The Wizbang blog had a posting yesterday about a copyright dispute involving the U.S. Army and Michael Yon, a former Green Beret and photographer/blogger who took the most searing photograph of this profoundly controversial war: a May 2005 picture of a solider cradling an dying, very young Iraqi girl, one of tens of thousands of innocent civilians and soldiers killed, tragically and wholly unnecessarily. As the father of a daughter the same age, I will never forgive the one individual responsible for her death and all the others.
Mr. Yon was not an employee or contractor of the United States government, and indeed was employed by no one. The only agreement he is reported to have had with the government was a "hold harmless" agreement with respect to physical injuries, an entirely understandable agreement. According to Mr. Yon, the Army released the photograph without his permission, where it was prominently reproduced and displayed. The Army claims that the hold harmless agreement covers copyright (the document will, as is said, "speak for itself"), and is also reportedly asserting an implied license from Yon having uploaded the picture using government servers.
The implied license argument seems like a stretch, since there is no allegation in the reports that Yon created the work for the Government and intended that they use it. Moreover, given where Yon was, use of government servers may have been the only option. The government's position would, if accepted, presumably apply to all material that passes through its servers, a class that would sweep in quite a lot of material from a diverse number of sources. But even if there was an implied license one would have to determine its scope. No doubt the government will also claim fair use news reporting. If so, perhaps the Government's motivation for the exploitation of what was a deeply moving, private act of compassion and sorrow would be factored in as well.
Any claim will not be brought in federal district court. Instead, pursuant to 28 USC 1498(b), the claim must be brought in the Court of Federal Claims. No attorney's fees are available, no injunctive relief, only "reasonable damages." On the plus side, the current Chief Judge of that court is my old friend, Ed Damich, a former copyright law professor and a former Senate Judiciary Committee staffer to Orrin Hatch. If he gets the matter, we are assured of expert and scrupulously fair treatment.