Yon to Sue Army?

What a lame argument...

That's just embarassing. You don't sign over the copyright to your work with a liability waiver. Geez.

The photograph was taken while covering combat but was it stolen while covering combat? Maybe not!

Geez, this guy gives lawyers a bad name. If that's possible.

The Pentagon is in a political catch 22 here.
If they pay Michael Yon for using his work without a fight, some loon will come up with some theory that the Army was "rewarding" journalists for positive coverage.

Refusing to pay, using some lame excuse, then letting a judge decide is the only way to avoid an appearance of impropriety.

Even military photographers retain ownership of the photos they take while on the Military's time. I doubt they can sell them but I believe that if their photos win a prize the photographers get to keep the prize.

If you sign a liability release holding your landloard harmless for injuries on his property can he punch you?

Army intellectual property lawyer Alan Klein is stuck on stupid

I can't believe the Army is that stupid. Do they have any idea how popular Yon IS?

The client needs to over-rule his attorney. My guess is the Army eventually (hopefully sooner than later) does. This is stupid, and whatever price Yon seeks is surely much less than the PR hit the Army would take for stonewalling and then losing in court.

Hmmm. Does't strike me as the brightest crayon in the box here.

I've been saying for some time now that the military is over-lawyered. JAG's everywhere approving targets, this clown protecting the Army from what a few hundred or thousand dollars compensation, less than the cost of a tank of fuel for a M1A1? And now the taxpayers get to spend thousands in legal fees to defend a copyright infringement suit. I could see if it if the guy worked for the mainstream press and was the normal virulent anti-military but Michael Yon?

In the immortal words of General Honore -- Stuck on Stupid.

I'm a lawyer who's done some copyright work. Watch for the Army to settle Yon's case quickly.

By a different lawyer. Mr. Klein sounds like he's bucking for early retirement.

Now, that is what I call "judicial activism" - same as with the Constitution. We signed one contract and now those guys are saying - "Hey, let's reinterpret the words in a new way".

Anyways, even if we allow that "any injury he may suffer" includes and injury to his copyright, I doubt that he did release the Army from liabilty for any injury that was INTENTIONALLY inflicted upon him without any military necessity. To interpret it otherwise would mean that the Army is also free to, say, smash his cameras - for no no better reason then to have some fun. I wonder how many people would be willing to sign a release that is being interpreted in this S&M way - "do to me whatever pleases you".

I think the Army needs to put "not be an idiot" on their list of job qualifications for an intellectual property lawyers it employs.

If you RTFA:

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.

I wonder, what would have happened if the Army had pulled him aside while in Iraq and shot him with willful intent to harm. Does his waiver protect the Army in that situation?

Since it seems to me that the Army is protected form incidental injury, and not intentional injury, that they would not be protected.

Likewise, the decision to release his photo was not accidental, it was an intentional injury to his copyright. Which is just a bad call.

Well, Mr. Carnell, I did RTFA, and I have litigated copyright cases, and that argument (he waived his copyright by sharing the article with a few soldiers) is as bogus as the contractual defense. He's embedded with the unit, and he's supposed to not show them any of his photos and articles? Pure nonsense. As Some Guy says, the Army is likely to settle this quickly -- and quietly, if they can get Yon to sign an NDA about the settlement.

I am a lawyer (and a former Army officer) and I'll only caution that the liability form may say more than what's in the article. (For example, it may have a provision allowing the Army to make use of any photos the embedded reporter takes.) I seriously doubt it because I can't imagine we wouldn't have heard of it by now, but it may. Also, the reporter may not have accurately rendered the legal argument. When I was a federal prosecutor I had a number of cases reported on by the press, and they routinely got the most fundamental aspects wrong, even though they had actually attended status conferences and heard everything. (The NY Post was the most accurate, if you want to know, and the NY Times the worst by a long shot, distinguished primarily by a constant search for a racial angle.) However, IF the army's argument is in fact accurately reflected in the article, then Yon has nothing to worry about except counting up his settlement dollars. You don't waive your copyright by showing it to people. I've published a novel, and I showed it to a lot of people beforehand, including literary agents, publishers and my parents. That didn't function to waive or even partially waive the copyright.

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."

Presumably Bob Woodruff signed the same form. So why is the Army accepting liability for his medical care at Bethesda?

such "blanket waivers" are usually tossed out in court as unenforceable. as someone alluded above, a waiver you sign with your landlord doesn't give him the right to punch you.

Yon would probably win on any number of hypothetical suits against the Army.

A fair interpretation of the waiver would mean that if Yon were physically injured, or his tangible property physically damaged, through the negligence of the military, as a direct result of his work with the military, he would assume the burden of risk and waive his right to sue. But if someone in the military purposefully, intentionally, knowingly wrongs Yon, that waiver is worth less than the legal pad it's written on.

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.

****

But it wasn't up to the soldiers, or the Army to distribute it under any name except Copyright Michael Yon. The copyright always belonged to Mr Yon, unless he had a contract stating otherwise.

And, this isn't about soldiers he may or may not have shared this photo with sending it to their families, it is about the Army publishing it as their own work.

I'm a laymen, so I can see some credibility in what Mr. Carnell wrote. However, that point is not the one chosen by Alan Klein. I'd say most of the commenters properly understand the implications of Klein's argument. If signing such a waiver means the Army can injure you at will, then that's a sucker's document. Somehow, I don't think rational people would interpret such a waiver to reflect Alan Klein's beliefs.

I've signed a waiver before stating that any pictures I took on a base (KSC/Cape Canaveral) would be the property of the US Government. It's not quite enforced, but I acknowledged that I waived my rights to ownership. If Yon signed a waiver like that, then regardless of his value to the Army, I'd say the Army had a case. Klein seems unable to present such a document.

Who in the Army wants Yon to fail, to have poor relations with command, and to be driven out of the theatre? Answer that and you will find out who is behind this nonsense.

Jay C asked: Does the Army know how popular Yon is?

The answer is: Outside of the Deuce-Four, probably not.

But... but... but... Ted Kennedy?!?

Oh, man. Say it isn't so!

Hey, there's no law saying Kennedy can't be a useful idiot for our side.

So if one of the soldiers Yon was with had stolen Yon's wallet, and the Army used the cash in it to buy a round of drinks, and Yon sued for compensation, would the Army argue that it was just an "injury" to Yon's wealth, and therefore the liability was waived? 'Cause it sounds like the same thing.

I was with Mike on this until he went to Kennedy; surely, he realizes that throwing a politician at this (especially that one) will cause more grief than it's worth. When you do that, you ensure that the military bureaucrats will get you back. Up to then (getting rowdies like us involved, etc.), he was OK.

I, too, think the Army will (and should) settle quickly if Mike will sign an NDA. But he has guaranteed that he'll catch plenty of grief in the future. It's not the way it should be, but it is the way it is and I thought Mike was smart enough to understand this.

Maybe a little puffed-up ego involved as well? It would be only human.

"I was with Mike on this until he went to Kennedy; surely, he realizes that throwing a politician at this (especially that one) will cause more grief than it's worth. When you do that, you ensure that the military bureaucrats will get you back. Up to then (getting rowdies like us involved, etc.), he was OK."

Don't be so quick to judge - it's hard to imagine anything that could make the Dems look even more anti military than they already do, but this might work. If it blows up, it'll also get a pro military guy on lots of talk shows. As to the arguments themselves, I agree with the mob - assuming the legal arguments are presented accurately. But I'm with Lisa on that one - my experience has been that reporters are ignorant, gullible people with an abnormally extreme level of confirmation bias.

So you think he should have gone to KERRY instead?

The Monster -

*laughing*

Good point.

Or should I say, "Touché"?

Seriously though, I'd rather chew glass than go to either of them.

Should have gone to neither; kept the politicians out of it. Had any experience going over the military's head to a member of Congress before? My brother did; got what he wanted, then ended up serving his last tour in the crappiest non-combat assignment possible. Payback's a female canine.

This could revive the old "Military Intelligence is a contradiction in terms" joke.

Dear General Brooks,

First off, let me establish some bona fides: I am a 1982 DMG RA Commission in Armor/Cavalry from University of Florida, graduate US Army Ranger School Class 3/4-83, 9 year veteran with cavalry platoon, armor company command, battalion staff, Brigade S3, etc. Father: USMA '46, both Grandfathers USMA '19, 20, Great Grandfather, USMA 1897, Uncles, cousins,etc., all USMA. "Beat Navy" were my first publicly spoken words at age 2 in the Catholic chapel at West Point (right in the middle of Father McCormick's homily!). I am as dyed-in-the-wool pro-military, pro-soldier and pro-US Army as you wiill ever find. I say this to alert you to the fact that this letter comes from an old soldier speaking to a fellow soldier, though I have been a civilian for 15 years. I know that you have placed your sons in harm's way and I value your sacrifice. I still love our soldiers, and I am so proud of them and the work they are doing on behalf of me and mine and our republic. I know, as you do, that their story is never told well, if at all, and that those who both love the soldier AND speak on their behalf in the media are rare and should be treasured.

I have been privileged to have read Michael Yon's work, seen his stunning photographs and am proud to have even corresponded with him from time to time (mainly about our shared alma mater and the Florida Gators). I am flabbergasted that the US Army has chosen to make Michael Yon a target for both maltreatment regarding his excellent and award-winning photgraph of Major Dave Bieger and Farah, as well as placing obstacles to his return to the Iraqi theater. I am unsure if you have followed Michael's work, but you will not find a more clear and unambiguous supporter of the soldiers and Marines on duty in Iraq in any publication or mediume extant. Michael is an ex-operator, so he doesn't punch out jingo-istic propaganda, but paints stunningly accurate portraits of the type of men and women you and I both know comprise our armed forces, but whose stories are seldom, if ever, told. His sories of the Deuce-Four were told with such beuty and realism that I found my palms sweating, I was so engrossed.

Sir, I know that I only see this issue from the perspective of those who love and appreciate Michael's work. There may be another side, but it certainly seems as if the US Army position as I have seen it directly quoted seems very narrowly constructed and gives little acknowledgment to the powerful impact Michael has had praising our armed forces. Frankly, it seems like it was drawn up by some JAG "Garrit-trooper" and endorsed by others of that ilk. Michael has smelled the cordite and camo-stick, on duty and even more amazingly, as a civilian. Why does he undertake such hazardous duty? Because he loves soldiers and wants the world to see them in their powerful glory and in their tender humanity. His picture of Major Bieger was the most moving picture I think I have ever seen. It captures everything that you and I know about the Army, and the story of the people who are in it. Do not deny him the credit for having taken such risks to himself and his family, just to tell that story.

I hope the US Army will reconsider it;s stance on the matter at hand, acknowledge the work as Michael's and further allow him to return to doing the job few others have the temerity or the talent to do.

Sincerely,

DWP
Knoxville, TN

Yeah, that old "military intelligence" joke. Most everyone here can attest to the fact that there are plenty of boneheads in the Army, just like every other large organization known to man (to my regret, I've found that big corporations are far worse). The current military is imperfect, but probably the best we've ever had. If it had been like this when I was in the army 25 years ago, I probably would have stayed until retirement. Somebody with brains will find out what's going on, Yon will get a settlement, and the bonehead(s) will have a problem.

DWP,
That letter was absolutely perfect.
I home someone "up the ladder" reads it.
Good job.

I think the basic principle that the JAG lawyer is missing was articulated by John Locke in his Second Treatise on Goverment, Chapter 11 - 139.

----
For the preservation of the army, and in it of the whole commonwealth, requires an absolute obedience to the command of every superior officer, and it is justly death to disobey or dispute the most dangerous or unreasonable of them; but yet we see that neither the sergeant that could command a soldier to march up to the mouth of a cannon, or stand in a breach where he is almost sure to perish, can command that soldier to give him one penny of his money; nor the general that can condemn him to death for deserting his post, or not obeying the most desperate orders, cannot yet with all his absolute power of life and death dispose of one farthing of that soldier′s estate, or seize one jot of his goods; whom yet he can command anything, and hang for the least disobedience. Because such a blind obedience is necessary to that end for which the commander has his power- viz., the preservation of the rest, but the disposing of his goods has nothing to do with it. - John Locke, 1690.
----

He waived the right to damages if he got injured or killed, or his equipment damaged or destroyed, but he didn't say they could take him to the dry cleaners.

How did the Army get the photo to distribute it in the first place?

The Commander in Chief of the country's armed forces needs to send a note to the Army Chief of Staff, directing him to extract his subordinates' heads from their GI tracts and give Yon his due.

EVERYONE SHOULD READ THIS (EDITED BY ME) REPLY BELOW FROM BG VINCE BROOKS, WHO RESPONDED TO MY MESSAGE (ABOVE) WITHIN 1 HOUR OF MY SENDING IT.

His reply.

Thanks for the note. Thanks for your service and the service of your
family. [PERSONAL OBSERVATIONS FOR ME OMITTED]

It is an important issue to address and as you might imagine it is
complicated. Keep up your support of Michael Yon because he has performed a
great service, to be sure. But keep up your support of the Army you're a
part of too. We'll sort this out.

END OF BG BROOKS REPLY

xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx

I replied again to him. I told him the military has NOT been big supporters of blogs and it's not in their nature to be fans of undisciplined press in a combat zone, even if they are soldiers or ex-soldiers like Michael. I understand that, but Mike is one of the good guys. And he's a Florida Gator, so what else is there?

Still, you ought to know that Vince has the ball, knows Mike is a good guy and will sort it out.

G8rRanger
Knoxville, TN

G8rRanger,

Thanks for your effort. That's the way to open the right envelope. Good work. And thanks for your sacrifices.
And, like J, I'm with Lisa on this one. Reporters getting something wrong? Leaving out critical facts? That (almost) never happens!

Yon did some fantastic work in Iraq, no doubt about that. And yet, with the sudden fame and connection to Hollywood, one could almost see something like this in the wind.

Vis a vis the letter to Sen. Kennedy: no leftist tilt....Yon's work has been home-based in Massachusetts. 7 months of trying to resolve things from within, can't blame the guy for reaching outside that loop for help. MSM, bloggers, Senators who sit on the Armed Services Committee, anyone with a barometer for fairplay and a willingness to make a little noise so the powers that be understand that not much is gained by bullying one independent reporter.
I can't help but notice they haven't tried this pathetically anemic argument about embeds giving up the rights to their work AND the rights to sue for infringement post-violation with any of the main stream media.

Broken trackback to post here.

Sen. Kennedy will make this political. As will the press.

Michael Yon had to know that.

I'm heartbroken.

We can't appease the collectivists who sell out America to anything and anyone for power, and condemn those who dare defend what's real, lasting.

Vote Democrat or we'll make deals with the enemy, undermine everything you attempt, and hold our breath until we're back in power.

Thank you for your sacrifices, Michael Yon. Watch your back.