The U.S. Court of Appeals for the First Circuit upheld a district court’s decision limiting a copyright holder’s protection in a candid photograph.  Harney v. Sony Pictures Television, Inc., Case No. 11-1760 (1st Cir., Jan. 7, 2013) (Lipez,  J.).  The 1st Circuit held that where only one protectable element of the original photograph had been copied, substantial similarity could not be established.

In 2007, Donald Harney, a photographer for the Beacon Hill Times, took a picture of a man and his daughter as they left Palm Sunday church services.  This particular photograph showed Clark Rockefeller and his daughter Reigh and was published with their consent on the front page of the newspaper.  This photo was on the front page of the Beacon Hill Times long before the world knew Clark Rockefeller as Christian Karl Gerhartsreiter, the con man who claimed to be related to the prominent Rockefeller family.  In 2008 Gerhartsreiter kidnapped Reigh during a parental visit.  Without Horney’s knowledge or consent, a portion of the photo was placed on a nationwide FBI poster which became the iconic image of the bizarre saga of Gerhartsreiter.  Harney subsequently licensed the photograph for use in multiple media outlets, including Vanity Fair magazine.  In 2010 Sony released the movie Who is Clark Rockefeller? and included depictions of the FBI wanted posters showing an image of the actors playing the roles of Gerhartsreiter and Reigh that was similar to the Harney photograph used by the FBI. 

Harney sued Sony and A&E Television Networks alleging copyright infringement.  The district court granted summary judgment in Sony’s favor finding that the only element of the original photo Harney could claim as protectable 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 found that while the Harney photo and Sony’s photo share the same factual content, they did not share “Harney’s expressive elements” and accordingly were not sufficiently similar for an infringement finding.  Horney appealed.

The 1st Circuit upheld the district court’s application of the dissection analysis and finding of non-infringement.  While noting that Harney’s photo and the Sony image shared several important features, ultimately the 1st Circuit’s dissection analysis held that Harney was attempting to “enlarge the scope of his copyright protection by attributing to the Photo an idea—Gerhartsreiter’s decision—that is not discernible form the image itself and did not originate with him.”  Not only was the concept of deception not protectable, the photograph was taken before Gerhartsreiter’s crimes came to light.  While the 1st Circuit acknowledged there were elements of the Harney photograph that were protectable, ultimately the Sony image was not substantially similar to the original photograph.