Harney v. Sony Pictures Television Inc., 41 Med.L.Rptr. 1134 (1st Cor. 2013).
Facts: In April 2007, photographer Donald Harney took a picture of what appeared to be a father and daughter out at an event. Almost a full year later, in 2008, the couple in question became involved in a kidnapping case, and the daughter was abducted by her father. The story quickly became a media sensation, and given that it was a photo of both subjects, Harney’s image was used in media coverage of the kidnapping, for which Harney was paid licensing fees by multiple news networks. A television series was soon made to adapt the story of the abduction. Sony Pictures Television Inc. mimicked the photograph taken by Donald Harney in their made-for-TV movie to be used as a prop, although the details of Sony’s version were changed in a few ways-namely the use of an actor and child actress, the orientation of the girl’s hands, and the papers being held in the hand of the father figure.
Sony’s image appears in 42 seconds of the 90-minute film, depicted as a wanted poster and other such items. Furthermore, it appeared in 22 ads for the program for less than a second each. Harney, having not been contacted by Sony for any permission to recreate a similar image, subsequently filed suit, alleging that Sony’s use of his photograph without permission was a violation of federal copyright law. Sony fought the charges, arguing that no reasonable jury would consider their image a blatant theft of Harney’s work.
Issue or questions: The issue for this particular case is whether or not a party’s recreation of an image can be so blatantly attempting to duplicate it that the work is thereby theft of the original artist’s content. Specifically, it addresses Article I, Section 8, Clause 8 of the Constitution: the Patent and Copyright Clause.
The decision or holding: The First Circuit of the United States Court of Appeals ruled that no “substantial similarity” could be found between Sony Television Pictures’ image and the photograph originally taken by Donald Harney, ruling in favor of Sony. The decision dissected the notion of “substantial similarity,” a term used about whether or not an image has been essentially stolen in how closely it was recreated. Since the image Harney created was used as a wanted poster, Harney argued that the similarity of Sony’s image (recreated with the actors playing this version’s characters) was an implicit attempt to copy Harney’s image. The jury agreed that there were many primary features of the image that were similar, including the clothing, age/appearance, and pose in which the pair was captured. Numerous smaller details were considered different, though, including the backdrop of the image being different, the content in the male character’s hand being illegible in Sony’s image, and many more features which were considered more plentiful than the things they shared in common.
These images that they shared, furthermore, were considered “non-copyrightable.” The court agreed that it is permissible to mimic the non-copyrightable elements of a copyrighted work and that if two works share the same non-copyrightable elements, then there is no infringement. Via Article I, Section 8, Clause 8 of the Constitution, such mimics are considered transformative and deemed fair use. While it was agreed upon by the jury that Harney owned copyright within his photograph, and Sony had copied that photograph, they had only copied the bare minimum needed to recreate the concept of it– something which is non-copyrightable.
Rule of Law: The court referenced precedent from cases such as Warner Bros. Inc. v. Am. Broad.
Cos., 720 F.2d 231, 240 (2d Cir. 1983), in which a character that looked similar to Superman (created by Warner Brother’s subsidiary content creator DC Comics) was created as a deliberate copy by an ABC production. That particular case demanded a similar level of substantial similarity that the court said, once again, this case couldn’t be awarded in Harney’s favor.