2008 Woodie Awards
Photo dispute challenges copyright law
Rebecca Shaffer
Issue date: 3/26/08 Section: Perspectives
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.
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.
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