Harney v. Sony Pictures Television, Inc.

Donald Harney (plaintiff) captured a photograph of a girl riding atop her father’s shoulders as the pair left a Palm Sunday service in the Beacon Hill section of Boston (the photo). The father-daughter pair captured national attention after the father, who was revealed to be a professional imposter by the name of Christian Gerhartsreiter, abducted his daughter. The photo was used in FBI “Wanted” posters, and also licensed for use in multiple media outlets. Sony Pictures Television Inc. (defendant) later produced a made-for-television movie based on the Gerhartsreiter saga and recreated the photo using the actors cast for the relevant roles (the image). Both the photo and the image showed a blonde girl wearing a pink coat riding atop her father’s shoulders with the pair smiling, looking straight into camera, and the father holding papers in his left arm. The background in the photo consisted of a leafless tree, church spire, and bright blue sky. The background of the image consisted of dark leaves on the branches of a tree with bits of white-grey sky shining through. The papers in Gerhartsreiter’s hand were identifiable as the program for the church service, although the writing on the front of the papers in the actor’s hand were not legible. The daughter was holding a palm leaf in one hand, but both of the child actor’s hands were by her sides. Harney filed suit against Sony for infringement, alleging that Sony’s use of the photo without permission violated his copyright. The district court granted Sony’s motion for summary judgment after concluding that no reasonable jury could find the two works substantially similar. Harney appealed.