No Fault in Reproducing Iconic Manhunt Photo

BOSTON (CN) - A federal judge tossed copyright claims over the iconic photograph used to track down a self-anointed Rockefeller who kidnapped his daughter and was later immortalized in a made-for-TV movie.

Donald Harney snapped the photo with permission from the father-daughter duo he saw exiting a church in the Beacon Hill section of Boston on Palm Sunday 2007.

The photo shows a church spire jutting up into a bright blue sky, as a blond child sits happily on her father's shoulders, wearing a champagne pink coat and holding a palm frond.

It appeared on the cover of an April issue of the Beacon Hill Times with the caption naming its subjects as Clark and Raleigh "Snooks" Rockefeller.

But this turned out to be one of the many assumed names of Christian Karl Gerhartsreiter, whose previous false identities included descendant of British royalty, Wall Street investment adviser and rocket scientist.

Gerhartsreiter's true identity came to light after he kidnapped Raleigh for a week in July 2008. The FBI had put a portion of the Harney photo on "wanted" posters after their disappearance, setting off a national media sensation.

As the saga unfolded, ultimately leading to Gerhartsreiter's conviction of child abduction in 2009, Harney licensed the photo to Vanity Fair and other media outlets.

In 2010 Sony Pictures Television and A&E Television Networks distributed a 90-minute made-for-television movie titled "Who is Clark Rockefeller?"

The film reproduces the Harney photo with actors and shows its prominence in the ensuing manhunt, displaying it in five scenes for a total of 42 seconds.

Harney sued Sony and A&E that same year, claiming that the reproduction of his work without permission violated copyright law.

Similarities between the photos include the depiction of a blond girl in pink coat, perched on her father's shoulders, but there are significant variations in the framing, background and composition.

The child actor, for example, is not holding a palm frond, and the words on the paper tucked in the father's arm cannot be made out.

U.S. District Judge Rya Zobel granted the media companies summary judgment and dismissed the case. "When the Harney photograph and the Sony image are compared, they share the factual content" depicted in the scene, "but not Harney's expressive elements," Zobel wrote.

This "limited sharing" cannot establish the "substantial similarity" legally required to constitute copyright infringement," according to the ruling.

A three-judge panel of the 1st Circuit affirmed Monday.

"Copyright protection 'extend[s] only to those components of a work that are original to the author," Judge Kermit Lipez wrote for the panel.

"Artists [ordinarily] have no copyright in the 'reality' of [their] subject matter,'" he added.

"The news photographer's stock-in-trade is depicting 'reality,'" but certain elements "like lighting, timing, positioning, angle and focus" are copyrightable, the 32-page opinion states.

Substantial similarity would make an ordinary observer disposed to overlook disparities, and regard their aesthetic appeal as the same, unless he set out to detect them, according to the ruling.

The Sony recreation utilizes only the subject matter that Harney had no role in creating - most notably the fact that the child is riding on her father's shoulders.

"Without the Palm Sunday symbols, and without the church in the background - or any identifiable location - the Sony photograph does not recreate the original combination of father-daughter, Beacon Hill and Palm Sunday," Lipez wrote.

"No jury could properly conclude that Sony's adaptation of the Photo infringed Harney's copyright in his work," he added.

Gerhartsreiter is currently being prosecuted for murder in connection with the 1985 death of his California landlady's son. His trial is scheduled to start in Los Angeles this month.

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