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| Harney v Sony: non-infringing |
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.
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| Friedman v Guetta: infringing |
"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.
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| Portrait of Natascha Kampusch by Eva-Marie Painer |
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?
