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| 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.
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."
