|To infringe or not to infringe?
What is original (and is thus protectable) and what is not in a photograph? Questions like these have troubled copyright lawyers (and possibly courts, too) since the invention of photography itself.
As this blogger learnt from The Hollywood Reporter, the First Circuit Court of Appeals has just delivered a decision addressing this Hamlet's dilemma, in little more than 6,000 words. The case is Donald A Harney v Sony Pictures Television, Inc, and A&E Television Networks, LLC, a fascinating appeal from the US District Court for the District of Massachusetts with an even more intriguing factual background.
On a sunny spring day in 2007, freelancer Donald Harney snapped a photograph of a blonde girl in a pink coat riding piggyback on her father's shoulders while leaving a Boston church on Palm Sunday.
In 2010, Sony produced a TV film based on Rockfeller's identity deception and entitled Who is Clark Rockfeller? (trailer available here). This included an image that resembled, as far as pose and composition were concerned, Harney's photograph, although a number of details was different.
Harney thought of bringing an action for copyright infringement against Sony, but the district court eventually dismissed it.
What the Court of Appeals said
According to Circuit Judge Lipez, Harney's photo and the image displayed in the film shared several important features. However, copying another's work does not invariably constitute copyright infringement, as it is permissible to mimic the elements which cannot be protected because unoriginal.
The inquiry into substantial similarity embraces two different types of scrutiny:
1) a determination as to what the original expressive elements of a work and its unprotected content are (“dissection”).
2) a holistic comparison of the two works to determine if they are substantially similar. This requires giving weight only to the protected aspects of the plaintiff's work as determined through the dissection. Substantial similarity subsists if the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook the works at stake, and regard their aesthetic appeal as the same.
According to the court, application of this principles to news photography might prove challenging, since this seeks to document people and events accurately.
In this case it was undisputed both that Harney owned a valid copyright in his photograph and that Sony had copied it.
The framing of Gerhartsreiter and his daughter against the backdrop of the church reflected a distinctive aesthetic sensibility, and Harney's artistry was also reflected in the shadows and vibrant colors in the photo. Positioning the pair in the middle of the frame as they looked straight into the camera, and at a close distance, also involved aesthetic judgments that contributed to the impact of the photograph. However,
"Harney's creation consist[ed] 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."
The court found that almost none of the protectable aspects of Harney's photo had been reproduced by Sony. Without the Palm Sunday symbols, and without the church in the background - or any identifiable location - Sony's image had not recreated the original combination of the photograph.
"Although the two photographs appear similar upon a first glance, that impression of similarity is due largely to the piggyback pose that was not Harney's creation and is arguably so common that it would not be protected even if Harney had placed Gerhartsreiter and [his daughter] in that position."