When is Copyright Infringement like a Broken Leg?:

According to an article in the Mudville Gazette, the Army has been distributing a photograph (of a US Army major cradling a girl killed by terrorists) taken by photographer Mike Yon, and that Yon has threatened the Army with a copyright infringement lawsuit. The Army's response is interesting: it claims that the standard liability waiver that Yon signed before he was permitted into the war zone (in which he 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") covers injuries to his intellectual property as well as to his person or his personal property. I must say, I've never heard that one before, in 20 years of practicing intellectual property law; but I'm not sure how I feel about it ...

Robert Cote (mail) (www):
What about police confiscating recordings/pictures of potential crime scenes/events? What about major league sports vaivers on the back of your ticket? Disneyland commercial reuse restrictions? Once you take away the emotional context of the Army and war zone I'm sure you've heard lots of similar examples.
2.3.2006 9:11am
"Injury" is broad. There's a reason insurance policies say "tangible personal property" when they mean to exclude intellectual property, and "personal injury (or death)" when they mean boo-boo type injuries.
2.3.2006 9:17am
Aultimer: True, but the obvious purpose of the waiver in the military context is because entering a warzone is physically dangerous. You can get your arm blown off. You can't get shot in the intellectual property.

Insurance companies are specific about the damage type because contracts are construed against the drafter. This one should be too.
2.3.2006 9:36am
Ugh (mail):
Nothing must get in the way of the propaganda.
2.3.2006 9:37am
The Army's argument is the kind one side makes when it figures the other can't afford to go to court.
2.3.2006 9:44am

And to put XX's point in textual terms, "any injuries I may suffer" sounds like personal injuries to me, not any sort of "injury" to a property interest. Indeed, reading that first clause so broadly would render the second clause, "any equipment that may be damaged", surplusage.

I think this argument will be DOA.
2.3.2006 9:48am
alkali (mail) (www):
Note that "any injuries I may suffer" is parallel with "any equipment that may be damaged," suggesting the reference is to physical injury. (Equipment : is damaged :: person : suffers physical injury.)

Further, if injury meant any legal injury here, then the reference to injury would include economic losses related to damage to one's equipment, and the separate reference to equipment damage would be surplusage.

Finally, contra proferentem (ambiguities are to be construed against the drafter).
2.3.2006 9:50am
Oris (mail) (www):
I would think that the waiver would not apply in the case of injuries intentionally inflicted by a member of the Army that are not a natural hazard of being in a war zone. It is outside of the military's control whether a reporter gets hurt by shrapnel, etc. But would the waiver still apply if a soldier were to decide to beat the reporter senseless because of a personal grudge? The injury must be "as a result of covering combat," so I would think not.
2.3.2006 10:00am
Tyrone Slothrop (mail):
in which he 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"

Any "injury" related to the Army's use of Yon's intellectual property surely was not "a result of [his] covering combat" -- it was the result of the Army's subsequent decision to appropriate his intellectual property.
2.3.2006 10:03am
Completely independent of any legal issues, the army's position is DUMB!!!

Yon has provided a fantastic detailed view of army operations in Iraq for free to anyone who clicks on his website. He's been there at his own expense, supported partly by donations from his readers. His portraits have been highly sympathetic to the army and it's operation. So they screwed him, basically accidentally (people who didn't understand what copyright means). But now the army thumbs its nose at his demands for them to make good-faith efforts to minimize the injury to his intellectual property rights?

Dumb. Really, really, really dumb.

cathy :-)
2.3.2006 10:22am
John (mail):
Okay guys. Does anyone actually believe a court would credit the Army's agrument? Interpret "injury" to include damages for copyright infringement? The Army could have specified that if that was what was meant, and no judge in his right mind will buy its "argument," assuming you can dignify it with that term.

The Army's position is tantamount to arguing that this limited phrasing was actually intended as a prospective general release. Frankly, even if the wording permitted construction as a prospective general release (and it doesn't), I don't think such a waiver would be enforceable.
2.3.2006 10:32am
First, this is basically a taking of Yon's IP, so the issue is whether there is just compensation. The waiver would operate as a waiver of a claim for compensation. The kicker is that it is the Army who is appropriating Yon's copyright, making it the bad actor, so it's hard to see how the release could protect this -- moral hazard problems abound. The waiver protects against injuries caused by third parties or the army's negligence. It might not even cover "gross negligence" by the military. However, a transfer of assets is not authorized.

There is also a potential chilling effect on the press, if the Army can appropriate the copyright over any photographic images taken in a war zone. Fair use would come in, but procedurally it only operates as a defense. For that reason alone, the Army's position should be rejected on policy grounds.
2.3.2006 11:03am
Nunzio (mail):
Can you sue the U.S. for copyright infringement? You can't sue a state for it, absent waiver of SI. I agree that the commenter who said it has to be a taking without just compensation here. I guess Yon will be heading to the Court of Claims.
2.3.2006 11:20am
Just to summarize what previous others have said in more detail, I also agree that even if this could be interpreted as a waiver of the Army's intentional torts, it could not be enforced as such.
2.3.2006 11:22am
Stevethepatentguy (mail) (www):
It is pretty clear that Yon's injury was not "suffer[ed] . . . as a result of [his] covering combat." Since only a portion of the "Embed Agreement" is available it is difficult to determine what rights the Army may have in Yon's copyrighted works. It looks to me like the Army intellectual property lawyer when into oh $#*% mode and responded with whatever he could come up with as a defense. Section 511 of the copyright law seems to limit sovereign immunity so I anticipate that the Army is calculating potential damages and we will never hear about this again.
2.3.2006 11:23am
Dave Hardy (mail) (www):
The Army's argument is the kind one side makes when it figures the other can't afford to go to court.

Or, in this situation, what happens when the lawyer-grunt is told by his boss "we're not paying him anything, period. Write up a letter. You'll figure out something to say."

I must say, under those circumstances, invoking the release for "injuries" was most imaginative. A sure loser, but deserving high marks for originality.
2.3.2006 11:27am
Chico's Bail Bonds (mail):
All I can say is that this is why people hate lawyers.
2.3.2006 11:33am
Anderson (mail) (www):
Silly people! Congress abrogated copyright in the AUMF!

Of course, that was purely redundant, because the President's implied Article II powers extend to his seizing any property, intellectual or otherwise, that's necessary to waging the War on Terror.

I mean, where have y'all been the past few months?
2.3.2006 11:41am
Kim (mail):
I just sat through an intellectual property seminar with our company lawyer. He emphasized that the government can infringe on any patent it should choose (with reasonable compensation). It is clear that the government not only has eminent domain over physical property but also intellectual. I am not sure why a copyright should be treated differently than patents.
2.3.2006 11:41am
Phillip Carter (mail) (www):
Tyrone and Steve the patent guy are 100% right -- you guys beat me to it.

This matter doesn't require any sort of sophisticated intellectual property analysis -- it will be decided on the plain language of the contract.

Mr. Yon agreed to release liability should he be injured during the course of combat operations -- "as a result of my covering combat". The injury here did not occur as the result of his combat coverage. Rather, the injury here occurred because the Army decided long after the shooting had stopped to expropriate Mr. Yon's intellectual property.

It's really quite ironic, because Mr. Yon has contributed so much positive press to the Army and its operations in Iraq. I'm surprised that they would do something so boneheaded. But then, the Army is a large organization... its left and right hands don't always talk to each other.
2.3.2006 12:31pm
Kovarsky (mail):
one question - this is just a liability release, not a transfer of copyright, so can't Yon still get an injunction?
2.3.2006 12:59pm
Noah Snyder (mail):
Ridiculous ypothetical:

While in the war zone Yon uses a military operated ATM. The military for reasons uknown has programmed this ATM to not only give the user the money, but also transfer $10,000 directly from the users bank account to a military account.

Wouldn't the Army's argument imply that his waiver let them do this too?
2.3.2006 1:24pm
jimboinsk (mail):
I don't know if the Army has studied up on thier copyright law, but I think they'd have a real good argument here. It can easily be considered news, and I'm sure they could make good rationale on it being a commentary. Their lack of commercialization of the picture is also significant...

17 U.S.C. 107
[T]he fair use of a copyrighted work, including such use by reproduction in copies . . . for purposes such as . . . comment, news reporting . . . is not an infringement of copyright.
2.3.2006 1:36pm
Kovarsky (mail):
it seems clear to me that Yon hasn't waived his copyright. whether he has waived his right to damages is arguable. he hasn't waived his right to an injunctive remedy. so i agree the question that this comes down to fair use.

i fear that this is going to tread near a pitched ideological debate now, so discussion will start to get less rational, but it's not clear to me whether this would qualify as a 107 fair use exception. the "comment" exception generally requires that the commentary be self-referential, i.e. a piece of satire - something commenting about the picture or the act of photography itself. the classic example is "the wind done gone" which inverts the racial hierarchies in gone with the wind.

so i think you end up in "news reporting," and i don't have the facts, but I'm skeptical that the army's distribution of this picture qualifies as "news reporting" under the statute, as the article implies that it is being used as propagandistic (but again, i don't have all the evidence).
2.3.2006 1:44pm
Doug Sundseth (mail):
First, I have only a layman's understanding of contract law, so take what follows as seriously as that disclaimer warrants. Second, I base this only on the reported language, which may lack important pieces.

That said, the waiver Yon signed was a pure contract of adhesion. It is my understanding that with such contracts, even more than with most contracts, courts construe clauses to the benefit of the non-drafter.

Had Yon been wounded in combat, presumably the army would have sent a representative to inform his next-of kin. No reasonable person would assume this waiver would allow that representative to steal Yon's family's mailbox during the visit. The claim is absurd. (Assuming accurate reporting, of course.)
2.3.2006 2:11pm
From Blacks Law Dictionary:

The Intentional or voluntary relinquishment of a known right . . . with full knowledge of the material facts . . . .

There might be some issues with "intentional," "full knowledge," and "material facts" besides all the other fine points raised above.

2.3.2006 2:15pm
Kovarsky (mail):

i could be wrong, but i'm pretty sure that definition (which is i'm assuming that of "waiver") applies primarily of waiver of rights in criminal proceedings.
2.3.2006 2:26pm
This is a contract, so the question is what the parties agreed to. I think the Army will have a hard time proving that Yon thought (or reasonably should have thought) "injury" included copyright infringement.

Kim and others are correct the U.S. government can't be enjoined from using copyrighted materials; it only has to pay "reasonable and entire compensation." See Bill Patry's post on this case.
2.3.2006 2:53pm
Kovarsky (mail):

i believe the government gets a compulsory license to use and reproduce the copyrighted works, but are you sure that license includes the right to distribute them.
2.3.2006 3:02pm
old maltese:
Instapundit this morning points to Pundit Review, which has a Yon statement saying that the Army has reversed and has accommodated Yon.

Pundit Review says that blogs, including Volokh Conspiracy, helped cause attention to be raised at a high JAG level.
2.4.2006 11:32am
Kovarsky, if I'm reading it correctly, 28 U.S.C. s 1498(b) limits copyright infringement suits against the U.S. government only to money damages, including statutory damages. I.e., no injunctions. I don't think it's quite a "compulsory license," because compulsory license schemes tend to require payment into a fund that is then distributed among the copyright owners; see e.g. 17 U.S.C. 111(d). Here, the U.S. doesn't pay until it is sued. 28 USC 1498 is more a limitation on remedies than a compulsory license; basically, it limits relief to a takings claim (which, appropriately enough, must be brought in the Court of Federal Claims).
2.4.2006 12:57pm
Kovarsky (mail):

I believe your reading is correct.

When I said "compulsory license" i just meant in the sense that 1498(b) implements a liability, as opposed to property, rule. Immunity from injunctions is basically like a prepaid compulsory license except, as you note, someone has to bring suit.

I understand the rationale for a liability rule with respect to patents, but what's the rationale for a liability rule for expressive assets?
2.4.2006 3:15pm
K Bennight (mail):
Because the release affects the rights and obligations of the federal government, in contrast to the rule for diversity cases, the release will be interpreted according to federal common law. I don't know what federal common law may say about such things, but if it gives effect to prospective releases of injuries arising from intentional conduct, I would think it unique. Were I betting, I would bet against the release being upheld in this case.
2.5.2006 2:31pm
Stevethepatentguy (mail) (www):
Yon's statement is here:

2.6.2006 10:33am
Stevethepatentguy (mail) (www):
Sorry about the bad link.

Also, I believe that the compulsory license is for continuing use of works such as software. By that I mean that Microsoft cannot prevent the Army from continuing the use of it's Windows software. I see no policy reason why the government would be assured of the use of an artistic work.

Another aside, there are a lot of restictions and qualifications to the fair use doctrine. The Army's use is almostcertainly not fair use and if it were even a close call the Army IP Lawyer would have raised the defense.
2.6.2006 10:39am