent, while the writing on the front of the papers in the actor’s hand is not legible.  Its text, however, plainly does not resemble the program held by Gerhartsreiter.  Reigh is holding up a palm leaf in her left hand, but both of the child actor’s hands are by her sides, resting on her legs.”  Slip Opinion p. 6.

“Not all copying…is copyright infringement.”  Feist Publ’ns, Inc. v. Rural Tel. Serv. Co.,499 US 340, 361 (1991).  As a result, courts have adopted the substantial similarity test.  However, using noncopyrightable elements of a copyrighted work, such as restating facts found in a news article, is permissible because the copyright protection “extend[s] only to those components of a work that are original to the author.”  Feist Publ’ns, 499 US at 348.  The 1st Circuit described the substantial similarity test as a two-step process.  First, courts must “dissect” the original work to separate the original, and therefore protected, elements from the other content.  Second, the courts must holistically compare the two works to determine if they are substantially similar.  However, in the second step, courts must give weight only to the protected material.  Slip Opinion p. 9.

As a side note to the Harney opinion, the “facts” in a photograph are difficult to discern, especially when applied to news photography because, while artists have copyright protection in the original elements of the photograph (such as the lighting, timing, or camera focus), what the photograph documents is not necessarily protected.  This is the basic idea behind copyright law: copyright protects expression, not ideas.  A good example of this is when two competing movie production companies release very similar movies around the same time.  This is permissible because the expression of the movies are different.  For example, the movie “A Bug’s Life” was released November 25, 1998 by Pixar Animation Studios, while the movie “Antz” was released October 2, 1998 by DreamWorks Animation.  Both depict an outcast ant and his struggles.  Similarly, the movies “The Prestige” and “The Illusionist” were released within two months of each other in 2006, both involving magicians, their most secret illusion, and their love interest.

The 1st Circuit in Harney analyzed the news aspect, stating that facts are not original because they are “discovered, rather than created,” and are thus in the public domain.  Slip Opinion p. 15.  However, a compilation of facts, such as a newspaper, is copyrightable because the expression of those facts is original.  Slip Opinion, p. 15.  Applying this to Harney’s photograph, the 1st Circuit noted that Harney had no involvement in the subject matter or arrangement of the photo.  Slip Opinion p. 16.  While the 1st Circuit made it clear that Harney had a copyright in the photograph and that Sony copied the photograph, the only issue on appeal was whether Sony’s mockup appropriated the original expression of Harney’s original photograph to such an extent that the two are substantially similar to support a copyright infringement claim.  Sony argued that it copied the “bare minimum” of the original, and that the only similarities are the unprotectible elements of Harney’s photograph.  Harney argued that his photograph “captivated the public’s imagination” and that Sony “took the expressive heart” from his photograph.  Slip Opinion p. 17.  This “expressive heart” is the piggyback pose of Reigh on her father’s shoulders.  However, the Circuit Court stated that this is not protectible because Harney discovered them in this pose, and that the picture does not involve “a unique or unusual moment fortuitously captured” by Harney, such as “a sailor kissing a young woman on VJ Day in Times Square.” Slip Opinion p. 25 n.10.  The 1st Circuit determined that the two photographs were not substantially similar enough to warrant a copyright infringement claim.  As a result, the Court affirmed the summary judgment in favor of Sony.

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