March 26, 2008

"Photo dispute challenges copyright law" - The Globe

Photo dispute challenges copyright law

By: Rebecca Shaffer
Posted: 3/26/08

When Somerset County resident Valencia McClatchey captured the fleeting moments of peace on a warm fall morning with her digital camera, she never thought that photograph, "End of Serenity," would be the basis for a law suit against the Associated Press (AP) over copyright infringement.

On Sept.11, 2001
McClatchey was at home, glued to the television coverage of the morning's tragic events when she was shaken from her seat by a loud boom. From her living room window she saw a large gray cloud of smoke rising over the horizon. She instinctively went to the door, grabbed her digital camera and captured the infamous image of the smoke rising into the blue cloudless sky over her neighbors' red barn seconds after the crash of United Airlines Flight 93.

In the ensuing months McClatchey's photograph gained so much notoriety that
in January 2002 she obtained a copyright for her famous snapshot, which was supposed to allow her the rights to control its use. Eight months later, she would sue the AP, claiming that the large media organization infringed her copyrights, which the AP disputed.

According to Mass Media Law, a copyright protects a work like McClatchey's photograph from being put on display, distributed or reproduced without consent. McClatchey said that she obtained the copyright because she did not want her photo to be misused in any way and she said firmly, "When I copyright the photo, I have the rights."

On the first anniversary of the crash McClatchey was interviewed by AP reporter Charles Sheehan. AP photographer Gene Puskar visited McClatchey a short time later and took her photo to accompany Sheehan's article.

McClatchey posed with her original photograph for Puskar. She said she believed the picture was of both her and her photograph.

McClatchey said that she also gave a copy of her photograph to Puskar as a gift. The copy contained her copyright management information. "They knew it was copyrighted," McClatchey said.

Sheehan's article ran on Friday, Sept. 13, 2002 in numerous newspapers. Rather than a photo of McClatchey and her famous Sept.11 image, the AP published her "End of Serenity" photograph without her permission.

The AP's use was based on their assumption that Puskar's use of McClatchey's copyrighted image could be used freely because it was considered news.

Then, unbeknownst to McClatchey, in August 2003 her photo appeared through the AP on America Online's Web site with an article concerning a conspiracy theory surrounding Flight 93.
"I didn't want the photo used in conspiracy theory stories, because it degrades the passengers and crew," McClatchey said.

McClatchey was horrified to discover the photograph posted on several other news Web sites who subscribe to the AP, without her permission and did not bear the copyright information.

"I didn't know it would be all over the internet," she said.

In January 2005 McClatchey filed a lawsuit in federal court against the AP concerning five counts, three of which dealt with copyright infringement and the other two regarding the Digital Millennium Copyright Act (DMCA). McClatchey was seeking $150,000 in damages for copyright infringement and $25,000 in damages for the violations under the DMCA. She also requested that the AP's use of the photograph be permanently barred.

McClatchey said that the AP used her photo with knowledge of her copyright, which demonstrates willful disregard. "Pure down and out willfulness," McClatchey said, shaking her head.

The AP disagrees.

"In my view, this is classic fair use," Robert Penchina, AP lead legal council said.

According to Penchina, a copyright is meant to be a balanced protection for both the author of the work and also for the public's best interest, which is to be aware of what is going on in society.

Penchina also said that even if the story was about the photographer and her life one year after shooting the famous photo, she was still being featured because of that photograph.

Because McClatchey had given her photo earlier to many other organizations and she later sold individual prints with a portion of the proceeds donated to charity, the AP argues its distribution of it. The AP feels that their use of the image only brought attention to it and increased its demand.

McClatchey's attorney, Doug Hall countered and said her market was large news organization that now had use of the photo from the AP. Hall compared the availability of the photo online to illegally downloading music.

"They know there is damage done but it is hard to measure how much," Hall said.

McClatchey's case lasted over two and a half years. U.S. District Court Judge Terrence McVerry summarized the situation writing in one opinion, "Puskar's assignment was to 'take pictures of a woman with a picture.' Instead, Plaintiff contends that Puskar, under false pretenses, took a picture only of the 'End of Serenity' photograph itself."

"The Sheehan article and the photograph were distributed as separate items to AP's roughly 2000 PhotoStream member news organizations without her permission," McVerry wrote.

In November 2007 McClatchey accepted a settlement from the AP, which remains confidential.

Today, McClatchey says she would do things differently. She says that any use of her photo will be stated in writing with full disclosure. McClatchey is glad that the case has been settled and she no longer has to defend her photograph. In the end, McClatchey said, "Nothing will ever change the fact that I took the photo."