Use Of Candid Photo In Poster Not Infringing

The U.S. Court of Appeals for the First Circuit upheld a district court's decision limiting a copyright holder's protection in a candid photograph. Harney v. Sony Pictures Television, Inc., Case No. 11-1760 (1st Cir., Jan. 7, 2013) (Lipez, J.). The 1st Circuit held that where only one protectable element of the original photograph had been copied, substantial similarity could not be established.

In 2007, Donald Harney, a photographer for the Beacon Hill Times, took a picture of a man and his daughter as they left Palm Sunday church services. This particular photograph showed Clark Rockefeller and his daughter Reigh and was published with their consent on the front page of the newspaper. This photo was on the front page of the Beacon Hill Times long before the world knew Clark Rockefeller as Christian Karl Gerhartsreiter, the con man who claimed to be related to the prominent Rockefeller family. In 2008 Gerhartsreiter kidnapped Reigh during a parental visit. Without Horney's knowledge or consent, a portion of the photo was placed on a nationwide FBI poster which became the iconic image of the bizarre saga of Gerhartsreiter. Harney subsequently licensed the photograph for use in multiple media outlets, including Vanity Fair magazine. In 2010 Sony released the movie Who is Clark Rockefeller? and included depictions of the FBI wanted posters showing an image of the actors playing the roles of Gerhartsreiter and Reigh that was similar to the Harney photograph used by the FBI.

Harney sued Sony and A&E Television Networks alleging copyright infringement. The district court granted summary judgment in Sony's favor finding that the only element of the...