Tuesday, December 1, 2009

Tillman involved in another controversy

When Pat Tillman left the NFL to fight in Afghanistan, I thought it was a terrible thing for him to do. Most people said it was heroic to turn his back on millions as a football player in order to put his life on the line serving his country in the hunt for Osama Bin Laden.
Now it may have been, but I thought it would have been better use of his particular talent to earn his millions and then give them to a truly beneficial charity.
But it was his choice and he made it, and he died in the service of our country and for that he should be honored.

Now the first controversy came about when it was discovered he most likely was killed by "friendly fire" and that the DoD lied about the circumstances of his death.

The second controversy came about when it was revealed that Tillman was an atheist and that the "friendly fire" was allegedly the intentional act of his fundamentalist Christian brothers in arms.

Well whatever the facts on those, he's now featured in a book called "Where Men Win Glory: The Odyssey of Pat Tillman". The cover of the book bears the photograph titled: "Afghan Fighter at Dawn".
The photographer is suing the publisher for copyright infringement.
According to THIS ARTICLE, the publisher did not sign the contract for use of the photo, and the agent for the photographer was fired, then the agent negotiated the contract and the publisher used it.

It seems like an open and shut case from the facts in the article: no one denies Ed Darack owns the copyright in the photo. The question is really going to come down to whether or not Random House had a license to publish, and according to the dates in the article, the did not because the offer was revoked before acceptance and acceptance was unauthorized.

This is what makes it interesting though. It's possible Random House operated under the apparent agency of the fired agent. Basically, Random House could get away with infringement if they show that they acted on the reasonable assumption that Getty Images still operated as agent for Darack. The short of it is, while it may be infringement, it may not be Random House's fault. If they did everything reasonable to get the license to use the photo, and only failed because the agency relationship between Darack and Getty had ended without Random House being informed, then they can't be held culpable.

It's one of those areas where you can do wrong, but if your heart was pure you get away with it.

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