In Harney v. Sony Pictures Television, Inc., No. 11-1760 (1st Cir. Jan. 7, 2013), the United  States Court of Appeals for the First Circuit explained when are two photographs substantially similar for copyright infringement purposes.  The Court explained that a photograph may have protected and unprotected elements and only comparison to the protected elements is relevant when determining substantial similarity between two photographs.

Harney had photographed a girl in a pink coat riding piggyback on her father's shoulders as they emerged from a Palm Sunday service. The photograph was published on the front page of the local newspaper.

A year later, the father and daughter became a national media sensation. The father had abducted his daughter during a parental visit and was sought by police. The father was a professional imposter who had been passing himself off as a member of the Rockefeller family and who had previous posed as a British royalty descendant, a Wall Street investment advisor, and a rocket scientist. He also was wanted for questioning regarding a 20-year-old homicide.

The father-daughter photograph was used in an FBI “Wanted” poster and was widely distributed in the media. Sony later produced a made-for-television movie based on the father's identity deception. Sony depicted the photograph in that movie using a second photograph that was similar in some details and different in other details. Harney sued Sony for copyright infringement.

The trial court granted Sony summary judgment, ruling that no reasonable jury could find substantial similarity between the two photos. “Substantially similarity” is a necessary element of a copyright violation. The trial court ruled that the photos were not substantially similar because although they shared the factual content of the scene, the second photograph did not share the expressive elements of the first photograph. The limited sharing between the works was not enough to establish substantial similarity and copyright infringement.

In reviewing the trial court's judgment, the United States Court of Appeals for the First Circuit noted that the two photographs shared several important features:

 a young blond girl wearing a long pink coat and light-colored tights riding piggyback on a man's shoulders;

 the father and daughter are smiling;

 they are looking straight at the camera at roughly the same angle;

 only the father's upper body is shown; and

 the father is holding papers in his left arm with the text of the first page facing the camera.

The First Circuit described the following as minor differences:

 in the original photograph, the girl's coat is a darker pink;

 in the original photograph, the coat buttons are placed higher on the garment; and

 in the original photograph. the father's jacket is a dark tweed, while it is a solid tan in the second photograph.

Significant distinctions were that:

• the backgrounds are different
• in the original photograph, the papers in the father's hands are easily identifiable as the program for the church service, while the writing on the papers in the second photograph is not legible and its text is plainly different; and
• in the original photograph, the girl is holding up a palm leaf in her left hand, but in the second photograph, both of the girl's hands are by her sides, resting on her legs.

Sony admitted that it copied Harney's photograph. However, copying another's work does not invariably constitute copyright infringement. The copying must be sufficiently extensive that it renders the infringing and copyrighted works substantially similar.

It is permissible to mimic the non¬copyrightable elements of a copyrighted work. Copyright protection extends only to those components of a work that are original to the author, and a work that is sufficiently original to be copyrighted may contain unoriginal elements.

Thus, assessing substantial similarity requires close consideration of which aspects of the plaintiff's work are protectable and whether the defendant's copying substantially appropriated those protected elements.

The substantial-similarity inquiry requires two types of scrutiny:

(1) Dissection of the earlier work to separate its original expressive elements from its unprotected content.

(2) Followed by holistic comparison of the two works to determine whether they are substantially similar, considering only the protected aspects of the plaintiff's work as determined by the dissection. Two works are substantially similar if the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same.

Although the court performs the dissection analysis as a matter of law, the fact finder ordinarily determines substantial similarity. In Harney, the trial court and First Circuit held that no reasonable jury could conclude that an ordinary observer examining the two works would see the defendant's version as a wrongful appropriation of the plaintiff's protected expression.

Artists ordinarily have no copyright in their subject matter's reality, and the news photographer's stock-in-trade is depicting reality. Subject matter the photographer did not create can be viewed as facts not entitled to copyright protection. Facts do not owe their origin to an act of authorship. Because facts are discovered, rather than created, they are part of the public domain and are available to every person.

Copyright protection is limited to those aspects of the work – termed “expression” – that display the stamp of the author's originality. A photograph of public-domain subject matter may thus be protected from copying because it involves creative expression, but the protection is limited to the work's original elements.

Originality can exist in a photographer's selection of elements such as

• lighting;

• timing;

• positioning;

• arrangement of elements;

• suggestions of facial expressions;

• angle;

• focus;

• film selection; and

• camera selection.

Performing the dissection analysis, the First Circuit found that Harney's photograph involved several elements of creative expression:

 framing of the father and daughter against the backdrop of the church

 the father and daughter each holding a symbol of Palm Sunday;

 positioning the father and daughter in the middle of the frame as they look straight into the camera, and at a close distance;

 the depiction of only parts of their bodies; and

 the shadows and vibrant colors in the Photograph–which the Court speculated might be the result of Harney's use of an electronic flash and professional editing software.

However, the Court emphasized that Harney's photograph consists primarily of subject matter (i.e., facts) that he had no role in creating, including the photograph's central element–the daughter riding piggyback on her father's shoulders. Harney could not claim exclusive rights to the unprotectable, factual components of his photograph:

• the piggyback pose of the father and daughter;

• their clothing;

• the items they carried; or

• the Church of the Advent shown with bright blue sky behind it.

After dissecting Harney's photograph, the First Circuit then addressed whether the second photograph unlawfully appropriated an impermissible portion of Harney's original expressive elements. The Court concluded that almost none of the protectable aspects of Harney's photograph existed in the second photograph. Though the two photographs appear similar on first glance, that impression is due largely to the piggyback pose that Harney did not create and is arguably so common that it would not be protected even if Harney had placed the father and daughter in that position. The two photographs are different in lighting and coloring, giving them aesthetically dissimilar impacts: Harney's photograph has vivid colors and distinct shadows, while the second photograph is washed out and far less attractive or evocative.

Though the second photograph copies the father and daughter's placement in the frame, locating a photograph subject in the middle of a frame is an element of minimal originality and alone is insufficient to find substantial similarity.

Although the two photographs are similar, as Sony intended, infringement is determined not merely by whether the copy mimics the work, but also, more importantly, by whether the similarity arises from protected elements of the original work. Sony copied little of Harney's original work –only the placement of the father and daughter in the photograph — and no jury could find substantial similarity solely from that copying. Moreover, given the differences in background, lighting and religious detail, a reasonable jury comparing the entirety of the two works could not conclude that the ordinary observer would regard their aesthetic appeal as the same.