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A based-on-a-true-story television movie's recreation of a “wanted” poster based on an actual photograph of the real people on whose lives the movie was based was not infringing, the U.S. Court of Appeals for the First Circuit ruled Jan. 7 (Harney v. Sony Pictures Television Inc., 1st Cir., No. 11-1760, 1/7/13).
Affirming summary judgment of noninfringement, the court said that there was only one protectable element of the original image that had been copied, and that was not enough to establish substantial similarity.
Donald A. Harney of Boston is a professional photographer. In 2007, while working for the Beacon Hill Times, he took a picture of a man and her daughter as they left church services in the Beacon Hill neighborhood. The subjects of the photograph were Clark Rockefeller and his daughter, Reigh, who gave their consent to the photograph, which was published on the front page of the newspaper.
It later came to light that Rockefeller's relationship with Reigh's mother, Sandra Boss, had fallen apart after Boss discovered that Rockefeller had created a false persona and personal history. He claimed to be related to the prominent Rockefeller family, but he was a German immigrant whose real name was Christian Karl Gerhartsreiter and he was a confidence trickster who had taken on multiple false identities.
In 2008, Gerhartsreiter kidnapped Reigh during a parental visit and was sought by authorities. The Federal Bureau of Investigation used a portion of Harney's photograph of Gerhartsreiter and Reigh for a “wanted” poster. Harney licensed the photograph to several publications, including Vanity Fair magazine.
In 2010, the Lifetime Television channel broadcast the movie Who Is Clark Rockefeller?--produced by Sony Pictures Television Inc.--based on Gerhartsreiter's story and crimes, which included kidnapping and assault, and, allegedly, murder. The movie depicted FBI wanted posters showing an image of the actors playing the roles of Gerhartsreiter and Reigh that was similar to the Harney photograph.
Harney sued Sony and A&E Television Networks L.L.C., alleging copyright infringement. Sony moved for summary judgment on the basis that the two images were not substantially similar and also that its use of the image constituted fair use under the Copyright Act, 17 U.S.C. §107.
Judge Rya W. Zobel of the U.S. District Court for the District of Massachusetts found that the images were not substantially similar and granted summary judgment in Sony's favor.
The court noted that the photograph was not posed by Harney, and the clothes and backgrounds, and other items appearing in the image were not chosen by Harney, and, thus, they were not protectable elements of Harney's work.
The sole element that Harney could claim as protectable that also appeared in the Sony image 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.” The court said that this one similarity was insufficient to support a finding of infringement.
The district court did not address the fair use argument. Harney appealed, arguing that the district court had misapplied the test for substantial similarity.
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.
The court noted some minor differences, such as differences in the colors of the clothing worn by the subjects of the two images. There were also differences that the court considered “more significant,” such as the backgrounds.
In “dissecting” the Harney photo for original, protectable elements, the court rejected Harney's argument that the district court improperly carried out the dissection. In the court's words, “Harney's view appears to be that ordinary dissection analysis is inapposite because Sony copied the Photo's expression of 'the Rockefeller Story' and not simply the factual content of his photograph.”
First, the court said, the premise of dissection “is that [protectable] expression is sometimes construction from components that are free for the taking.”
Furthermore, the court said that Harney was trying to “enlarge the scope of his copyright protection by attributing to the Photo an idea--Gerhartsreiter's deception--that is not discernible from the image itself and did not originate with him.” Not only is the idea of deception not protectable, but the photo was made before the revelation of the deception, the court said.
The court rejected the claim that applying dissection analysis would essentially deny copyright protection to spontaneous photographs. The court noted that Harney's image itself was protectable and could not be copied without permission.
Thus, the court affirmed the district court's application of dissection analysis, concluding that there were elements of the photograph that Harney could claim as protected, including “the framing of Gerhartsreiter and Reigh against the background of the church and blue sky, with each holding a symbol of Palm Sunday.”
Taking this and other points of originality into consideration, the court then concluded that the Sony image was not substantially similar to the original photograph. The court thus affirmed the granting of summary judgment of noninfringement.
The court's opinion was joined by Judge Juan R. Torruella and Judge Jeffrey R. Howard.
Harney was represented by Andrew D. Epstein of Barker, Epstein & Loscocco, Boston. Sony was represented by Bruce P. Keller of Debevoise & Plimpton, New York.
Text is available at http://pub.bna.com/ptcj/Harney2013Jan7.pdf.
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