Clark Rockefeller, aka Christian Karl Gerhartsreiter, lived a double life until his conviction for child abduction in 2009. He was subsequently charged with an unrelated murder in California, and that trial is set to begin later this month.
But the most recent chapter in the Rockefeller saga has very little to do with Rockefeller himself. In 2007, before anyone had ever heard of the man, a Boston newspaper photographer named Donald Harney was assigned to take some pictures of Boston’s tony Beacon Hill neighborhood on a Sunday in early Spring. One of the photographs he took was the picture above on the left, depicting Rockefeller and his daughter.
A year later, however, Rockefeller abducted his daughter. The photograph, which was used on FBI posters to facilitate the safe return of the little girl, became a temporary icon of sorts. Harney let the FBI use the photograph for free, but also licensed it to multiple media outlets.
In 2010, Sony Pictures produced a made-for-television movie about Rockefeller, entitled “Who is Clark Rockefeller?” In order to portray the role of the photograph in the story, Sony decided to recreate it, resulting in the image above on the right. Harney objected to the recreation of his photograph, and sued Sony for copyright infringement in Federal District Court in Massachusetts, arguing that Sony’s image was substantially similar to his own.
Earlier this month, on the eve of Rockefeller’s murder trial, the First Circuit affirmed the District Court’s tossing of Harney’s case on summary judgment. The case came down to a fight between competing methodologies for determining substantial similarity. Harney argued that the court should focus on the photographs’ overall expression of the Rockefeller saga to determine whether they were substantially similar. The First Circuit, however, rejected this methodology and stuck to what it refers to as “Dissection.”
In the dissection analysis, the Court first must pick apart the plaintiff’s photograph to determine which elements are works of expressive authorship and which are unprotected facts, which cannot be copyrighted. These unprotected facts are not considered when comparing the images. This analysis is particularly important in the case of news photographs, because the artists normally have no independent copyright in their subject matter.
In the Harney photograph, for instance, Harney could be credited with choosing the backdrop, the framing and the lighting. However, these were not the elements that were copied. The elements that were copied, including the daughter riding piggyback, the dress of the actors and the piece of paper in the man’s hand, were “facts” that Harney did not create. Thus, even though Mr. Harney’s photograph was admittedly the basis for Sony’s photograph, the protectable elements of the two images were not substantially similar.
Neither the First Circuit nor the District Court reached Sony’s fair use argument.