Framing the Issue: Avoiding a Substantial Similarity Finding in Reproduced Visual Art

Copyright issues are litigated in the United States every day. Yet attorneys representing visual artists settle suits more often when those suits involve the potential of a copyright infringement, partly because of the relatively few decisions on the matter. In Harney v. Sony Pictures, Inc., the First Circuit found that a copyrighted photograph could be copied to look nearly the same as the original because the copied elements were each unprotectable under the copyright. The copyright protected only those elements of the photo that were the result of the photographer’s choices in depicting the subject. The court held that the placement of the subjects in the frame of the photo was the only protected feature shared by the recreation, and this was insufficient to establish “substantial similarity” necessary for the court to find a copyright violation. This Article puts forth an organizational scheme based on existing cases to help attorneys defend their clients’ work. By explaining how attorneys have avoided substantial similarity findings in the past and how courts treat different approaches, this Article will provide attorneys with guidance on avoiding a substantial similarity finding in their clients’ works, focusing specifically on photographs