Can a Photographer Own a Copyright on a Scene in the News and History?

Can a photograph that becomes linked with history or news be protected from imitation? The First Circuit Appeals says that the answer is “no”. The image of Christian Karl Gerhartsreiter, better known as Clark Rockefeller, with his daughter emerging from a Boston church on Palm Sunday became a famous photograph.

The story of the man who in effect abducted his own daughter in violation of divorce terms was a story made for a Lifetime made-for television movie. When Sony Pictures Television produced the program, “Who Is Clark Rockefeller” it reenacted the scene at the church using the actors in the program.

The photographer of the image, Donald Harney, sued. No doubt his photograph is covered by copyright. But, how far does his copyright protection go? In Harney v. Sony Pictures Television, Judge Rya Zobel of the federal district court in Massachusetts ruled that as a matter of no reasonable jury could find the required “substantial similarity” between the original photo and the reenactment. In January the First Circuit agreed and affirmed the ruling. Why?

Copyright protects creative expression but does not protect factual elements, saying “it is permissible to mimic the non-copyrightable elements of a copyrighted work. Copyright protection ‘extend[s] only to those components of a work that is sufficiently ‘original’ to be copyrighted may nonetheless contain unoriginal elements.”

Although the scene in the movie and photograph were indeed substantially similar, the copying was mainly of unprotectible elements (e.g., the historical facts of where Mr. Gerhartsreiter and his daughter were and what they wore), as a documentary rendition of reality (admittedly depicting a fantastic figure), too little copyrightable material was appropriated to constitute infringement. This point is true even though Mr. Harney had no way of knowing when he created the photograph that Mr. Gerhartsreiter or the image would be famous or infamous. Although this case is not formally what is called a “fair use” case – the exception to copyright in which for purposes of reporting, parody, commentary, and the like one can use a copyrighted work, the case shares the same First Amendment sensitivities and values.

The zeitgeist of copyright is in the hands of the re-users and remixers. It isn’t surprising that in these times a court would find that a second creator who referenced a photograph embodying history in the context of the dramatic movie would be held as acting rightfully.

Mr. Harney in a sense is a victim of the success of his image. By becoming intertwined with the historical record his image seems to have less protection but it will live on as part of the unusual journey of Clark Rockefeller.

A related article is at

In February 2015, our colleague and friend, partner Mark Fischer, passed away. We have made his blog posts available in honor of both his nuanced and wide-ranging knowledge of intellectual property, new media and entertainment law and of his entertaining style. Please read our tribute to Mark in the firm’s Alumni Spotlight publication and his obituary in the Boston Globe.

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.

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