Is There Copyright Protection In A Photograph Or Snapshot?

The answer generally is yes, so long as the photograph or snapshot has sufficient “expressive content” to make the photograph original. But the other side of this coin is that the copyright protection only extends to the “expressive content” of the photograph, and not to the underlying factual content of the photograph, so that only the “expressive content” can be infringed.

The recent decision out of New York in Harney v. Sony Pictures illustrates these concepts. The photograph at issue in the Harney case was taken by Harney of a man named Christian Gerhartsreiter who had his daughter on his shoulders on Palm Sunday, with a palm in her hand and a church in the background. Gerhartsreiter was the man who had falsely masqueraded as a member of British aristocracy and then as a member of the Rockefeller family.

Sony Pictures made a TV movie about Gerhartsreiter and publicized it with an image of a father carrying his daughter on his shoulders that clearly was based on Harney’s photograph, but was not an exact copy. To determine whether Sony Pictures had infringed Harney’s photograph, the court in Harney “dissected” Harney’s photograph and determined what was “expressive content” and what was factual content. The court determined that the factual content of the photograph was the subjects, the setting, the poses, the background and the “expressive content” was the photographer’s “aesthetic flair” concerning such things as composition, lighting, shading, and use of color.

Ultimately, the court concluded that the images Sony Pictures used to promote its TV movie copied the factual content of the Harney photograph, there was no infringement because Sony Pictures had not copied any of the “expressive content.” In so holding, the court emphasized that to find otherwise would give photographers exclusive rights in ideas embodied in their photographs, which is not permitted under the copyright laws.

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