Artists Have No Copyright in Reality of Subject Matter

On January 9, 2013, in Copyrights, by Brian A. Hall

UnIP (UnIntellectual Property): Copyright for Reality of Subject Matter in Photograph

The United States Court of Appeals for the First Circuit has affirmed the District Court’s finding that Sony Image Photograph used in a movie did not infringe the copyright of the Harney Photograph (photographs shown below).  In doing so, the Court did not hold that the Plaintiff, Harney, lacked copyright rights to his photograph, but instead that no copyright infringement resulted when the protectable elements of the photographs were compared for substantial similarity.

By way of background, Plaintiff Harney was a freelance photographer who took the photograph of a blond girl in a pink coat riding piggyback on her father’s shoulders as they emerged from a Palm Sunday service in the Beacon Hill section of Boston. Just over a year later, the father and daughter became a national media sensation when it was revealed that the father, using a different identity, had abducted his daughter during a parental visit and was being sought by law enforcement authorities. Harney’s father-daughter photo was used in an FBI “Wanted” poster, and the image was widely distributed in the media as the abduction saga unfolded.  Defendant Sony produced a made-for-television movie based on the father’s identity deception and used the photograph shown below.

The Court performed a dissection analysis to identify that which was subject to copyright protection.  It recognized that photographers, as artists, ordinarily lack exclusive copyright rights in the “reality of their subject matter.”  Put another way, the elements that are subject to copyright protection in a photograph can include posing the subjects, lighting, angle, selection of film and camera, evoking the desired expression, and almost any other variant involved.  When taking an on-the-spot photograph, the photographer may still make choices regarding the photograph so as to entitle it to copyright protection.  However, “subject matter that the photographer did not create could be viewed as “facts” that, like ideas, are not entitled to copyright protection.”

Thus, applying these principles, the Court found no copyright infringement, despite explicitly recognizing Plaintiff’s copyright rights to the photograph.  In doing so, it essentially adopted Defendant Sony’s position that the only similarity between the two works is “essentially the [unprotectible] idea of a young girl atop her father’s shoulders,” with “the other details in the Photo either … significantly altered or omitted entirely.” With the unprotectible elements excluded, Sony asserts, “there is no substantial similarity in the respective expressions …, and therefore no infringement.”

This is a tough result for a copyright owner, but likely the correct one.  As I have discussed before, the most important analysis when it comes to determining copyright infringement is not always the substantial similarity test.  Rather, it is the dissection analysis to determine that which is indeed protectable as a copyright.  It does not matter if unoriginal, unprotectable matter (such as the mere idea or facts) is identical since copyright infringement requires substantial similarity of the expressive elements.  Law and the underlying factual predicate aside, as a father to a daughter, this photograph makes me smile.

Harney v. Sony Pictures Television, Inc., 11-1760, 2013 WL 68568 (1st Cir. Jan. 7, 2013).


Image 1 within Harney v. Sony Pictures Television, Inc.



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