In 2007, freelancer Donald Harney photographed parishioners exiting a church in Boston on Palm Sunday. One of his photographs, featuring a father with his daughter riding piggyback against the background of the church and a tree whose main branch echoed the arc of the palm frond in the daughter’s hand, was included in the Beacon Hill Times with the caption “Parishoners Clark and Reigh ‘Snooks’ Rockefeller of Pinckney Street celebrated Palm Sunday at the Church of the Advent on March 31.” A year later, with Harney’s permission, this image was used in an FBI “Wanted” poster. The father was, in fact, a German citizen who had falsely assumed the name Clark Rockefeller, and upon his discovery, fled, abducting his daughter.

In 2010, Sony Pictures Television ("Sony") produced a television movie based on the story titled Who is Clark Rockefeller?, which included brief depictions of a photograph modeled on Harney’s now famous image. Sony restaged this now-famous photograph substituting actors for the original subjects and eliminating the background elements of the church and a tree from the original photograph. Harney subsequently filed a copyright infringement action. The district court concluded no reasonable jury could find substantial similarity between the works in question and granted summary judgement for Sony and the cable distributor A&E Television Networks (together with Sony, the "Sony defendants").

Harney unsuccessfully appealed. The First Circuit found that while Sony undoubtedly copied Harney’s copyrighted images, the copied elements were not protected under copyright law. Copyright protection extends only to protected, original expressions in a work, which means that even if two photographs appear “similar,” there must be “substantial similarity” between the original, expressive elements of the works for Sony to infringe. In this analysis, both the district and the appellate courts concluded that Sony did not copy any of Harney’s expressions such as lighting or the framing of the subject against a selected background. In particular, the First Circuit explained, “we do not see how subsequent events [of Clark Rockefeller’s discovery] can fortuitously transform unoriginal elements of a visual work into [protectable] subject matter.” Thus, the First Circuit affirmed the district court’s judgement in favor of the Sony defendants.