Harney v. Sony Pictures Television, Inc.
704 F.3d 173
1st Cir.2013Background
- Harney, a freelance photographer, took a Palm Sunday photo (the Photo) of a girl and her father in Beacon Hill, Boston, published on the newspaper’s front page.
- The subject was later identified as Clark Rockefeller, a German-born impostor; the FBI used Harney’s Photo on a Wanted poster distributed nationwide.
- Sony Pictures Television produced a docudrama, Who is Clark Rockefeller?, including an Image that recreates the Photo’s pose and composition.
- Sony’s Image was shown in multiple scenes and briefly in a television commercial, with notable differences in background and details.
- Harney filed a copyright infringement suit claiming Sony copied the Photo’s protectible elements; the district court granted summary judgment, finding no substantial similarity.
- On appeal, the First Circuit reviews whether the Image substantially imitates Harney’s original expression after a dissection of protectible versus unprotectible elements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Image substantially resembles the Photo in protectible elements | Harney argues Sony copied the Photo’s expressive heart and substantial elements | Sony contends only unprotectible aspects (general idea) were copied | No substantial similarity; copying was limited to placement, with other protectible elements lacking |
| Whether the district court properly used the dissection approach | Harney claims over-dissection erases protectible expression | Sony and court correctly separated protectible expression from unprotectible facts | Dissection properly identified original elements and unprotectible content; allowed analysis of substantial similarity |
| Whether later events that gave rise to the Rockefeller deception expand protectable subject matter | Harney argues later events render the Photo’s expression protectable | Protection cannot hinge on post hoc significance | Subsequent events do not transform unoriginal elements into protectable subject matter |
| Whether fair use was necessary to resolve the claim | Harney suggests fair use defense should apply to adaptions | Fair use not reached given lack of substantial similarity | Fair use not required to decide the case because substantial similarity absent |
Key Cases Cited
- Feist Publ'ns, Inc. v. Rural Tel. Serv. Co., 499 U.S. 340 (1991) (no copyright in facts; protects only original expression)
- Johnson v. Gordon, 409 F.3d 12 (1st Cir. 2005) (two-step substantial similarity analysis; focus on protectible elements)
- Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25 (1st Cir. 2001) (substantial similarity requires focus on protected expression; not just overall impression)
- Coquico, Inc. v. Rodríguez-Miranda, 562 F.3d 62 (1st Cir. 2009) (dissection followed by holistic similarity assessment; protectible vs unprotectible elements)
- T-Peg, Inc. v. Vermont Timber Works, Inc., 459 F.3d 97 (1st Cir. 2006) (summary judgment possible where reasonable minds could not differ on similarity)
- Soc. of Holy Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29 (1st Cir. 2012) (de novo review of protectible elements; ultimate similarity fact-intensive)
- Leigh v. Warner Bros., Inc., 212 F.3d 1210 (3d Cir. 2000) (originality in photography; ideas/facts not copyrightable; protectible elements may arise from arrangement, lighting, etc.)