NEWS MEDIA UPDATE · VIRGINIA · Copyright/Intellectual Property · Jan. 27, 2006
Army claims embedded release form covers copyright issues
Jan. 27, 2006 · The U.S. Army is claiming immunity from a copyright infringement claim because the freelancer whose work the military distributed signed a “hold-harmless” release as part of his embedding agreement.
Michael Yon, a former soldier and current freelancer embedded with the U.S. Army’s 124th Infantry Regiment in Iraq, claims the military violated his copyrights when it released three of his photos in May. Yon publishes a Web log, or blog, chronicling his experiences in Iraq.
Last May, Yon took a now-famous picture of a soldier cradling a bloodied young Iraqi girl. Yon gave digital copies of his photos to Army officials at their request, authorizing the use of his photos for internal operations only and specifying that the authorization was not for commercial use, according to documents Yon has filed with the Army.
The Army released three of his photographs to the media, and the next day, the photos, particularly the one of the soldier carrying the Iraqi girl, were published in newspapers worldwide. The credits on the photos were “U.S. Army” or the media’s own attributions. One photo was published on the May 7 cover of Stars and Stripes, a newspaper published for the U.S. military.
Yon claims that the U.S. Army violated his right to reproduce and distribute the photos, and requests $150,000 in damages in a claim filed with Army officials.
Army lawyers in the Office of the Judge Advocate General investigated and rejected the claim, arguing that by signing a “Hold Harmless/Release from Liability Statement,” Yon agreed to release the Army from liability for any “injuries” — which the lawyers found included the financial injury of the distribution of copyrighted photos.
The agreement states that the embedded journalist realizes that there are “inherent risks to life, limb and equipment” and that the military cannot guarantee the journalist’s safety.
Yon argues the release is limited to physical injuries, not copyright and intellectual property rights. Under the Army’s interpretation, the military would be able to distribute, display and reproduce the works of any embedded journalist in Iraq.
The Army also claims that Yon granted an implied license when he submitted the photos for publication and that Yon uploaded his photos to the official battalion server and did not indicate that they were not taken by a soldier and were not to be distributed. Yon’s claim denies that he ever uploaded photos to the server, and claims that Yon clearly explained that the photos were not to be used commercially and were to have proper attribution.
Alan Klein, intellectual property lawyer at the U. S. Army Legal Services Agency, who is handling Yon’s claim, declined to comment Friday.
(Administrative Claim of Mr. Michael Yon for Alleged Infringement of Copyright; Media Counsel: John D. Mason: Bonner, Kiernan, Trebach & Crociata, Washington, D.C.) — KV
Editor’s note, Feb. 7: The U.S. Army offered a settlement to Yon who accepted the offer Feb. 3, said John Mason, Yon’s attorney, who declined to disclose the settlement amount at Yon’s request. An Army spokesman declined to say whether its hold-harmless agreement is still in effect and could be used against other embedded journalists in copyright disputes.