November 14, 2007

"Photographer of Flight 93 Somerset crash settles" - Pittsburgh Post-Gazette

Photographer of Flight 93 Somerset crash settles

Wednesday, November 14, 2007
Pittsburgh Post-Gazette

A Somerset County woman who took the only known photograph of United Airlines Flight 93 moments after the crash has settled a federal lawsuit she filed against the Associated Press.

Valencia M. McClatchey claimed the news organization violated her federal copyright by obtaining a copy of the photo and transmitting it to more than 1,000 news outlets.

Ms. McClatchey's attorney, Douglas Hall, said the parties reached a confidential settlement. Part of the agreement, though, calls for the Associated Press to destroy copies of the photograph.

http://www.post-gazette.com/pg/07318/833685-56.stm

So will Val give all this to charity, because she's not in it for the money, right?

September 12, 2007

"Somerset Hospital marks Sept. 11 anniversary" - Daily American

Somerset Hospital marks Sept. 11 anniversary


“We were ready Sept. 11 and then it took the wind out of our sails,” said Somerset Hospital’s director of corporate communications, Greg Chiappelli.

He was talking about hospital employees who were ready to offer medical help on Sept. 11, 2001, but in the end, weren’t needed. He mentioned this commemoration to employees prior to a Sept. 11, 2001, memorial service Tuesday, which was sponsored by the Pastoral Care Committee at Somerset Hospital. Hospital employees, as well as the public, were invited to the service.

The Rev. Ruth Ann Campagna and the Rev. Mark Bendes offered prayers and scripture. Danny Conner performed two musical selections.

Valencia McClatchey was the featured speaker. She took the photo “The End of Serenity” of the smoke from the Flight 93 plane crash in the field near her home.

McClatchey said she heard a tremendously loud noise, unlike anything she’s heard in her years of living near coal mines, and looked outside of her house to see a flash like sunlight reflecting off a plane. She said she always has a camera by the door because she has a friend who is a helicopter pilot and does training runs around the Indian Lake area.

She said her friend will fly by her house, and she wanted to be ready to get a photo of him flying over for a car club newsletter.

Then she saw the mushroom cloud. She took the photo that has made the news all over the world.

She said she called the photo, which now hangs in the Smithsonian Institute, “The End of Serenity” because it was the end of our peaceful lives as we knew them to be. She said we are slowly getting back to that, but that we’ll never forget Sept. 11, 2001.



Valencia McClatchey, the woman who took the photo “The End of Serenity” on Sept. 11, 2001, of the mushroom cloud after United Flight 93 crashed near Shanksville, was the guest speaker at Somerset Hospital’s memorial service Tuesday.

http://www.dailyamerican.com/articles/2007/09/12/news/news576.txt

September 10, 2007

"Picture Made on 9/11 Takes a Toll on Photographer" - NY Times

(Response to this article below.)

(Secondary NY Times title: A Sept. 11 Photo Brings Out the Conspiracy Theorists)

September 10, 2007




By SEAN D. HAMILL


Emily Jerich told visitors at a temporary memorial for victims of United Flight 93 about a photograph that Valencia M. McClatchey took of the crash on Sept. 11, 2001. In numerous online postings, critics have ripped apart every element of the photo, and Mrs. McClatchey’s life.


SHANKSVILLE, Pa. , Sept. 7 — Valencia M. McClatchey thought she was doing the right thing when she gave the F.B.I. a copy of her photo of the mushroom cloud that rose over the hill outside her home after United Flight 93 crashed in a field here on Sept. 11, 2001.

And, after it became apparent that hers was the only known picture of that ominous, gray cloud — and the first shot after Flight 93 crashed — she thought she was still doing the right thing when she gave copies to people who asked for them, and let newspapers and television stations use it.

But fame for the photo has had an unexpected cost for the photographer.

“Every time I’ve done any stories it goes online and all these conspiracy theorists start up and they call me and harass me,” said Mrs. McClatchey, 51, who runs her own real estate company.

In numerous online postings, critics have ripped apart every element of the photo, and Mrs. McClatchey’s life. They accuse her of faking the photo, of profiteering from it and of being part of a conspiracy to cover up the fact that Flight 93 was shot down by the government.

They claim the mushroom cloud is from an ordnance blast, not a jet crashing; the cloud is the wrong color for burning jet fuel; the cloud is too small and in the wrong position.

They’ve posted her personal e-mail, phone numbers and street address online. One Canadian “9/11 debunker” surreptitiously taped a phone conversation with her, quizzing her about the photo, and then uploaded it to his Web site.

“It’s just gotten so bad, I’m just fed up with it,” Mrs. McClatchey said. “This thing has become too much of a distraction in my life. I have a husband and a new business to deal with, too.”

The F.B.I., the Smithsonian Institution — which used the photo in an exhibition on Sept. 11 — and the National Park Service’s Flight 93 National Memorial — which has used the photo in pamphlets — all consider the photo legitimate.

“We have no reason to doubt it,” said Bill Crowley, an agent who is a spokesman for the Pittsburgh F.B.I. office, which oversaw evidence collection in Shanksville.

Along with the rest of the nation, Mrs. McClatchey was watching the coverage of the Sept. 11 attacks in New York and Washington when
she was shaken from her couch by a ground-shaking blast just over a mile away. She grabbed her new digital camera and took just one picture from her front porch.

It is a simple photo, showing a sloping green farm field, with a brilliant red barn in the foreground. Hovering above the barn in a brilliant blue sky is an ominous, dark gray mushroom cloud. Mrs. McClatchey named the photo “The End of Serenity.”

Barbara Black, acting site manager for the Flight 93 memorial, said, “What makes the image so powerful is that it’s this serene scene in Pennsylvania, this typical red barn, green trees, and then this terrible cloud above it that changed our life here forever.”

At the temporary memorial site, Flight 93 “ambassadors,” local residents who volunteer to tell visitors what happened here, always start the story by showing people Mrs. McClatchey’s photo.

From the beginning, Mrs. McClatchey said, she tried to use the photograph to help remember the 40 passengers on Flight 93. She sells copies to people and lets them choose whether $18 of the $20 fee goes to the Flight 93 National Memorial or the Heroic Choices organization (formerly the Todd Beamer Foundation).

To ensure that she controlled distribution of the photograph, in January 2002 she copyrighted it. To “protect the integrity of the photo,” Mrs. McClatchey said, she filed suit in 2005 against The Associated Press, saying that it violated her copyright by distributing the photo to its clients as part of a story. The lawsuit is pending.

One of Mrs. McClatchey’s neighbors here defended her against the allegations of the people he called the “Internet crazies.”

The McClatcheys “are as good neighbors as you could possibly have,” said Robert Musser, who owns the red barn that is so prominent in Mrs. McClatchey’s photo.

To accommodate visitors who will show up on Sept. 11 to recreate the picture, and who eventually find their way to the Mussers’ 94-year-old barn, they’ve tried to spruce it up this past week, adding a touch of paint. They plan to spend thousands in the near future to shore up the foundation on one side so the barn will endure for years to come.

“Here this barn could fall down, and it’s in the picture that’s so famous,” said Mr. Musser’s wife, Phyllis. “We have to do something.”


"The photograph Valencia M. McClatchey took from her front porch on Sept. 11, 2001."

http://www.nytimes.com/2007/09/10/us/10cnd-shanksville.html



This NY Times article is very misleading, gets a major point wrong and again, fails to mention me by name (so what's new?).

First, they say "we" accuse Val for taking part of the cover-up of Flight 93 being shot down. I have never made that claim, especially when I think it never crashed.

Second, they say my claim is that the plume in her photo is too small, but my claim is that her plume is too big, 7 football fields too big!

Third, they make it sound like I posted her email, phone numbers, and address as if they were all private. I posted her home address, which is posted on the website that advertises her photo for sale and posted her work phone number from her own business' website that also advertises the photo for sale. I posted her email address from the email she sent me, but after I checked and saw her email address is publicly available on the net too.


Btw, did you notice the title of this NY Times article:

Picture Made on 9/11 Takes a Toll on Photographer


"Picture made". Well, guess they got something right. ; )

August 27, 2007

History Channel's 9/11 conspiracies episode featured 'Flight 93 Photo Fraud' blog

The History Channel showed a fairly lengthy segment about this blog on their The 9/11 Conspiracies: Fact or Fiction hit piece.






To no one's surprise, the History Channel got most of my claims about Val, her photo, and what happened to Flight 93 wrong and they didn't even bring up most of the evidence I presented (such as the plume in her photo being about 7 football fields wide) that shows her photo proves that the official story of Flight 93 crashing is a fraud or that her photo is a fraud other than the plume in her photo couldn't have been from a plane crashing.


However, there are a couple of interesting things in their clip about her photo. Here is the breakdown in order:

- First the show a picture of Val's house, but notice they only show the back of her house.



They never show the front where she allegedly took her photo. Why the big deal? Well I've been informed that Val has since remolded the front of her house after 9/11. Not bad for filing bankruptcy on their business 9 days after 9/11 and was in danger of losing their house too.

- Also note that they only show the red barn featured on the right of her photo and never the white barn seen on the left side of her photo. That white barn is now painted red.

- She says she heard a load surge of an engine. What the History Channel doesn't tell you is that Val said she heard this roar of an engine over Indian Lake which is in the opposite direction that Flight 93 allegedly flew in at. Val then skips the part where she had said that she almost got knocked off her couch from the shock wave from the "crash" of Flight 93 and that is why she jumped up to grab her camera.

- The narrator then says Val says 9/11 conspiracists have "harassed her" with emails and phone calls. I've never contacted Val by any method ever. However, Val has sent me a harrassing email threatening to sue me for putting her photo on my website (not this blog).

- Next they say that we, the conspiracists who think her photo is a fraud, think Flight 93 was shot down and "accuse" Val of being a part of it. I've stopped thinking Flight 93 was shot down years before I discovered Val's photo was a fraud and I now think the shot-down theory was started on purpose to distract from Flight 93 not crashing in shanksville. I've also never said that I thought Val was part of some conspiracy involving Flight 93 being shot down.


Another thing to notice about History Channel's segment of my claim that her photo is a fraud is that they didn't even have any of their "experts" try to debunk my analysis showing that the plume on Val's photo is way to big and is about 250 yards south of the crater!

July 31, 2007

Did Val actually photograph the small white mystery aircraft at Shanksville?

New theory by Domenick DiMaggio (a.k.a. Terrorcell):

Other than a blanket statement of "I don't believe Val's picture to be that of a 757 crash" I've never really spoken publicly on the matter.

I believe Val McClatchey is telling the truth to an extent and covering up something much bigger to another extent.

If one looks at Val's pic then it would appear that this photo had to be taken within 2-6 seconds that being because the smoke isn't "drifting off" but is still in the conceptual stage from the massive explosion which took place.

We know according to eyewitness Susan McElwain that a small white UAV was there at that exact moment. After speaking privately with some unpublished accounts and some published accounts it has been confirmed that the little white UAV was present at the scene.

According to Val, she dropped her camera and the batteries came out of it. In the time it took her to pick them back up and place them in the camera the smoke from this massive explosion was gone. THIS IS IMPOSSIBLE.

People drove to the explosion from different areas. They drove towards this massive billowing smoke cloud from over 5 miles away. It's safe to assume one can reload batteries into a camera in the time it would take an individual driving 5+ miles at 50MPH(est fastest speed given terrain)- mostly rural windy roads in the area.

Val also stated a plane flew over her house before the explosion. She stated it sounded like a small plane but insists it was Flight 93. Of course we know this not to be true because at no point did Flight 93 ever fly towards the North. That would mean the "struggle" we were told was taking place on board quite possibly was successful.

Val's house is totally inconsistent with the flight path of the UAV as well.
It is possible the fighter jets witnessed in the area passed over Val's house. That would also be consistent with the blast direction of the explosion being towards the west and into the woods.

Eyewitness accounts put the UAV at the site for minutes after the explosion "flying around like he was looking for something." According to Val though she didn't take anymore pics with her digital camera. Just that one. And that is where Val McClathchey is not telling the truth.

The FBI took her camera, her computer, & memory stick.
This was in order to clean all of these of the CLASSIFIED UAV which Val managed to capture on film. The FBI would have also checked and confirmed that any images weren't sent out via email to anyone.

A local Shanksville area is currently writing a book that tells 'her' side of the story. If the female author of this book is who
I suspect it is then Val is now writing a book detailing her 9/11 experience and life after 9/11 and dealing with "internet conspiracy kooks" in her post 9/11 life. I hope, in fact I am pleading with Val (because I suspect one way or another she will be reading this), to TELL THE WHOLE TRUTH IN HER BOOK.

DO NOT LEAVE OUT THE UAV WHICH WAS SEEN THAT DAY.

People are coming forward everyday. Some are willing to speak publicly like Susan has and others are not so willing out of fear. But there are more than enough who collaborate the story told by Susan McElwain that morning. And if Val really wants all the "internet conspiracy kooks" to finally stop then she needs to come clean. Otherwise history will look unfavorably upon her.

The FBI gave Val the image she titled "End of Serenity" and sells over the internet and various local places. So whether or not the image itself is fake is still debatable. I can't really pick one side or the other anymore. I don't believe it to be the smoke plume that is created from a massive jet fuel explosion. Perhaps the FBI gave Val a faked pic and she could be totally unaware it is a manipulated image or perhaps the image is genuine and not reflective of a jet fuel induced explosion. Either way Val knows something she isn't talking about.

If you read this Val please feel free to contact me at Reichstag_911@yahoo.com
If you have any doubt about my integrity or whether or not I am a man of my word than you need to speak to your friend John at the COF Motel.

What you can't do though is call me "another one of those anonymous internet kooks".

At the bare minimum you know I am telling the 100% TRUTH about the UAV that was there that morning. You saw it with your own eyes....just like everyone else who was in the vacinity.


Domenick DiMaggio


Discuss further at 911movement.org.


MCCLATCHEY v. ASSOCIATED PRESS

MCCLATCHEY v. ASSOCIATED PRESS

Plaintiff Valencia McClatchey alleged that defendant the Associated Press (AP) over the AP's unauthorized use of her copyright End of Serenity photograph.

Plaintiff: VALENCIA M. MCCLATCHEY
Defendant: ASSOCIATED PRESS

Case Number: 3:2005cv00145
Filed: February 24, 2005

Court: Pennsylvania Western District Court
Office: Johnstown Office
County: Somerset
Presiding Judge: Terrence F. McVerry

Nature of Suit: Intellectual Property - Copyrights
Cause: 17:101 Copyright Infringement
Jurisdiction: Federal Question
Jury Demanded By: Plaintiff
Amount Demanded: $0.00

Available Case Documents

The following documents for this case are available for you to view or download.

~

http://news.justia.com/cases/featured/pennsylvania/pawdce/3:2005cv00145/66017/

July 02, 2007

"Court Finds Single Act of Copyright Infringement Where Infringing Photo Was Distributed Numerous Times" - Winston & Strawn LLP

July 2, 2007

Court Finds Single Act of Copyright Infringement Where Infringing Photo Was Distributed Numerous Times

On September 11, 2001, Valencia McClatchey took a photograph of the mushroom cloud caused by the crash of United Fight 93. Although she obtained copyright of the image, the Associated Press allegedly distributed the image though its PhotoStream service to various AP members.

When McClatchey learned her photo was being used without permission, she sued AP for copyright infringement, alleging that each distribution to various Associated Press customers constituted an infringement. However, the court held that AP was only liable for the single act of releasing the photo to subscribers, even though the photo was re-distributed by AP to numerous parties.

TIP: In the event that you are accused of copyright infringement, and you are attempting to negotiate a settlement, this case may be helpful in attempting to limit the calculation of damages.

http://www.winston.com/index.Cfm?contentid=34&itemid=2381

June 15, 2007

Fair Use and Photos of 9-11, McClatchey v. AP

June 15, 2007

Fair Use and Photos of 9-11, McClatchey v. AP

In a decision dated June 4, 2007 the United States District Court for the Western District of Pennsylvania considered pretrial arguments for the McClatchey v. AP case.

On September 11, 2001, Valencia McClatchey took a photograph of the mushroom cloud caused by the crash of United Fight 93. She obtained copyright of the image and title it "End of Serenity." While doing a story about McClatchey a year later, Associated Press reporter, Charles Sheehan, took a photo of a copy of "End of Serenity" which included the title and copyright notice. Associated Press then allegedly cropped the title and copyright notice out of the image and distributed the unattributed image though their PhotoStream service to various AP members.

In August of 2003, McClatchey learned her photo was being used on AOL's homepage without permission and that AOL had obtained the image from AP. McClatchey brought suit against AP for direct copyright infringement, contributory infringement, vicarious infringement, and for removing and distributing false copyright information in violation of the DMCA.

This hearing made a decision regarding six pretrial motions: (1) motion in limine to exclude certain documents and testimony regarding AOL by AP; (2) motion in limine to limit plaintiff to one statutory damage award under the copyright act by AP; (3) motion in limine to limit plaintiff to two statutory damage awards under the DMCA by AP; (4) motion in limine to exclude certain documents and testimony regarding iPhotoart by AP; (5) first motion in limine to preclude Eric N. Lieberman from testifying at trial by Valencia M. McClatchey; and (6) motion in limine to exclude certain documents and testimony regarding alleged third-party infringements by AP.

The first motion, the motion to exclude certain documents and testimony regarding AOL by AP, is the only motion that touches on fair use issues. AP wanted the court to exclude documents and testimony related to the publication of McClatchey's image by AOL. AP claimed the AOL had a "separate and independent right to make fair use of the photograph," which would make AOL's use noninfringing, making AP not liable for contributory or vicarious infringement. McClatchey claimed that AOL's use was not "fair use" and was instead a direct infringement, and that evidence of that infringement is relevant for proving "AP distributed the photograph to its subscribers." The Court found that a fair use analysis of AOL's use would be relevant for the case and denied the motion to exclude.

The Court granted the second motion, the motion to limit plaintiff to one statutory damage award under the copyright act by AP, and imposed a limit on AP's statutory damages to one award, following the statute on damages in 17 U.S.C. § 504©(1).

The Court granted the third motion, the motion to limit plaintiff to two statutory damage awards under the DMCA, reasoning that under 17 U.S.C. § 1203©(1), the term "each violation" refers to "each violative act performed by Defendant." Therefore AP could only be liable for the one time it distributed McMclatchey's imagine, even though it was distributed to multiple parties.

The Court denied the fourth motion, the motion to exclude certain documents and testimony regarding iPhotoArt by AP, reasoning that the evidence about the price of other historic images solid by iPhotoArt was a good benchmark for the value of McClatchey's image.

The Court denied the fifth motion, the motion to preclude Eric N. Lieberman from testifying at trial by McClatchey, reasoning that the factors laid out in Quinn v. Consolidated Freightways Corp. of Delaware, 283 F.3d 572, 577 (3d Cir. 2002) (importance of the testimony, prejudice or surprise in facto to opposing party, ability of that party to cure the prejudice, disruption of trial and bad faith of willfulness), supported AP's argument to deny the motion.

The Court granted the sixth motion, the motion to exclude alleged third-party infringement, since McClatchey did not have any evidence of infringement by the third parties AP sought to exclude.

McClatchey v. AP, 2007 U.S. Dist. LEXIS 40416, was decided on June 4, 2007. The opinion was written by Judge Terrence F. McVerry. The trial is scheduled for June 25, 2007, and should provide some interesting fair use analysis.

For only $20 you can order your very own copy of End of Serenity in 8.5 X 11 format here.

By Matthew Sag (Dan Rothenberg contributed to this post)

http://thefairuseblog.typepad.com/the_fair_use_blog/2007/06/fair_use_and_ph.html

April 12, 2007

"Lawsuit over 9/11 photo heads to trial" - Tribune-Democrat


Lawsuit over 9/11 photo heads to trial

April 12, 2007

BY SANDRA K. REABUCK
The Tribune-Democrat


SHANKSVILLE — A Somerset County woman’s lawsuit is headed for trial on whether The Associated Press infringed on the copyright of the famous photo she took seconds after the crash of United Flight 93.

The picture depicts a mushroom cloud of gray smoke rising above the pastoral landscape.

U.S. District Judge Terrence McVerry of Pittsburgh refused to throw out the lawsuit Valencia McClatchey filed in 2005 against The AP.

McClatchey, who lives along Osage Path in Indian Lake Borough, grabbed her camera when she heard a “boom” and saw smoke as she was watching TV coverage of planes hitting the World Trade Center and the Pentagon on Sept. 11, 2001.

She told The Tribune-Democrat in a September interview that she managed to snap just the one photo – and didn’t recognize its significance until later.

The compelling photo of the smoke against a blue sky with a red barn and rolling hills in the foreground has come to symbolize how the war on terror began in the hills of Somerset County.

She titled it “End of Serenity” and received federal copyright protection for the photo in January 2002, according to the lawsuit.

It turned out that the photo is the only one of the immediate aftermath of the Flight 93 crash.

An enlarged version is on display at the Smithsonian Institution in Washington, D.C.

The AP used the photo with a story about McClatchey and also put it on a downloadable database without her permission, McClatchey asserts. She is seeking at least $150,000 in damages, plus any profits AP realized.

The AP has denied copyright infringement and has sought to have the judge dismiss the lawsuit.

McVerry rejected the AP’s contention that its use was permissible under a “fair use doctrine.”

The wire service contends McClatchey consented to the use of the photo, but the judge said a factual dispute exists on that issue.

AP’s story about McClatchey was written after the one-year anniversary of 9/11. The day that she was interviewed by an AP reporter, an AP photographer identified as Gene Puskar went to her home to photograph her for the story.

“The crux of this case involves the details of the interaction between Mr. Puskar and Ms. Mc-Clatchey,” the judge said.

McClatchey contends Puskar snapped a photo of her photograph that included her title and the copyright information, but later cropped them out.

She contends the story and photo were distributed as separate items to AP’s 2,000 Photo-Stream member news organizations without her permission.

She later learned it was being used on AOL’s home page.

AP contends its use of the photo was proper and was done with McClatchey’s consent.

McVerry was assigned the case this year after U.S. District Judge Kim Gibson, a Somerset County resident who presides in the Johnstown federal court, removed himself from the case to avoid the appearance of a conflict.

McVerry has not yet set a trial date. But he has set a pretrial conference for April 20 in Pittsburgh.

McClatchey’s attorneys al-ready have filed a pretrial statement, and the AP’s is due Wednesday.

McVerry’s decision not to dismiss the lawsuit was issued March 9.

http://www.tribune-democrat.com/local/local_story_102232748.html

See also:

April 10, 2007

"Printed Credit Line on Photo May Be 'Management Information' Under DMCA" - Media Law Reporter

Media Law Reporter

Volume: 35 Number: 15
April 10, 2007


Printed Credit Line on Photo May Be 'Management Information' Under DMCA

Printed credit information on a photograph composed using a computer program may constitute “copyright management information” whose alteration is prohibited under the Digital Millennium Copyright Act, the U.S. District Court for the Western District of Pennsylvania ruled March 9 (McClatchey v. Associated Press, W.D. Pa., No. 3:05-cv-145, 3/9/07).

Denying the Associated Press's motion for summary judgment, the court sustained claims by a woman who took a picture of the hijacked United Airlines airplane that crashed in Pennsylvania on Sept. 11, 2001.

Plane Crashed Near Plaintiff's House.

On the day of the terrorist attacks, Valencia M. McClatchey of Shanksville, Pa., was a witness to the crash of United Flight 93 near her house. She photographed her view of a column of smoke rising from the wreckage. She gave the image the title “The End of Serenity” and registered it with the U.S. Copyright Office. The image has been displayed in public on several occasions, and McClatchey licensed the image several times for one-time use by news organizations and sold copies of it.

In 2002, Charles Sheehan, a writer for the Associated Press, met McClatchey and wrote an article about her. Then, Gene Puskar, an AP photographer, was assigned to take a photograph to accompany Sheehan's article. The photograph subsequently distributed on the AP's photo wire was an image of “The End of Serenity.”

In 2003, McClatchey discovered that “The End of Serenity” was posted on America Online's Web site accompanying a story about a conspiracy theory. McClatchey learned that AOL had obtained the image from the AP.

McClatchey sued, alleging that Puskar had photographed a print of “The End of Serenity” in McClatchey's photo album and then had cropped out the copyright information. McClatchey alleged copyright infringement, contributory and vicarious infringement, and removing copyright information and distributing false copyright information.

The AP--arguing that the copy McClatchey had at home did not include copyright information and that the use was fair use--moved for summary judgment on all claims.

Fair Use Claim Survives Motion.

Judge Terrence F. McVerry first determined that the court could not resolve the fair use issue at the summary judgment stage because there existed outstanding questions of material fact. First, the court said, the use made by the AP might reasonably be construed as a commercial rather than educational use. The court, noting that the AP distributed the image separately from Sheehan's article without any notation that the two must be used together, said:

The text of the article focused on the woman who took the “End of Serenity” photograph and Ms. McClatchey believed that Puskar was taking a photograph of her holding that photograph. A year [had] passed from the time of the crash depicted in the photograph and the article described the events in [McClatchey]'s life during that year. Although the photograph certainly depicts a newsworthy event, that event was no longer timely and had been extensively chronicled. Thus, there was arguably no significant “newsworthiness” in disseminating the photograph, by itself, a year later.

The remaining three fair use factors could also be reasonably judged as weighing in McClatchey's favor after a full examination of the facts, the court concluded.

Turning to the secondary liability claims, the court concluded that there did seem to be some evidence of secondary infringement by the AP's subscribers, and that McClatchey had pleaded prima facie cases for both contributory and vicarious infringement.

Printed Information Might Be Protected.

Finally, the court determined that there also existed outstanding issues of material fact concerning McClatchey's crediting claims under the Digital Millennium Copyright Act of 1998, 17 U.S.C. §1202.

Section 1202(a) prohibits the provision and distribution of false “copyright management information.” Section 1202(c) creates eight categories of such information that is conveyed together with copies of works.

The AP argued that those provisions did not apply here, because the copyright notice on McClatchey's photographs was an ordinary printed or written notice, not digitized code accompanying a digitized work.

The court concluded that McClatchey's use of a computer program to print hard copies of her photograph with the copyright information qualified as copyright management information under the DMCA. Citing IQ Group Ltd. v. Weisner Publishers LLC, 409 F.Supp.2d 587 (D.N.J. 2006), the court said:

Ms. McClatchey testified in her deposition that she used the My Advanced Brochures software program on her computer, in a two-step process, to print the title, her name and the copyright notice on all printouts of the photograph. The Court finds that this technological process comes within the digital “copyright management information” as defined in the statute. Moreover, Section 1202(c) defines the term broadly to include “any” of the information set forth in the eight categories, “including in digital form.” To avoid rendering those terms superfluous, the statute must also protect non-digital information.

The full text of McClatchey v. Associated Press will be published in an upcoming issue of Media Law Reporter.

http://ipcenter.bna.com/pic2/ip.nsf/id/BNAP-6ZZHDD


April 03, 2007

"Judge preserves lawsuit over Sept. 11 photo" - Pittsburgh Post-Gazette


Judge preserves lawsuit over Sept. 11 photo

Tuesday, April 03, 2007
By Milan Simonich, Pittsburgh Post-Gazette


Valencia McClatchey, an amateur photographer who claims The Associated Press pirated her historic picture of the Sept. 11 attacks, is entitled to her day in court, a Pittsburgh judge has ruled.

Mrs. McClatchey took the picture seconds after hijacked United Airlines Flight 93 crashed near her home in Somerset County.

Her photo shows a blue sky, a red barn and a towering cloud of gray smoke from the downed jet, whose 44 passengers died in the crash near Shanksville.

Mrs. McClatchey received a federal copyright for the photo in January 2002, four months after snapping it.

She says Associated Press photographer Gene Puskar surreptitiously copied the photo later in 2002 and the wire service distributed it to 2,000 news organizations without her permission.

Lawyers for the AP counter that the wire service used the photo with her consent.

"We vigorously disagree with Mrs. McClatchey and will respond in court at the appropriate time," said Michael Berry, an AP attorney.

U.S. District Judge Terrence McVerry last month denied the AP's motion for summary judgment. He told both sides to file summaries of their cases before a pretrial conference April 20.

Mrs. McClatchey, 51, says in her lawsuit that she agreed to be photographed with her picture for an AP story marking the one-year anniversary of the attacks.

She says Mr. Puskar duped her by taking a photograph of her photograph. She claims he also cropped the photo to remove the copyright notice.

Lawyers for the AP say Mrs. McClatchey's account is untrue. In her deposition, they said, she admitted that the only copy of the photo in her home was a framed one that did not carry any mention of the copyright.

Once the AP distributed the photo without her authorization, Mrs. McClatchey says, it appeared in The Washington Post and Philadelphia Daily News.

Before her trouble with the AP, Mrs. McClatchey had licensed the use of her photo to various news organizations, including the Pittsburgh Post-Gazette, Newsweek and ABC. She generally charged $250 to $350 for one-time use of the picture, admitting she did not know how much freelance photographers commanded.

She is seeking $150,000 in damages, contending the AP was guilty of "willful infringement" of the copyright.

Aside from marketing the photo to news companies, Mrs. McClatchey sold personal copies. She charged $20 for each, $18 of which went to the Todd Beamer Foundation. Mr. Beamer was a passenger on Flight 93. The rest of the money from personal sales went for paper and printing costs, her lawyers said.

(Milan Simonich can be reached at msimonich@post-gazette.com or 412-263-1956. )

http://www.post-gazette.com/pg/07093/774585-85.stm

See also:


March 31, 2007

"Blogger recording phone calls to Sept. 11 witnesses" - Daily American

This article is about Jeff from Pumpitout.com:

Blogger recording phone calls to Sept. 11 witnesses


By ROB GEBHART
Daily American Staff Writer
Saturday, March 31, 2007 11:47 PM EDT


A Canadian man has been calling Somerset County residents and, without their knowledge, recording the phone conversations he has with them about Flight 93 and Sept. 11.

Jeff Hill of Saulte Sainte Marie, Ontario, then posts the conversations on a Web site dedicated to debunking conventional beliefs about the events of Sept. 11.

During a telephone interview Wednesday, Hill confirmed he had called four county residents and recorded their conversations.

“It's not right at all,” said Paula Purbaugh of Somerset, one of the people Hill contacted and recorded.

In Pennsylvania, it is a felony offense to record telephone conversations without the consent of all parties that are involved in the conversation, said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. The nonprofit organization provides free legal assistance to journalists.

But because Hill lives in Canada, it is unclear if he broke the law, Dalglish said.

“If he were to come to the state of Pennsylvania, they could probably try to get him,” she said. “I'm not sure that legally there's much that can be done to him, at least not done easily.”

Hill defended his actions, saying the National Security Agency is recording the telephone conversations of everyone in North America. His recordings are no different, he said.

Pressed further, he admitted that making the recordings was unfair to the people he had called.

“No, it's not fair I did that, but I want to get to the truth,” Hill said.

Locally, the Web postings of the recordings were found by Val McClatchey of Indian Lake, who shot the now famous photo of a plume of smoke rising behind a red barn after Flight 93 crashed into the ground. McClatchey titled the photo “End of Serenity,” copyrighted it and began selling copies of it for $20, with most of the proceeds being donated to The Todd Beamer Foundation or the Flight 93 Memorial. She has used some of the proceeds to cover mailing costs, she said.

But starting about two years ago, claims arose that McClatchey had faked the photo. Skeptics of her shot said, among other claims, that the smoke should be black instead of gray and resembled an ordinance blast more than a jet fuel blaze.

Soon, bloggers began attacking her online, accusing her of being a fraud and developing elaborate theories about her background. To keep track of what was being written about her, she set up an account with Google Alerts; the Internet search engine sends her an e-mail anytime her name is posted on a Web site. She receives about four or five notifications from Google every day she said. Through everything, she has maintained the authenticity of her photograph.

Hill called McClatchey at her real estate office on Jan. 26 and told her he'd like to order a copy of the photo. He then began questioning her about the photo, gradually asking more aggressive questions about the photo's legitimacy. But throughout the conversation, McClatchey said Hill was very nice.

The next day, Google notified McClatchey that the conversation she'd had with Hill had been posted online. But McClatchey took no action until last Tuesday, when Hill began calling other Somerset County residents. At that time, she received e-mail notifications that he had recorded phone calls with three other area residents and posted their conversations online. In the conversations, Hill tries to get people to say McClatchey's photo is fake.

McClatchey went to state Rep. Bob Bastian's office to see what he could do to help. She said Bastian suggested she talk to the newspaper. Bastian did not return a phone call seeking comment.

“This is more or less to let people know they're being recorded illegally,” McClatchey said.

Hill said he called people whose names he found in media reports about Flight 93.

He said he first became interested in Sept. 11 theories when he accidentally stumbled across a Web site that claimed Building 7 of the World Trade Center fell too quickly.

Soon he became obsessed with discovering what he describes as “the turth” about Sept. 11. He said he was put on sick leave from his job at Dell Computers, where he took phone calls for technical assistance.

“Maybe they were afraid I'd start talking to the customers,” he said, which Hill said he never did.

Hill said he was sent to a doctor for psychological help. Doctors said he was “uptight” and “paranoid,” and they prescribed him “happy pills,” which he never took. He said he doesn't know what it would take to get his job back and at present he is in the process of being put on disability.

(Rob Gebhart can be reached at robg©dailyamerican.com.)

http://www.dailyamerican.com/articles/2007/03/31/news/sunday/news03.txt



March 27, 2007

Shanksville resident says Val McClatchey's photo is fake!

video

Jeffrey Hill (a.k.a. "Shure") from Pumpitout.com in Canada calls Shanksville resident Kelly Leverknight, who was one of the witnesses who reportedly saw Flight 93 in the air before it allegedly crashed, and speaks to a lady claiming to be Kelly’s daughter*. Jeff asks this lady on the phone about Val’s Flight 93 plume photo.

Jeff: Val McClatchey... she has a famous photo.
Ms. Leverknight: It was a fake photo, because it didn't have a mushroom cloud.
Jeff: It what?
Ms. Leverknight: There was no mushroom cloud.

Jeff: So it was a fake photo?
Ms. Leverknight: Yeah.
Jeff: Her photo's faked?
Ms. Leverknight: Yeah.
Jeff: For what? For money?
Ms. Leverknight: Yeah.
Jeff: Why, do you know that for sure?
Ms. Leverknight: Yeah!



This admission from Ms. Leverknight is pertinent for three reasons:

1. She confirms one of my two theories about Val's photo; that it's fake.

2. Before this admission, I had never speculated that Val took any photos on 9/11. Ms. Leverknight implies that Val did indeed take at least one photo on 9/11, but that this original photo did not have a mushroom cloud in it.

3. I've never had any contact with any of the Leverknight's, ever, so I have no reason to believe that Ms. Leverknight is not being honest and sincere about this admission.
(*The lady on the phone suspected to be Kelly.)
(Update 09/22/08: YouTube pulls video.  Alt link at LiveVideo.)

March 09, 2007

AP's Motion For Summary Judgment Denied

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA

VALENCIA M. MCCLATCHEY,
Plaintiff,
v.
THE ASSOCIATED PRESS,
Defendant.

3:05-cv-145
(Johnstown) '


MEMORANDUM OPINION AND ORDER

Before the Court for consideration is a MOTION FOR SUMMARY JUDGMENT (Document No. 18) filed by Defendant, The Associated Press (“AP”). Plaintiff has filed a response, AP has filed a reply, and the motion is now ripe for disposition. After reviewing the record evidence and the authorities cited by the parties, the Court concludes that the motion will be denied.

~

http://www.thelen.com/tlu/McClatcheyVAP.pdf



March 05, 2007

McClatchey entry now at CooperativeResearch.org

(10:06 a.m.) September 11, 2001: Local Resident Captures ‘One-of-a-Kind’ Photo of Flight 93 Crash Explosion

A local resident is able to take the only photo showing the Flight 93 crash in the seconds after the plane went down. Val McClatchey lives just over a mile away from the crash site. [Wall Street Journal, 9/12/2006] She is at home watching television when she hears the surge of a plane engine, sees a silver flash outside, and then hears a loud boom that causes her house to shake. Luckily she has her new digital camera ready by her door. She was planning to photograph a friend who had promised to fly over in a helicopter on this day. [Pittsburgh Post-Gazette, 6/29/2003; Pittsburgh Post-Gazette, 8/6/2006; Tribune-Democrat (Johnstown), 9/9/2006] She grabs it and from her front porch manages to take a picture of the smoke cloud rising into the sky, “approximately five seconds after impact,” she says. [Pittsburgh Tribune-Review, 9/11/2002; Windsor Park Stories, 3/23/2003] Her photo will appear in numerous newspapers and magazines. According to the FBI, it is the only known image taken within seconds of the crash. Considering the sparsely populated area in which Flight 93 went down, Pittsburgh FBI agent Jeff Killeen calls it “one-of-a-kind.” [Pittsburgh Post-Gazette, 8/6/2006; Tribune-Democrat (Johnstown), 9/9/2006; Wall Street Journal, 9/12/2006]

Entity Tags: Val McClatchey

Timeline Tags: Complete 911 Timeline

February 22, 2007

More Evidence - Flight 93 Photo Fraud

(Originally posted here by 'nick7261' on 22-2-2007.)


I just did a couple of quick graphics showing the scale of the Flight 93 "smoke plume" in relation to the size of the WTCs.

Val McClatchey claims to have taken this photo within seconds of the crash of Flight 93 iin Pennsylvania.



Killtown originally did an analysis of the size of the smoke plume, which I confirmed. If the smoke plume was at the crash site, it would be 2200 feet wide (give or take!).



Here's what the WTCs would look like if they were under the plume in the McCLatchey photo, drawn to scale:



Here's what the McClatchey plume would look like if it were over NYC.

Notice how small the explosion in WTC2 is compared to the size of the smoke plume from the McClatchey photo.

Q: How could the crash of Flight 93 have created a smoke plume so large???

A: It couldn't!

*Note: Officially Flight 175 supposedly crashed with 65% more fuel left than Flight 93 supposedly did (9,100 gal vs. 5,500 gal) and most of Flight 93 (past the cockpit section on back) had supposedly buried deep into the ground so fast that "it didn’t have a chance to burn."


Q: How could Flight 93 have created this big of a smoke plume from the crash, and yet fail to burn the grass next to the crater it supposedly left??

A: It couldn't!!


----------------------

 *My addition to nick7261's post.

February 11, 2007

Val and the 'honor system'

There has been an ongoing debate as to whether Val is able to profit from the sales of her photo. Conspiracy skeptics say that Val is unable to profit, because they point out that the website that advertises Val’s photo states that checks are to be made out to the Todd Beamer Foundation:

It is also important to note that Val is not profiting from this photo. She has stated that she is now keeping some of the proceeds to deal with legal fees relating to a lawsuit with this picture, but if you go to her website to order a copy of her picture, you'll find this:
To order an 8.5 X 11 print of this photo, send a $20.00 check made payable to the Todd Beamer Foundation to the following address:
Last time I checked, her name was Val McClatchey, not "Todd Beamer Foundation". So she can't very well deposit these checks into her own account.



However, if all the checks are made out to the charity, how does Val get reimbursed $2 per print she keeps to cover for supplies and shipping and how is she able to keep some of the proceeds she admits keeping in order to help fight her lawsuit against the AP?

I’ve pointed out before that in at least one occasion, a magazine that had advertised Val’s photo for sale did not say to write checks out to the Beamer Foundation, but told people to make it out in Val’s name. I’ve also argued that it’s possible that people going to her work to buy a print might be able to pay cash for it.

I have also wondered how many people who went to the website that advertises Val’s photo where it says to write checks out to the Beamer Foundation accidentally goofed and wrote their check out in Val’s name and still got a print, so to test out this theory, I had someone “accidentally” write out a check in Val's name:

(Front view of cashed checked.)




...and this is what they got:


Remember, it’s by the honor system that Val forwards her proceeds. Let’s just hope Val is true to her word and forwards $18 from this check to the Beamer Foundation.

February 10, 2007

What you get for $20

Here is what you get when you send Val $20 for a print of her “End of Serenity” photo:

It is an 8.5 x 11 print on Kodak photo paper*.

(Back of print. Kodak photo paper used.)

(Three stamps used totally $1.17.)


Quality of the Print


The person who purchased this copy of her photo describes the blown up print as “horrible”. They said the print was blurry and there is all this ugly writing all over it:



I asked was the print worth the $20 and they responded with a big “No!”


It’s also interesting to note that Val had mentioned that the reason the FBI took her camera’s memory card back with them is because she said they saw debris flying out of the plume in her photo. If you look at a close-up of the plume in her photo print, there seems to be a few dark spots on it, but nothing that looks like plane or paper debris flying out from it, but more like just blotches of ink.


(*Note that I was incorrect in previously speculating that the print out you get was printed out on regular computer paper which her interview on Windsor Park Stories showed a copy of her photo being printed out on regular computer paper.)