No Substantial Similarity in Photo Used in TV Movie

In May 2011, Judge Rya Zobel of the U.S. District Court for the District of Massachusetts found that the Harney and defendants' images “share the factual content but not Harney's expressive elements.” Judge Zobel held that the clothing and pose are similar, but the Sony image excludes the palm leaf held by Reigh and eliminates the church. “This limited sharing is not enough to establish substantial similarity and copyright infringement,” Zobel wrote.

Harney appealed and the First Circuit heard oral arguments in May 2012. Senior Judge Kermit Lipez wrote the appeals court opinion, joined by judges Jeffrey Howard and Juan Torruella. Lipez noted that neither the subject matter of the earlier work nor the arrangement of Reigh sitting on her father's shoulders is attributable to Harney.

The appellate panel went on to identify the expressive choices in Harney's work that are original. Following that dissection, the panel considered whether any reasonable jury focusing only on the original elements would find the defendant's work substantially similar to the plaintiff's. “Sony copied little of Harney's original work ' only the placement of Gerhartsreiter and Reigh in the photograph ' and no jury could conclude that the similarity resulting solely from that copying is substantial,” Lipez wrote.

Quoting Second Circuit case law, Lipez determined that a reasonable jury comparing the two works could not conclude that an ordinary observer would find that they have the same aesthetic appeal.

The U.S. Court of Appeals for the First Circuit ruled that two television production companies didn't violate a photographer's copyright when they used an image they created that was similar to his photo ' depicting an imposter, who called himself Clark Rockefeller, and his daughter ' in a made-for-TV movie. Harney v. Sony Television Pictures Inc., 11-1760. The appeals court affirmed a summary judgment ruling for Sony Pictures Television Inc. and A&E Television Networks LLC.

The case concerned plaintiff Donald Harney's photo of Christian Karl Gerhartsreiter and his daughter Reigh leaving a church in Boston's Beacon Hill neighborhood on Palm Sunday, March 31, 2007. The television companies used the disputed image in a movie titled Who Is Clark Rockefeller?

In June 2009, Gerhartsreiter was convicted in Massachusetts Superior Court for the July 2008 parental kidnapping of Reigh, and on charges of assault and battery with a dangerous weapon. Gerhartsreiter has also been charged in California with murdering Jonathan Sohus, who disappeared at a time when Gerhartsreiter was renting a guesthouse at Sohus' mother's San Marino, CA, home.

In May 2011, Judge Rya Zobel of the U.S. District Court for the District of Massachusetts found that the Harney and defendants' images “share the factual content but not Harney's expressive elements.” Judge Zobel held that the clothing and pose are similar, but the Sony image excludes the palm leaf held by Reigh and eliminates the church. “This limited sharing is not enough to establish substantial similarity and copyright infringement,” Zobel wrote.

Harney appealed and the First Circuit heard oral arguments in May 2012. Senior Judge Kermit Lipez wrote the appeals court opinion, joined by judges Jeffrey Howard and Juan Torruella. Lipez noted that neither the subject matter of the earlier work nor the arrangement of Reigh sitting on her father's shoulders is attributable to Harney.

The appellate panel went on to identify the expressive choices in Harney's work that are original. Following that dissection, the panel considered whether any reasonable jury focusing only on the original elements would find the defendant's work substantially similar to the plaintiff's. “Sony copied little of Harney's original work ' only the placement of Gerhartsreiter and Reigh in the photograph ' and no jury could conclude that the similarity resulting solely from that copying is substantial,” Lipez wrote.

Quoting Second Circuit case law, Lipez determined that a reasonable jury comparing the two works could not conclude that an ordinary observer would find that they have the same aesthetic appeal.