{"id":1401,"date":"2013-01-21T18:22:54","date_gmt":"2013-01-21T18:22:54","guid":{"rendered":"http:\/\/ncjolt.org\/?p=1401"},"modified":"2020-06-04T20:54:03","modified_gmt":"2020-06-04T20:54:03","slug":"first-circuit-issues-copyright-decision-in-news-docudrama-case","status":"publish","type":"post","link":"https:\/\/journals.law.unc.edu\/ncjolt\/blogs\/first-circuit-issues-copyright-decision-in-news-docudrama-case\/","title":{"rendered":"First Circuit Issues Copyright Decision in News Docudrama Case"},"content":{"rendered":"

Monday, January 21, 2013, by Laura Arredondo-Santisteban
\nThe First Circuit released a recent opinion<\/a> addressing issues involving copyright and news photography, arguably refusing to expand the scope of copyright protection to independently existing facts captured by photojournalists.
\nThe case Harney v. Sony Pictures Television, Inc.<\/a> involves a photograph, taken by freelance photographer Donald Harney, for news article about Christian Gerhartsreiter<\/a>, famously known for presenting himself as a member of the Rockefeller family, kidnapping his daughter and leading authorities on a week-long manhunt for his capture. After his capture, Sony Pictures aired a television movie<\/a> on Lifetime depicting Gerhartsreiter\u2019s life and his identity deception. The film included a recreation of Harney\u2019s photo, showing Gerhardsreiter carrying his daughter on his shoulders.\u00a0 Harney sued Sony Pictures and A&E Television for copyright infringement, alleging that Sony\u2019s use his photograph without his permission violated federal copyright law.\u00a0\u00a0 After district court concluded that \u201cno reasonable jury could find \u2018substantial similarity\u2019\u201d between Sony\u2019s recreated photo and Harney\u2019s original, it held that Sony had not violated Harney\u2019s copyright to his work. Harney appealed the district court\u2019s decision to the First Circuit.
\nThe First Circuit acknowledged that Harney\u2019s photo and Sony\u2019s recreated image \u201cshare several important features,\u201d by both showing a young blond girl wearing a long pink coat riding a man\u2019s shoulders looking straight at the camera at roughly the same angle.\u00a0 However, it indicated that while some of the distinctions, like the shade of pink in the coat are minor, several major distinctions in the photo are significant.\u00a0 The court touches upon the fact that the backgrounds of Harney\u2019s photo and Sony\u2019s image are different.\u00a0 \u201cThe background behind Gerhartsreither\u2026consists of a leafless tree, the church spire, and a bright blue sky. In the Image, nearly all of the background consists of dark leaves on the branches of a tree, with bits of white-grey sky peeking through in spots. The papers in Gerhartsreiter\u2019s hand are easily identifiable as the program for the service at the Church of the Advent, while the writing on the front of the papers in the actor\u2019s hands are not legible.\u201d
\nAfter finding that Harney\u2019s photo<\/a> was protected by copyright, the First Circuit stated that many of the photo\u2019s elements, such as the clothes being worn in the photo and the daughter riding on her father\u2019s shoulders were unable to be protected by copyright.\u00a0 The court stated that those elements were \u201cunprotectible factual components\u201d that Harney had not chosen or arranged himself.\u00a0 The court stated not all copying constitutes copyright infringement, and that \u201cthe copying must be sufficiently extensive that it renders the infringing and copyrighted works substantially similar.\u201d<\/p>\n

We recognize that Sony\u2019s Image and Harney\u2019s Photo are similar, as Sony intended. But as we have explained, the question of infringement is governed not merely by whether the copy mimics the plaintiff\u2019s work, but also, more importantly, by whether the similarity arises from protected elements in the original.<\/p><\/blockquote>\n

In finding for Sony, the First Circuit stated that it sympathized with Harney, and found that while Harney created an original protected image, which cannot be reproduced in its entirety, the photo was made up of independently existing facts.\u00a0 It stated that the two photos appear similar, largely due to the piggyback pose, the pose was not Harney\u2019s creation and could, arguably, be so common that it would not be protected under copyright.\u00a0 \u201cIn contrast, the important differences in lighting and backdrop render the photos aesthetically more dissimilar than similar, notwithstanding the common positioning of the father and daughter within the frame.\u201d
\nThus, the court stated \u201cwe recognize that Sony\u2019s Image and Harney\u2019s Photo are similar, as Sony intended. But as we have explained, the question of infringement is governed not merely by whether the copy mimics the plaintiff\u2019s work, but also, more importantly, by whether the similarity arises from protected elements in the original.\u201d\u00a0 The court concluded by reciting that the limitation on Harney\u2019s copyright is what was envisioned under copyright\u2019s statutory scheme\u2014protecting authors\u2019 rights to their original expressions, while allowing others to build freely upon the ideas and information conveyed by their works.<\/p>\n","protected":false},"excerpt":{"rendered":"

Monday, January 21, 2013, by Laura Arredondo-Santisteban The First Circuit released a recent opinion addressing issues involving copyright and news photography, arguably refusing to expand the scope of copyright protection to independently existing facts captured by photojournalists. The case Harney v. Sony Pictures Television, Inc. involves a photograph, taken by freelance photographer Donald Harney, for …<\/a><\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"closed","ping_status":"open","sticky":false,"template":"","format":"standard","meta":[],"categories":[51],"tags":[],"_links":{"self":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1401"}],"collection":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/comments?post=1401"}],"version-history":[{"count":1,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1401\/revisions"}],"predecessor-version":[{"id":7641,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/posts\/1401\/revisions\/7641"}],"wp:attachment":[{"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/media?parent=1401"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/categories?post=1401"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.unc.edu\/ncjolt\/wp-json\/wp\/v2\/tags?post=1401"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}