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.