Posted on 02/02/2006 11:51:54 AM PST by RKV
It is one of the iconic images of the Iraq War.
A U.S. soldier in khaki fatigues gently cradles a bloody Iraqi girl in the muddy streets of Mosul.
Blogger Michael Yon snapped the photo May 2, 2005, moments after a suicide bomber attacked the unit he was embedded with. The little girl, Farah, died on her way to the hospital.
The next day, the picture ran in hundreds of newspapers and TV news shows throughout the world. It hit the front page of the Washington Post. USA Today. Fox News. ABC News. Time magazine.
The exposure should have been a career highlight for an independent journalist trying to get his coverage noticed. While millions of people saw the photo in their morning newspapers and thousands more logged onto his blog Yon could barely stand to see the picture.
"I was still upset about the bombing," he said. "There were months I couldn't even look at the photo."
He never wanted it to get out. He told Army officials they could use the photo in internal training manuals. Instead, they put it on the news wires, originally attributing it only as a U.S. Army photo without Yon's name.
The Army's decision to release the photo has Yon, widely considered one of the most pro-military voices covering the war, readying a copyright infringement lawsuit.
In an Oct. 13 letter to Yon denying his request for compensation for the alleged infringement, Army intellectual property lawyer Alan Klein wrote that Yon had given up his right for compensation when he signed the standard liability form all embedded journalists must sign.
The form states that Yon agreed to "release the (military) of any liability from and hold them harmless for any injuries I may suffer or any equipment that may be damaged as a result of my covering combat."
In his letter, Klein argues that an injury to Yon's copyright is the same as an injury to his leg or his camera.
The release frees the Army "from any liability for any injury he may suffer," Klein wrote. "The claimant asserts he was injured by the distribution of his copyrighted works to the news media. This release absolves the Army of any liability for that injury."
The Army contends that because Yon shared the photo with the soldiers in his embed unit, he should have understood the photo could be distributed further.
"(W)hen embedded journalists voluntarily share some of their photos with the Soldiers and units that they live and work with, typically through email, embeds fully understand that those individuals and units may distribute them," Lt. Col. Pamela Hart of Army Public Affairs wrote in an email.
Yon's attorney, John Mason, is trying to regain as much control over the photo as possible. He has asked dozens of news organizations to remove it from their archives unless they were willing to pay a substantial licensing fee.
Mason and Yon granted the Daily Southtown permission to run the photo for free because the paper was writing this article specifically about the photo's back-story.
If Yon moves ahead as planned with his suit against the Army, the photo could become a symbol of press rights in the military embed program.
Alicia Wagner Calzada, president of the National Press Photographers Association, said the Army's rationale for denying compensation appears questionable.
"(Yon) owns the copyright to that photograph," she said. "I would certainly never embed on the grounds of turning over my copyright to the military."
Yon wants people to know that he is not a military shill. He worries that the way his most famous photo got out to the world may have tarnished that image.
"I really am as fiercely independent as the Kurds are," he said. "The only thing I had was my independence. That was it."
Its been way too long since I had a year of contract law (and never intellectual property law), but this just seems absurd.
Regardless of how strongly and uncompromising we feel about other issues, this picture is the simplest and ultimate humanity test.
I would avoid anyone, male or female, who fails to react.
Another Dad
Agreed. Although I think both of them are acting badly. What's done is done. Since Yon wants compensation though, the gov't should pay it.
I saw every second as it happened.
The MSM may refuse to show it, but it is all recorded in my noggin.
The Army needs to fire this IP lawyer, Klein, as his word games won't stand up in court and are ludicrous. What a waste of taxpayer money to pay this buffoon.
Please do also check out http://www.punditreview.com/2006/02/02/bloggers-unite-to-support-michael-yon/
and http://business.bostonherald.com/technologyNews/view.bg?articleid=123749&format=text
It also appears that Kevin at Pundit Review has posted the appropriate contact emails - Brigadier General Vincent K. Brooks: Vincent.brooks@us.army.mil and Alan P. Klein: Alan.klein@hqda.army.mil
I know jack about copyright law, though.
Maybe their are special common law or statutory rules for governments, but language like "release the (military) of any liability from and hold them harmless for any injuries I may suffer or any equipment that may be damaged as a result of my covering combat" should not be interpreted to cover damage from intentional misconduct, or even negligence for that matter. If a unit commander ordered a soldier to shoot Yon in the leg just for fun, surely the government could not escape liability because of this "release."
I am sure he signed his rights away by becoming embedded....and if he put the photo on his blog, how can he expect to for it to remain his property. Once you publish it to the internet, it is gone.
Now, if he released a tiny image, with the words NOT FOR PUBLICATION like all the photos you see on AFP or AP wire.....that is another story. Sometimes you see NOT FOR PUBLICATION BY THE LOS ANGELES TIMES on the photowire, because the photographer has been jerked by them before.
You can buy the photo for $125 on the photographer's website.
No profit motive there.
I disagree. He's zealously representing a client that has a very weak case.
Based on what's written here, he's going to lose, but he's got just enough that he should be able to avoid sanctions. Can you come up with a better legal theory for him to use?
The question is, why does the gov want to do this?
This is what I did to the photo:
Yup.
Too bad the names of those actually in the photo seem forgotten.
Yeah, isn't it great what a bit of high level visibility will do to the garrit-troopers? I saw this earlier today on Yon's blog and the BG clearly got the point. As I recall the details aren't quite ironed out, but I don't doubt but things will turn out right.
That's the way to write a complaint letter!
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