City, Officer Battle Over 9/11 Photos
By DAVID B. CARUSO, Associated Press Writer

Sun Aug 27, 11:10

NEW YORK - 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.
That argument is well-known to professional photographers, whose work long has been deemed to belong to the organizations paying their salaries, but Botte said he was stunned by the city's claim.
"It was like a left hook," he said.
The city has demanded that all profits from sales of the book, "Aftermath: Unseen 9/11 Photos by a New York City Cop," published by ReganBooks, be turned over to a nonprofit police foundation.
Legal experts said the case isn't a slam dunk for either side, in part because of the unusual nature of Botte's assignment.
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."
The ownership question surfaced publicly with the publication of Kerik's autobiography just months after the 2001 attacks. The book, "The Lost Son: A Life in Pursuit of Justice," also published by ReganBooks, contains dozens of Botte's shots.
Kerik later acknowledged that his use of the photos was problematic, and he donated $7,500 to a city charity. He also agreed to pay a $2,500 fine for asking other police officers to do research for the book.
Ground zero photographs by police and fire department personnel, including Botte, also turned up in the 2002 autobiography of former fire department Commissioner Thomas Von Essen, "Strong of Heart: Life and Death in the Fire Department of New York."
Von Essen paid a small fee in return for the use of the photographs, fire department spokesman Jim Long said.
Some of Botte's photos also appeared in a book published in limited quantities by ReganBooks in November 2001, "In the Line of Duty: A Tribute to New York's Finest and Bravest." All profits from the sale were donated to the New York Police & Fire Widows' & Children's Benefit Fund.
Stricter rules about the use of police department photographs were enforced in the case of "Above Hallowed Ground: A Photographic Record of Sept. 11, 2001," which featured photographs by police crime scene investigator David Fitzpatrick.
When Fitzpatrick approached the police department seeking permission to print his shots of ground zero, the city insisted that all royalties go to the New York City Police Foundation Inc., the department's charitable arm. The foundation's executive director, Pam Delaney, said the deal has been good for about $250,000.
A senior attorney in the city's legal department, Gerald Singleton, said the city wants a similar arrangement with Botte but won't attempt to block distribution of the book, now on sale, and has agreed to hold off on any lawsuit while it negotiates with ReganBooks.
A spokesman for ReganBooks, a division of HarperCollins Publishers, declined to comment on the dispute, other than to say the company was "proud to publish these important historical photos."
Botte, who says he contracted a severe lung ailment from breathing ground zero ash and retired on a disability pension in 2003, said he wouldn't be opposed to making a charitable donation. But he said producing the book has put him "so far in the red financially" that he doesn't expect to make money from it.
"This is a work of heart and soul for me," he said. "This book is a tribute, and that is what it's all about."