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History Into Fiction: The Writer's Art of Recreating the Past

Can History Be Copyrighted? A Massachusetts Court Weighs In On The Issue

From the fiery crash of the airship Hindenburg to the raising of the American flag on Iwo Jima, certain photographs can become so iconic that they inspire movies and books. If the scenes caught in these photographs are recreated on screen or in a work of fiction, does this violate a copyright owned by the photographers?

According to the District Court for the District of Massachusetts, “factual realities that exist independently of any photo” are not subsumed into a photographer’s “original, copyrightable expression” and thus do not preclude other depictions of the events giving rise to the taking of the photographs.

The decision was rendered last May in the case of Harney v. Sony Pictures Television, in which photographer Donald Harney brought an infringement suit for a 2010 Lifetime channel movie about a man who falsely claimed to have been born into the Rockefeller family and was convicted for abducting his own daughter from his estranged wife in 2007. Harney’s photograph of the father and daughter leaving a Boston church was featured in local newspapers and on FBI wanted posters.

Judge Zobel, writing the decision, stated that the movie’s recreation of the scene, while including the poses and similar clothing, did not create an identical image.

In the September 7, 2011, issue of Script Magazine, Boston copyright attorney Mark Fischer and law student Alicia Parmentier penned a thoughtful analysis of the decision and the prior case law on the issue. According to Fisher and Parmentier, the new Massachusetts decision further weakens copyright protection for “documentary renditions” of history, and that even in those rare instances where an unauthorized use of a copyrighted photograph is found, “it remains likely that an unauthorized recreation of that content will constitute a fair use under the Copyright Act’s exemption.”

Reviewing the decision’s impact on other areas involving creative expression and copyright protection, Fischer and Parmentier noted that courts have deemed the line between facts and content, on one hand, and their unique expression to be “elusive” and “an inexact science.” They also noted that historical interpretations and theories are generally not protected, either.

“Historical facts, no matter how hunted or gathered, whether true or made up,” the authors of the article wrote, “belong to all of us.”

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