Is the Recreation of a Photo Copyright Infringement?
Rebecca Tushnet analyzes the First Circuit’s decision upholding a lower court ruling that the recreating the factual elements of a photograph is not copyright infringement.
Professional freelance photographer Donald Harney took a picture 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.” The photo became a sensation when it was discovered later that the father in the photo had abducted his daughter.
Sony Pictures subsequently produced a made-for-TV docudrama, Who is Clark Rockefeller?, and recreated Harney’s photo with the docudrama actors using an image “similar in pose and composition to Harney’s original, but different in a number of details.”
Harney didn’t like the “recreation” and sued Sony for copyright infringement. The district court ruled that no reasonable jury could find substantial similarity, and the First Circuit Court of Appeals affirmed. Tushnet explains,
Here, neither the subject matter or its arrangement (which I think here means pose) was attributable to the photographer. Thus, close attention to Harney’s expressive choices was required. Sony argued that the only similarity was essentially the idea of a young girl on her father’s shoulders. Harney, by contrast, argued that Sony took his photo’s expressive heart, including its angle, pose, wardrobe, “and even the color and type of Reigh’s coat and the paper Rockefeller has clenched to his chest in his right hand.” The changes Sony made, he argued, didn’t change “what these works express about the Rockefeller story.”
The First Circuit didn’t buy it, “Without the Palm Sunday symbols, and without the church in the background — or any identifiable location — the Sony photograph does not recreate the original combination of father-daughter, Beacon Hill and Palm Sunday.”