Sunday 13 January 2013

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?


andy J said...

I think it is essential to distinguish the principal fact in Painer with that in Harney v Sony, namely that in Painer it was facsimile copying: it wasn't substantial, it was the complete original Painer image which was copied without (UK) adaptation or (US) derivation.
In Harney absolutely no actual part of Harney's image was copied in a facsimile sense; what was at issue was the extent to which compositional elements from the original idea and expression of that idea were reproduced. In this respect Harney is similar to the so-called Red Bus case.
This difference is at the heart of the idea/expression dichotomy. If I copy something using a photocopier then I have copied the expression and barring any fair dealing / fair use exemption, it is unlikely that my facsimile copying can be anything but infringing. So it was in Painer, and what the court in that case had mainly to look at was a largely undefined public interest/public policy defence. Had Harney sought to go after the FBI for its reckless use of his image then yes, that would have had some parallels with Painer. But he did not, and he has helpfully explained why he didn't. But that has nothing to do with his case against Sony et al.
Many photographers hold the view that there is really very little subject matter that is truly 'new' in photography. It may be that technology allows us to record things in a different way but in everyday images it is hard to come up with a completely fresh way of viewing something we have all seen a hundred times. I would wager that the child on the father's shoulders type of image can be found in family albums from the dawn of photography over 175 years ago. To be fair Harney doesn't claim his is original in that sense. His claim lies in the detail - a claim which first the District Court and then the Court of Appeal rejected after thorough examination of the elements at both the micro and macro level (the Court of Appeal used 'forest' and 'trees' for their analogy).
Much was made of the fact that Sony admitted that they set out to replicate the feel of the Harney image (just as it was admitted in the Red Bus case that New English Teas has set out to replicate the feel of the Temple Island image). But is this really a relevant factor? Both here and in the US, copyright infringement is matter of strict liability; there is no defence in not knowing that copyright in the original existed. So conversely, I would argue, mere knowledge that copyright exists in an image and deliberately trying to avoid direct copying of the expression while exercising the acknowledged legal right to copy the idea, should not weigh against the defendant.
Perhaps I can put my point in a different way. If Gerhartsreiter/Rockfeller were to go on the run today, which of the two images do you imagine the FBI would want to use on their posters? In that sense the Sony image is not a copy of the Harney image. The same cannot be said of the two images in the Guetta RunDMC case, where either would probably be acceptable for a wanted poster.

Eleonora Rosati said...

Thank you very much for your thorough comment, Andy, although I still think that the Harney and Painer are comparable to a certain extent:

1) Painer was not just about facsimile copying, as some of the defendants also published a photo-fit, which had been created by computer from Ms Painer’s photographs

2) Besides FBI, many publications used Harney’s photo. I am sure that not always such uses could be classified as fair use. Similarly, in Painer the CJEU made it clear that public security-related objectives did not grant per se the right to divulge Natascha Kampusch’s photograph. This said, I agree with you - as did Don in his earlier comments - that this had nothing to do with the case he brought against Sony.

3) Finally, as to the question whether the FBI would use Harney’s photo of Rockfeller or the image included in Sony’s film, well … In any case, copyright infringement does not require exact copying …

Anonymous said...

as the creator of all this kerfuffle, can I just say I agree completely with Andy J!

Friedman is clearly a 'copy', there are protectible elements reproduced in the second photo. If I asked three of my friends to pose in that way (and perhaps put them in similar hats) then there would be nothing infringed im(v)ho.

David said...

sorry, finger error I didn't intend that to be 'anonymous'!

Donald A. Harney said...

Okay, Let me set the record straight here. Sony made a derivative work from my original image for use in the Lifetime docudrama "Who is Clark Rockefeller".
"Only copyright owners have the exclusive rights to produce derivative works based on their original copyrighted works. If the original isn't yours and you don't get permission to use the original from its' creator then you are infringing that author's copyright."
Sony / A&E could have easily contacted me to get permission to make a derivative work from my picture. They did not.
For those that are not familiar with this legal concept of "derivative works" I quote the law 17 USC 101 - Derivative work is defined "as a work based upon one or more pre-existing works, such as translation, musical arrangement, dramatization, fictionalization, Motion Picture version, sound recording, art reproduction, abridgement, condensation, or any other form which a work may be recast, transformed or adapted."
That is COPYRIGHT LAW. Sony clearly translated, dramatized, fictionalized my copyrighted work and made a motion picture version of it for use in their interpretation of events surrounding the two individuals that are the heart of my copyrighted work. FBI distribution the image and family photos of kids riding on their dad's shoulders aside, Sony actually admitted that their intent was to copy my image. They didn't make a comment about the image or satirize the image (see Rogers v. Koons), they created a derivative work. This dialectic debate will go nowhere if it is merely discussed on a superficial knee jerk reaction without digging in to the subtle nuances of Copyright law in relation to derivative works. Yes, the court ruled against me, and it looks like some are happy about that outcome because it can now be unfortunately used as a precedent in future cases, though it completely disregards the "derivative works" element of copyright law enforcement.

Don Harney

TARA said...

I think between all the arguments, this one is one important one "Sony / A&E could have easily contacted me to get permission".
The Rockefeller photograph is not any photograph of a child on his father's shoulders. The documentary is related to the subject of the photograph, re-copying the idea.
Should this idea be an exclusivity of the original author? Where is the justification? The copyright protection justification is economic in UK and US common Law system. Donald Harvey is professional photographer, he has been remunerated for his photography originally. Is he entitled to any further retribution for derivative work? if this means only in the case of further commercial use of this work, a commercial entity such as Sony - very eager himself to make its copyright respected, they should have either ask permission, acknowledge the author or pay for using the copyrighted work as a derivative work. This does not mean any idea should be copyright protected. Only in cases where the support is derivatively reproduced, otherwise no one would be allowed to take a picture of any child on any adult's shoulders, It is clear that what the documentary did was more than 'deriving' from the original photograph keeping the same context.