Originality in photographs: follow-up to Harney v Sony decision

Harney v Sony: non-infringing

A few days ago The 1709 Blog posted its analysis of a very recent US decision, in which the US Court of Appeals for the First Circuit attempted to apply basic [this does not mean uncontroversial] principles such as the idea/expression dichotomy and originality to photographs. 

Photography has been highly a controversial copyright subject-matter since its early days. Although the US Supreme Court acknowledged as early as 1884 that photographs could be regarded as protectable subject-matter, application of copyright principles to this form of art has proved inconsistent. 

The case decided on 7 January last is Donald A Harney v Sony Pictures Television, Inc, and A&E Television Networks, LLC. On Palm Day 2007 freelance photographer Don Harney took a photograph of a little girl riding piggyback on her father's shoulders, as they left a church in Boston. Harney's picture became extremely well-known, especially after it was revealed that the man portrayed in the picture was "professional" imposter Christian Gerhartsreiter/Clark Rockfeller, who abducted his daughter Reigh during a parental visit. The FBI used Harney's picture in a "Wanted" poster, and also various media widely disseminated it. In 2010, Sony made a film entitled Who is Clark Rockfeller?, based on this case. The film included an image that resembled, especially in relation to the pose and composition, Harney's photograph.

Harney initiated copyright infringement proceedings against Sony, but both the District Court for the District of Massachusetts and the Court of Appeals ruled in favour of Sony. Although it was undisputed that Harney owned a valid copyright in his photograph and Sony had copied it, both courts held that almost none of the protectable aspects of the plaintiff's photo had been reproduced by the defendant. In particular, as Sony had included neither the Palm Sunday symbols, nor the church in the background or any identifiable location, no copyright infringement was found to subsist.

Friedman v Guetta: infringing

The 1709 Blog post has attracted a series of comments thus far, including those of plaintiff Don Harney, who said:

"It is still my opinion that the court's decision was wrong. Just last year, photographer Glen E. Friedman won a case against artist Thierry Guetta, who illustrated Friedman's portrait of Run DMC. He had altered the background, just as Sony did with the image that I made. Sony had reproduced the heart of my copyrighted image, Rockfeller and his daughter, just as Guetta did with Friedman's image. The heart of an image is what copyright law has traditionally protected. There are quite a few cases which illustrate that precedent. This ruling is a real blow to professional photographers that make a living selling their images and protecting the copyrights of those images. Perhaps if I could have spent as much money as Sony on legal fees, there would have been a different ruling in this case."

To the objection raised by 1709 Blog reader David that no copyright could possibly subsist in the idea of portraying a little girl sitting on her father's shoulders Don, while adding interesting details as to the background to his case, responded as follows:

"When I first made the picture of Clark Rockfeller with his daughter on his shoulders, I had an agreement with the newspaper I was freelance shooting for, that they had a one time usage and that I owned all rights to the images that I provided to them beyond that. A year later, when Rockfeller kidnapped his daughter, the newspaper distributed the picture to news outlets and law enforcement officials without contacting me. I lost all control over distribution of my own copyrighted work. It was published all over the civilized world without my permission. After the amber alert was lifted I tried regaining control over this valuable image, and sought payment from publications that were publishing the image outside the limits of fair use ... In the case of Sony and their Lifetime dramatization 'Who is Clark Rockfeller', they admitted to copying the image I made and used it in the context of entertainment, and they profited off of that docudrama. The actors portrayed the individuals that I photographed that day. I'm sure Sony paid the photographer they hired to recreate the image and the prop people that came up with similar clothing to match my original image. Like I said before, the heart of the image was Rockfeller and his daughter Reigh on his shoulders. The background and the Palm Sunday aspect was irrelevant to me. I found him to be a strange man when I met him so the 'Diane Arbus' in me compelled me to make this picture. He did not want me to photograph him at first (for now obvious reasons), but I really worked hard to finesse him. I succeeded in taking the only picture that exists of these two individuals together that I am aware of ..." 

David remained unpersuaded and 1709 Blog reader John Walker commented that the originality of Harney's photo descends from the fact that it is an image of a man who is himself a 'fake' - if anybody has a unique right, it is surely him.

As far as I am concerned, I am inclined to be on Don's side, as it seems to me that what Sony reproduced was not just a series of unprotectable elements in his photograph.

Portrait of Natascha Kampusch
by Eva-Marie Painer

In addition, I would like to draw a parallel with EU law, as Harney's case is similar, to some extent, to Case C-145-10 Painer (here and here).

As 1709 Blog readers will remember, Austrian freelancer Eva-Marie Painer had taken several portrait photographs of Natascha Kampusch before she was abducted in 1998. After the girl managed to escape, but prior to her first public appearance, several German and Austrian publications published, among other things, Painer's shots of Natascha without asking for the photographer's permission. The Court of Justice of the European Union (CJEU) ruled that:

·         A portrait photograph can be protected by copyright if it is an intellectual creation of the author reflecting his personality and expressing his free and creative choices in the production of that photograph. 

·         The media, such as newspaper publishers, may not use, of their own volition, a work protected by copyright by invoking an objective of public security. However, it is conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of such an objective by publishing a photograph of a person for whom a search has been launched. It should be required that such initiative is taken, first, within the framework of a decision or action taken by the competent national authorities to ensure public security and, second, by agreement and in coordination with those authorities, in order to avoid the risk of interfering with the measures taken by them, without, however, a specific, current and express appeal, on the part of the security authorities, for publication of a photograph for the purposes of an investigation being necessary.

What do other readers think of this case or, more generally, of copyright issues surrounding photographs?