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Army drafts blogger's photograph

Michael Yon is an amazing man.

A former Green Beret, he has placed himself at the forefront of the media revolution. He is literally a one-man media outlet, a blogger who pays his own way (through other incomes and donations) to go to Iraq and write back dispatches from the front lines. He works for no one, and no one works for him. There is absolutely no filtering, no editing, no censoring of his raw observations.

He's also an amazing photographer, as well as a superb obsever and writer. His picture of an American soldier cradling an Iraqi girl fatally wounded in a terrorist attack has almost become the image of the fighting in Iraq, on its way to becoming the equivalent of the firefighters hoisting the flag on 9/11, or the naked Vietnamese girl running away from the napalm, or the Marines raising the flag on Mt. Suribachi. It's that powerful.

And there's the rub.

Yon granted the Army permission to reprint the photo for its internal use. Instead, the Army sent it around the world, and it ended up getting printed nearly everywhere -- without Yon's permission.

The Army's defense of this particularly egregious act of piracy is truly offensive. They bring up the waiver Yon signed where he held the Army blameless for any harm that might befall him in Iraq. They say that this "hold harmless" waiver includes financial harm, should the Army trample all over his copyright.

The law, as I understand it, is simple. Any creative work -- including a photograph -- is copyrighted by the creator the instant it is created, unless steps are taken in advance. The Army is not disputing his ownership of the image, merely saying that they can do whatever they want to Yon with utter impunity. And getting ripped off by the Army is just one of the many risks he accepted when he signed that waiver.

Now, it's arguable whether Yon should give up the copyright on the photo, or assign its proceeds to some cause. But he is under absolutely no obligation to do so. The photograph is his, and the rights to it are his and his alone to grant or deny. Personally, considering the risk and work he's put into taking that photo and all his other fine works, I have no problem at all with him profiting from his works.

And the Army, at the least, owes Mr. Yon an apology and should stop spreading his photo beyond the scope he granted them.


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Comments (13)

First off let me state that... (Below threshold)
Doc:

First off let me state that I am not an attorney. That being said I wish to add my 2 cents. I am aware of copyright laws in the US. If Michael Yon had properly recorded that image with the US Copyright office prior to issuing written permission for dissemination for "internal use" he may be able to sue in court for substantial damages. If the image was not recorded by the copyright office prior, he may still be able to recover damages, but the amount he would receive would not be worth his time/efforts persuing. Under current law, all photos are under immediate copyright protection, even without proper filing. Also, one does not have to display the copyright insignia on the print anymore, as it is automatically protected.

Registration with the Copyr... (Below threshold)
Phinn:

Registration with the Copyright Office is not required, nor does it confer copyright protection. It is there for public registration, to put other on notice that a work is protected. If a registered work is used improperly, the fact that it is registered can increase the damages that the owner can be awarded, or other remedies, but Yon owns the rights to that photograph, registered or not. He could probably sue now, if he wanted to do so.

It appears that the Army is merely claiming he waived these rights as to their use of it.

Jay is correct. Current cop... (Below threshold)

Jay is correct. Current copyright laws no longer require the creator to register the work. It happens automatically.

I suspect the Army is accustomed to working with photographers who are embedded or enlisted, with different arrangements than Mr. Yon's. Someone probably made a bad assumption about the status of the image and there it goes. OTOH, the Army's use of the image probably allowed it to reach a wider and more varied audience than it otherwise would have.

Mr. Yon's probably also anxious to make it clear that he does not work for the Army, as might be implied by their use of the photo. He values his independence.

I obviously haven't seen th... (Below threshold)
Dodd:

I obviously haven't seen the full release form Yon signed, but I'd say it's an even money bet that it does indeed cover this. Except in very special circumstances, when I write one for one of my clients, I make sure it's as broadly applicable as possible; ensuring that it covers the widest possible realm of causes of action - foreseen at the time of execution and unforeseen - is part of the job of doing it right.

Without reading the actual release, I could not, of course, say for certain, but I have a hard time believing the Army let this guy into Iraq without a similarly broad one. So it's possible that a court might find that he didn't waive this claim in advance, but I doubt it.

Regardless of whether the w... (Below threshold)

Regardless of whether the waiver can be interpreted to imply coverage of this, I think it's disraceful for the Army to take such full advantage of such an opportunity. The injustice is only magnified by the fact that Michael Yon has made a formidable contribution to improving sentiments towards the military. For all he's done, he deserves far more consideratin than this.

Just to add some info to th... (Below threshold)
Just a Patent Attorney:

Just to add some info to this thread (and echo previous thoughts):

* copyright notice is no longer required (though it is quite prudent when practicable)
* registration is not necessary for copyright protection to subsist - copyright subsists at fixation of the work in a tangible medium of expression from which the work can be perceived
* registration IS required to file a federal suit for copyright infringement (17 USC sect. 411(a)), although 411(b) could apply to Yon (the particulars are unavailable to make such an analysis right now)

Unless I am wrong in a certain assumption, it appears any cause of action and remedy available to Mr. Yon is through 28 USC sect. 1498(b), since the Army is an arm of the US Government, and Title 17 (the Copyright Act) addresses infringement(s) of private parties, states and entities or persons representing the state(s).

If the above is accurate, Mr. Yon would have to file suit in the Court of Federal Claims against the U.S. Gov't and set out his damages (actual or statutory request).

Suits under 28 USC sect. 1498 (the section devoted to infringement claims against the US in either patent (1498(a)) or copyright (1498(b)) are treated more or less like a compulsory license in which the government pays a licensing fee (ie damages).

It seems doubtful that the US Army can rely on its waiver agreement to incorporate IP rights into the umbrella of no liability for "harm", esp. when the harm was inflicted by the US Army.

It would not surprise me (if this issue blossoms into litigation) to see attorneys for the US Army assert WMFH (work made for hire) argument (not that I agree that such an argument is correct). And I will not be surprised to see the US military organizations re-think their policies on embeds and intellectual property rights (esp. copyright).

I wonder if that little gir... (Below threshold)
CharlieDontSurf:

I wonder if that little girl and the soldier granted Yon permission?....

Charlie, they don't have to... (Below threshold)

Charlie, they don't have to. They were walking in the open, where anyone within sight could see them.

Regardless of the "laws" in... (Below threshold)
CharlieDontSurf:

Regardless of the "laws" involved, it seems to me that the subjects of the photo should have some say if Yon (or the Army for that matter) stand to profit from this image.

I agree with Wonder Woman. ... (Below threshold)
docjim505:

I agree with Wonder Woman. The Army really should hold itself to a higher standard than this.

Hmmm.Frankly the o... (Below threshold)
ed:

Hmmm.

Frankly the only really worthwhile remedy is for the US Army to *buy* the rights to that photo from Michael Yon.

That would cover past indsicretions and future uses.

And a little somethin-somethin for me of course. Why?

Because I'm pretty.

Heh, Sorry for Michael, but... (Below threshold)
kamatu:

Heh, Sorry for Michael, but having seen enough of how the REMFs in the Army (and VA) operate, this looks like normal SOP. If criminal laws were applied the way REMFs apply their own regulations, then we would be bragging about what great heroes the terrorists were.

I'm also no lawyer, but I h... (Below threshold)
Tom M:

I'm also no lawyer, but I have copyrighted material before. It is my understanding that, if the material was registered before use, he could get damages, but if it is only the assumed copyright (very legal as to establishing authorship), it might affect the compensation he can get. Is this correct?

Right or wrong, it's awful tacky of them to do this. If they are able to gain profit, he should be compensated.




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