In the summer of 2008, a man using the name Clark Rockefeller abducted his daughter Reigh and fled Massachusetts. A nationwide manhunt ensued. As part of the search, authorities distributed a photograph of the father and daughter that first appeared in a Boston newspaper in 2007. Rockefeller and Reigh were eventually found, Rockefeller was prosecuted for kidnapping, and Sony Pictures Television, Inc. (Sony) produced a made-for-television movie about the lurid story. In March 2010, A&E Television Networks, LLC (A&E) aired the film, titled Who Is Clark Rockefeller?, on its Lifetime Television Network.

Now Boston photographer Donald Harney – whose published photograph was widely used during the search for Rockefeller and Reigh – has sued both Sony and A&E for copyright infringement. Harney claims that an image included in the made-for-TV movie infringes his copyrighted photograph. See below for images of Harney’s photograph and the photograph included in Sony’s made-for-TV movie.

Harney Photograph	Photograph appearing in Who is Clark Rockefeller?

In a lawsuit filed in Massachusetts federal court, Harney alleges that the movie’s photograph is derivative of and substantially similar to his copyrighted photo. See Harney v. Sony Pictures Television, Inc., Docket No. 1:10-cv-11181 (D. Mass. July 14, 2010). On September 17, the defendants filed a motion for summary judgment. The defendants argue that they did not commit copyright infringement because the movie photo did not copy any protectable elements of the Harney photo. The defendants also claim that any similarities between the movie photo and the Harney photo constitute permissible fair use.

Among other things, Harney seeks damages, an accounting of profits, and impoundment of all copies of the movie in the defendants’ control. Who Is Clark Rockefeller? was released on DVD on September 14, 2010. Litigation is on-going.

This case demonstrates the thorny issues that can be raised in copyright infringement cases. Media companies should seek the advice of counsel during the production process in order to avoid possible conflicts. To learn more about Arent Fox’s work in this area, please contact:

Anthony V. Lupo
lupo.anthony@arentfox.com
202.857.6353

Sarah L. Bruno
bruno.sarah@arentfox.com
202.775.5760

Grace L. Applefeld
applefeld.grace@arentfox.com
202.857.6498