To What Extent Is There Copyright In A Snapshot?

Author:Mr Neil Guthrie
Profession:Borden Ladner Gervais LLP

The snapshot that generated the litigation was taken by Donald Harney, a freelance photographer. The subjects: Christian Gerhartsreiter and, on his shoulders, his young daughter with a Palm Sunday palm in her hand, with a church in the background. Gerhartsreiter had, in fact, abducted his daughter during a custodial visit and publication of the photo in the media and as a FBI wanted poster blew his cover as a fraudster who had masqueraded as a British aristocrat and, more recently, a member of the Rockefeller family. So why the copyright suit? Sony Pictures made a TV movie about Gerhartsreiter, publicising it with an image of father carrying daughter that was clearly based on Harney's original. The issue, then, was whether Harney could assert copyright in the photo he had taken.

In the end, the answer was no. The two images were very close in many respects: same pose, same pink coat on the girl, tree and church in the background. The district court in Boston concluded that while the factual content of the two images was almost identical, the Sony photo lacked the 'expressive content' that was unique to Harney's image. The 1st Circuit, which heard Harney's appeal, agreed. It is permissible to mimic the non-original, factual elements of a work that is subject to copyright. The district court judge was correct to 'dissect' Sony's image into its component parts, expressive and factual, in order to separate...

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