LIPEZ
Andrew D. Epstein, with whom Barker, Epstein & Loscocco and Keith E. Toms were on brief, for appellant. Bruce P. Keller, with whom Michael J. Beam and Debevoise & Plimpton LLP were on brief, for appellees.
Before TORRUELLA, LIPEZ, and HOWARD, Circuit Judges.
LIPEZ, Circuit Judge.
On a sunny April day in 2007, freelancer Donald Harney snapped a photograph (“the Photo”) of a blond girl in a pink coat riding piggyback on her father's shoulders as they emerged from a Palm Sunday service in the Beacon Hill section of Boston. Just over a year later, the pair in the Photo became a national media sensation. The father, soon-to-be revealed as a German citizen who had assumed the name Clark Rockefeller, had abducted his daughter during a parental visit and was being sought by law enforcement authorities. Harney's father-daughter photo was used in an FBI “Wanted” poster, and the IMAGE
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The episode lasted about a week and concluded with the girl's safe return and the father's arrest. It was then discovered that “Rockefeller” was actually Christian Karl Gerhartsreiter, and he was convicted of child abduction in 2009. Gerhartsreiter is currently being prosecuted for murder in connection with the 1985 death of his California landlady's son. News reports state that the trial is scheduled to start in Los Angeles in January 2013. See, e.g., Judge Sets Murder Trial Date for ‘Clark Rockefeller,’ CBS Boston (April 15, 2012) boston.cbslocal.com/2012/04/15/judge-sets-murder-trial-date-for-clark-rockefeller/.
Harney repeatedly describes his Photo as an “iconic” image of the Clark Rockefeller story. We understand him to mean that the prominent role of the photograph in the publicity surrounding Reigh's abduction converted his depiction of a happy father and child into a widely recognized symbol of Gerhartsreiter's life of deception.
Sony in fact created two new versions of the Photo, but the differences between them are minor and the fact that there are two images is irrelevant to our analysis. We therefore analyze the issues as if appellees had created only one new image.
The two photographs are reproduced in an appendix to this opinion.
This principle applies to all types of creative works. See 17 U.S.C. § 102(a) (stating that “[w]orks of authorship” include literary works, dramatic works, pantomimes, “pictorial, graphic, and sculptural works,” sound recordings, and architectural works).