In a recent decision in Harney v. Sony Pictures Television, Inc., No. 11-1760, the U.S. Court of Appeals for the First Circuit analyzed the complex question of whether two photographs are “substantially similar” for purposes of a copyright-infringement claim. The court’s discussion will be of interest to photographers, filmmakers, and artists who incorporate photographs into their works, as it sheds light on what originality a photo display needs in order to be protected by copyright laws.

In 2007, plaintiff Donald Harney, a freelance photographer, spotted a child riding on her father’s shoulders coming out of a Palm Sunday church service on Beacon Hill in Boston. With the father’s permission, Harney snapped a photograph of the pair and published it in a neighborhood newspaper later that month. In 2008, however, the photograph was swept up into a sensational news story. The man in the photo, Christian Gerhartsreiter, had been living under a number of assumed names, including that of “Clark Rockefeller,” purportedly a wealthy Boston socialite. He gained notoriety when he absconded with his daughter during a custodial visit and his web of false identities unraveled during the ensuing nationwide manhunt. He was later convicted of kidnapping, and has been charged in a 1985 murder. Harney’s photo became part of the bizarre saga; it was used in an FBI “Wanted” poster during the investigation, and Harney licensed it to multiple media outlets covering the story, including Vanity Fair.

In 2010, Sony Pictures created a made-for-television movie about the Clark Rockefeller story. In making the film, Sony recreated its own version of Harney’s photo, using the actors who played Gerhartsreiter and his daughter. Sony used this photo during the movie (in scenes consistent with the ways Harney’s photo had been used—a “Wanted” poster, a law-enforcement briefing room, and depictions of press reports about the kidnapping). The photos’ subjects were similar; a young blond girl in a pink coat, riding on a man’s shoulders, both smiling at the camera. The photos were taken from a similar angle, and the actors’ clothes were similar (but not identical) to those worn in the original photo. The background was quite different; in Harney’s shot, tree branches and a church steeple are visible against blue sky, while Sony’s background was largely made up of dark leaves with a few patches of gray sky. In Harney’s photo, the man carried a church program and the child carried a palm leaf; in Sony’s, the man carried some unrecognizable papers and the child’s hands are at her sides. 2013-01-07 Harney v Sony Pictures (1st Cir )

Harney sued Sony for copyright infringement. Sony did not dispute that Harney owned a valid copyright in his photo, nor did Sony deny that it copied the photo; rather, Sony moved for summary judgment on the ground that its photo was not “substantially similar” to Harney’s so there could be no copyright violation. The district court agreed with Sony, and Harney appealed, arguing that the district court had misapplied the test for substantial similarity.

To be held liable for copyright infringement, the defendant’s copying of the copyrighted work must be sufficiently extensive so as to render the two works “substantially similar.” It is permissible, however, to copy a work’s non-copyrightable elements; copyright only protects the components of the work that are original to the author. Thus, “substantial similarity” analysis requires, first, close consideration of which aspects of the plaintiff’s work are protectable, and second, examination of whether the defendant substantially appropriated those protected elements.

The court acknowledged that the “substantial similarity” inquiry is especially tricky as to news photography, which seeks to capture fleeting moments that accurately depict subjects and events. There is originality in a photographer’s selection of, for example, lighting, timing, angle, and focus, but copyright does not protect the mere idea of a subject—particularly where the photographer simply takes a photo of the subject as he finds it, without “creating” the content by, for example, posing the subjects or arranging the background.

The court’s task here, then, was to identify the expressive choices in Harney’s work that were original and protectable. After performing that “dissection,” the court had to decide whether a reasonable jury, focusing only on those original elements, could find that Sony’s photo was substantially similar to the plaintiff’s. Sony argued that it copied “only the bare minimum of the elements needed to conjure up the original” to depict the photo’s role in the story. Harney took the position that Sony’s minor changes to a few details did not “change the core similarity between the works” and, “most importantly, the alterations made no change to what these works express about the Rockefeller story.”

The First Circuit cautioned that the photo’s role in “the Rockefeller story” did not change the dissection analysis; his photo could not take on greater copyright protection through its connection with an idea (Gerhartsreiter’s deception) that was “not discernible from the image itself” and “did not originate with the photographer.” In fact, the photo was an expression of that idea only in light of “subsequent events that revealed the falsity underlying the specific father-daughter relationship that Harney randomly documented.” The court declined to expand the photograph’s copyright protection based on later events.

The court expressed “sympathy for Harney’s concern about the protection afforded to spontaneous photography,” which often consists of capturing independently-existing subjects or events. Yet Harney still has a valid copyright that prevents others from copying the entire image or its original components. As the court explained, the value of an image can change years after it is created, and Harney in fact benefited from that (as seen in his licensing of the photo to other publications), but a change in value cannot change the originality of the various elements of the work.

Thus, in its dissection analysis, the First Circuit agreed with the district court that Harney had no exclusive rights to the basic “facts” of the subject matter—the piggyback pose of the people, their clothing, the items they carried, or the setting—since none of those things were attributable to Harney’s own originality. On the other hand, the pair’s framing and placement and the photo’s bright colors and shadows were original elements of the piece.

The First Circuit also agreed with the district court that Sony’s image was not substantially similar to Harney’s because, while the two shots shared the same factual content of the scene, Sony had not copied Harney’s “expressive elements.” Without the Palm Sunday symbols and without an identifiable background, “the Sony photograph does not recreate the original combination of father-daughter, Beacon Hill and Palm Sunday.” The court also observed that the similarity between the images was “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 posed the pair himself. The court acknowledged that the placement of the two figures in the frame “was Harney’s choice and thus an element of original composition,” but opined that “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.” Other than that, the images differed in lighting, coloring, background, and other details, such that a reasonable jury comparing them could not conclude that an ordinary observer would “regard their aesthetic appeal as the same.”

The First Circuit’s opinion sheds light on some copyright issues that are especially important to photographers and those who work with photographs. The decision clarifies the extent to which copyright does (and does not) protect spontaneous photography by journalists, freelancers, or hobbyists who are seeking to capture realistic images of pre-existing scenes. Where neither the subject matter nor its arrangement is attributable to the photographer’s own originality, those elements may not be protectable via a copyright claim; a successful claim will need to show that a defendant copied the elements of a photo that are truly original (things like lighting, composition, color, tone, angle, and focus). The opinion also cautions that, while the popularity and value of a photograph may increase over time (for example, due to increased public interest in its subject), that will not change the legal analysis underlying the question of substantial similarity.