Federal Court Rules No Infringement in Case of Two Very Similar Photographs


Copyright law is in place to protect artistic expression, not individual ideas. That was the crux of the reasoning behind a recent federal appeals court ruling that saw no infringement on the part of Sony. In the court’s opinion, Sony’s photo (right) was not nearly similar enough to Donald Harney’s (left) and “no reasonable jury could find ‘substantial similarity’ between Sony’s recreated photo and Harney’s original.”

How the photo came to be infringed upon is an interesting story in and of itself. The original wound up at the center of a massive FBI investigation. The man in the photo had abducted his daughter and the photo was famously pasted on wanted posters and news outlets the world over.

It was this story that later became the subject of a Sony movie, for which the company took their own version of the photo. That’s when things got litigious.

Harney sued, claiming infringement; Sony had copied key elements of his photo, including the core subject “and even the color and type of [the girl’s] coat and the paper [her father] has clenched to his chest in his right hand.” Ultimately, however, the court was unable to grant Harney the ruling he wanted because too much of the photo was spontaneous. The court complimented his work — calling it original and expressive — but, according to them:

Harney’s creation consists primarily of subject matter — ‘facts’ — that he had no role in creating, including the central element of the photo: the daughter riding piggyback on her father’s shoulders… Harney’s difficulty in alleging infringement is that almost none of the protectable aspects of [his photo] are replicated in the [Sony image].

The take home message here is that the core subject of a photo such as this is not a “protected element” of the photo. Harney’s composition of the photo with its distinct colors, shadows, church and blue sky are protected. But these elements, it seems, weren’t sufficiently copied by Sony.

(via PDN)

  • Samcornwell

    For once, I’m glad the big guys won.

  • Jjjustinnn

    Harvey or Harney?

  • DLCade

    It’s Donald Harney. Thank you for pointing out that mistake! It’s been fixed :)

  • 3Horn

    Why? They reshot the image to use in their movie instead of using the original; I’m not sure how anyone could say that wasn’t infringing on the original.

  • Andrew Buckley

    so who is the first one to copyright a picture of someone sticking their tongue out!!

  • Andrew Buckley

    talk about a dumb case … glad the judge came toe the correct verdict

  • jumbomoneymaker

    this copyright stuff is going out of hands…

    some day you cant take photos anymore because some other gay has shoot tehs seame motive.. see the UK.. you cant shoot red buses near the parliament bridge and sell them because someone else has done that.
    idiocy^3 if you ask me…..

  • boyscout

    boy.. you shoot everyday stuff others have shoot already… use your brain.
    it´s correct that a motive has no copyright…

  • jumbomoneymaker

    ah… guy not gay.. sorry

  • harumph

    It seems like a lot of people aren’t reading the whole article. Sony made a movie about the father and daughter in the original photograph. The filmmakers recreated the photo for their film instead of using the original, so there’s doubt that they intended to copy this specific photograph. The dispute should be over whether or not the original photographer should be paid in cases like this (which are probably few and far between), and not whether or not someone can hold a copyright over “little girl sitting on daddy’s shoulders” photos.

    The closest comparison I can come up with off the top of my head would be if a film studio decided to make a movie about the sailor and nurse in Alfred Eisenstaedt’s famous Life magazine photo, and instead of using the original photo they recreated it. Would they owe Eisenstaedt any money or credit?

  • Todd Gardiner

    If they had allowed this then people shooting the same event could be making copyright infringement claims against each other on the basis of the same subjects in an unposed situation.

    Or a new wedding at the same wedding venue, because the bride and groom are posed the same and wearing the same clothes in the same location.

    I’m glad the judge realized this.

  • Todd Gardiner

    But there were copying specific elements of what the pair were wearing/holding.

    In your example, clearly you can shoot a picture of a sailor kissing a woman, even with a dip. But you have to avoid recreating the entire picture, like the crowd around the subjects and the Times Sq. setting. The creative choices between the photos were the deciding factor here, such as the framing, angle and background.

    You might want to read the linked article which was the source of this post. There are more details on the judge’s decision there.

  • Goofball Jones

    So does this mean I can now go out and shoot…say Winton Marsalis…in the same pose and lighting that sue-happy Jay Maisel did of Miles Davis?

    Though Maisel is of the type to sue first, ask questions later.

  • harumph

    Yes, I read the article. I’m not clear on what exactly your disagreement with my post is. I concede that the Eisenstaedt photo isn’t the best example, but I’m not sure how to make my point any clearer. Again, Sony didn’t just copy some random “kid on dad’s shoulders” photo; they recreated this specific photograph, because they made a movie about those specific people.

  • Sterling

    How is that the same thing? Clearly the photos in this story are of different people.

  • Jack Reznicki

    Never an easy or clear cut issue. It’s always case specific. Basically an idea can not be copyrighted. But a photo that has “protectable elements” is protected. The judge ruled that his photo did not cross the protectable element threshold. Todd is exactly right in his explanation, IMHO of course.

  • Goofball Jones

    And clearly a photo of Winton Marsalis would be a different person than Miles Davis, yes? It’s the EXACT same thing as this story.

  • Plann

    I’m pretty sure you could have done that before this.

  • Jason

    Darn, now I cant sue anyone else who snaps 38 photos of the Denny’s Grand Slam breakfast after I did it first!

  • harumph

    Well, to make it exact, it would have to contain the movie twist that everyone here seems to be ignoring. So say you have Winton Marsalis playing Miles Davis in a movie and instead of using the original Kind of Blue album cover that Maisel shot, you recreated the cover with Marsalis. Do the producers of the movie owe Maisel credit and/or payment? That should be the question here.

  • harumph

    I think people just aren’t recognizing the unique twist that this case presents. If I’m out taking pictures on the street, and I just so happen to take a shot of someone who later becomes the center of a major news story, and my shot becomes the visual centerpiece of all the news coverage, then the image has value beyond just some random snap of a guy with a little girl on his shoulders.

    The judge’s statement that, “no reasonable jury could find ‘substantial similarity’ between Sony’s recreated photo and Harney’s original,” read like some bizarre Orwellian doublespeak. Sony readily acknowledges that they copied Harney’s photo. But they don’t owe the original photographer anything because the trees in their background don’t have any leaves? Weird to see so many people on a photography website siding with Sony on this one.

  • Samcornwell

    Harney’s photograph is vernacular, it’s a snapshot. He (assumedly) did very well out of that fact when the story first broke. I’m all for photographers and artists getting paid, but not at the expense of creativity which almost all of the time means being influenced or copying someone else’s work. I don’t begrudge Harney for trying it on, he probably had a shot at winning, however for the sake copyright ‘madness’ I’m glad it didn’t hold up.

  • Ralph Hightower

    Okay, once it was posted on “Wanted Posters” in public places like post offices, it became public domain. What does Donald want? His daughter or the money?
    It’s sad that a father is trying to capitalize on his daughters disappearance.

  • Swade

    Could you imagine the precedent this case would set if they sided with the original photo? One could no longer shoot something that was shot already without the worry of getting robbed of all their money. No bride could ever tell the photographer they hired that they want this shot and that shot because the photographer would not be able to shoot it. The business of photography (especially weddings) could collapse with a precedent like that. It is completely asinine that you would side with the original and say that no “similar idea” could ever be used again. I mean, this could span across into the music industry, and then all would go to hell.

  • harumph

    I absolutely never made the argument that “no similar idea could ever be used again.” And I don’t think a ruling in favor of the photographer in this case would set that precedent. Your wedding and music industry examples aren’t even remotely similar to what this case was about. And a ruling in favor of the original photographer in this case wouldn’t have some sweeping effect on all “little girl on daddy’s shoulders” photos. That’s an absurd idea that completely ignores Sony’s intent, and the reason that they were copying this specific photographic. Again, Sony doesn’t deny that they copied Harney’s photo. It’s not some strange coincidence that some random photographer is trying to take advantage of. I could have a photo on my website of a nearly identical shot of another man with a little girl on his shoulders, and I wouldn’t (and shouldn’t) have a legal leg to stand on against Sony. Harney, however, did. Don’t you see the difference?

  • Corporate photographer

    there will be more and more of these cases as you can now upload images to google and they will show you where those images are being used or any images that are close to them.

  • Donald A. Harney

    Copyright law defines derivative work as “a work based upon one or more pre-existing works, such as translation, musical arrangement, dramatization , fictionalization, motion picture version, sound recording, art reproduction, abridgement, condensation, or any other form in which a work may be recast, transformed or adapted.” 17 USC 101.

    Only copyright owners have the exclusive rights to produce derivative works based on their original copyrighted works. If the original isn’t yours and you don’t get permissionto use the original from its’ creator, then you are infringing that author’s copyright.

    That is the LAW. The fact is that Sony “translated, dramatized, fictionalized, made a motion picture version, recast, transformed and adapted” my photographic portrait of Clark Rockefeller and his daughter without my permission.

    I created that image of Clark Rockefeller and his daughter as a freelancer for a local newspaper called the Beacon Hill Times. My agreement with that newspaper was a one time usage of my images and I own all the rights to all my images. I have been working as a professional photographer for over 25 years. I make money to support my family by selling pictures, so I do my best to make sure that I protect my work. Unfortunately, that chain of newspapers broke that trust with me when they distributed the photo to the press and police without contacting me. I am a father and was very concerned about the little girl being recovered safely, so I allowed the distribution of the photo during the amber alert. However, I had a really difficult time recovering control of the image.

    My question is why the federal court completely ignored the derivative work aspect of copyright law in this case. The ‘heart’ of my image was Rockefeller and his daughter. He did not want to be photographed for now obvious reasons, but I was determined to make a picture of these two individuals, because they struck me as odd. The background was irrelevant to me. I made the only image of these two together that exists as far as I know.

    Sony clearly and admittedly made a derivative work of that image. The court was wrong in its’ decision.

    I’m a bit disappointed that fellow photographers would be glad that the “big guys won”. It is not easy making a living as a photographer, especially now. There was a time when professional photographers would have each others’ backs. It was like a brotherhood. Times have changed though, unfortunately. I didn’t get into this profession to make a lot of money, or sue people and corporation. I got into this profession because of my love of the art and because I have a social conscience, and try to stand up for what I feel is right. There wasn’t one ounce of me that had any doubt that I was right in this case. I tried to fight a giant and lost. I guarantee that if I made a derivative work from some image, song, or game (or whatever) and sold it for profit, Sony would take me to court and crush me.

    Everyone is free to have their opinions about this controversial case, but at least back it up with some substance and legal knowledge.

    Good luck to all you professional photographers out there. I took a huge chance fighting Sony to stand up for my fellow shooters. It appears that it was all in vain.


    Don Harney

  • Donald A. Harney

    See my post below. If you don’t understand my perspective, stick your head back in the sand and support the “big guys”.

  • Friend

    No they could not. It is not infringement to take EXACTLY the same photo that you do if it was independently created.

  • Lemming

    But is it a question of law (Judge) or fact (jury). Now go run to Ed for an answer. And then remove that BS at your site about none of your photos may be used as the basis for another. I most certainly can discern the idea behind a photo and use exactly the same idea in my own photo.

  • curiousG

    Should gay’s have the same copyrights as other people ? That’s the question.

  • PartyPooper

    First, if you read the case you would not have used the EIsenstaedt example because the court actually addressed that photo. Second, you need not make the point again or any clearer. The point was made and lost at the trial and then appellate level. I would suggest another circuit or, if you have a lot of $$$, you lobby Congress to change the copyright law. That’s what the big boys do.

  • harumph

    You’re responding to me as if I were Mr. Harney. He has posted below, so I’m going to assume that you’re just confused.

  • harumph

    You’re very confused. Don Harney is not the father of the girl in the photo. The man in the photo is her father, and it was he who kidnapped the girl. Harney just took the photo of them.

  • TooPhilosophicalToPickAName

    Don, I am sorry to that everyone is being such douchenozzles here, but you have to remember, owning a digital camera (99% of people on camera forums/news sites) is not /= to being an actual photographer like yourself.

    Half of these people have never taken a saleable image in their lives, nor tried to help anyone meaningfully through their photography.

    In fact, many of the people who comment are total gearheads and camera theoryists, so try not to take too much of their negativity to heart.

    If one of their hard fought images was infringed by a multinational corporation like sony, you KNOW they’d be up in arms, and crying wolf to the high heavens, even with the existence of their current commentary.

    I know real journos would have your back, sadly there are very very few online, on these types of forums and news sites (actual work to do, and all).

    I personally think it was obvious and clear that they copied your image, without having read the article yet, or even their admittance of an intended copy of it (which should obviously signify to a judge inherent copyright infringement- if you make a copy of one of their games, or a PS3 for example, but call it a Party System 3, and paint it in different colors, we would see how far Sony as a corporation would try to punish that), it is beyond obvious that the image is a copy of yours.

    The only meaningful difference is the background, and even out of that, I find it a dubious claim that this was not a clearcut case of copyright infringement.

    As we all know, it usually comes down to the person with more technical and monetary resources who finds the best kept loopholes possible, and I am sorry for your loss in what should have been a majestic court case for david vs goliath artist’s rights.

  • Ridgecity

    I think he was just pissed they made a movie about him, Got a lawyer and was trying to get them. He lost.