Stephen Mallon might be sitting on some of the most newsworthy pictures never seen.
Stephen, a New York City industrial photographer, was hired by Weeks Marine, the maritime crane company involved in the recovery of US Airways Flight 1549 from the Hudson River, to document the recovery process.
Those who have seen the pictures say he did a wonderful job. He was given unlimited access on the water, to the plane's interior, virtually anywhere he wanted to go. He had the full cooperation and blessing of his immediate client, Weeks Marine; of the National Transportation Safety Board (NTSB); and of USAirways. He never signed a Work for Hire agreement, and his client had no problem with him publishing the work non-commerically—like, on his website, where he posted them. The best shots from the more than 5,000 captures he made amounted to "an incredible, beautiful document of the recovery," according to Pulitzer-Prizewinning photo editor Stella Kramer, who saw them. (The two pictures posted here were published elsewhere while they were still available from Stephen.)
That's when the funny business started. Stephen put the pictures up on his website, where they were viewable for about a week. Then he got a correction from the NTSB: no, he could not "go live" with the pictures. So he took them down.
Two weeks later, the NTSB released them, so all but a couple went up again. Then a couple more had to come down. And so on. Then he got a letter from J. Supor & Son, a land-based crane company, saying they were asserting their rights to be considered his client, based on their ownership of Weeks Marine, which, you recall, had hired Stephen in the first place.
Then he got a letter from a law firm, not sent directly but passed to him by insurance giant AIG—yup, that AIG—asserting that Stephen has no rights to his pictures, and that the pictures absolutely can't be released to anyone, ever—not even news outlets for news purposes. AIG (through its lawyers) apparently seeks total suppression of the work, indefinitely.
Based on...what rights, explicitly? Stephen isn't sure. Like any photographer, Stephen owns the rights to his pictures, except those rights he signed away in his contract with Weeks. AIG is US Airways' insurer. Ultimately, they'll be paying for the salvage operation and for a new airplane. But they weren't Stephen's client.
The ASMP is urging him to proceed with caution, for which I emphatically don't blame him—a sole proprietor photographer has a hard enough row to hoe as it is, without a giant multinational corporation trying with all their might to make his life miserable.
And based on...what motivation, exactly? Why is AIG seeking to suppress the photos of the recovery? It's not like they can cover up the fact that the plane ended up in the Hudson River. No one's disputing that. It's been reported all over the world. And why would US Airways participate in a cover-up? If ever there was one, the Hudson River crash was an example of an airline doing everything right! Not a single life was lost; the pilot and crew performed bravely and brilliantly, and are national heroes as a result—they got a standing O from the U.S. Congress, for Pete's sake. It's hard to imagine a better outcome for a dire emergency situation that results in a crash landing. If you had to be in a plane crash, wouldn't you want it to be a US Airways flight with the intrepid Sully Sullenberger at the controls? So why the cover up?
Stephen can't figure it out. And he has the photos...not just the ones that were posted on his site, but, of course, all his shooting from the scene. And he can't see anything incriminating about the pictures. You and I, of course, can't see for ourselves.
The national news media has yet to pick this story up. I just called up Stephen at his New York studio. He's got the scoop. NBC, CBS, ABC, PBS, NYT, etc.—your move.
So, can you help? Stephen thinks maybe you can. He's asking members of the public to write or call AIG and US Airways to help put public pressure on them to allow him to release his photos to public view.
While we're at it, let's ask them what they think they're hiding! I for one am curious to know that.
(Also, if you're a lawyer, what's your take on this? Obviously Stephen can't use his clients' pictures for commercial purposes, but what about their newsworthiness? Does Free Speech trump AIG's rights to suppress the work? I don't know, I'm just asking.)
(Thanks to KC Chelette and Stephen Mallon)
Featured Comment by Carl Weese: "Are they covering something up, or acting on their Masters of the Universe reflex? The rule that says they can crush the little guy if they feel like it—for whatever reason, or no good reason at all—because he can't afford to protect his legal rights against them.
"I'm not a lawyer but have done commercial/industrial photography since 1972, and negotiated a lot of assignment agreements/contracts. A client paying a photographer for an assignment acquires only such rights as the photographer assigns to them, in detail, in writing, in a formal document. All other rights remain with the photographer ('creator' in copyright language.) It's not unusual to restrict other distribution (often for a limited period of time) but there's no such restriction automatically granted—it has to be spelled out in writing. It's not unusual to try to get total control of the pictures by demanding 'work for hire,' but the photographer would have to agree to it in writing. [Note: Stephen did not sign a work-for-hire agreement. —Ed.] A client can't legally assert 'work for hire' rights after the fact. So the documents that he did sign are terribly important here.
JC: "If you hire somebody to shoot something, wouldn't the photos belong to you, just as if you hired a carpenter to build a fence for you?"
Carl Weese: "No, copyright automatically belongs to the creator, even if he/she is working for pay. The reasoning (supported by copyright law) is because photos have no intrinsic commercial value: the value depends on use. If I'm assigned to do an environmental portrait for a small circulation magazine it might pay a few hundred dollars. The same assignment for a corporate annual report would pay several times as much (it's a more valuable usage of the work) and the same for a full page ad in a national magazine would be worth several times more. If assigned to shoot for the annual report, my contract would restrict the client from using the work in ads without additional payment for the more valuable use. So the client always wants to get the broadest possible rights for the least money, and the photographer wants to grant the opposite. But the client can only acquire rights through written contract: 'we paid for it' doesn't mean anything without a contractually determined 'it.' "
Featured Comment by Toe Tag: "Unless he assigned the rights to his pictures to the crane company (which you say he didn't), AIG has no business telling him what he can or can't do. If they paid for the hull loss, they bought the wreckage, not pictures of its recovery. (In fact, if the Airbus was leased from ILFC—another AIG subsidiary—it looks like AIG paid for it twice.) Practically speaking, though, if AIG is paying the crane company for the recovery, and he wants work in the future from that client, he might want to go slowly (like ASMP recommends) until everybody calms down.
"People do silly things when litigation is involved; I recall that a couple of passengers have already filed suit against US Air and Airbus, though what effect pictures of the recovery of the wreckage would have on that case is beyond me, and I do a lot of that stuff."
Featured Comment by Dave Wilson: "Interesting—contracts are sacrosanct when they involve AIG employees and large bonuses but can be trampled over with ease when they involve someone else and when AIG is not a party to the contract? I'm not a lawyer but this sounds distinctly like a double standard to me.
"I'm glad I got to see Stephen's gallery when he posted them just after the event. The photos are superb."