Not too long ago, we mentioned that one of Tom Ford’s shots for Numéro Russia looked familiar. Specifically, we’re referring to one image from the racy 14-page editorial with Pat Cleveland straddling Conrad Bromfield, who is on all fours. This image bears a striking resemblance to a photo shot by Marko Kalfa in 2012, which also features Cleveland sitting atop a male model. Our previous article discussed how Kalfa’s photo came to fruition (including that Marcin, the man Cleveland sits on, was actually Kalfa’s assistant), and that the photographer feels somewhat “violated” by Ford’s image for Numéro. We then left it open for discussion as to whether or not there were any potential copyright issues. Well, the time has come for us to weigh in.
A copyright protects literary, musical, dramatic, choreographic, pictorial or graphic, audiovisual, and architectural works, as well as sound recordings, from being reproduced without the permission of the copyright owner. Subject to certain limitations, the owner of a copyright has the sole right to authorize reproduction of the work, create a work derived from the original, distribute copies of the work, or perform or display the work publicly. In the United States, substantial similarity is the standard used to determine whether or not a copyright has been infringed.
Marko Kalfa’s 2012 photo (left) & the Numéro Russia photo (right)
One very recent case sheds some light on what we could expect if Kalfa brought suit. In Harney v. Sony Pictures Television, Inc., the United States Court of Appeals for the First Circuit explained when two photographs are substantially similar enough to warrant finding infringement.
Before we go any further, first, a little background. Photographer Donald Harney photographed a girl in a pink coat ridding on her father’s shoulders. Some time later, it was revealed that the father in the picture had abducted his daughter, the girl on his shoulders, and was sought by the police. Because Harney’s photo was used in an FBI “Wanted” poster, it was widely distributed in the media. Sony later produced a made-for-television movie based on the story and created a similar image with a girl on a man’s shoulders. Harney then sued Sony for copyright infringement.
Harney (left) & Sony (right)
The trial court ruled that no reasonable jury could find substantial similarity in the photos. On appeal, after a very comprehensive discussion on which elements in the photos were protected and which weren’t, the First Circuit Court of Appeals agreed and pointed out that both photos have protected and unprotected elements, but only the protected elements are relevant when determining infringement.
Judge Kermit Lipez for the First Circuit began by addressing the fact that the two photos share several features: both show a blonde girl wearing a long pink coat with light-colored tights riding on a man’s shoulders; the pair are smiling in both photographs; they are looking straight at the camera at roughly the same angle; only the father’s upper body is shown; and, in both, the man is holding papers in his left arm with the text of the first page facing the camera.
There’s no denying that Sony copied Harney’s photo. But that does not necessarily amount to copyright infringement. Copyright protection only exists in those elements that are original to Harney. As for the elements in the photo that are not original to Harney, Sony, or anyone else, for that matter, is free to use them. Courts have deemed that originality exists in a photographer’s selection of lighting, timing, positioning, angle, selection of film and camera, the facial expressions used by the subjects in a photo, and the way the subjects are posed.
The court ultimately found elements of creative expression, and thus copyright protection, in Harney’s use of a church in the background, the shadows and resplendent colors, the positioning of the father and daughter in the middle of the frame, the pair staring straight into the camera and that the pair were close in distance to the camera. Nevertheless, “Harney's creation consists primarily of subject matter – ‘facts’ -- that he had no role in creating”, the court found. Harney cannot claim copyright protection in the factual elements of his photo, such as the daughter-on-father’s-shoulders pose (Harney did not position them this way and even if he did, the pose is arguably so common that it would not merit copyright protection) and the clothing worn by the pair.
Lipez concluded that although the two photos were similar at first glance, almost none of the protectable elements in Harney’s photograph were present in Sony’s.
What can be gleaned from this decision? Well, similar photos are not necessarily instances of copyright infringement. In fact, it really comes down to an element-by-element analysis, and only those elements that are original to a photographer are protectable.
Ford’s shot is undeniably similar to Kalfa’s. The primary thing making these two photos alike, other than both featuring Cleveland, is the position of the models in both photographs. But like the pose in Harney’s photo, we’re quite confident that a female model riding a male model on all fours is common enough that it is not protected. Other than the pose, protectable elements when comparing the two photos – like background, the expression on Cleveland’s face, the expression used by Bromfield and Marcin, and the distance the models are from the camera – are not alike.
So, Tom Ford is probably in the clear, then. His photo may not be the most novel or creative work of art, but there probably aren’t any valid copyright concerns.
JENNIFER WILLIAMS is a recent law school graduate who writes about fashion, the legal avenues available for protecting it, and the ways in which the laws are falling short. For more from Jennifer, follow her on Twitter.