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.

Federal Judge Says Expanded Mass. Obscenity Law Violates 1st Amendment

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In American Booksellers Foundation for Free Expression et al v. Coakley et al. (Case No. 10-11165), U.S. District Court for the District of Massachusetts Judge Rya Zobel last week enjoined the enforcement of an amended Massachusetts statute that prohibited disseminating electronic information "harmful to minors" on the grounds that it violated the First Amendment.


In a 9-page memorandum of decision, Judge Zobel said Sections 2 and 34 of Chapter 74 of the Acts of 2010 signed by Gov. Deval Patrick last April that amended M.G.L. c. 272, secs. 28 and 31 were overbroad and unconstitutional.  Among the plaintiffs who challenged the amendments were booksellers, publishers, a nonprofit photographic association and a marriage and family therapist. The plaintiffs sought an injunction, arguing that the statutory revisions exposed adults who distribute 1st Amendment-protected sexually explicit information electronically to liability because minors may be recipients of the material without the adults' knowledge.

Massachusetts legislators amended a 1982 law that made it a crime to distribute visual, written or printed material harmful to minors to incorporate email, instant messages, and the like after a Supreme Judicial Court decision last February reversed the conviction of  a man who sent sexually graphic text messages to undercover police posing as a 13-year-old girl on the grounds that the law did not contemplate online communications.

Critics said the amendments to the statute were poorly drafted and inhibited free speech by exposing adults, for example, to criminal liability for transmitting data about pregnancy or health issues. Violators faced a $10,000 fine and up to five years' jail time under the amended law.