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. )


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