Infringement Claim Fails Because Law Protects Expression, Not Ideas

by David Walker

©Donald Harney (left); ©Sony Pictures Television (right)

In a case hinging on the similarity between two photographs showing a girl riding "piggyback" on a man's shoulders, a federal appeals court in Boston has ruled that Sony Pictures Television did not violate the copyright of freelance photographer Donald Harney. In its decision earlier this month, the appeals court affirmed a lower court ruling that "no reasonable jury could find 'substantial similarity' between Sony's recreated photo and Harney's original."

The ruling does not break new legal ground, but supports a long-standing legal principle that copyright law protects artistic expression, but not ideas. In the Harney v. Sony Pictures case, the piggyback pose in Harney's original photography was not protectable, the court said. The reason was because Harney didn't direct his subjects, and a piggyback pose "is arguably so common that it would not be protected even if Harney had" directed the pose, the court said.

At the same time, the court said that "Harney's difficulty in alleging infringement is that almost none of the protectable aspects" of his image --including its distinctive lighting, coloring, and shadows--"are replicated in the [Sony] image."

Harney's original photograph, shot during a chance encounter on a Boston street, shows a girl in a pink coat riding atop her father's shoulders as they left a Palm Sunday church service in the Beacon Hill section of the city.

A year later, the subjects became the center of a national news story: The father, a German citizen living under an assumed identity as an American socialite, abducted his daughter during a parental visit. He was being sought be authorities, and Harney's image was used on FBI "Wanted" posters. The image was also widely distributed in the media.

Sony later produced a made-for-television movie based on the story, and created a photo for the movie "that was similar in pose and composition to Harney's original, but different in the details," according to court papers.

Harney sued for infringement, and a US district court dismissed his claim on the grounds that Sony didn't copy the protectable elements of his original photo.

In his appeal, Harney argued that Sony intended to replicate his image, and that it had replicated many details of his original image, including the camera angle, the pose, the wardrobe, "and even the color and type of [the girl's] coat and the paper [her father] has clenched to his chest in his right hand."

He also argued that changes Sony made to "details around the periphery" didn't change the "core similarity" between the works. He added, "[M]ost importantly, the alterations made no change to what these works express about the [father's] story."

In its ruling, the appeals court acknowledged that "Harney undisputedly produced an original, expressive work" and that he conveyed the ideas of the image (the essence of Beacon Hill on a Palm Sunday, father-daughter bonding) with "artistic flair."

But the court went on to say that "Harney's creation consists 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."

Citing the case of Jack Leigh v. Warner Brothers, the court went on to say that an accepted principle of photography is that "artists may not copyright the reality of [their] subject matter." (The Leigh case was brought by the photographer who shot the cover for the book Midnight in the Garden of Good and Evil. It was settled after an appeals court ruled that a reasonable jury might conclude that Warner Brothers, which commissioned a poster for the movie adaptation of the book, had copied the protectable elements of Leigh's photograph, and not just the subject matter. That subject was a statue in a Savannah, Georgia cemetery.)

The appeals court said that Harney could not claim exclusive rights to the piggyback pose, the subjects' clothing, the items they carried, or the church in the background with the bright blue sky behind it. But he could claim exclusive rights to the way he framed those elements, the placement of the subjects in the center of the frame, and the bright colors and shadows that make his image distinctive.

The court went on to say that "Harney's difficulty in alleging infringement is that almost none of the protectable aspects of [his photo] are replicated in the [Sony image]," which shows the subjects in flatter light and colors, in front of a leafy backdrop. "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," the appeals court said.

It added that "Significantly, the two photographs are notably different in lighting and coloring, giving them aesthetically dissimilar impacts."

The appeals court said it in its ruling, "We can understand the frustration of photographers such as Harney whose works are afforded a limited copyright because they are comprised substantially of unprotected content." But the court went on to quote the Supreme Court in a ruling on a 1991 case that held that telephone directories are not copyrightable.

The limits on copyright for unprotected content "is not some unforeseen byproduct of a statutory scheme," the Supreme Court said. "It is, rather, 'the essence of copyright,' and a constitutional requirement. The primary objective of copyright is not to reward the labor of authors, but '[t]o promote the Progress of Science and useful Arts' [according to the US Constitution]. To this end, copyright assures authors the right to their original expression, but encourages others to build freely upon the ideas and information conveyed by a work."


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