          United States Court of Appeals
                     For the First Circuit


No. 11-1760

                       DONALD A. HARNEY,

                     Plaintiff, Appellant,

                               v.

              SONY PICTURES TELEVISION, INC., AND
                 A & E TELEVISION NETWORKS, LLC,

                     Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

              [Hon. Rya W. Zobel, U.S. District Judge]



                             Before

                 Torruella, Lipez, and Howard,
                        Circuit Judges.


     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.



                        January 7, 2013
             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

was   widely      distributed          in    the    media   as    the    abduction     saga

unfolded.1       Appellee Sony Pictures Television, Inc. ("Sony") later

produced a made-for-television movie based on Gerhartsreiter's

identity deception. Sony depicted the Photo in that movie using an

image     that    was       similar    in    pose    and    composition      to    Harney's

original, but different in a number of details.

             Harney         subsequently       filed   this      infringement       action,

alleging that appellees' use of his photograph without permission



      1
       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/.

                                              -2-
violated federal copyright law.            Appellees moved for summary

judgment.      Concluding     that   no    reasonable   jury     could    find

"substantial    similarity"    between     Sony's   recreated     photo   and

Harney's original, the district court held that Sony had not

violated Harney's exclusive rights to his work.             After careful

review, we affirm the grant of summary judgment for appellees.

                                     I.

            Consistent with our approach in evaluating a summary

judgment ruling, we present the facts in the light most favorable

to appellant Harney.     See Johnson v. Gordon, 409 F.3d 12, 17 (1st

Cir. 2005).

            Harney spotted Gerhartsreiter and his daughter, Reigh, on

the morning of April 1, 2007 while on assignment for the Beacon

Hills Times, a neighborhood newspaper that had asked Harney to take

photos of people in and around Beacon Hill.                A professional

photographer     for   more   than   two    decades,    Harney    approached

Gerhartsreiter and his daughter as they left a service at the

Church of the Advent and obtained permission to photograph them for

the newspaper.     The Photo was published on the front page of the

paper later that month, with the caption, "Parishioners Clark and

Reigh 'Snooks' Rockefeller of Pinckney Street celebrated Palm

Sunday at the Church of the Advent on March 31 [sic]."

            In July 2008, Gerhartsreiter abducted his daughter during

a custodial visit.       Without Harney's knowledge or consent, a


                                     -3-
portion of the Photo was placed on an FBI "Wanted" poster that was

distributed nationwide.        Harney states that he did not object to

this use of the photograph because he did not want to impede the

search for the missing child.

           The Photo of the seemingly happy father and child became

the   iconic   image    of   the    bizarre   saga   of   Gerhartsreiter,2   a

"professional" imposter who had been passing himself off as a

member of the high profile Rockefeller family and whose previous

false identities included descendant of British royalty, Wall

Street investment advisor and rocket scientist. He also was wanted

for questioning in connection with a twenty-year-old homicide in

California.    Public interest in the story remained high long after

Reigh was safely returned to her mother, and interest likewise

remained high in Harney's photograph because of its prominent role

in the manhunt.        Harney licensed the Photo for use in multiple

media outlets, including Vanity Fair magazine.                  In 2010, Sony

completed and released a made-for-television movie titled Who is

Clark Rockeller?, which was distributed to cable stations by

appellee A     &   E   Television    Networks,   LLC.     The   ninety-minute

docudrama was based on Gerhartsreiter's life, "retell[ing] in



      2
       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.

                                      -4-
dramatic fashion Clark Rockefeller's story and the search for Clark

and Reigh."        Rule 56.1 Statement of Undisputed Material Facts in

Support of Defendants' Motion for Summary Judgment, ¶ 15.

             To depict the role that the Photo played in the abduction

events, Sony recreated it using the actors who were cast in the

roles of Clark and Reigh.3              The new photo ("the Image") was

displayed for a total of about forty-two seconds in five scenes

demonstrating the Photo's use during the manhunt in three different

contexts: (1) as the image in the Wanted poster, (2) in a law

enforcement briefing room, and (3) in television news reports about

the abduction.       The Image also appears, for less than one second,

in one of the twenty-two television commercials publicizing the

movie.

             The    Photo   and   the    Image   share   several   important

features.4    Both show a young blond girl wearing a long pink coat

and light-colored tights riding piggyback on a man's shoulders. The

pair are smiling in both photographs, and they are looking straight

at the camera at roughly the same angle.           Although Gerhartsreiter

and Reigh are closer to the camera in the Photo than the actors are

in the Image, both pictures show only the father's upper body.            In


     3
       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.
     4
       The two photographs are reproduced in an appendix to this
opinion.

                                        -5-
both, the father is holding papers in his left arm with the text of

the first page facing the camera.

           Some of the differences are minor.    Reigh's coat is a

darker pink than the coat worn by the child actor, and its buttons

are placed higher on the garment.     Although both men are wearing

jackets and ties, Gerhartsreiter's jacket is a dark tweed while the

actor's is a solid tan.   Several of the distinctions, however, are

more significant.   The background behind Gerhartsreither and Reigh

consists of a leafless tree, the church spire, and a bright blue

sky.   In the Image, nearly all of the background consists of dark

leaves on the branches of a tree, with bits of white-grey sky

peeking through in spots.   The papers in Gerhartsreiter's hand are

easily identifiable as the program for the service at the Church of

the Advent, while the writing on the front of the papers in the

actor's hand is not legible.   Its text, however, plainly does not

resemble the program held by Gerhartsreiter.    Reigh is holding up

a palm leaf in her left hand, but both of the child actor's hands

are by her sides, resting on her legs.

           Shortly after answering Harney's complaint, which was

filed in July 2010, appellees moved for summary judgment on the

ground that the Image was not "substantially similar" to the Photo,

a necessary element of a copyright violation.   They further argued

that their incorporation of the Image in the docudrama was, in any

event, a permissible "fair use" under copyright law. See 17 U.S.C.


                                -6-
§ 107.   Following a hearing, the district court granted summary

judgment for appellees and dismissed the case.               The court ruled

that the Image was not substantially similar to Harney's photograph

because "[w]hen the Harney Photograph and the Sony Image[] are

compared, they share the factual content" of the scene captured by

the Photo, "but not Harney's expressive elements."                  The court

concluded that the "limited sharing" between the works was "not

enough   to    establish    substantial       similarity     and    copyright

infringement."       The court thus did not need to reach appellees'

fair use argument, and it did not discuss that issue.

          On     appeal,   Harney   argues     that    the   district   court

misapplied     the    applicable    test     for     assessing     substantial

similarity.    He asserts that the court "over-dissect[ed] Harney's

Photograph, and thereby overlook[ed] significant aspects of its

originality and protected expression."             He further maintains that

the appellees are not protected by the fair use doctrine.

                                    II.

          To establish copyright infringement, a plaintiff must

prove "both ownership of a valid copyright and illicit copying."

Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25, 33 (1st

Cir. 2001); see also Coquico, Inc. v. Rodríguez-Miranda, 562 F.3d

62, 66 (1st Cir. 2009). Copying another's work does not, however,

invariably constitute copyright infringement.            Feist Publ'ns, Inc.

v. Rural Tel. Serv. Co., 499 U.S. 340, 361 (1991) ("Not all copying


                                    -7-
. . . is copyright infringement."); Johnson, 409 F.3d at 17-18. The

copying must be sufficiently "extensive that it render[s] the

infringing     and     copyrighted      works    'substantially    similar.'"

Johnson, 409 F.3d at 18 (quoting Segrets, Inc. v. Gillman Knitwear

Co., 207 F.3d 56, 60 (1st Cir. 2000)) (internal quotation mark

omitted).

             Moreover,      it    is    permissible      to   mimic      the   non-

copyrightable elements of a copyrighted work. Copyright protection

"extend[s] only to those components of a work that are original to

the author," and a work that is sufficiently "original" to be

copyrighted may nonetheless contain unoriginal elements.                       Feist

Publ'ns, 499 U.S. at 348; see also, e.g., Johnson, 409 F.3d at 18-

19.5       The Supreme Court recently confirmed that "every idea,

theory, and fact in a copyrighted work becomes instantly available

for public exploitation at the moment of publication."                    Golan v.

Holder, 132 S. Ct. 873, 890 (2012) (quoting Eldred v. Ashcroft, 537

U.S. 186, 219 (2003)) (internal quotation mark omitted); see also

Johnson,     409    F.3d   at    19   ("[C]opyright     law   protects    original

expressions of ideas but it does not safeguard either the ideas

themselves or banal expressions of them.").                    Hence, assessing

substantial        similarity    requires      close   consideration     of    which



       5
       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).

                                         -8-
aspects of the plaintiff's work are protectible and whether the

defendant's copying substantially appropriated those protected

elements.      Johnson, 409 F.3d at 18-19; see also Soc. of Holy

Transfiguration Monastery, Inc. v. Gregory, 689 F.3d 29, 51 (1st

Cir. 2012) ("'No infringement claim lies if the similarity between

two works rests necessarily on non-copyrightable aspects of the

original . . . .'" (quoting TMTV Corp. v. Mass Prods., Inc., 645

F.3d 464, 470 (1st Cir. 2011)).

            We have thus described the inquiry into substantial

similarity as embracing two different types of scrutiny. The court

initially "dissect[s]" the earlier work to "separat[e] its original

expressive elements from its unprotected content."         Coquico, 562

F.3d at 68.     The two works must then be compared holistically to

determine if they are "substantially similar," but giving weight

only to the protected aspects of the plaintiff's work as determined

through the dissection.       See Johnson, 409 F.3d at 19 ("While a

finding   of    substantial   similarity   vel   non   derives   from   an

examination of the juxtaposed works as a whole, that examination

must focus on 'what aspects of the plaintiff's work are protectible

under copyright laws and whether whatever copying took place

appropriated those [protected] elements.'" (alteration in original)

(quoting Matthews v. Freedman, 157 F.3d 25, 27 (1st Cir. 1998)));

Yankee Candle, 259 F.3d at 33 (noting that determining substantial

similarity "is not so simple a task . . . as a strict visual


                                   -9-
comparison of the two items" because "only the protected expression

is relevant" to the inquiry (internal quotation marks omitted)

(quoting Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th

Cir. 2000))).      We have explained that two works are substantially

similar if "'the ordinary observer, unless he set out to detect the

disparities, would be disposed to overlook them, and regard their

aesthetic appeal as the same.'" Concrete Mach. Co. v. Classic Lawn

Ornaments, Inc., 843 F.2d 600, 607 (1st Cir. 1988) (quoting Peter

Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d

Cir. 1960) (Learned Hand, J.))).          This assessment, of course, must

be informed by the dissection analysis.

            Although the dissection analysis typically is performed

by   the   court   as   a   matter   of    law,   see   infra   note   9,   the

determination of substantial similarity is ordinarily assigned to

the factfinder, see, e.g., T-Peg, Inc. v. Vermont Timber               Works,

Inc., 459 F.3d 97, 112 (1st Cir. 2006).6           Faced with a motion for

summary judgment, however, a court may be asked both to dissect a

protected work and to determine whether a reasonable jury could

conclude that "an ordinary observer" examining the two works would



      6
      The jury necessarily would be instructed on the unprotectible
elements of the plaintiff's work and told that it could not
consider those elements in evaluating substantial similarity. See,
e.g., Oracle America, Inc. v. Google Inc., No. 3-10-cv-03561, Doc.
1018, Final Charge to the Jury, at 12; Fed. Civil Jury Instructions
of   the   Seventh   Circuit   (2009),   at   274,   available   at
http://www.ca1.uscourts.gov/Pattern_Jury_Instr/7th_cir_instruc_20
09.pdf.

                                     -10-
see the defendant's version as a wrongful appropriation of the

plaintiff's protected expression. See, e.g., T-Peg, Inc., 459 F.3d

at 112;     Johnson, 409 F.3d at 18.         We have cautioned that "the

court should not lose sight of the forest for the trees" when

making these determinations.         Coquico, 562 F.3d at 68.       The court

must "be careful not to over-dissect the plaintiff's work, causing

it to ignore the plaintiff's protectable expression."               Situation

Mgmt. Sys., Inc. v. ASP. Consulting LLC, 560 F.3d 53, 59 (1st Cir.

2009).     Likewise, in making the holistic assessment, the court

"should    take   pains   not   to   focus   too   intently   on   particular

unprotected elements at the expense of a work's overall protected

expression."      Coquico, 562 F.3d at 68; see also CMM Cable Rep, Inc.

v. Ocean Coast Props., Inc., 97 F.3d 1504, 1515 (1st Cir. 1996)

(recognizing "the potential 'danger . . . that courts . . . will so

"dissect" the work as to classify all its elements as unprotectable

. . .     [thereby possibly] blind[ing it] to the expressiveness of

their    ensemble'"    (alterations    in    original)   (quoting    Jane   C.

Ginsburg, Four Reasons and a Paradox: The Manifest Superiority of

Copyright over Sui Generis Protection of Computer Software, 94

Colum. L. Rev. 2259, 2561 (1994))).

            Applying these principles to news photography, which

seeks to accurately document people and events, can be especially




                                     -11-
challenging.7       "[A]rtists [ordinarily] have no copyright in the

'reality of [their] subject matter,'" Leigh, 212 F.3d at 1214

(quoting Franklin Mint Corp. v. Nat'l Wildlife Art Exch., Inc., 575

F.2d 62, 65 (3d Cir. 1978)) (third alteration in original), and the

news photographer's stock-in-trade is depicting "reality."                  Yet

"the       photographer's   original    conception   of   his   subject"    is

copyrightable.       Kisch v. Ammirati & Puris Inc., 657 F. Supp. 380,

382 (S.D.N.Y. 1987) (internal quotation marks omitted).               Courts

have recognized originality in the photographer's selection of,

inter alia, lighting, timing, positioning, angle, and focus.               See,

e.g., Leigh, 212 F.3d at 1215; Mannion v. Coors Brewing Co., 377 F.

Supp. 2d 444, 450-51 n.37 (S.D.N.Y. 2005); Kisch, 657 F. Supp. at

382.        Photographers make choices about one or more of those

elements even when they take pictures of fleeting, on-the-spot



       7
       Indeed, courts and commentators have noted that copyright
concepts developed for written works imperfectly fit the visual
arts, including photography. See, e.g., Mannion v. Coors Brewing
Co., 377 F. Supp. 2d 444, 458 (S.D.N.Y. 2005) (noting that "the
[idea/expression] distinction breaks down" in the context of non-
verbal media); Rebecca Tushnet, Worth a Thousand Words: The Images
of Copyright, 125 Harv. L. Rev. 683, 740 (2012) (noting that
"copyright's core doctrines don't work for images"); Hon. Jon O.
Newman, New Lyrics for an Old Melody: The Idea/Expression Dichotomy
in the Computer Age, 17 Cardozo Arts & Ent. L.J. 691, 703 (1999)
("[W]hat we must strive for is a recognition that the differences
among modes of expression oblige us to eschew anything like 'tests'
that can yield answers across all fields."); cf. Franklin Mint
Corp. v. Nat'l Wildlife Art Exch., Inc., 575 F.2d 62, 65 (3d Cir.
1978) ("Isolating the idea from the expression and determining the
extent of copying required for unlawful appropriation necessarily
depend to some degree on whether the subject matter is words or
symbols written on paper, or paint brushed onto canvas.").

                                       -12-
events. Additional factors are relevant when the photographer does

not simply take her subject "as is," but arranges or otherwise

creates the    content     by,    for     example, posing     her   subjects    or

suggesting facial expressions.             See, e.g., Rogers v. Koons, 960

F.2d 301, 307 (2d Cir. 1992) ("Elements of originality in a

photograph    may   include      posing    the   subjects,    lighting,   angle,

selection of film and camera, evoking the desired expression, and

almost any other variant involved."); Mannion, 377 F. Supp. 2d at

450 & n.37 (collecting cases listing "potential components of a

photograph's originality").

            Although the comparison is not perfect, the division

between protected and unprotected elements of a photograph could be

likened to the separation drawn by copyright law between protected

expression and unprotected ideas.              See Yankee Candle, 259 F.3d at

33 (noting the "key theoretical foundation of copyright law[] that

[i]deas cannot be copyrighted" (internal quotation marks omitted)

(quoting Concrete Mach., 843 F.2d at 606)). Where the photographer

is uninvolved in creating his subject, that subject matter --

whether a person, a building, a landscape or something else -- is

equivalent to an idea that the law insists be freely available to

everyone.     See Feist Publ'ns, 499 U.S. at 349-50 ("[C]opyright

assures   authors    the   right    to     their   original   expression,      but

encourages others to build freely upon the ideas and information

conveyed by a work."); Concrete Mach., 843 F.2d at 606 ("An artist


                                        -13-
can claim to own only an original manner of expressing ideas, not

the ideas themselves." (internal quotation marks omitted) (quoting

Cooling Sys. & Flexibles v. Stuart Radiator, 777 F.2d 485, 491 (9th

Cir. 1985)).8   The choices made by the photographer to generate a

particular image depicting that subject matter, however, ordinarily

transform "the idea" of the subject into a protectible expressive

work. See 1 Melville B. Nimmer & David Nimmer, Nimmer on Copyright

["Nimmer"] § 2.08[E][1], at 2-129 (2008) (noting that "almost any[]

photograph   may   claim   the   necessary   originality   to   support   a

copyright merely by virtue of the photographers' personal choice of



     8
        The merger and scènes à faire doctrines limit the
availability of copyright protection even for expression.       The
former "'denies copyright protection when . . . there is only one
way to express a particular idea.'" Soc. of Holy Transfiguration
Monastery, 689 F.3d at 53 (quoting Coquico, 562 F.3d at 68). The
doctrine of "scènes à faire" "denies copyright protection to
elements of a work that are for all practical purposes
indispensable, or at least customary, in the treatment of a given
subject matter."    Coquico, 562 F.3d at 68; Beal v. Paramount
Pictures Corp., 20 F.3d 454, 459 (11th Cir. 1994) (describing
scènes à faire as "stock scenes that naturally flow from a common
theme," such as "'foot chases and the morale problems of policemen,
not to mention the familiar figure of the Irish cop'" in police
fiction (quoting Walker v. Time Life Films, Inc., 784 F.2d 44, 50
(2d Cir. 1986))).
     In Coquico, we held that the two doctrines together foreclosed
copyright protection for elements of a tree frog plush toy that are
"ineluctably and inextricably intertwined with the idea of
producing a realistic depiction" of the frog. 562 F.3d at 68; see
also CMM Cable Rep, 97 F.3d at 1522 n.25 (noting that the
rationales for both doctrines are similar "in that both are
concerned with preventing a monopoly on commonplace ideas," but
differ because "merger applies when the idea and expression are
inseparable while scenes a faire applies when the similarity of
expression results from stock scenes or elements that necessarily
flow from a common idea").

                                   -14-
subject matter, angle of photograph, lighting, and determination of

the precise time when the photograph is to be taken").

              Alternatively, subject matter that the photographer did

not create could be viewed as "facts" that, like ideas, are not

entitled to copyright protection.             The Supreme Court has observed

that "[t]he most fundamental axiom of copyright law is that '[n]o

author may copyright his ideas or the facts he narrates.'"             Feist

Publ'ns, 499 U.S. at 344-45 (quoting Harper & Row, Publishers, Inc.

v.   Nation    Enters.,   471   U.S.   539, 556     (1985))   (alteration   in

original). The exclusion of facts from copyright protection arises

from the constitutional requirement of "originality" -- "[t]he sine

qua non of copyright."      Id. at 345.        Facts are "not 'original' in

the constitutional sense" because they "do not owe their origin to

an act of authorship."          Id. at 347 (citing Nimmer § 2.03[E]

(1990)).      Because facts are discovered, rather than created, they

are "part of the public domain available to every person."            Id. at

347-48 (internal quotation mark omitted).            Compilations of facts,

however, ordinarily are entitled to copyright protection, id. at

344, "'limited to those aspects of the work -- termed "expression"

-- that display the stamp of the author's originality.'"              Id. at

350 (quoting Harper & Row, Publishers, 471 U.S. at 547-48).                  A

photograph that consists of public-domain subject matter may thus

be protected from copying because it involves creative expression,

but with the protection limited to the work's original elements.


                                       -15-
            In sum, in reviewing a grant of summary judgment for the

defendant based on the absence of substantial similarity, where

neither the subject matter of the earlier work nor its arrangement

are attributable to the photographer, as is the case here, we first

must look    closely     to    identify   the   expressive choices     in   the

plaintiff's work that qualify as original.             After performing that

dissection, we must consider whether any reasonable jury focusing

solely on those original elements could find that the defendant's

work is substantially similar to the plaintiff's. Summary judgment

is   "'appropriate      only   when   a   rational     factfinder,   correctly

applying the pertinent legal standards, would be compelled to

conclude    that   no    substantial      similarity    exists   between    the

copyrighted work and the allegedly infringing work.'" T-Peg, Inc.,

459 F.3d at 112 (quoting Johnson, 409 F.3d at 18).

                                      III.

            It is undisputed both that Harney owns a valid copyright

in the Photo and that Sony copied the Photo.              The sole contested

element of Harney's infringement claim is whether the Image "can

fairly be regarded as appropriating the original expression of the

earlier (protected) work" to such an extent that the Image and the

Photo are properly described as "substantially similar."             Coquico,

562 F.3d at 67.         Sony emphasizes that it copied "only the bare

minimum of the elements needed to conjure up the original" for the

purpose of depicting the Photo's prominent role in Gerhartsreiter's


                                      -16-
story. The company argues that the only similarity between the two

works is "essentially the [unprotectible] idea of a young girl atop

her father's shoulders," with "the other details in the Photo

either . . . significantly altered or omitted entirely."           With the

unprotectible       elements   excluded,    Sony   asserts,   "there   is    no

substantial similarity in the respective expressions . . ., and

therefore no infringement."

              Unsurprisingly, Harney sees a much closer relationship

between the two works.         He asserts that the Photo "captivated the

public's imagination" because of "its haunting depiction of the lie

that was Clark Rockefeller's life," and he argues that "[t]he works

are substantially similar because Sony took the expressive heart

from Harney's Photograph."          He notes Sony's admission that it

intended to replicate the Photo and points out that Sony copied

"numerous elements" of his image, including "the angle from which

the picture was taken, the pose, the wardrobe, and even the color

and type of Reigh's coat and the paper Rockefeller has clenched to

his   chest    in   his   right   hand."     Harney   maintains   that      the

alterations Sony made to "details around the periphery" of his

image "do not change the core similarity between the works" and,

"most importantly, the alterations made no change to what these

works express about the Rockefeller story."           Therefore, he states,

"a reasonable juror could find that the works are substantially

similar."


                                     -17-
           The parties thus agree that the two photographs bear a

resemblance. Indeed, Sony sought to create just such an impression

of similarity.    The question before us is whether the equivalence

between the works can support a copyright infringement claim.

A. Standards of Review

           We review de novo the district court’s identification of

the protectible elements of a copyrighted work. See Soc. of Holy

Transfiguration Monastery, 689 F.3d at 51 ("Our review as to the

carved out originality components of a work is de novo.");

Coquito, 562 F.3d at 68 (same).9     Although the ultimate question of

substantial similarity requires a factual judgment, it may be

resolved   on   summary   judgment   "where   reasonable   minds   cannot

differ."   Yankee Candle, 259 F.3d at 37; see also, e.g., Soc. of

Holy Transfiguration Monastery, 689 F.3d at 54 (affirming grant of

summary judgment for the plaintiff); Kisch, 657 F. Supp. at 382



     9
       As described above, we have treated dissection as a legal
determination in which the court identifies which parts of a
copyrighted work constitute original expression. Although we have
observed that "originality can be a question of fact for the jury,"
CMM Cable Rep, 97 F.3d at 1517, the dissection analysis here does
not depend on resolving factual disputes -- for example, whether
particular elements of the Photo were "independent creations"
rather than copied from another source. See Feist Publ'ns, 499
U.S. at 346 (noting that "originality requires independent creation
plus a modicum of creativity").      The district court therefore
properly performed the dissection as a matter of law, see Soc. of
Holy Transfiguration Monastery, 689 F.3d at 47 ("Assessing whether
a work is original is a matter of law."), and we accordingly follow
our precedents stating that de novo review applies to "the
originality vel non of the constituent elements of the copyrighted
work," Coquico, 562 F.3d at 68.

                                 -18-
(holding that non-infringement may be decided as a matter of law

"either because the similarity between two works concerns only non-

copyrightable elements of the plaintiff's work, or because no

reasonable jury, properly instructed, could find that the two works

are substantially similar" (emphasis omitted) (quoting Warner Bros.

Inc. v. Am. Broad. Cos., 720 F.2d 231, 240 (2d Cir. 1983))

(internal quotation marks omitted)). The district court's decision

to grant summary judgment is reviewed de novo.           TMTV, Corp., 645

F.3d at 469.

B.   The District Court's Ruling

           In performing the dissection analysis required by our

precedent,    the   district   court   observed   that   Harney   did   not

prearrange the subject matter of the Photo:

                  Harney captured a moment in time of a
           father and daughter passing through Beacon
           Hill.    The Rockefellers were not models.
           Harney did not select their clothes, give them
           a church program and palm leaf as props, or
           ask them to pose.       Those aspects of the
           Rockefellers' appearance are factual realities
           that exist independently of any photo. They
           are not Harney's original expression, and they
           are   not   copyrightable   elements  of   his
           photograph.

The court acknowledged Harney's "significant creative input" in

combining various elements -- Gerhartsreiter and Reigh in the

foreground, holding the program and palm leaf, and the church in

the background -- to "evok[e] the essence of Beacon Hill on Palm

Sunday."     The court also observed that "[t]he lighting in the


                                  -19-
photograph   highlights   the   church   and   the   young   daughter   and

displays the long shadows of early spring."            The court noted,

however, that the Image did not share Harney's expressive elements,

pointing in particular to elimination of the palm leaf and church.

          The court thus concluded that the only common element of

the two photographs for which Harney could take credit was "the

position of the individuals relative to the boundaries of the

photo, although in the original Clark Rockefeller's face is closer

to the camera and less of his body is visible."        It concluded that

"[t]his limited sharing" did not infringe Harney's copyright.            It

explained:

          The message conveyed by the Sony Images is the
          factual information about the Rockefellers'
          appearance.   There is nothing suggestive of
          Beacon Hill or a religious context.        The
          positioning of the Rockefellers in the middle
          of the frame, visible from mid-chest upward,
          is an element of minimal originality and an
          insufficient basis, without more, to find
          substantial similarity.

C. Dissection

          We note at the outset of our discussion that Harney

undisputedly produced an original, expressive work.          Indeed, it is

possible to identify multiple ideas creatively expressed through

the Photo's combination of images.       The district court noted one:

"the essence of Beacon Hill on Palm Sunday."           In addition, the

piggyback pose of the smiling father and child as they exited

church on a bright sunny day -- the Photo's dominant image --


                                  -20-
suggests the idea of close family ties and, in particular, father-

daughter bonding. Over time, as Harney argues, the Photo also came

to represent a specific father-daughter story and the deception at

its foundation.

            These    ideas   are    expressed      with    artistic    flair:   the

framing of Gerhartsreiter and Reigh against the backdrop of the

church reflects a distinctive aesthetic sensibility, and Harney's

artistry also is reflected in the shadows and vibrant colors in the

Photo -- perhaps the result of his use of an electronic flash and

professional editing software.            Positioning the pair in the middle

of the frame as they look straight into the camera, and at a close

distance, also involves aesthetic judgments that contribute to the

impact of the photograph.

            Inescapably,       however,       Harney's      creation     consists

primarily of    subject matter -- "facts" -- that he had no role in

creating, including the central element of the Photo: the daughter

riding piggyback on her father's shoulders.                  Harney nonetheless

asserts that there are "no unprotectable elements that ordinary

observers   should    exclude      from    their   analysis"    of    substantial

similarity.     He    argues    that,     rather    than    separating    out   the

"independently existing facts" contained in the Photo, the district

court should have focused on the photograph's unique expression of

the Rockefeller saga.          He claims that the court's dissection

analysis "failed to cut fine[ly] enough, throwing out the work's


                                      -21-
expressive content with the bathwater of 'independently existing

facts.'"    Under a "proper dissection," he argues, "the fact finder

should be allowed to consider the similarities in the pose of the

Rockefellers because Sony copied the pose for its expressiveness,

not [its] factual value."       Simply stated, Harney's view appears to

be that ordinary dissection analysis is inapposite because Sony

copied the Photo's expression of "the Rockefeller Story" and not

simply the factual content of his photograph.

            For multiple reasons, we are unpersuaded that this is an

appropriate way to evaluate Harney's infringement claim.                 First,

Harney's argument leaves no room for the dissection analysis that

our precedent prescribes.       The premise of the dissection analysis

is   that   protectible    expression     is   sometimes     constructed      from

components that are free for the taking.               The Supreme Court has

noted   that     "facts   themselves    do    not   become   original   through

association," Feist Publ'ns, 499 U.S. at 349, confirming the need

to identify the unprotected elements in a protected work so that

only unlawful copying is penalized.             Although the Supreme Court

made its observation in a very different context -- determining the

copyright protection available for telephone directory white pages,

id. at 342 -- the same principle is inherent in the proposition,

accepted    as    applicable   to   photography,      that   artists    may    not

copyright the "reality of [their] subject matter," Leigh, 212 F.3d

at 1214 (internal quotation marks omitted) (quoting Franklin Mint


                                       -22-
Corp., 575 F.2d at 65) (alteration in original).                      We therefore

reject     Harney's      assertion   that     we    should     not    catalog    the

protectible and unprotectible elements of the Photo.

            A second problem with Harney's argument is that he seeks

to enlarge the scope of his copyright protection by attributing to

the Photo an idea -- Gerhartsreiter's deception -- that is not

discernible from the image itself and did not originate with him.

The idea of the deception, of course, is not itself protectible.

The Photo of the smiling pair may be understood as an expression of

that idea only when we take into account the subsequent events that

revealed    the    falsity    underlying      the   specific        father-daughter

relationship that Harney randomly documented.                Indeed, expanding a

photograph's copyright protection based on later events appears to

be what Harney has in mind when he asserts that "we cannot penalize

authors who       are    fortunate   enough   to have        once    obscure works

suddenly become important due to their relevance to changing

circumstances."         Harney warns that rejecting copyright protection

for photographs whose significance the photographer "could not have

foreseen . . . when he snapped the shutter [would cause] every

stock photograph ever taken [to] enter[] the public domain."

            We    have    sympathy   for    Harney's    concern        about    the

protection afforded to spontaneous photography, which by its nature

consists primarily of "[i]ndependently existing facts."                    Indeed,

assuring copyright protection for fleeting images of newsworthy


                                      -23-
persons or events encourages freelance photographers to continue

creating new images, advancing the goal of the Constitution's

copyright clause "to promote the Progress of . . . useful Arts,"

U.S. Const., art. I, § 8, cl.8.          See Fitzgerald v. CBS Broad.,

Inc., 491 F. Supp. 2d 177, 189 (D. Mass. 2007) ("It is hard to

imagine that freelance photojournalists would continue to seek out

and capture difficult to achieve pictures if they could not expect

to collect any licensing fees.").          We disagree, however, that

application of the ordinary dissection analysis will deny copyright

protection for such works.     As described above, Harney created an

original protectible image.     His photograph may not be reproduced

in its entirety without his permission unless the copier is able to

prove fair use.      Nor may the original components noted above,

including the particular juxtaposition of the father-daughter and

the church, be freely copied if an ordinary observer would view the

resulting image as "substantially similar" to his original.

           Certainly, the value of an image can change over time

along   with   observers'   attitudes    toward   its   subject   matter.

Photographs of celebrities as children or unusual images of notable

buildings later demolished may become of wide interest decades

after they were taken. Likewise, the actual identity of the father

and child in Harney's photograph became important only after

Reigh's abduction.     While Harney should benefit from the added

interest in his photograph, as he did through the payments from


                                  -24-
Vanity Fair and other publications, such newfound interest does not

change the originality vel non of the individual components of the

work.     It does not, in other words, change Harney's creative

contributions to the Photo.          Moreover, recalibrating a work's

originality based on a new idea of what it expresses would

undermine the distinction that remains between ideas and expression

in visual works.   In short, we do not see how subsequent events can

fortuitously transform unoriginal elements of a visual work into

protectible subject matter.10

           For similar reasons, we also reject the argument that

failing to classify the piggyback pose of Clark and Reigh as a

protectible aspect of the Photo is an instance of "los[ing] sight

of the forest for the trees."         Coquico, 562 F.3d at 68.       Harney

describes this central image of the photograph as its "expressive

heart."     Yet,   as   we   have   explained,    any   expression   of   the

Gerhartsreiter story seen in the Photo is attributable not to the

photograph itself but to unrelated news events that associated the

Photo with the new idea of deception.            That new association did



     10
       We note that originality in timing has been recognized as
one aspect of news photography worthy of protection. See Mannion,
377 F. Supp. 2d at 452-53 (stating that "'[a] person may create a
worthwhile photograph by being at the right place at the right
time'" (quoting 1 Hon. Sir Hugh Laddie, et al., The Modern Law of
Copyright and Designs (3d ed. Butterworths 2000) § 4.57, at 229));
id. at 453 (citing as an example of "originality in timing" the
photograph by Alfred Eisenstaedt "of a sailor kissing a young woman
on VJ Day in Times Square"). This case does not involve a unique
or unusual moment fortuitously captured by a photographer.

                                    -25-
not, however, change the character of the Photo's unprotectible

factual components.

           Hence, we agree with the district court's application of

the dissection analysis and its recitation of the unprotected and

protected elements of the Photo.             Harney may not claim exclusive

rights to the piggyback pose of Gerhartsreiter and Reigh, their

clothing, the items they carried, or the Church of the Advent shown

with   bright   blue   sky    behind   it.       However,   the   framing   of

Gerhartsreiter and Reigh against the background of the church and

blue sky, with each holding a symbol of Palm Sunday, creates a

distinctive,    original     image.     Harney's    creativity    is   further

reflected in the tones of the Photo: the bright colors alongside

the prominent shadows.       Finally, the placement of the father and

daughter in the center of the frame, with only parts of their

bodies depicted, is composition both notable and protectible.

           We thus turn to consider whether the Image unlawfully

appropriated an impermissible portion of the plaintiff's "original

expressive elements," Coquico, 562 F.3d at 68.

D.   Substantial Similarity

           Harney's difficulty in alleging infringement is that

almost none of the protectible aspects of the Photo are replicated

in the Image.    Without the Palm Sunday symbols, and without the

church in the background -- or any identifiable location -- the

Sony photograph does not recreate the original combination of


                                      -26-
father-daughter, Beacon Hill and Palm Sunday.                   Although the two

photographs appear similar upon a first glance, that impression of

similarity is due largely to the piggyback pose that was not

Harney's creation and is arguably so common that it would not be

protected even if Harney had placed Gerhartsreiter and Reigh in

that position.         See Mannion, 377 F. Supp. 2d at 462 (suggesting

that the subject's pose was "arguably in the public domain"); cf.

Rogers, 960 F.2d at 304 (noting that "[s]ubstantial creative effort

went into both the composition and production" of a photograph

where      the    photographer,    inter   alia,   selected     the   light,   the

location, and the arrangement of the couple and their eight puppies

on a bench).           Significantly, the two photographs are notably

different in lighting and coloring, giving them aesthetically

dissimilar impacts.         Harney's features vivid colors and distinct

shadows, while the Image is washed out and is far less attractive

or evocative.11

                 The Image does copy the placement of Gerhartsreiter and

Reigh in the frame -- which was Harney's choice and thus an element

of   original       composition.     We    agree   with   the   district   court,

however, that locating the subject of a photograph in the middle of

a frame is "an element of minimal originality and an insufficient

basis, without more, to find substantial similarity."


      11
       In his affidavit, Harney stated that he "used fill-in flash
to separate the subjects from the background and to reduce the
shadows on their faces."

                                       -27-
            Two other cases addressing the alleged infringement of

distinctive      photographs    are    instructive        by    comparison.      The

plaintiff's photograph in Leigh was of a statue known as the "Bird

Girl" that appears on the cover of the book Midnight in the Garden

of Good and Evil.       212 F.3d at 1212.          Defendant Warner Brothers

created still photos of a replica of the statue for use in

promoting   a movie     based   on    the     book.    Id.      at 1212-13.       In

concluding that the issue of substantial similarity was a jury

question, the Eleventh Circuit noted that the plaintiff's and

defendant's photographs shared a number of expressive elements:

distinctive lighting and angle, hanging Spanish moss bordering

their    tops,   the   statue   close       to   center    of    the    frame,   and

monochromatic shading.          Id. at 1216.          The court stated that

"[t]hese expressive elements all make the pictures more effective,"

observing that "[t]he location of the statue and the lighting in

the pictures together draw the viewer's attention."                    Id.   Here, by

contrast, the important differences in lighting and backdrop render

the     photos    aesthetically        more      dissimilar       than       similar,

notwithstanding the common positioning of the father and daughter

within the frame.

      The   defendant's   image       in    Mannion   similarly        incorporated

multiple distinctive elements of the plaintiff's photograph.                      See

377 F. Supp. 2d at 447-48.             Jonathan Mannion created a three-

quarter-length portrait of basketball star Kevin Garnett, with a


                                       -28-
background of clouds.    The defendants' photo depicts the torso of

a muscular black man, not Garnett, also shot against a cloudy

backdrop.   In each photo, the subject is wearing a white t-shirt

and white athletic pants, and large amounts of jewelry.                 The

lighting, pose and angle are similar. The court noted that Mannion

had "orchestrated the scene" of his photograph by, inter alia,

telling Garnett how to dress and pose.         Id. at 455.      It further

observed that the defendants had "recreated much of the subject

that Mannion had created and then, through imitation of angle and

lighting, rendered it in a similar way."        Id. at 463.    The photos,

however, also had some differences: one was black and white, and

the other was color; the jewelry was not identical; and one t-shirt

appeared more tightly fitted.

     Given the similarities and differences, the court in Mannion

concluded that a reasonable jury "could find substantial similarity

either present or absent."     Id.    Although Harney argues that here,

too, there are similarities and differences that warrant a jury

judgment, this case is notably distinguishable from Mannion.

Harney happened upon Gehartsreiter and Reigh.         Unlike Mannion, he

did not "create" his subject by "orchestrat[ing] the scene."

     We   recognize   that   Sony's   Image   and   Harney's   Photo   are

similar, as Sony intended.     But as we have explained, the question

of infringement is governed not merely by whether the copy mimics

the plaintiff's work, but also, more importantly, by whether the


                                  -29-
similarity arises from protected elements of the original.                    See,

e.g., Johnson, 409 F.3d at 19 (noting that "an overall impression

of similarity may not be enough" "[i]f such an impression flows

from     similarities   as    to    elements    that    are     not   themselves

copyrightable"); see also Warner Bros., 720 F.2d at 241 (noting

that     "'a    defendant    may   legitimately    avoid       infringement     by

intentionally making sufficient changes in a work which would

otherwise be regarded as substantially similar to that of the

plaintiff's'" (quoting 3 Nimmer § 13.03[B] at 13-38.1 to -38.2

(1983))).

       Sony copied little of Harney's original work -- only the

placement of Gerhartsreiter and Reigh in the photograph -- and no

jury could conclude that the similarity resulting solely from that

copying    is    substantial.      Moreover,    given    the    differences     in

background,      lighting    and   religious   detail,    a    reasonable     jury

comparing the entirety of the two works could not conclude that the

ordinary observer would "regard their aesthetic appeal as the

same."    Peter Pan Fabrics, 274 F.2d at 489.

                                      IV.

       We can understand the frustration of photographers such as

Harney whose works are afforded a limited copyright because they

are comprised substantially of unprotected content. As the Supreme

Court has emphasized, however, "this is not 'some unforeseen

byproduct of a statutory scheme.'"           Feist Publ'ns, 499 U.S. at 349


                                      -30-
(quoting Harper & Row, Publishers, 471 U.S. at 589 (Brennan, J.,

dissenting)).

     It is, rather, "the essence of copyright," and a
     constitutional requirement.    The primary objective of
     copyright is not to reward the labor of authors, but
     "[t]o promote the Progress of Science and useful Arts."
     Art. I, § 8, cl. 8.     To this end, copyright assures
     authors the right to their original expression, but
     encourages others to build freely upon the ideas and
     information conveyed by a work.

Id. at at 349-50 (alteration in original) (citations omitted).

     For the reasons we have explained, no jury could properly

conclude that Sony's adaptation of the Photo infringed Harney's

copyright in his work.   Accordingly, we affirm the judgment of the

district court.

     So ordered.




                                -31-
               APPENDIX




Harney Photo              Sony Image




                 -32-
