1st Cir. Shoots Down Freelance Photog's Copyright Claim

 (Photo credit: Wikipedia)

The United States Court of Appeals for the First Circuit this week in Harney v. Sony Television Pictures, Inc. (Case No. 11-1760) upheld a trial court's dismissal of a copyright infringement claim by a freelance photographer based on a television movie's recreation of his original photo.

Photographer Donald Harney snapped a seemingly innocent photo in April 2007, of a girl riding atop her dad's shoulders. A year later, the image appeared on an FBI Wanted poster and circulated regularly in the news media. Turns out that the father in the photo, who identified himself as Clark Rockefeller, actually was a German citizen named Christian Gerhartsreider, whom authorities were pursuing because he kidnapped his daughter during a parental visitation.

"Rockefeller"'s grand deception was the stuff of made-for-tv-movies, a fact not lost on defendant Sony Television Pictures, Inc.("Sony"), which, in fact, produced a potboiler film version of the case. The movie depicted a photo similar in pose and composition to the original image taken by Harney, prompting the plaintiff to sue the defendant for copyright infringement.

United States District Court for the District of Massachusetts Judge Rya Zobel granted summary judgment to Sony, finding that no reasonable jury could find substantial similarity between Harney's photo and the recreated image.

Proving copyright infringement requires the plaintiff to show ownership of a valid copyright and the defendant's copying of constituent elements of the copyrighted work that are original. Judge Zobel had found the two images at issue similar in factual content, but ruled Sony's knock-off lacked "Harney's expressive elements."

The appellate court agreed that no jury would consider Sony's version of Harney's work an infringement. "[I]t is permissible to mimic the non-copyrightable elements of a copyrighted work," the appeals court wrote. "Copyright protection 'extend[s] only to those components of a work that are original to the author,' and a work that is sufficiently 'original' to be copyrighted may nonetheless contain unoriginal elements."

Apparently, Harney is not going to be "as rich as Rockefeller" at Sony's expense.