Take a look at the First Circuit’s opinion in Harney v. Sony Pictures Television. Look at the photographs in question (the defendants re-created much but by no means all of a father-and-daughter photograph taken by the plaintiff, a professional photographer, that became central to a kidnapping case that was the basis for a made-for-TV movie). The photographs appear at the end of the opinion and also appear in two posts on the case at the 1709 Blog (original commentary on the case here, and a follow up post here). And judge for yourself: Did the court get the outcome right?
For my money, it did. The analysis is pretty straightforward: (i) Photographs can be copyrighted. (ii) This photograph is original enough to be judged copyrightable. (iii) Most if not all copyrightable works can and should be separated analytically into original and therefore protectable elements, on the one hand and un-original elements (things that are copied from others, or things that are simple or trite, or things that are “facts” or “ideas” in copyright-speak), on the other. (iv) An accused infringer is liable only for copying or adapting or publicly performing or displaying original material without permission or excuse. (v) Sony and the other defendants clearly adapted the plaintiff’s photograph without permission, but they adapted un-original parts on the one hand and copied too little of the original parts on the other. No reasonable jury could find otherwise. Summary judgment for the defendants affirmed. End of case.
I agree on the outcome, but no mention at all of Gross v. Seligman? It’s not like this is a new issue. http://www.studentweb.law.ttu.edu/cochran/Cases%20&%20Readings/Copyright-UNT/Copy'ability/gross.htm
My prediction is that Harney may well enter the copyright teaching canon: it does a good job walking through the core issues of originality, filtration of uncopyrightable elements, and similarity of expression. It’s a potential first-week case.
James – not to mention non-literal copying…