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They say a picture is worth a thousand words, but in the case of Donald Harney v. Sony Pictures Television, that estimation is an understatement. After taking a very close look at a now-famous photograph, the First Circuit Court of Appeals on Monday had exactly 6,208 words to say concerning what’s original and what’s not protectable about a picture snapped by a freelance photographer one sunny day in April 2007.
Donald Harney, the plaintiff, captured a photo of a blond girl in a pink coat riding piggyback on her father’s shoulders as they emerged from a Palm Sunday service in the Beacon Hill section of Boston. But the photo represented much more: the father was actually a German who had assumed the name Clark Rockefeller. He had abducted his daughter and was being sought by law enforcement.
The photo was published in a local newspaper, then used on an FBI “Wanted” poster, and soon became widely distributed in publications like Vanity Fair. Eventually, when Sony Pictures did a TV movie entitled Who is Clark Rockefeller?, which aired on Lifetime Television, an image of a girl on her father’s shoulders was featured as part of the film.
The question for the First Circuit was whether a reasonable jury could conclude that “an ordinary observer” examining the two works would see Sony’s version as a wrongful appropriation of Harney’s protected expression.
Copyright infringement cases these days are largely a dime a dozen, and judges have established a high bar before accepting a plaintiff’s allegation of “substantial similarity.”
But in this case, there was really no doubt about the similarity between Harney’s photograph and the one used in Sony’s TV movie. What made the case a little more tricky — and thus worthy of 6,208 words — was separating out the original, protectable elements from the other stuff, which First Circuit Judge Kermit Lipez likens to “facts” that, like ideas, are not entitled to copyright protection.
Judge Lipez agrees with Harney that the photograph was original and that there are elements within a photograph that are entitled to protection. These may include the photographer’s personal choice of subject matter, the angle of the photograph, the lighting, and the determination of the precise time when the photograph was taken.
But Harney demanded more, arguing that the lower court judge who dismissed the case had over-dissected his work, stripping out expression that he claimed should be protected.
Harney argued that his photo “captivated the public’s imagination” because of “its haunting depiction of the lie that was Clark Rockefeller’s life” and that “[t]he works are substantially similar because Sony took the expressive heart from Harney’s photograph.”
Judge Lipez thinks that Harney went too far.
While noting that the photographer had used “artistic flair” in his framing of the father and daughter against the backdrop of the church, the judge nevertheless adds, “Harney’s creation consists primarily of subject matter — ‘facts’ — that he had no role in creating, including the central element of the Photo: the daughter riding piggyback on her father’s shoulders.”
Harney also wanted credit for infusing the photo with an idea — the deception of the man in the center — but the judge is wary of allowing protection on an idea that gains significance only through later context. Judge Lipez writes, “The Photo of the smiling pair may be understood as an expression of that idea only when we take into account the subsequent events that revealed the falsity underlying the specific father-daughter relationship that Harney randomly documented.”
The interplay between appellant and judge doesn’t stop there.
Harney’s attorneys attempted to steer the First Circuit away from a broad ruling that would cause “every stock photograph ever taken [to] enter the public domain.”
In response, Judge Lipez says he’s sympathetic to the viewpoint and that assuring copyright protection for newsworthy subjects advances the goal of arts progress under the U.S. Constitution, but it doesn’t abrogate the responsibility of determining what’s original versus what’s not protectable, not to mention what’s a fair-use right to use a photo. The judge says that Harney’s photograph couldn’t be reproduced in its entirety without his permission, but he goes back to the question of whether Sony’s image was substantially similar to the protectable elements that can be rightfully claimed by Harney.
And he concludes that a judge was correct in dismissing the lawsuit.
He writes, “Sony copied little of Harney’s original work — only the placement of Gerhartsreiter and Reigh in the photograph — and no jury could conclude that the similarity resulting solely from that copying is substantial. Moreover, given the differences in background, lighting and religious detail, a reasonable jury comparing the entirety of the two works could not conclude that the ordinary observer would ‘regard their aesthetic appeal as the same.'”
For all 6,208 words, read here.
Email: email@example.com; Twitter: @eriqgardner
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