Legal Opinion: Is History Copyrightable?

Clark Rockefeller has a way of getting the attention of the law. This time, it’s truly not his fault. Sony’s 2010 made-for-television movie Who is Clark Rockefeller?, which aired on the Lifetime channel, brings back a longtime legal question: Is history protectable under copyright law? The District Court for the District of Massachusetts determined that history (even trivial history) — in this case (Harney v. Sony Pictures Television), depicting a happy Rockefeller and daughter Reigh in a city park — was undeserving of copyright protection.

Professional photographer Donald Harney sued Sony and A&E Television Networks for copyright infringement in July 2010. The lawsuit alleged that Sony’s movie depicted a scene copied from a photograph of Rockefeller and Reigh that Harney had shot of the father and daughter in 2007. Judge Rya Zobel, in allowing the defendants’ motion for summary judgment, reinforced two points: the long-standing notion that a photograph’s copyright can indeed be thin – and that no, history is not copyrightable.[1]

Has the legal protection for documentary renditions of history essentially faded into the background of copyright law? It seems so. Moreover, even if the content is deemed expressive enough to warrant the protection that the law offers, it remains likely that an unauthorized recreation of that content will constitute a fair use under the Copyright Act’s exemption.

In April 2007, Harney photographed Clark and Reigh Rockefeller leaving a Palm Sunday service at a Boston church. A beaming Reigh sits perched atop her father’s shoulders, the church visible behind them. Reigh holds a palm leaf that casts a shadow across her body. Rockefeller clutches a church bulletin.

The image was subsequently featured on the front page of a neighborhood newspaper, The Beacon Hill Times. Just months later, Harney’s photograph again was accorded front-page coverage. This time the photograph was included in FBI wanted posters, which found their way into the press throughout the greater Boston area and beyond.

Clark Rockefeller had abducted Reigh following a bitter divorce from his wife. Police and the FBI searched to find the little girl pictured in Harney’s photograph. Following Reigh’s safe rescue, there proved too much more to the story. The result was the unraveling of Rockefeller’s make-believe life. Rockefeller, who was really a German-born man named Christian Karl Gerhartsreiter, was tried and convicted of kidnapping Reigh in a highly publicized Massachusetts case.

Rockefeller’s story contained the requisite scandal and intrigue necessary for a made-for-television bio-drama. Sony produced Who Is Clark Rockefeller? for the Lifetime channel in 2009.

In Harney’s action for copyright infringement, the photographer sought the impoundment of all copies of the movie in Sony and A&E’s possession along with damages. Judge Zobel was ultimately unsympathetic to Harney’s claims, dismissing the suit on Sony & A&E’s motion for summary judgment.

Judge Zobel explained that “two images of the actors who played the Rockefellers clothed and posed in a manner similar, but not identical, to that of their real-life subjects in the Harney photograph are visible during the film and in one promotional commercial.”[2]

Harney undisputedly possesses a valid copyright for his photograph. This copyright reflects Harney’s ownership in the image, securing a limited monopoly over the expression that the photograph contains.

Judge Zobel’s opinion primarily focuses on the unprotectability of “factual realities that exist independently of any photo.”[3] For instance, those elements of the photograph that do not embody the photographer’s original, copyrightable expression are not protected.

In contrast to expression, ideas and facts have been long recognized as unprotected elements. The distinction between fact and expression is not always a clear one and has even been characterized as “elusive,” an “inexact science” in the Kaplan v. Stock Market Photo Agency case.[4] Generally, “the inquiry often turns on the level of abstraction or generalization of the works being compared.”[5] In other words, the more original a work is, the more likely it is that the work embodies the author’s expression of a certain fact and not the mere fact itself.

For a photograph, “a copyright derives from the photographer’s original conception of his subject, not the subject itself.”[6] Therefore, “protectable elements may include posing the subjects, lighting, angle, selection of film and camera, and evoking the desired expression, along with other variants.”[7]

Judge Zobel determined that Harney merely "captured a moment in time of a father and daughter passing through Beacon Hill."[8] Rockefeller and Reigh were not provided with special clothing or props, nor were they asked to pose. Judge Zobel accordingly concluded that the elements of Rockefeller and Reigh’s appearance constituted non-copyrightable facts.

After comparing Sony’s recreation and Harney’s original image however, Judge Zobel found that the two images predominantly shared only unprotectable factual content such as clothing and pose. The expressive elements, such as Harney’s use of lighting and his choice of backdrop, were absent in Sony’s recreation.

The only shared element, according to the Judge Zobel, was the positioning of the duo within the frame of the photograph. Harney’s decision to center the subjects was deemed an element of "minimal originality" and was therefore insufficient to establish substantial similarity between the two images.[9]

Historical theorist A.A. Hoehling confronted a similar reality in 1980. There, the Second Circuit determined that Hoehling’s historical interpretation of the destruction of the Nazi-German zeppelin, the Hindenburg, was not protected by copyright.[10] The Hindenburg exploded over a New Jersey Naval Air Station in 1937, killing 36 passengers and crew members. Official investigations revealed no definitive cause for the explosion. Hoehling, however, advanced his own theory in his book Who Destroyed the Hindenburg?. Based on his independent research, Hoehling concluded that the airship’s fate was sealed by a saboteur, crewmember Eric Spehl. Spehl, Hoehling posits, constructed an explosive device, planted it aboard, and deliberately sabotaged the Hindenburg — all in an effort to impress his suspected anti-Nazi lover.

More than 10 years after Hoehling published his book, Universal City Studios planned to release a film utilizing Hoehling’s saboteur theory. Hoehling sued Universal for copyright infringement. Unsympathetic to Hoehling’s claim, the Court reasoned that the saboteur theory, regardless of whether it originated with Hoehling, was based entirely on the interpretation of historical facts and therefore not copyrightable as a matter of law. The Court’s declaration still resounds with force today: "[A]bsent wholesale usurpation of another’s expression, claims of copyright infringement where works of history are at issue are rarely successful."[11]

Difficult as it may be to protect the copyright of a work embodied in a historical matter, it is not altogether impossible. A District Court in the Eastern District of Pennsylvania determined that a play chronicling Thomas Jefferson’s alleged relationship with his slave Sally Hemings in fact infringed on an earlier book documenting the same story in the Burgess v. Chase-Riboud case.[12] Very little is known about Sally Hemings. Although the circumstances surrounding Jefferson and Hemings’ relationship are certainly embedded in history, the author’s depiction of the relationship was largely fictionalized. Alarmed by "the sheer number of similarities in the fictional details" between the book and the play, the court emphasized the fact that "many of these similarities cannot be traced to any historical account."[13] The playwright’s use of the book’s "invented" details impermissibly infringed on the author’s protectable original expression.[14]

Even assuming that a would-be owner of a historical event depicted (such as Harney) was able to successfully demonstrate that Sony’s recreation deviated from his picture’s historical account, thus infringing on the protectable elements of his work such as its "concept and feel,"[15] he still may deal with another reality: the fair use doctrine.

Time, Inc. faced the fair use defense involving allegedly infringing sketches based on frames from Abraham Zapruder’s home movie account of President John F. Kennedy’s assassination. In the Time Inc. v. Bernard Geis Associates case[16], the court held that the recreated sketches constituted a fair use, highlighting the "public interest in having the fullest information available on the murder of President Kennedy."[17]

In a much more recent case (Gaylord v. U.S.) though, the Court of Appeals for the Federal Circuit determined that the U.S. Postal Service infringed a sculptor’s copyright when the agency issued stamps picturing the snow-covered installation of soldier sculptures comprising the Korean War Veterans Memorial in the National Mall.[18] The government conceded that the stamp copied the original elements of sculptor Frank Gaylord’s sculptures, instead contending that the copying was permissible as a fair use. The Court refused to classify the government’s use as fair, reasoning that the stamp shared the same commemorative purpose as the sculpture, thus failing to add new meaning to Gaylord’s original work. Moreover, the court stated that “allowing the government to commercially exploit a creative and expressive work will not advance the purpose of copyright in this case.”[19]

The takeaways here are clear. Photography as an art form may have less copyright protection than others, such as painting. The trend is expansion of the fair use defense, which nevertheless erodes the zone of proprietary rights protection Authors should rely on the individual creative expression in creating something they can own. The craft of authorship is in the rendition of the creation itself. Historical facts, no matter how hunted and gathered, whether true or made up, belong to all of us.

[1] 2011 WL 1811656, at *1-*3 (D. Mass. 2011).[2]Id. at *1.[3]Id. at *2.[4] 133 F. Supp. 2d 317, 322-23 (S.D.N.Y. 2001).[5]Id. at 323.[6]Id.[7]Id.[8] Harney, supra note 1, at *2.[9] Harney, supra note 1, at *2.[10] Hoehling, supra note 10, at 978-79.[11]Id. at 974.[12] 765 F. Supp. 233, 233, 242-43 (E.D. Pa. 1991).[13]Id. at 239.[14]Id.[15] DeWeever v. Executive Producer, 178 F. Supp. 2d 417, 419 (S.D.N.Y. 2001).[16], 293 F. Supp. 130, 131-32, 146 (S.D.N.Y. 1968).[17] Time Inc. v. Bernard Geis Associates, 293 F. Supp. 130, 146 (S.D.N.Y. 1968).[18] 595 F.3d 1364, 1369, 1372-76 (Fed. Cir. 20100)[19]Id. at 137639.