Dinosaur Fossil Photo Not an Infringement

Whether one photograph is substantially similar to another photograph, and thus constitutes copyright infringement, is often determined by the various elements involved.

            A recent federal Court decision, Psihoyos v. The National Geographic Society, in the Southern District of New York, ruled that there was no copyright infringement in such a situation because two similar images were not "substantially similar" as those terms are defined under the Copyright Act.

            The plaintiff, a professional photographer, had created a photograph of a fossil of two dinosaurs that had been uncovered in 1971 in the southern Gobi desert in Mongolia.  This was done on assignment as a freelancer for The National Geographic Society ("NGS") in connection with a planned NGS article on dinosaurs.

            In order to photograph the fossil, Psihoyos decided to build a display case.  He filled the case with sand up to the level of the dinosaurs.  The sand was taken from the Gobi desert in order to match the color and texture of the substance which bonded the bones of the fossil to the rocks.  The final photograph was then created from an overhead position and showed the fossil surrounded by sand, but not the display case.

            NGS decided not to publish the photograph and all rights to it reverted to the photographer.  Thereafter, Psihoyos decided to publish a book on dinosaurs, which included this image.  In connection with this project, he commissioned a scientific illustrator to draw an illustration of the dinosaurs at the moment of death in the same perspective and position as they appeared in the photograph.  During the creative process, the illustrator looked through a number of different dinosaur books to see how others approached the subject.

            In 2000, the Director of Photography for the American Museum of Natural History photographed the fossil in connection with a museum exhibit.  This picture was also taken looking directly down.  Sand had also been added and the resulting image shows the fossil surrounded by sand but not the display case which was a similar layout to that of Psihoyos.

            In 2001 NGS selected this image from the museum collection for use in connection with a story on dinosaur behavior it wanted to run.  NGS commissioned an artist to illustrate the two dinosaurs as they would have seemed just prior to their deaths, and supplied the museum photograph to him so that the illustrator could match the skeletons' positioning.  After publication of the museum photograph and its illustration in the March 2003 issue of the magazine, NGS was sued for copyright infringement.

            The Court, on motions by both sides for summary judgment, found that the two photographs were not substantially similar as a matter of law.  The Court explained that, in most cases, the test for substantial similarity is what has been called the "ordinary observer test" which asks whether an average lay (non-expert) observer would recognize that the alleged copy has been appropriated from the copyrighted work.

             However, when works contain both protectable and non-protectable elements, the Court applies what is called the "more discerning ordinary observer test".  This requires the Court to extract unprotectable elements and then determine whether there is substantial similarity of only the protectable elements, taken as a whole.  That is, an assessment is made of the "total concept and feel" of the works after eliminating the unprotectable elements.

             Applying this test, the Court first explained that a copyright in a photograph derives from the original conception of the subject, not the subject itself.  For example, the characteristics of an object as it occurs in nature are not protectable, while the posing of subjects, lighting, angle, selection of film and camera, and evoking the desired expression, are protectable.

            In this case, because the fossil was found in the desert, the showing of it in its natural setting was not a protectable element.  Adding sand was also not protectable because it is the obvious choice of  background for a fossil.  The overhead angle or perspective was also not protectable in this situation because, the Court held, there are very few angles from which the fossil may be photographed while depicting its natural surroundings, and affording the photographer copyright protection of the overhead angle would impermissibly protect the idea of showing the fossil in its natural setting.

            As to the protectable elements, the Court found that, to the extent that color is protectable, the photographs were significantly different in color; and that the shadows were also significantly different.  The Court further found no substantial similarity between the illustrations, which among other things, were found to be in different drawing styles.

            NGS had also raised the usual defenses of independent creation and fair use.  The Court did not address these issues since it was able to dismiss the case for lack of substantial similarity. 

            It all goes to show that an image substantially similar to a copyrighted photograph does not necessarily constitute a substantially similar image!

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.