Photo’s Copyright Protection Not Increased by Subsequent Events

Donald Harney, a professional photographer, took the photo of a man with his daughter riding piggyback on his shoulders outside of a church on Palm Sunday on Beacon Hill in Boston.  The man told Harney that his name was Clark Rockefeller and his daughter’s name was Reigh.  The Beacon Hills Times published the photo on the front page.  About a year later, the man in the photo, whose actual name was Christian Karl Gerhartsreiter, abducted the girl, his daughter, during a custodial visit.  The FBI placed Harney’s photo on a “Wanted” poster without Harney’s knowledge or consent.  The girl was returned safely and Gerhartsreiter arrested about a week later.

The story broke that Gerhartsreiter was a professional imposter, having assumed many false identities over the years, and that he was also being investigated in connection with a 20 year old homicide.  Public interest in Gerhartsreiter’s story remained high.  Harney subsequently licensed the photo for publication in numerous media outlets.  Sony Pictures created a made for TV movie about Gerhartsreiter.  Sony recreated Harney’s photo using the actors in its movie, without Harney’s permission.  Harney sued Sony for copyright infringement.  The district court ruled that Sony’s photo was not substantially similar to Harney’s photo, granted Sony’s motion for summary judgment and dismissed the case.  On appeal, the First Circuit Court of Appeals affirmed the district court’s ruling.

Copyright Infringement

Copyright infringement involves proving 1) ownership of a valid copyright and 2) illicit copying.  Harney’s ownership of a valid copyright in the photo and Sony’s copying of the photo were not in dispute.  The only issue was whether Sony’s copying amounted to copyright infringement.  In other words, was Sony’s photo substantially similar to Harney’s copyrighted photo.

Copying the work of another does not always amount to copyright infringement.  Copyright infringement is found when the copying is extensive, to the point that the infringing and copyrighted works are substantially similar. 

We have explained that two works are substantially similar if the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.

(Opinion pdf page 10).

Copyright protects only components that are original to the author.  Copyrighted works may contain unoriginal elements that are not protected.  The court must determine, or dissect, which aspects of the copyright owner’s work are protectible and whether the alleged infringer substantially appropriated the protected elements.  This determination is called “dissection analysis.”

Determining the copyright owner’s protectible expression and whether that expression has been substantially appropriated is particularly challenging for news photos.  That’s because news photography seeks to accurately document people and events and news photographers do not have a copyright in the reality of the subject matter photographed.  However, photographers make choices about copyright protectable elements even when taking pictures of transient events. 

Photographers can also create content.  The photographer’s selection of such things as lighting, timing, positioning, angle and focus can be original elements and protected by copyright.  Posing subjects and suggesting facial countenance can also become expression protected by copyright.  

The division between the protected and unprotected elements of a photo is analogous to the copyright law division between protected expression and unprotected ideas.  When the photographer is uninvolved in creating the subject, the subject matter is equivalent to an unprotected idea.  Subject matter that the photographer did not create can also be regarded as unprotectible facts.

The choices made by the photographer to generate a particular image depicting that subject matter, however, ordinarily transform “the idea” of the subject into a protectible expressive work.

(Opinion pdf page 14).

The First Circuit’s dissection analysis.  Harney’s artistic expression involved framing Gerhartsreiter and Reigh against the backdrop of the church, the shadows and vibrant colors of the photo and placing the two in the middle of the frame at close distance while they looked straight at the camera.  The First Circuit determined that “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.”  (Opinion pdf page 21).

Harney argued that “the district court should have focused on the photograph’s unique expression of the Rockefeller saga” and that there were no unprotectible elements in his photo that should have been excluded from the substantial similarity analysis.  He argued that the dissection analysis, i.e., separating the unprotectible elements from the protectible elements in the photo, should not be done.

The First Circuit rejected Harney’s arguments.  Firstly, Harney’s argument would have required the court to ignore precedent.  Only unlawful copying is penalized.  The court must perform the dissection analysis to identify the unprotected elements.  Secondly, Gerhartsreiter’s deception is an idea that Harney asked the court to protect, but the idea did not originate with Harney and is not apparent from the photo.  Gerhartsreiter’s deception is not a protectible idea.  The court refused to expand Harney’s copyright protection based on later events.  The ability of a photographer to exploit the value of his copyright in a photo when the photo later becomes significant does not change the originality, or lack thereof, of the components of the photo.

We do not see how subsequent events can fortuitously transform unoriginal elements of a visual work into protectible subject matter.

(Opinion pdf page 25).

The First Circuit’s substantial similarity analysis.  The First Circuit determined that almost none of the protectible aspects of Harney’s photo were copied by Sony.  Sony’s photo did not include the church in the background, an identifiable location or Palm Sunday symbols, such as the program for the church service held in Gerhartsreiter’s hand or the palm leaf held up in Reigh’s hand.  It did not recreate Harney’s combination of father-daughter, Beacon Hill and Palm Sunday.  The impression of similarity between the photos results from the piggyback pose, which was not created by Harney and is so common that it might not be protected even if Harney put father and daughter in that pose.  The photos also differ in lighting and color, Harney’s featuring vivid colors, while the Sony photo appears washed out.  Both photos place the subjects in the center of the frame, but that element was minimally original and by itself, was an insufficient basis upon which to find substantially similarity.

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.

(Opinion pdf page 30).

This case is Harney v. Sony Pictures Television, Inc., No. 11-1760, First Circuit Court of Appeals.  The two photos are shown on page 32 of the court’s opinion.

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