On January 7th, 2013, the Court of Appeals for the First Circuit handed down its opinion in a case filed by a photographer (Donald Harney) against Sony Pictures Television Inc., for the alleged infringing use of a photograph Harney took of an seemingly innocent father-child pair, which ended up causing a storm of publicity and media attention. In Harney v. Sony Pictures, 11-1760, the Court of Appeals affirmed the District Court’s decision to dismiss the case, finding that substantial similarity did not exist between the photograph taken by Harney and the photograph recreated by Sony, modeled after the one taken by Harney.
The Court does an excellent recap of its holding towards the end, stating:
Although the two photographs appear similar upon a first glance, that impression of similarity is due largely to the piggyback pose that was not Harney’s creation and is arguably so common that it would not be
protected even if Harney had placed Gerhartsreiter and Reigh in that position. See Mannion, 377 F. Supp. 2d at 462 (suggesting that the subject’s pose was “arguably in the public domain”); cf. Rogers, 960 F.2d at 304 (noting that “[s]ubstantial creative effort went into both the composition and production” of a photograph where the photographer, inter alia, selected the light, the location, and the arrangement of the couple and their eight puppies on a bench). Significantly, the two photographs are notably different in lighting and coloring, giving them aesthetically dissimilar impacts. Harney’s features vivid colors and distinct shadows, while the Image is washed out and is far less attractive or evocative.
This case has an great review of jurisprudence applicable to copyright in photographs, and up to what extent are the subjects of the photographs subject to copyright.
The Opinion can be read here.