The First Circuit Court of Appeals has decided a copyright case that addresses the important elements of what constitutes an expressive work capable of protection. The lines of what can be protected in news photography may not be as simple as the First Circuit opinion suggests.
In 2008 the bizarre case of Christian Gerhartsreiter—a man posing under the name of “Clark Rockefeller”—gained international fame when Gerhartsreiter kidnapped his daughter, only to have the truth about his invented background come to light.
By pure coincidence, in April, 2007, a photographer named Donald Harney had taken a picture while on assignment for the Beacon Hill Times of a young girl riding on her father’s shoulders as they left church on Palm Sunday. It turned out that the pair was none other than Gerhartsreiter (identified in 2007 as “Rockefeller”) and his daughter. The photograph was widely circulated first when he was sought as a fugitive, and later during news coverage of the case.
Some time later, a made-for-television movie about the story was produced, Who is Clark Rockefeller (starring Eric McCormack) in which the composition of Harney’s photograph was recreated in a new image displayed in the film, using the actors in the film. The new “photo” was used in the movie as it had been in real life: first a snapshot, then as a wanted poster, and then on (fictional) news reports within the film. All told, the new “photo” was displayed for about 42 seconds.
Harney’s photo and the film image shared certain elements: both show a young blond girl wearing a long pink coat, smiling, riding on a man’s shoulders. Both pairs of subjects are looking at the camera at roughly the same angle, and the father is holder papers in his left arm in both.
The images also differed. The shades of pink on the girl’s coat are different, as is the button placement. The men’s sport coats are also distinctive in fabric. More noticeably, the Harney photograph was backed by a leafless tree, a church spire, and blue sky. By contrast, the television image was backed by dark leaves against a white-gray sky.
Harney sued the producer of the film, Sony Pictures Television, Inc. Sony moved for summary judgment arguing that because the images were not “substantially similar” there could be no infringement. The District Court agreed, ruling that there was only “limited sharing” between the images, and no fair use analysis was required.
Critically, in affirming this result, the First Circuit noted that “it is permissible to mimic the non-copyrightable elements of a copyrighted work.” Put another way, copyright protects the expression, not the idea. Examining the two images holistically and giving weight only to those elements that may be protected by copyright, news photography can be analogized to that expression/idea distinction, the court held. Alternatively, elements of a photograph that the photographer did not create could be a viewed as “facts” that, like ideas, are not eligible for copyright protection (recalling the seminal Feist phone-book case not capable of copyright).
Viewed through this lens, the First Circuit agreed that there was no substantial similarity when viewing the copyrightable elements of Harney’s photograph, although it affirmed that Harney had indeed created an original, protectable work. The First Circuit stated, however that “inescapably, [] Harney’s creation consists primarily of subject matter – ‘facts’ that he had no role in creating, including the central element of the Photo.” The Court of Appeals was also dismissive of the argument that the seemingly benign appearance of the pair is an expression concerning Gerhartsreiter’s actual deception, primarily because the revelation of that deception was a later event that could not have played a role in the composition or selection of the picture’s elements.
Having ruled out almost all of the Harney image’s elements as available for protection, the court had little trouble concluding that those few protectable elements had not been copied substantially. Notably, this was all held as a matter of undisputed fact, that is, the court did not feel any rational fact finder could conclude otherwise (in which case summary judgment would have been inappropriate).
The First Circuit went to great lengths to affirm the protectability of freelance photography, but the case has potentially broad implications. The pre-fame distinction of the picture is a moving target, for example. How famous was Barack Obama when Shepard Fairey painted the Hope poster? Was he famous enough? Also, the AP photograph after which Hope was modeled had American flags in the background, while Hope has flat, monochromatic panes. Even with the flags, would those be “facts” not entitled to protection, just like Senator Obama’s wardrobe choice? Indeed, what makes Hope so striking is the composition and angle, precisely what Harney holds is an accidental “fact.”
Perhaps most importantly, it makes copyright claims more vulnerable, and sooner in the case. Fair use is a classic fact dispute, meaning a defendant who wants to rely on that defense must litigate late into the case, potentially having to wait until trial to present a defense (i.e., “I copied it but was allowed to), as opposed to the failure of the plaintiff’s claim found here (“the plaintiff didn’t make out a claim, the defendant doesn’t have to do anything”). Certainly the opinion would seem to encourage more copying of news photography.
