April 12, 2007

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

Lawsuit over 9/11 photo heads to trial

April 12, 2007

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.


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