City, officer battle over 9/11 photos

[cal04]

For more than three months, police Detective John Botte roamed the ruins of the World Trade Center, snapping photographs with his Leica Rangefinder camera and capturing hundreds of images of people at work on the monumental cleanup. His pictures soon appeared in a trio of books, most notably the best-selling autobiography of the city's police commissioner.

But now the city is threatening to sue over the publication of a new volume containing more than 200 pages of the detective's work, claiming the photographs are police department property. City officials say Botte was on duty when he took the photographs and any profits from the images belong to the police department.

"I think the city's position is clear: It was done on government time. It's the property of the government," Mayor Michael Bloomberg told reporters last week.

That argument is well-known to professional photographers, whose work long has been deemed to belong to the organizations paying their salaries, but Botte said he was stunned by the city's claim.

http://news.yahoo.com/s/ap/20060828/ap_on_re_us/ground_zero_photos

[Richard Steele]

1. Well, if he was ON DUTY...

If the city gave him orders to take pics in his official
capacity as a Police Detective, then the Pics belong to
the City.

If he WASN'T officially taking the pics, then he was in
"dereliction of duty" of whatever he _WAS_ supposed to be doing
at the time. And any proper punishment for that should certainly
STRIP him of any personal profit gained from the dereliction.

But, in the REAL world, these situations are seldom as black/white
as we would like. It will be interesting to watch the shades of grey
shimmer and ripple across this one.

[MissWaverly]

7. I think he should get the money

I think that he did the world a service, there needs to be a record made of what happened and
he did it, it did not mean that he wasn't doing his job, look at the construction worker
who took pictures of airplane parts on top of that building in December, 2001. People had
a need to record it, if it helps them deal, God Bless them. A lot of those people worked endless
hours looking for people to rescue.

[Taxloss]

2. Interesting notion.

I used to write haiku during slow moments at work; do they belong to the magazine I used to work for?

[DoYouEverWonder]

4. If that is what you were hired to do

otherwise I would consider you to be goofing off on company time, which if it became a problem, would be grounds for dismissal.

[Taxloss]

6. Well, as I said it was in quiet moments.

I enjoy my work a great deal, and would gladly choose to do it over slacking; nevertheless, quiet times do happen.

[Jazz2006]

12. Only if they find out about them :)

So shhhhhhh.

[Dogmudgeon]

3. That's gonna be real hard to prove

Still, it's the kind of petty stunt that a Republican administration would pull.

--p!

[DoYouEverWonder]

5. Not at all

To get into the pit required sercurity clearance. He was only in there because of his job and his job was to take pictures of the site.

[Dogmudgeon]

13. This is a messy, messy case

This case is the Mother Of All Legal Gray Area court cases.

The article leads many readers to presume that the case is is based on firmly established facts. Those facts just don't exist -- they're the opinions of the party making the complaint, The City of New York. That's why it's going to court -- there's a lot to dispute. The article makes that clear:

Legal experts said the case isn't a slam dunk for either side, in part because of the unusual nature of Botte's assignment.

There was MUCH "official sightseeing" in the wake of 9-11, not just on behalf of Bernard Kerik, who authorized that this "assignment" be done on Botte's (the photographer) own time; there have been a large number of reports of memento-taking among various classes of authorities, officials, and bosses. There's even a coin being hawked now on cable TV that supposedly contains 10 milligrams of silver from the WTC site -- the Precious Metal of Death! Prised, no doubt, from the scattered teeth of victims, or perhaps some personal jewelry found crushed but mainly intact. The idea of going after someone for taking "unofficial" pictures after all this time is just a bit ... craven. Especially since a great many of the pictures of the wreckage site were never "properly" cleared in the first place. So, why this collection of photos, at this time?

Determining that Botte was at work versus on his own time is going to be very tough to prove in court. Determining who had security clearance for what is going to be nearly impossible. And establishing a time frame is likewise going to be a major effort. Such work isn't even usually put into homicide cases, contrary to what we see on Law and Order. Thus, in low-visibility cases, the poorer party customarily rolls over; this one probably won't, unless someone can invent a few criminal charges to throw into the mix.

IMHO, there ought to be survivors' funds for all disasters to administrate official voyeurism, keep a certain amount of control over exploitation, and make sure that the survivors get at least a few bucks for their suffering. These legalistic gotchas stink of careerist attorneys looking for carrion to mount in their trophy cabinets.

--p!

[DoYouEverWonder]

14. If this fellow was 'on his own time'

then that does change the situation quite a bit.

Was he also using his own equipment and film? That would also be a factor to consider.

I'd say if he was on 'his own time', ie not on the city payroll or getting compensated financially for the job, and if he used his own resources, then the pics are his.

I thought when they said he was on an assignment for the city, he was getting paid by the city for his services.

Thanks for the info.

[lynne]

8. If he took them while on the clock, then the photo's are a product -

- of his employment and belong to the city. I'd be interested to know who owned the camera and who - if not digital - purchased and paid to develop the film.

[ret5hd]

9. maybe he could charge the city "equipment rental fees"!

[LeighAnn]

10. Doesn't that put them in the public domain?

If so, he or anyone else is free to use them.

[Jazz2006]

11. No, I don't think so.

It puts them either in the ownership of the detective personally or in the ownership of his employer, but neither makes them part of the public domain at this point.

It appears that he was using his personal resources to take the photos (i.e. his own camera and paying for film and developing himself) but was doing so while he was on the city's clock and being paid to do something other than taking photographs, so it raises an interesting legal question about who owns the images. Add to that the allegation that he was taking photos at the behest of Kerik, and the fact that his actual assignment was something *confidential and covert*, and this could be an interesting trial :)



Edit to add: reading further, it appears that he was working on assignment to the commissioner's office at the time, doing whatever confidential and covert job it was he was doing, and that it was the commissioner to got him to take the photos, so I'm leaning toward the city being the owners of the photos, except for that little tidbit in which the investigator says that the commissioner made it clear that he was not to use any city resources for the photos, so that's a nice twist.

And, reading still further, the city is not going to try to block the book or anything, and my guess is that the investigator and the city will probably cut a deal where some amount of money gets donated to the NYPD charitable foundation and that it will never get to trial.

[w4rma]

15. He wasn't being paid to take pictures. If they want to punish him they

can reprimand him (and quite possibly lose a good and experienced officer in the process) just as they would any other officer who might slack off, but they have no rights to his work. None.

Mayor Bloomberg is a jerk for trying to steal this police officer's work.

[LastLiberal in PalmSprings]

16. U.S. Copyright Office basic Q & A:

Who Can Claim Copyright?

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a “work made for hire” as:

a work prepared by an employee within the scope of his or her employment; or

a work specially ordered or commissioned for use as:

- a contribution to a collective work
- a part of a motion picture or other audiovisual work
- a translation
- a supplementary work
- a compilation
- an instructional text
- a test
- answer material for a test
- an atlas
- if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

The authors of a joint work are co-owners of the copyright in the work, unless there is an agreement to the contrary.

Copyright in each separate contribution to a periodical or other collective work is distinct from copyright in the collective work as a whole and vests initially with the author of the contribution.

* * *

IMO, the case turns on the issue of whether the photographs were taken by the detective "within the scope of his or her employment." I would argue that they weren't, since the photos were not taken as part of an ongoing investigation or by the direction of a supervisor. I would almost guarantee that the detective used his personal equipment, since a Leica is not a typical government issue camera. The instant he snapped a photo he was the sole owner of the image's copyright; if the department has any rights in this case, I would suggest it would be to punish the officer for working on a personal project on city time.

It will be interesting to see how this plays out. My bet is the detective will win the intellectual property case but may be suspended without pay for awhile as a deterrent to others.