Professional freelance photographer Donald Harney took a
picture of “a blond girl in a pink coat riding piggyback on her father's
shoulders as they emerged from a Palm Sunday service in the Beacon Hill section
of Boston.” A year later, the subjects “became
a national media sensation. The father, soon-to-be revealed as [Christian Karl
Gerhartsreiter,] a German citizen who had assumed the name Clark Rockefeller,
had abducted his daughter during a parental visit and was being sought by law
enforcement authorities.” Harney’s photo
was used in an FBI Wanted poster and widely distributed. He said he didn’t object because he didn’t
want to impede the search for the missing child; he was subsequently able to
license the photo in multiple media outlets, given that the story and the photo
retained substantial public interest.
Harney argued that the photo became the “iconic” image of “the
bizarre saga of Gerhartsreiter, a ‘professional’ imposter who had been passing
himself off as a member of the high profile Rockefeller family and whose
previous false identities included descendant of British royalty, Wall Street
investment advisor and rocket scientist.”
(Also, Gerhartsreiter is scheduled to go on trial for murder soon, so
there’s that.) The court interpred this
iconicity to mean that “the prominent role of the photograph in the publicity
surrounding Reigh's abduction converted his depiction of a happy father and
child into a widely recognized symbol of Gerhartsreiter's life of deception.”
Sony later produced a made-for-TV docudrama, Who is Clark Rockefeller?, based on Gerhartsreiter’s
Rockefeller deception. Sony recreated
the photo with the actors using an image “similar in pose and composition to
Harney's original, but different in a number of details.”
Harney sued for infringement; the district court ruled that no reasonable jury could find substantial similarity; and the court of appeals affirmed.
Harney sued for infringement; the district court ruled that no reasonable jury could find substantial similarity; and the court of appeals affirmed.
The court found that the photo and Sony’s image shared
several important features:
Both show a young blond girl
wearing a long pink coat and light-colored tights riding piggyback on a man's
shoulders. The pair are smiling in both photographs, and they are looking
straight at the camera at roughly the same angle. … [B]oth pictures show only
the father's upper body. In both, the father is holding papers in his left arm
with the text of the first page facing the camera.
There were minor clothing differences, as well as more
significant differences:
The background behind
Gerhartsreither and Reigh [his daughter] consists of a leafless tree, the
church spire, and a bright blue sky. In the Image, nearly all of the background
consists of dark leaves on the branches of a tree, with bits of white-grey sky
peeking through in spots. The papers in Gerhartsreiter's hand are easily
identifiable as the program for the service at the Church of the Advent, while
the writing on the front of the papers in the actor's hand is not legible. Its
text, however, plainly does not resemble the program held by Gerhartsreiter.
Reigh is holding up a palm leaf in her left hand, but both of the child actor's
hands are by her sides, resting on her legs.
The district court ruled that Sony copied the factual
content, but not the expressive elements of the photo. Harney argued that this constituted too much
dissection, but the court of appeals disagreed.
Every work contains noncopyrightable elements that are free for others
to use. In the First Circuit,
substantial similarity is assessed first by dissecting the plaintiff’s work to
separate expressive elements from unprotected content, then by comparing the
two works “holistically,” but “giving weight only to the protected aspects of
the plaintiff's work as determined through the dissection.” Substantial similarity exists if “the
ordinary observer, unless he set out to detect the disparities, would be
disposed to overlook them, and regard their aesthetic appeal as the same,” as
informed by the dissection analysis.
Courts must be careful not to over-dissect.
The court commented that “[a]pplying these principles to
news photography, which seeks to accurately document people and events, can be
especially challenging.” In a footnote,
the court discussed the “imperfect[]” fit between copyright concepts developed
for written works and the visual arts, and cited several sources, including yr.
humble correspondent.
Anyway, artists can’t copyright reality, and yet the
photographer’s “original conception” of a subject is copyrightable. Protectable originality can come from, “inter
alia, lighting, timing, positioning, angle, and focus,” as well as from
creating the subject matter. “Although
the comparison is not perfect, the division between protected and unprotected
elements of a photograph could be likened to the separation drawn by copyright
law between protected expression and unprotected ideas. Where the photographer
is uninvolved in creating his subject, that subject matter -- whether a person,
a building, a landscape or something else -- is equivalent to an idea that the
law insists be freely available to everyone.”
Alternatively, subject matter the photographer didn’t create could be
seen as “facts,” though an original compilation of facts can be protected.
Here, neither the subject matter or its arrangement (which I
think here means pose) was attributable to the photographer. Thus, close attention to Harney’s expressive
choices was required. Sony argued that
the only similarity was essentially the idea of a young girl on her father’s
shoulders. Harney, by contrast, argued
that Sony took his photo’s expressive heart, including its angle, pose,
wardrobe, “and even the color and type of Reigh's coat and the paper
Rockefeller has clenched to his chest in his right hand.” The changes Sony made, he argued, didn’t change “what these
works express about the Rockefeller story.”
The works were indeed similar, as Sony intended, but the
question was whether that similarity could be infringing. The court of appeals reviewed the district
court’s dissection de novo, as a legal determination.
The key facts: Harney didn’t arrange the subject matter, but
rather captured a moment in time. He
didn’t select their clothes, give them props, or ask them to pose. “Those aspects of the Rockefellers'
appearance are factual realities that exist independently of any photo. They are
not Harney's original expression, and they are not copyrightable elements of
his photograph.” True, Harney’s creative
combination of various elements—the people in the foreground, holding the
program and palm leaf, with the church in the background—“evok[ed] the essence
of Beacon Hill on Palm Sunday,” and the lighting “highlights the church and the
young daughter and displays the long shadows of early spring.” But Sony’s image didn’t share those
expressive elements; Sony omitted the palm leaf and the church. The only common element of the photos for
which Harney could claim credit, though it was minimally original, was "the
position of the individuals relative to the boundaries of the photo, although
in the original Clark Rockefeller's face is closer to the camera and less of
his body is visible," and no reasonable jury could conclude that was
enough to constitute substantial similarity.
The court of appeals patted Harney on the back before
kicking his case: “Harney undisputedly produced an original, expressive work.… [The
ideas in the photo] are expressed with artistic flair: the framing of
Gerhartsreiter and Reigh against the backdrop of the church reflects a
distinctive aesthetic sensibility, and Harney's artistry also is reflected in
the shadows and vibrant colors in the Photo.”
Putting the subjects “in the middle of the frame as they look straight
into the camera, and at a close distance, also involves aesthetic judgments
that contribute to the impact of the photograph.” Nonetheless, the photo consisted primarily of subject matter/facts he had
no role in creating, especially the daughter riding piggyback on her father’s
shoulders.
Harney argued that the court should take into account “the
photograph's unique expression of the Rockefeller saga.” The court didn’t think this made sense. The distinction between protectable and
unprotectable elements means that protectable expression is sometimes made of
components that are free for the taking.
That’s why dissection is required.
Plus, Harney was trying to broaden the scope of his copyright “by
attributing to the Photo an idea -- Gerhartsreiter's deception -- that is not
discernible from the image itself and did not originate with him.” The idea of the photo as a symbol of
deception only works when we consider the subsequent events that revealed the
falsity of this particular father-daughter relationship.
Expanding a photo’s copyright protection based on later
events is a bad idea. Harney argued that
we shouldn’t penalize authors fortunate enough to have obscure works become
suddenly important. While it’s true that
copyright protects spontaneous photos, and thus incentivizes freelance
photographers to take them, ordinary dissection analysis won’t destroy
copyright protection for such photos.
Harney’s own photo is protected; people who want to reproduce it will
need his permission or fair use (etc.).
And even a recreation might infringe if an ordinary observer would view
the resulting image as substantially similar to his original, having filtered
out the unprotectable elements. “While Harney should benefit from the added
interest in his photograph, as he did through the payments from Vanity Fair and other publications, such
newfound interest does not change the originality vel non of the individual
components of the work.” Adding
protection to the meaning of the work based on subsequent events would
undermine the idea/expression distinction.
Thus, the district court did the dissection properly. Harney had no rights to the piggyback pose,
the clothing, the items the subjects carried, or the church; his rights were in
the framing of the people against the background of the church and sky, with
each holding a symbol of Palm Sunday, with bright colors/tones and with the
subjects in the center of the frame.
With the protectable elements defined, it was clear that almost none of
the protectable elements were in Sony’s image.
“Without the Palm Sunday symbols, and without the church in the
background -- or any identifiable location -- the Sony photograph does not
recreate the original combination of father-daughter, Beacon Hill and Palm
Sunday.” The similarity between the two
photos was due largely to “the piggyback pose that was not Harney's creation
and is arguably [note: !!] so common that it would not be protected even if
Harney had placed Gerhartsreiter and Reigh in that position.” The photos differed notably in lighting and
coloring, “giving them aesthetically dissimilar impacts. Harney's features
vivid colors and distinct shadows, while the Image is washed out and is far
less attractive or evocative.” Though
Sony’s image copied the placement of the subjects in the frame, which was an
element of Harney’s original composition, locating the subject of a photograph
in the middle of a frame is "an element of minimal originality and an
insufficient basis, without more, to find substantial similarity."
Infringement depends not on whether Sony copied, but on
whether Sony copied protected elements
of the original. No jury could conclude
that the similarity resulting solely from Sony’s copying of Harney’s original
work—the placement in the photo—was substantial. No reasonable jury would regard the photos’
aesthetic appeal as the same given the differences in background, lighting, and
religious detail.
Harney might be sad about Sony’s freedom to copy facts, but,
as the Supreme Court has said, “this is not ‘some unforeseen byproduct of a
statutory scheme.’” It is conceptually
and constitutionally required.
2 comments:
I appreciate your interest and well written analyzation of the court's decision in my case against Sony, which I still disagree with. To set the record straight, I am not sad about the decision. I learned what true sadness is when my daughter was diagnosed with a rare, incurable liver disease at 7 weeks old. My very seasoned and wise photo copyright attorney and I would not have appealed this case if we did not feel strongly that we had a good case, with plenty of precedents to back up our argument. Sony undeniably plagiarized a piece of work that I created and got away with it. Now, I feel that it opens up the door for large corporations to go ahead and stretch the boundaries of that, just as many copyright attorneys stretch the boundaries of 'fair use' to win their cases. That is unfortunate for people that make a living as photographers, writers, and other such artists. I am not sad about this though. I am proud to have stood up for what I believed in and have a deep respect for my attorney, who is also baffled by the court's decision. The enlightening part of this decision is the realization that in this country that it doesn't matter if one is right or wrong, or if one works really hard at their career. Success is now measured by how much money and power one has to manipulate information to suit their needs. It is all just a game that requires a lack of conscience to win. This is a game that I do not have the energy or resources to play. My daughter is now 16 months old and had a successful liver transplant in October. She is on about a dozen medications carefully balanced to keep her alive, to hopefully have a somewhat normal life. Every day is a frustrating battle for her and my family. That is the only thing that matters to me now. This case and my career are irrelevant to me now. Remember this as you progress with your career, which I am assuming is in the field of law. From this blog, I see you are a very intelligent person. Try to always fight for what you think is right, and with good conscience. Otherwise, this game we call life is meaningless.
Sincerely,
Donald A. Harney
Thanks for your comment during what is a trying time. I wish you and your family the best and hope your daughter recovers fully.
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