The snapshot that generated the litigation was taken by Donald
Harney, a freelance photographer. The subjects: Christian
Gerhartsreiter and, on his shoulders, his young daughter with a
Palm Sunday palm in her hand, with a church in the background.
Gerhartsreiter had, in fact, abducted his daughter during a
custodial visit and publication of the photo in the media and as a
FBI wanted poster blew his cover as a fraudster who had masqueraded
as a British aristocrat and, more recently, a member of the
Rockefeller family. So why the copyright suit? Sony Pictures made a
TV movie about Gerhartsreiter, publicising it with an image of
father carrying daughter that was clearly based on Harney's
original. The issue, then, was whether Harney could assert
copyright in the photo he had taken.
In the end, the answer was no. The two images were very close in
many respects: same pose, same pink coat on the girl, tree and
church in the background. The district court in Boston concluded
that while the factual content of the two images was almost
identical, the Sony photo lacked the 'expressive content'
that was unique to Harney's image. The 1st Circuit, which heard
Harney's appeal, agreed. It is permissible to mimic the
non-original, factual elements of a work that is subject to
copyright. The district court judge was correct to
'dissect' Sony's image into its component parts,
expressive and factual, in order to separate the protected elements
from the unprotected. The photo used by Sony reproduced the factual
aspects of Harney's work (father, daughter on shoulders etc.)
but not Harney's 'aesthetic flair' in composition,
contrast of light and shade, and vibrant use of colour. The court
rejected Harney's argument that his photo encapsulated the
essence of the Gerhartsreiter story and should not be subject to
the dissection analysis, because this would enlarge the scope of
copyright protection by giving him control over the idea captured
in the still. This will not leave freelance photographers who take
pictures on the fly without copyright protection: they can still
prevent unauthorised use of the actual images they have taken, if
not reproduction of the purely factual elements of those pictures.
The Sony picture reproduced almost none of the protectable aspects
of the original, so Harney's claim had to fail: Harney v Sony
Pictures Television Inc (1st Cir, 7 January 2013).
A recent Saskatchewan Court of Queen's Bench decision allowed a court-appointed receiver to sell and transfer intellectual property rights free and clear of encumbrances, finding that a license to use improvements of an invention was a contractual interest and not a property interest.
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