SIVACRACY.NET: Employer v. Human Author: NYC Asserts Rights in 9/11 Photos Taken By Police Detective

The NYT story is here. Below is an excerpt:

For more than three months, police Detective John Botte roamed the ruins of the World Trade Center, snapping photographs with his Leica Rangefinder camera and capturing hundreds of images of people at work on the monumental cleanup. His pictures soon appeared in a trio of books, most notably the best-selling autobiography of the city's police commissioner.

But now the city is threatening to sue over the publication of a new volume containing more than 200 pages of the detective's work, claiming the photographs are police department property. City officials say Botte was on duty when he took the photographs and any profits from the images belong to the police department.

"I think the city's position is clear: It was done on government time. It's the property of the government," Mayor Michael Bloomberg told reporters last week. ...

...The veteran crime scene investigator said he began taking pictures at ground zero after being "encouraged" to do so by then-police Commissioner Bernard Kerik. At the time, Kerik was hastily revising his autobiography, due that fall, to include a chapter describing his work in the days after the Sept. 11 attacks.

Botte spent at least some of his time following Kerik and recording his activities, but he also turned his lens on hundreds of other subjects. As he tells it, there was no discussion of who would own the photographs.

Kerik's only rule, according to Botte: "He was adamant that it was done at my expense, with my equipment and not a single department resource."

Botte said he shot sparingly, between performing official duties. Asked what those duties entailed, Botte would say only that he was on a "confidential and covert" assignment for the police commissioner's office.

Just what all that means in terms of who owns the copyright is something of a puzzle, said Columbia Law School professor Jane Ginsburg, an expert on intellectual property law.

Generally, an employee performing a task requested by his or her boss, while on the clock, has no legal ownership rights over the work, Ginsburg said, but any insistence that the employee use his or her own equipment would add some uncertainty.

"It sounds like having him use his own equipment and pay for his own developing," she said, "is an attempt to have this photography fall outside the regular scope of his employment." ...

Employees with cameras in various contexts often have unique access to people, places and events that otherwise might go unrecorded and unphotographed. In many cases an employer will assert copyright ownership so that publication of pictures can be controlled or prevented altogether. That this case may be primarily focused on the revenue stream the photographs generated, rather than on controling their distribution, is interesting, but the legal issues are pretty much the same, and are grounded in copyright law's works for hire doctrine.