Adaptation of photo without substantial similarity

On a sunny April day in 2007, freelancer Donald Harney snapped a photograph (“the Photo”) 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. Just over a year later, the pair in the Photo became a national media sensation.

The father had abducted his daughter during a parental visit and was being sought by law enforcement authorities. Harney’s fatherdaughter photo was used in an FBI “Wanted” poster, and the image was widely distributed in the media as the abduction saga unfolded. Appellee Sony Pictures Television, Inc. (“Sony”) later produced a made-for-television movie based on Gerhartsreiter’s identity deception. Sony depicted the Photo in that movie using an image that was similar in pose and composition to Harney’s original, but different in a number of details.

Harney subsequently filed this infringement action, alleging that appellees’ use of his photograph without permission violated federal copyright law. Concluding that no reasonable jury could find “substantial similarity” between Sony’s recreated photo and Harney’s original, the district court held that Sony had not violated Harney’s exclusive rights to his work.

A professional photographer for more than two decades, Harney approached father and his daughter as they left a service at the Church of the Advent and obtained permission to photograph them for the newspaper. Without Harney’s knowledge or consent, a portion of the Photo was placed on an FBI “Wanted” poster that was distributed nationwide. Harney states that he did not object to this use of the photograph because he did not want to impede the search for the missing child. Harney licensed the Photo for use in multiple media outlets, including Vanity Fair magazine.

In 2010, Sony completed and released a made-for-television movie titled Who is Clark Rockeller?, which was distributed to cable stations by appellee A & E Television Networks, LLC. To depict the role that the Photo played in the abduction events, Sony recreated it using the actors who were cast in the roles of Clark and Reigh. The new photo (“the Image”) was displayed for a total of about forty-two seconds in five scenes demonstrating the Photo’s use during the manhunt in three different contexts: (1) as the image in the Wanted poster, (2) in a law enforcement briefing room, and (3) in television news reports about the abduction. The Image also appears, for less than one second, in one of the twenty-two television commercials publicizing the movie.

The Photo and the Image share 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. Although Gerhartsreiter and Reigh are closer to the camera in the Photo than the actors are in the Image, both 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.

Following a hearing, the district court granted summary judgment for appellees and dismissed the case. The court ruled that the Image was not substantially similar to Harney’s photograph because “when the Harney Photograph and the Sony Image are compared, they share the factual content” of the scene captured by the Photo, “but not Harney’s expressive elements.” The court concluded that the “limited sharing” between the works was “not enough to establish substantial similarity and copyright infringement.” The court thus did not need to reach appellees’ fair use argument, and it did not discuss that issue.

On appeal, Harney asserted that the court “over-dissected Harney’s Photograph, and thereby overlooked significant aspects of its originality and protected expression.” He maintained that the appellees are not protected by the fair use doctrine. The Supreme Court recently confirmed that “every idea, theory, and fact in a copyrighted work becomes instantly available for public exploitation at the moment of publication.” “Copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work.” An artist can claim to own only an original manner of expressing ideas, not the ideas themselves.

Harney captured a moment in time of a father and daughter passing through Beacon Hill. The Rockefellers were not models. Harney did not select their clothes, give them a church program and palm leaf as 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. The court acknowledged Harney’s “significant creative input” in combining various elements – Gerhartsreiter and Reigh in the foreground, holding the program and palm leaf, and the church in the background — to “evoke the essence of Beacon Hill on Palm Sunday.”

The court thus concluded that the only common element of the two photographs for which Harney could take credit 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.” It concluded that “this limited sharing” did not infringe Harney’s copyright. It explained: The message conveyed by the Sony Images is the factual information about the Rockefellers’ appearance. There is nothing suggestive of Beacon Hill or a religious context. The positioning of the Rockefellers in the middle of the frame, visible from mid-chest upward, is an element of minimal originality and an insufficient basis, without more, to find substantial similarity.

Harney may not claim exclusive rights to the piggyback pose of Gerhartsreiter and Reigh, their clothing, the items they carried, or the Church of the Advent shown with bright blue sky behind it. However, the framing of Gerhartsreiter and Reigh against the background of the church and blue sky, with each holding a symbol of Palm Sunday, creates a distinctive, original image. Harney’s creativity is further reflected in the tones of the Photo: the bright colors alongside the prominent shadows. Finally, the placement of the father and daughter in the center of the frame, with only parts of their bodies depicted, is composition both notable and protectible.

Harney’s difficulty in alleging infringement is that almost none of the protectible aspects of the Photo are replicated in the 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. 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 Reigh in that position. Significantly, the two photographs are notably different in lighting and coloring, giving them aesthetically dissimilar impacts.

The Image does copy the placement of Gerhartsreiter and Reigh in the frame – which was Harney’s choice and thus an element of original composition. According to the district court, however, 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.” The question of infringement is governed not merely by whether the copy mimics the plaintiff’s work, but also, more importantly, by whether the similarity arises from protected elements of the original. Copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work. For the reasons explained above, no jury could properly conclude that Sony’s adaptation of the Photo infringed Harney’s copyright in his work.