1709 Blog: for all the copyright community

Wednesday, 9 January 2013

Originality in photographs according to US Court of Appeals

To infringe or not to infringe?

What is original (and is thus protectable) and what is not in a photograph? Questions like these have troubled copyright lawyers (and possibly courts, too) since the invention of photography itself. 
As this blogger learnt from The Hollywood Reporter, the First Circuit Court of Appeals has just delivered a decision addressing this Hamlet's dilemma, in little more than 6,000 words. The case is Donald A Harney v Sony Pictures Television, Inc, and A&E Television Networks, LLC, a fascinating appeal from the US District Court for the District of Massachusetts with an even more intriguing factual background.

On a sunny spring day in 2007, freelancer Donald Harney snapped a photograph of a blonde girl in a pink coat riding piggyback on her father's shoulders while leaving a Boston church on Palm Sunday. 
The picture became extremely well-known, especially when it was revealed that the father portrayed therein was a German citizen who had assumed, amongst the others, the name Clark Rockefeller (real name: Christian Gerhartsreiter). A "professional" imposter who had passed himself off as a member of the high profile Rockefeller family and whose previous false identities included descendant of British royalty, Wall Street investment advisor and rocket scientist, Gerhartsreiter abducted his daughter during a parental visit (more on this story on Vanity Fair here). Harney's photograph was thus used in a FBI "Wanted poster" and widely disseminated in the media.
In 2010, Sony produced a TV film based on Rockfeller's identity deception and entitled Who is Clark Rockfeller? (trailer available here). This included an image that resembled, as far as pose and composition were concerned, Harney's photograph, although a number of details was different.
Harney thought of bringing an action for copyright infringement against Sony, but the district court eventually dismissed it.

What the Court of Appeals said
According to Circuit Judge Lipez, Harney's photo and the image displayed in the film shared several important features. However, copying another's work does not invariably constitute copyright infringement, as it is permissible to mimic the elements which cannot be protected because unoriginal. 
The inquiry into substantial similarity embraces two different types of scrutiny:
1) a determination as to what the original expressive elements of a work and its unprotected content are (“dissection”).
2) a holistic comparison of the two works to determine if they are substantially similar. This requires giving weight only to the protected aspects of the plaintiff's work as determined through the dissection. Substantial similarity subsists if the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook the works at stake, and regard their aesthetic appeal as the same.
According to the court, application of this principles to news photography might prove challenging, since this seeks to document people and events accurately. 
In this case it was undisputed both that Harney owned a valid copyright in his photograph and that Sony had copied it. 
The framing of Gerhartsreiter and his daughter against the backdrop of the church reflected a distinctive aesthetic sensibility, and Harney's artistry was also reflected in the shadows and vibrant colors in the photo. Positioning the pair in the middle of the frame as they looked straight into the camera, and at a close distance, also involved aesthetic judgments that contributed to the impact of the photograph. However,
"Harney's creation consist[ed] primarily of subject matter -- "facts" -- that he had no role in creating, including the central element of the Photo: the daughter riding piggyback on her father's shoulders." 
The court found that almost none of the protectable aspects of Harney's photo had been reproduced by Sony. Without the Palm Sunday symbols, and without the church in the background - or any identifiable location - Sony's image had not recreated the original combination of the photograph. 
"Although the two photographs appear similar upon a first glance, that impression of similarity is 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 placed Gerhartsreiter and [his daughter] in that position." 


Donald A. Harney said...

It is still my opinion that the court's decision was wrong. Just last year, photographer Glen E. Friedman won a case against artist Thierry Guetta, who illustrated Friedman's portrait of Run DMC. He had altered the background, just as Sony did with the image that I made. Sony had reproduced the heart of my copyrighted image, Rockefeller and his daughter, just as Guetta did with Friedman's image. The heart of an image is what copyright law has traditionally protected. There are quite a few cases which illustrate that precedent. This ruling is a real blow to professional photographers that make a living selling their images and protecting the copyrights of those images. Perhaps if I could have spent as much money as Sony on legal fees, there would have been a different ruling in this case.

Don Harney

David said...

sorry Donald, I think you're wrong. It is a photograph of a girl on her father's shoulders. It has nothing protectable (save that if it was photocopied then I agree you'd have a claim).

Now I have notice of your image and your copyright, do you intend that any photo I take of my niece sitting on my brother's shoulders outside a church will be actionable? You cannot have a monopoly right of the "idea" of shut a shot, any first year lawyer can tell you that.

Donald A. Harney said...

You are entitled to your opinion, but I respectfully disagree. I think it is a little more complicated than you portray it. I have worked as a news and art photographer for over 25 years. When I first made the picture of Clark Rockefeller with his daughter on his shoulders, I had an agreement with the newspaper I was freelance shooting for, that they had a one time usage and that I owned all rights to the images that I provided to them beyond that. A year later, when Rockefeller kidnapped his daughter, the newspaper distributed the picture to news outlets and law enforcement officials without contacting me. I lost all control over distribution of my own copyrighted work.It was published all over the civilised world without my permission. After the amber alert was lifted I tried regaining control over this valuable image, and sought payment from publications from that were publishing the image outside the limits of fair use. I've never seen a concept stretched so far to protect these publications as fair use was.
In the case of Sony and their Lifetime dramatization 'Who is Clark Rockefeller?', they admitted to copying the image I made and used it in the context of entertainment, and they profited off of that docudrama. The actors portrayed the individuals that I photographed that day. I'm sure Sony paid the photographer they hired to recreate the image and the prop people that came up with similar clothing to match my original image. Like I said before, the heart of the image was Rockefeller and his daughter Reigh on his shoulders. The background and the Palm Sunday aspect was irrelevant to me. I found him to be a strange man when I met him so the 'Diane Arbus' in me compelled me to make this picture. He did not want me to photograph him at first (for now obvious reasons), but I really worked hard to finesse him. I succeeded in taking the only picture that exists of these two individuals together that I am aware of.
To answer your question about taking a picture of your niece on your brother's shoulders... well, I really couldn't care less. That is a completely different situation. However, if you start recreating my images like Sony did with my image; or like Richard Prince did to photographer Patrick Cariou's work; or like Thierry Guetta did with Glen Friedman's work (any first year copyright lawyer should be familiar with those cases)... well, yes that would be actionable. I make a living selling images. If someone steals or plagiarizes my work, I would be a fool not to defend myself and make them pay - Especially a huge corporation like Sony, who is in court suing people every day for everything from illegally downloading music to violating copyright and trademark agreements. I am not trying to "monopolize an idea". I am merely trying to protect my work, so that I can support my family through this craft that has profoundly changed since the days when I was shooting black and white film and handing prints to editors face to face.

Don Harney

Eleonora Rosati said...

"A year later, when Rockefeller kidnapped his daughter, the newspaper distributed the picture to news outlets and law enforcement officials without contacting me."

The Court of Justice of the European Union has recently addressed similar issues in Case C-145-10 Painer: http://curia.europa.eu/juris/document/document.jsf?text=&docid=115785&pageIndex=0&doclang=en&mode=lst&dir=&occ=first&part=1&cid=98286.

Austrian freelance photographer Eva-Maria Painer had taken several shots of Natascha Kampusch before she was abducted in 1998 (http://en.wikipedia.org/wiki/Natascha_Kampusch).

After the girl managed to escape, but prior to her first public appearance, several German and Austrian publications published Painer's photographs of Natascha without asking for the photographer's permission.

The European court ruled that this was tantamount to copyright infringement, holding that "the media, such as newspaper publishers, may not use, of their own volition, a work protected by copyright by invoking an objective of public security. However, it is conceivable that a newspaper publisher might, in specific cases, contribute to the fulfilment of such an objective by publishing a photograph of a person for whom a search has been launched. It should be required that such initiative is taken, first, within the framework of a decision or action taken by the competent national authorities to ensure public security and, second, by agreement and in coordination with those authorities, in order to avoid the risk of interfering with the measures taken by them, without, however, a specific, current and express appeal, on the part of the security authorities, for publication of a photograph for the purposes of an investigation being necessary."

David said...

let's not lose sight of two different issues.

Misuse of a copy of a photograph (such as Kampusch) is infringement, it is taking a copy of a photograph taken by someone else. If I took Donald's photo and reproduced it on a book or in a photo album, that is infringement. Taking the idea of a photo, a girl sat on the shoulders of a man, is not protected unless you "London Red Bus" it. Donald, there is nothing within your photograph that is protected by law. If I used the image of my niece on her dad's shoulders, and used that image to sell a book about Rockefeller, I have not infringed your copyright. Sorry, that is the law in the US and the UK.

john walker said...

The impact of the photo springs from the fact that photos of children riding on their fathers shoulders are so common as to be unremarkable .

The originality of this particular image is mostly down to the fact that it is a image of a man who is himself a 'fake', if anybody has a unique right it is surely him?

Donald A. Harney said...

David, you keep apologizing as you repeat your opinion like it is a Bible truth, but you are wrong (I have no apologies to offer for that statement). Copyright law protects derivative works from original copyrighted photographs. That is a fact supported by the roots of copyright law and numerous precedent cases. You have provided no substance or precedent cases to support your opinion. Your brother and niece have nothing to do with this case. If you actually read my previous posts entirely, I confirm that I did not create or monopolize an idea of a girl on her father's shoulders. I made an image of a man that eventually kidnapped his daughter. I did not create that fact. I merely made the image of the two. I'm not sure if you actually endured watching the Lifetime docudrama ( I don't recommend it it is really painful to watch), but you would realize that the photo was a blatant derivative of my image. I don't create "ideas" or "facts", I make pictures for a living, pure and simple. The heart of that image, Clark and Reigh Rockefeller, is in fact, supposed to be protected by law. Take a look at the case between Friedman vs. Guetta. I know that if one repeats something over and over they begin to believe it as a fact, but just back it up with some critical thinking and research, and perhaps I will inform my very skilled, experienced and respected photo copyright attorney that I do not need his services anymore, because this guy named David knows a lot more about copyright law than he does. Then, if you are actually an attorney that has the experience and deep grasp of the subtle nuances of copyright law, I promise to hire you if I run into more copyright infringement issues.... unless you are merely one of Sony's attorneys using a pseudonym.

Don Harney

Donald A. Harney said...

Thank you for citing the Eva Maria Painer case. I could have taken action when the photo was distributed by the newspaper to the authorities, but I am a dad and a human being above being a photographer. My main concern at the time was that the little girl was recovered safely. I went so far as contacting the FBI and providing them outtakes from my photos of Rockefeller and his daughter with the understanding that I would regain control of my copyright of this image that was published everywhere. Unfortunately, the Feds have a short memory span (and frankly are more concerned with enforcing copyright infringement for corporations instead of individuals)and continued to distribute the photo without my permission even after the amber alert was lifted. Anyone with any common sense knows that there is no use in battling with the FBI, and every publication that got their cheap grubby hands on the image had their attorneys stretch the boundaries of fair use and ignorance because they got the image from the FBI, so they escaped having to pay damages for copyright infringement. The moral of the story is.... Having a heart and a conscience does not pay. I am sure that the corporate executives and attorneys working for Sony that were in Federal court spending ridiculous amounts of money to squash me would agree.

Andy J said...

@ Donald A Harney.
You may of course continue to maintain the rightness of your case in the face of criticism from people like David, and indeed you may prefer the advice of your attorney over that of David (or indeed me) but ultimately both the court of first instance and at appeal did not accept your arguments, and what's more they saw so little merit in the arguments that they were persuaded to deal summarily meaning that they saw no chance that a jury would find there was substantial similarity. That seems pretty clear to me.
And I suspect that your much respected attorney will in future be advising his clients in cases involving facts such as arose in this case, that they do not have a good chance of success in court.
I applaud this judgment because I believe it brings copyright jurisprudence back on track. (Indeed I hope His Honour Judge Birss here in the UK will study the judgment for its helpful analysis). It fundamentally upholds the doctrine that copying the idea does not infringe, and that in order to establish copying of the expression of the idea, the copying has be very close to facsimile copying of the creative elements alone after the 'factual elements of the original have been excluded. That is a high bar and in my opinion so it should be if the creativity of others is not to be unfairly stiffled. Incidently I am also a photographer.

David said...


no, not a Sony attorney in disguise, I'd like the salary though :-).

I say "you're wrong" simply because the UK and US courts have held that there is no copyright. Until your expensive attorney can convince a judge that they (not me) are 'wrong' in their assertion, I will continue to do so.

You (deliberately?) miss my point - if I take my image of my brother and his daughter, sitting on his shoulders, and attach that image to a book about Rockefeller, I assume you will claim I have infringed your copyright? If you do, US and UK courts will be on my side. You cannot (and have not) established it is such a protectible right in law.

Donald A. Harney said...

Okay critics.... It's good to be debating with smart, law abiding citizens, so I will continue to this stimulating discourse. Just remember... just because the US Courts make a decision it is not necessarily right. The courts first ruled in favor of Shepard Fairey when AP accused him of copyright infringement of the famous image of Barack Obama. Fairey is now facing jail time for destroying evidence in that case. Some cases are won because the victor can lie steal and cheat better. The US Federal Court recently ruled that Monsanto can sue small farmers if Monsanto's trademarked genetically modified seeds blow onto the small farmers' property. The court says so.... but I don't think that is right.
The fact remains that Copyright Law states that "only copyright owners have the exclusive rights to produce derivative works based on their original copyrighted works. If the original isn't yours and you don't get permission to use the original from the creator, then you are infringing that author's copyright."
The LAW defines derivative work "as a work based on one or more pre-existing works, such as translation, musical arrangement, dramatization, fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed or adapted." 17USC 101.
It seems pretty clear that Sony's "translation, fictionalization, motion picture version" and "abridgement" of my copyrighted image was recast, transformed and adapted" for their made for TV docudrama. Tell me why the court blatantly disregarded that important aspect of Copyright law.
I feel bad about dragging your poor brother and niece into this again David. I don't think I missed your point, but I just think are not paying attention to the legal concept of derivative work. But, if you do make a derivative work recasting your brother and his daughter as Rockefeller with his daughter "Snooks" on his shoulders, you would be, according to traditional copyright law, responsible for infringement. I don't need to establish that as a protectible right. It already is.

Donald A. Harney

john walker said...

If Mr Rockefeller, at about the same time as Mr Harney took the photo , had asked a passing person to use mr Rockefellers camera to take a very similar picture, who would own the rights to the photo on Mr Rockefellers camera?

Donald A. Harney said...

Logic dictates that the person that clicks the shutter to make the image owns the copyright. My seven year old daughter made a photo of me with a camera that I own, and I classify it as her copyrighted work. If Ernest Hemingway borrowed someone's typewriter to write one of his novels, He would own the rights to it, correct? Think about it.

Donald A. Harney

john walker said...

Mr Harney
"the person that clicks the shutter to make the image owns the copyright."

If two people separately took two similar photos of 'something', would that mean that each of them would own 'the' exclusive rights to all similar images of that 'something? OR would they merely own the rights to the particular image in their camera.

PS it an interesting idea that before you ask a passer by to take a picture of your self using your own camera , you should get the passer by to assign copyright, to you, of the image of you on your own camera.

Donald A. Harney said...

I feel like I am being sucked into Jonathan Swift's Lilliputian egg debate from 'Gulliver's Travels'...This dialectic discourse is becoming more and more ridiculous and irrelevant. There is a famous iconic image made by news photographer Ray Lussier of Boston Bruins hockey player Bobby Orr diving through the air after scoring a winning goal in the 1970 to win the Stanley Cup. It was a definitive "decisive moment" as Henri Cartier Bresson would call it. A friend of mine who was shooting for UPI at the time was directly next to the photographer that captured that "decisive moment". My friend, who is technically one of the best news photographers that I know, missed the same moment by a split second, and did not capture that "decisive moment" of Bobby Orr sailing through the air victoriously. His image was quite different, and told a completely different story than the iconic image made by Lussier. These were two professional photographers standing side by side photographing the same exact "something", but a mere fraction of a second made two completely different images. So to answer your question from a professional photographer's point of view, the photographer who made the image owns the copyright to it, unless that photographer signed a contract with whatever news agency he or she is shooting for, waiving that copyright to the agency. If I came along and made a derivative work (see above for copyright law definition of derivative work) of Lussier's famous image, I would be infringing on the copyright of that image.
Comparing a passerby asked to take a snapshot and a professional news photographer making a living by telling stories with a camera is irrelevant and insulting to the profession that I have been working very hard to thrive in for over the past quarter of a century. It has never been easy, but in this digital age of immediate gratification and hack citizen journalism, the standards have been lowered by both media outlets grabbing their profits by cutting their news staffs and a complacent public that accepts mediocrity.

Don Harney

john walker said...

A image of a white middle class person with a child on his shoulders is hardly a image of 'the' decisive moment in a particular, never to repeated, game.

Your rights over the image in your camera are not disputed by me, it is your rights over the reality that you photographed, that is arguable.

Donald A. Harney said...

Mr. Walker,

I made a photographic portrait of a man that struck me as very odd and my intent was to photographically explore his relationship with his daughter. This is a man that never wanted to be photographed for obvious reasons. I really had to step outside my comfort zone to convince this man that I needed to photograph he and his daughter for the local newspaper. By the way, if you classify Rockefeller as just any white middle class person, you really don't know the whole story. I am the only photographer that I am aware of that succeeded in photographing these two individuals together. The only other professional photographer that attempted to photograph Rockefeller was actually threatened by this fraudulent kidnapper and murder suspect.
But to get to the heart of the matter - I did not create the reality that Rockefeller kidnapped his daughter. I made a photographic portrait of the two of them together that nobody else was ever able to make. As you said I own the rights to that image that was widely exploited by media outlets all over the world without my permission. That is another reality that I did not create. I had no control over that.
I am not sure if you have paid any attention to my previous posts, but as I said before, Sony clearly and admittedly made a "derivative work" of my copyrighted image. I don't want to waste more space by quoting the whole aspect of copyright law in regard to "derivative works". You can scroll up and read what I quoted above.
The FACT of the matter is that Sony "dramatized" and "made a motion picture version" derived from my image and "recast" the two individuals depicted in the image with actors portraying Clark and Reigh Rockefeller for their dramatization of the kidnapping case WITHOUT MY PERMISSION. Copyright law clearly and explicitly dictates that is an infringement. I do not understand why you keep dissecting this with the same semantic double talk that the Sony attorneys blinded the courts with, unless you take pleasure in kicking the little guy with the odds unfairly stacked against him after he is crushed by the rich and powerful behemoth, which in this case is Sony.

Don Harney

john walker said...

"As you said I own the rights to that image that was widely exploited by media outlets all over the world without my permission." No argument.

As for the rest. Did you and Mr Rockefeller sign some sort of contract? ( I have assumed that you did not).

I am an artist , every thing in art is
derivative "all originality is variations on a theme", your interpretation of derivative is troubling to me.

Donald A. Harney said...

The quote above defining derivative is not my interpretation. It is the law. Read it. I don't see any room for interpretation. Your quote in which you define derivative work is your opinion, and yet another semantic riddle. I cannot take responsibility for the fact that you are troubled because your opinion conflicts with a straightforward legal definition.

Barnaby & Edgar said...

This English case will be of interest


john walker said...

The quote is from Douglas Hofstadter it is exactly about the complex twisty loop relation ship between syntax and semantics : "semantics is a emergent quality of complex syntax"... " content is fancy form'.
You can claim ownership of a particular bit of complex syntax that you put together , you cannot claim ownership over meaning/ideas.