The First Circuit Tackles Copyright in News Photography and Docudramas

On Monday the First Circuit released an important opinion addressing copyright and news photography, in Harney v. Sony Pictures Television, Inc., No. 11-1760 (1st Cir. Jan. 7, 2003).  The case is related to the famous "Clark Rockefeller" incident. For those unfamiliar, "Clark," a wealthy Boston socialite who was purportedly a member of the Rockefeller family, kidnapped his daughter and fled Boston in July 2008. This lead to a nationwide manhunt that ended a little over a week later in Baltimore. After he was apprehended it was revealed that "Clark" was actually Christian Gerhartsreiter, a German immigrant that had come to the United States as a teenager and since then assumed many different fake identities, including that of Boston socialite "Clark Rockefeller." After a conviction for parental kidnapping, Gerhartsreiter is now in California, standing trial for a 1985 murder.

If you have one image in your mind from this famous news story, it's probably this photo:

This photo was taken by freelance photographer Donald Harney for a piece in the Beacon Hill Times. The photo was used by state and federal police agencies during the manhunt for Gerhartsreiter, where it saw widespread dissemination.

Sony Pictures thought the story of "Clark Rockefeller" so riveting that they decided to create a made-for-TV movie called Who is Clark Rockefeller? that subsequently aired on Lifetime. True to the police-procedural genre, the movie goes into detail about the manhunt and includes a "last known photo" that is based on the Harney photograph:

Harney subsequently sued Sony Pictures and A&E Television for copyright infringement. After the district court found for Sony on summary judgment, the First Circuit affirmed in a long and thoughtful opinion, holding that the two images are not "substantially similar" for copyright purposes. The court, under the pen of Judge Lipez, comes to this conclusion after a casebook-worthy analysis of both copyright infringement doctrine generally and copyright in photographs specifically.

As devout readers of our legal guide already know, a standard copyright infringement claim requires a plaintiff to show three things: that the plaintiff has a valid copyright in a work, that the defendant had access to the work (or, stated conversely, that the work was not an independent creation), and that the two works are "substantially similar."

"Substantial similarity" has its doctrinal difficulties, but its application essentially boils down to what you already did two paragraphs ago after I displayed those photographs: look at the two works and see whether the expressive nature of each is essentially the same. Built within that question is a value judgment as to what is "protectable" and what is not within any given genre of expression. (For example, comparison of two blues songs will likely disregard the similarity in chordal structure, as virtually all blues songs have the same chordal structure. This is called "scènes à faire" in copyright doctrine.)

But another wrinkle is added when dealing with depictions of things that exist in the real world (a universal issue in news photography). As part of its centuries-old balance between protecting works while not stifling creativity and open expression, copyright protection does not extend to ideas, facts, or elements not original to the author. In other words, the subjects themselves, the items that were not placed there by the photographer, and things occurring in nature around them are not protectable under copyright. This is not a gap or a loophole in protection; this is something we include to make sure that others are free to create and disseminate works of their own.

To ensure that these unprotectable elements don't accidentally become de facto protected through a substantial similarity analysis, courts approach the infringement question by first dissecting the elements in the photograph to determine what is protected, and then comparing the works for similarity. The Harney court's explanation of this task is one of the better ones I've seen:

The courtinitially "dissect[s]" the earlier work to "separat[e] its originalexpressive elements from its unprotected content." … The two works must then be compared holistically todetermine if they are "substantially similar," but giving weightonly t