Harney v. Sony Pictures: Is a recreated photograph copyright infringement?

Plaintiff Donald A. Harney is a professional photographer who took a picture of a father, Clark Rockefeller, and daughter, Reigh Rockefeller, leaving church on April 1, 2007.  The photograph appeared on the front page of the local newspaper and Harney filed a copyright registration for the photograph.

In July 2007, Clark Rockefeller kidnapped his daughter during a bitter divorce.  As it turned out, the name Clark Rockefeller was merely an alias and Mr. Rockefeller’s life, a lie.  Law enforcement officials used Harney’s photograph on a wanted poster.  After a nationwide manhunt, and substantial media coverage the father and daughter were located six days later.

Sony Pictures produced a made-for-tv movie based on the story called “Who is Clark Rockefeller?”  As part of the production, Sony recreated the Harney’s photograph using the actors from the movie.

Regarding Harney’s photograph, the court notes,

Harney selected the lens, camera settings, flash lighting, and camera angle so that the church would be present and in-focus in the background and later edited the photograph on his computer. (See Harney Aff. ¶ 4, Docket # 18 Ex. 1.) Reigh sits on Clark’s shoulders, holding a palm leaf. He holds a program from the church service. They are centered in the frame, visible from the middle of his chest upward, and close to the camera. A tree and the church steeple loom above, and shadows streak across the frame.

Regarding Sony’s photograph, the court notes,

the actors who played the Rockefellers clothed and posed in a manner similar, but not identical, to that of their real-life subjects in the Harney Photograph are visible during the film and in one promotional commercial. They do not hold a palm leaf or church program, they are set against a backdrop of densely-leaved tree branches, and the scene is uniformly lit.

While the photographs were superficially similar, the district court held that the similarities were “factual” in nature rather than “artistic.”

Harney captured a moment in time of a father and daughter passing through Beacon Hill. The Rockefellers were not models. Harney did not select their clothes, give them a church program and palm leaf as props, or ask them to pose. Those aspects of the Rockefellers’ appearance are factual realities that exist independently of any photo. They are not Harney’s original expression, and they are not copyrightable elements of his photograph.

There is, however, significant creative input in the photograph. The combination of the Rockefellers in the foreground, holding the church program and palm leaf, and the church in the background evokes the essence of Beacon Hill on Palm Sunday. The lighting in the photograph highlights the church and the young daughter and displays the long shadows of early spring.

When the Harney Photograph and the Sony Images are compared, they share the factual content but not Harney’s expressive elements. The clothing and pose are similar, but the Sony Image does not include the palm leaf held aloft by Reigh. The backdrop and lighting are different; in particular, the Sony Image eliminates the church. The only shared element for which Harney can claim responsibility is the position of the individuals relative to the boundaries of the photo, although in the original Clark Rockefeller’s face is closer to the camera and less of his body is visible.

The district court therefore granted summary judgment in favor of Sony Pictures.