First Circuit Issues Copyright Decision in News Docudrama Case

Monday, January 21, 2013, by Laura Arredondo-Santisteban

The First Circuit released a recent opinion addressing issues involving copyright and news photography, arguably refusing to expand the scope of copyright protection to independently existing facts captured by photojournalists.

The case Harney v. Sony Pictures Television, Inc. involves a photograph, taken by freelance photographer Donald Harney, for news article about Christian Gerhartsreiter, famously known for presenting himself as a member of the Rockefeller family, kidnapping his daughter and leading authorities on a week-long manhunt for his capture. After his capture, Sony Pictures aired a television movie on Lifetime depicting Gerhartsreiter’s life and his identity deception. The film included a recreation of Harney’s photo, showing Gerhardsreiter carrying his daughter on his shoulders.  Harney sued Sony Pictures and A&E Television for copyright infringement, alleging that Sony’s use his photograph without his permission violated federal copyright law.   After district court concluded that “no reasonable jury could find ‘substantial similarity’” between Sony’s recreated photo and Harney’s original, it held that Sony had not violated Harney’s copyright to his work. Harney appealed the district court’s decision to the First Circuit.

The First Circuit acknowledged that Harney’s photo and Sony’s recreated image “share several important features,” by both showing a young blond girl wearing a long pink coat riding a man’s shoulders looking straight at the camera at roughly the same angle.  However, it indicated that while some of the distinctions, like the shade of pink in the coat are minor, several major distinctions in the photo are significant.  The court touches upon the fact that the backgrounds of Harney’s photo and Sony’s image are different.  “The background behind Gerhartsreither…consists of a leafless tree, the church spire, and a bright blue sky. In the Image, 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 hands are not legible.”

After finding that Harney’s photo was protected by copyright, the First Circuit stated that many of the photo’s elements, such as the clothes being worn in the photo and the daughter riding on her father’s shoulders were unable to be protected by copyright.  The court stated that those elements were “unprotectible factual components” that Harney had not chosen or arranged himself.  The court stated not all copying constitutes copyright infringement, and that “the copying must be sufficiently extensive that it renders the infringing and copyrighted works substantially similar.”

We recognize that Sony’s Image and Harney’s Photo are similar, as Sony intended. But as we have explained, the question of infringement is governed not merely by whether the copy mimics the plaintiff’s work, but also, more importantly, by whether the similarity arises from protected elements in the original.

In finding for Sony, the First Circuit stated that it sympathized with Harney, and found that while Harney created an original protected image, which cannot be reproduced in its entirety, the photo was made up of independently existing facts.  It stated that the two photos appear similar, largely due to the piggyback pose, the pose was not Harney’s creation and could, arguably, be so common that it would not be protected under copyright.  “In contrast, the important differences in lighting and backdrop render the photos aesthetically more dissimilar than similar, notwithstanding the common positioning of the father and daughter within the frame.”

Thus, the court stated “we recognize that Sony’s Image and Harney’s Photo are similar, as Sony intended. But as we have explained, the question of infringement is governed not merely by whether the copy mimics the plaintiff’s work, but also, more importantly, by whether the similarity arises from protected elements in the original.”  The court concluded by reciting that the limitation on Harney’s copyright is what was envisioned under copyright’s statutory scheme—protecting authors’ rights to their original expressions, while allowing others to build freely upon the ideas and information conveyed by their works.