Who Owns Cute Girls in Pink Coats on Daddy’s Shoulders?

by Greenberg Glusker Fields Claman & Machtinger LLP

The Beatles crossing Abbey Road.  A nurse and sailor kissing in Times Square as the end of World War II is announced.  An African vulture patiently waiting for a starving toddler to die.  The 1968 Olympics Black Power salute.  Jack Ruby shooting Lee Oswald.  Rose and Jack on the bow of the Titanic (or, for movie fans of a different era, maybe Marilyn Monroe’s white dress billowing as she stands over a subway grate).

Iconic photographs capture an image and immortalize it.  Once seen, forever remembered.  Pictures worth a thousand words.  Other poignant clichés.  The point is, a photograph can take everything a historical moment symbolizes and preserve it for eternity — or at least until you accidentally throw out the pictures while moving, or maybe leave them unattended in your storage locker until you die.  (And if you haven’t seen the above photographs — other than the storage locker ones — stop reading this blog and look at them now or risk forever being a cultural ignoramus.)

Now think of a photograph of a little girl wearing a pink coat sitting on her father’s shoulders outside a church clutching a palm leaf.  Unless you spend a lot of time studying FBI manhunt posters, this photograph does not immediately spring to mind.  But it has one trait that the above photographs do not:  it was the subject of a recent lawsuit by its photographer against Sony Pictures, which used a photograph featuring a little girl wearing a pink coat sitting atop Eric McCormack’s shoulders in a television movie.  So, are these two photos “substantially similar,” such that the image on the right infringes the copyright in the image on the left?

According to Sony Pictures — and, now, the Boston-based federal Court of Appeals for the First Circuit — the answer is no.

Everyone Needs a Profession

The man in the original photograph is Christian Karl Gerhartsreiter, aka “Clark Rockefeller.”  He won (in)fame(y) as a “professional” imposter who pretended to be a rocket scientist, a Wall Street investment banker, and a descendant of British royalty before adopting the phony Rockefeller identity and presenting himself as a member of that famous clan.  (These days, Gerhartsreiter plays the role of a criminal defendant, on trial in Los Angeles for allegedly murdering his landlord in 1985.)  Donald Harney, a freelance photographer on assignment for a Boston newspaper, snapped the photo of Gerhartsreiter and his daughter as they emerged from a Palm Sunday service in 2007.

The following year, the fake Rockefeller abducted the girl during a custodial visit.  The FBI used Harney’s photograph in a “WANTED” poster.  Harney did not protest because he did not want to impede the search for the missing girl.  The case received a lot of media attention, and Gerhartsreiter was arrested a week later.  (The girl’s mother divorced Gerhartsreiter after discovering that he was, in fact, a con man and not a Rockefeller.  Don’t know if they write pre-nup clauses for that sort of thing.)  Harney licensed his photo to Vanity Fair and other publications.

Hollywood soon followed.  Not one to miss out on the opportunities presented by a good story, Sony made a television movie about Gerhartsreiter’s life and history of duping people called “Who is Clark Rockefeller?”  (I’ll give you three guesses for what network aired the movie.  Seriously, does anyone other than Lifetime do TV movies anymore?)  For the movie, Sony created its own version of the FBI poster, which — as the side-by-side above makes apparent — contains some familiar elements.  Both photographs show a little girl in a pink coat sitting on top of her father’s shoulders.  The pair is smiling and looking at the camera at roughly the same angle.  And Eric McCormack really nails that awkward German con man squinty grin.

Sony, however, made several significant changes.  Gone was the background of the gothic cathedral and blue sky; instead, Sony substituted a dark leafy tree.  Sony nixed the other religious symbols as well, such as the palm leaf in the daughter’s hand and the missalette (replaced with mere papers).  In the movie, the Sony image appeared in five scenes — illustrating the photo’s use during the manhunt — for a total of 42 seconds.

Sony Beats the Rap

We’re here, so of course, you know that Harney sued Sony and A&E Television Networks for copyright infringement.  The district court dismissed the case on grounds that the two photographs were not substantially similar, which is the sine qua non of a copyright infringement suit.

The Court of Appeals for the First Circuit agreed.  Though expressing sympathy for Harney, the court found that the elements of the photo which the defendants mimicked were not protectable, and hence not copyrightable.  Our regular readers may get tired of seeing it, but we never get tired of saying it:  copyright protection extends to an expression of an idea, not the idea itself, and the image of a child sitting on her father’s shoulders is just that.

Similarly, the court rejected as an idea the photographer’s efforts to claim protection for what the photograph symbolized — Gerhartsreiter’s deception.  Though the picture in its own way became iconic of the whole Clark Rockefeller sham, that was not the case when Harney clicked the shutter.  Later events cannot create copyrightable elements where none existed before.  In other words, art critics may recognize retroactive, accidental genius, but courts won’t recognize retroactive, accidental copyrightable expression.

Also factoring into the court’s decision was that Harney did not create the pose.  Unlike a staged photograph where the photographer positions his subjects (think Annie Leibovitz’s photograph of Cindy Crawford shaving k.d. Lang…and keep thinking about it), Harney merely happened upon the pair as they were walking from church.  The court found this to be the equivalent of discovering a “fact,” and facts are (say it with me) part of the public domain.

The court conceded that Harney’s photograph reflected a “distinctive aesthetic sensibility,” but held Sony didn’t copy the majority of the expressive elements of Harney’s photograph, such as the blue sky, composition of the church background and the Palm Sunday symbols.  Instead, Sony took the bare minimum needed to recreate the photograph to reflect its prominence in the manhunt.  While, as a practical matter, the pictures are undeniably visually similar, the only truly expressive element Sony adopted — the placing of the subjects in the center of the frame — was by itself not enough to render the two works substantially similar for purposes of copyright law.

The Impact of the Court’s Decision

The Sony decision raises important concerns that will affect the news and entertainment industries alike.

Only one of the most famous photos of the 20th century.  But it was just spontaneous.The Court essentially created a standard that affords less protection to spontaneous photography than to studio photography, notwithstanding the court’s recognition of the artistry that may be involved in the former.  Is this fair?  The news photographer still exercises his judgment as to what to shoot and how to light the photograph.  Moreover, the job is twice as hard because the photographer has only an instance to capture a moment and make it iconic.  Alfred Eisenstadt’s famed V-J Day in Times Square, in fact, was a spontaneous shot published in Life magazine.  Does this photograph warrant less protection than a Vogue cover that took ten hours to shoot?

This distinction may be more theoretical than real, given that many “news” photographs are often staged (like the time Life photographed a leopard “hunting” a baboon, when in fact, they brought the leopard there in a cage).

While it is easy to sympathize with Harney and other photographers reeling from the First Circuit’s opinion, the fact remains that news photographs play an important role in history, and studios that make movies about historical events need to be able to use the images.  The filmmaker has a couple of options:  either license the image or do what Sony did — recreate the photograph using as little as possible of the original.

At the same time, it is important to keep in mind that every jurisdiction has its own test for copyright infringement.  Federal courts in California might apply something called the “Extrinsic/Intrinsic” analysis, which is different from the Boston-based court’s “dissection” analysis.  A New York federal court would employ yet a third test, asking if an ordinary person viewing the two competing works and conclude they had the same “total look and feel?”  Under any of these tests, however, it seems likely that Sony would have prevailed:  the studio’s photograph lacks the excitement and aesthetic quality of the original, while the ominous green leaves and lack of sunshine convey a dark impression quite different from Harney’s overall effect of lightness and father-daughter bonding.  Later events and revelations turned Harney’s photograph into a metaphor, whereas Sony took a literal approach for the deception that was Clark Rockefeller.

But these sorts of variations in an ostensibly “federal law” are the just kind of thing that keeps lawyers in business, laypeople generally disgusted with the law, and curious readers coming back to this blog.  So perhaps we can conclude that the real winner in Sony Pictures’ case was, as usual, the lawyers.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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