Plaintiff Donald Harney, a freelance photographer, brought a copyright infringement action against Sony Pictures Television and A&E Television Networks, LLC, asserting that an image depicting his copyrighted photograph that appeared in defendants’ made-for-television movie infringed his photograph. The district court granted defendants’ motion for summary judgment, finding very few shared protectable elements between defendants’ re-created image and plaintiff’s photograph and holding that no reasonable jury would find substantial similarity between the works. (Read our summary of the district court’s decision here.) Plaintiff appealed and the First Circuit affirmed.
Plaintiff, on assignment for a newspaper, snapped an unposed photograph of a blond girl in a pink coat riding piggyback on her father as they emerged from a Palm Sunday church service in the Beacon Hill section of Boston in April 2007. The girl sat on her father’s shoulders holding a palm leaf and the father held a church service program. Plaintiff placed the pair at the center of his photograph, making them visible from the middle of the father’s chest upward, and against the background of a tree and church steeple, which appear above the father and daughter. The plaintiff also took the picture using a flash, and shadows are visible within the frame. The newspaper published the photograph with an accompanying caption about Palm Sunday, identifying the father as Clark Rockefeller. Within the year, the father-daughter pair became the center of national law enforcement and media attention when the father in the photo abducted his daughter and fled Massachusetts during a custody visit. In the subsequent search for the pair, authorities discovered that the father, who claimed to belong to the Rockefeller family, was really a professional imposter from Germany named Christian Gerhartsreiter. The FBI used plaintiff’s photograph in its wanted poster, and the news media widely distributed the image in the course of covering the saga.
Sony produced a made-for-TV movie about Gerhartsreiter that aired on A&E. In the movie, defendants depicted the role that plaintiff’s photograph played in the manhunt by re-creating the image using actors portraying the father and daughter, clothed and posed in a manner similar – but not identical – to the way that Gerhartsreiter and his daughter appeared in plaintiff’s photograph. In particular, in the movie image the daughter did not hold a palm leaf, the father did not hold a church program, the background of the tree and church was absent, and the specific lighting and shadows that plaintiff had created were missing.
In granting summary judgment, the district court found that the movie image did not copy protectable elements of the photograph. According to the court, many of the elements of the photograph, including the pair’s clothing and their unscripted poses in the photograph, were not protectable because they were simply facts that plaintiff recorded but did not create, and many of the arguably protectable elements of the photograph – plaintiff’s choice of the tree and church as the background, the lighting and the shadows – were absent from the movie image. The only shared element of the work that arguably was protectable was plaintiff’s positioning of the father-daughter pair in the center of the photo, which the court found to be “an element of minimal originality” that could not give rise, on its own, to an infringement claim.
On de novo review of the district court’s grant of summary judgment, the First Circuit agreed that only plaintiff’s expressive choices, not the subjects of the photograph (the father and daughter) nor the undirected arrangement of those subjects (the daughter on her father’s shoulders, their clothes, the items they carried and their location) were protectable. The court further concluded that while plaintiff’s photo did include protectable creative expressions, including the lighting, the use of shadows and the inclusion of the background, the movie image included only one of those protectable elements, the placement of the subjects in the center of the frame, with only parts of their bodies depicted. However, the First Circuit agreed with the district court that this shared element alone could not support a finding of substantial similarity. “Sony copied little of Harney’s original work – only the placement of Gerhartsreiter and [his daughter] in the photograph – and no jury could conclude that the similarity resulting solely from that copying is substantial. Moreover, given the differences in background, lighting and religious detail, a reasonable jury comparing the entirety of the two works could not conclude that the ordinary observer would “regard their aesthetic appeal as the same.”
On appeal, plaintiff argued that the district court’s dissection analysis – discerning the protectable, expressive elements of the photo from the unprotectable, factual elements – was inapposite because Sony copied the photo’s expression of “the Rockefeller story” and not simply the factual content of his photograph. The court disagreed for several reasons. First, plaintiff’s argument “leaves no room for the dissection analysis that our precedent prescribes …” Second, the court reasoned that plaintiff’s argument amounted to an effort to enlarge the scope of copyright protection by attributing to the photo an idea – Gerhartsreiter’s deception – that is not discernible from the image itself, did not originate with plaintiff and can only be discerned in light of events that happened after Harney took the photo. “The idea of the deception, of course, is not itself protectable. The photo of the smiling pair may be understood as an expression of that idea only when we take into account the subsequent events that revealed the falsity underlying the specific father-daughter relationship that Harney randomly documented.” After-the-fact interest in the photograph does not alter the originality of those individual components of the work and change plaintiff’s creative contributions to the photo. “[R]ecalibrating a work’s originality based on a new idea of what it expresses would undermine the distinction that remains between ideas and expression in visual works. In short, we do not see how subsequent events can fortuitously transform unoriginal elements of a visual work into protectable subject matter.”
For similar reasons, the court also rejected plaintiff’s argument that the pose of the subjects, which was copied in the movie’s re-created image, was the “expressive heart” of the photo and should be entitled to copyright protection. “[A]s we have explained, any expression of the Gerhartsreiter story seen in the photo is attributable not to the photograph itself but to unrelated news events that associated the photo with the new idea of deception. That new association did not, however, change the character of the photo’s unprotectable factual components.” Without the symbols of Palm Sunday or the church or any identifiable location in the background, the re-created image does not re-create “the original combination of the father-daughter, Beacon Hill and Palm Sunday.”