Use of Imagery for Domestic Civil Support Operations

[Capt Rivera]

The scene: A Class V hurricane is bearing down on a large eastern metropolitan area. A light aircraft from the Civil Air Patrol, equipped with a handheld digital camera, has taken photos of evacuation traffic along I-95 and e-mailed them to the deployed Air Operations Center via a satellite telephone connection. The Airman on duty at the ISR desk receives the images and realizes they are exactly what are needed for the next briefing to federal emergency management authorities.

Question: Who must give permission for the Airman to copy the pictures to PowerPoint slides on his trusty computer?

Answer the poll question and then read:
http://www.maxwell.af.mil/au/aunews/archive/0309/Articles/Domestic%20Imagery%20-%20Blue%20Dart.doc

Disclaimer... got the idea from this from another board, in fact I stole it!... it had no responses there and I wanted to see what the CAP community thought of this.... PLEASE Vote before viewing the link below... [viewing the below link is not necessary...]

original post: http://council.smallwarsjournal.com/showthread.php?t=5463

[shorning]

Question: Who must give permission for the Airman to copy the pictures to PowerPoint slides on his trusty computer?

Unless federal law is changed or a waiver approved, he can't, however others in the AOC could. Intelligence Oversight is a factor here.  Although, I would argue that these pictures aren't really "imagery" in the intelligence sense of the word.  "Pictures" would be more accurate.

[Short Field]

You need to identify the customer that originally requested the CAP mission to make this a valid question.   The AOC would have to be satisfying tasking that orgiinated from HLS (read FEMA) - not a DOD/USAF orginated tasking for domestic imagery.  So any product from a mission flown by a CAP resource would be a product tasked by HLS and immediately provided back to them as the deliverables from the mission.   Just because it is a photo taken from an airplane does not make it "intelligence imagery".    By the way, if this was not all nailed down to everyone's satisifaction prior to the tasking being written, the AOC would be looking for a new commander.   That is what commanders do.... 

And what role did the CAP IC and mssion base play in managing and releasing the CAP sortie?

Lots of unknowns....

[Capt Rivera]

Lots of unknowns....

Not sure why the unknowns matter... Are you getting into ownership of the images?

IE: state of FL requested the sortie so permission must be given by someone with authority at FL EOC/etc... in order for USAF/FEMA etc to use/reproduce the images?

hmmm that gives me a question: Who owns images taken by CAP members, with CAP assets from a CAP plane?... CAP or the customer paying for the gas....?

The scenario just shows that CAP had the wherewithal to send images/photos of possible interest/importance to an agency of the government that is probably responsible for the evacuation... Some E-3 gets the images and realizes that they should be seen (for whatever reason) by senior leadership... 

the question only wants to know what this airman must do to legally perform his duty....

Anyone read the oped piece linked to find out what must be done? Anyone take note of the person who wrote it?

[Short Field]

The unknowns matter because no where does it state why the CAP aircrew is downloading direct from the aircraft to the AOC instead of passing it via the shortest route back to the requesting agency.   

The "owner" of the imagery is the agency that requested the imagery.   There is no copyright on the imagery but it would be hugely rude for CAP to provide the imagery to other agencies without the approval of the requesting agency and could quickly damage the relationship between CAP and the requestor.

The AOC would not be responsible for the evacuation - it would simply be a supporting agency.  I did read the article and I did see the name and position of the author.  Again, all of these questions should have been worked out prior to the airman ever getting the imagery.   

I know of no regulation or law that would prohibit an airman of any AFSC from receiving a photo from a civilian source and passing it on to its rightful owner under a previously approved set of guidelines.   Lacking those guidelines, the ONLY correct response for the airman is to pass the problem up his chain of command to have it resolved correctly.     Again, that is what we expect commanders to do - resolve it correctly.  However, based on prior experience, if it took 30 minutes to resolve this issue and get it to the customer, someone was slow off the mark.

[JoeTomasone]

The "owner" of the imagery is the agency that requested the imagery.   There is no copyright on the imagery but it would be hugely rude for CAP to provide the imagery to other agencies without the approval of the requesting agency and could quickly damage the relationship between CAP and the requestor.

I'm not so sure about that.   The photographer is not an employee of CAP and therefore according to U.S. Copyright Law is the automatic copyright holder of the photograph.    Now, IANAL, but my second career/hobby is as a photographer and I've read both legal opinions from lawyers who have argued and researched the case law.   The only general exceptions to the photographer NOT being the copyright holder are if the photographs are taken by an employee as part of the employee's normal duties OR if the photographer enters a contract to take photographs for someone else; in either case the person paying is the copyright holder, be it the employer or the person who hired the photographer ("work for hire" exception).

But since there is neither a contact in place or an employer-employee relationship (and the copyright law specifies full-time, paid employment), the photographer would hold the copyright.   However, as mentioned, you'd have to be a real jerk to not grant a license to whomever asked for the photographs to use them -- and, indeed, it could be argued in court that it was understood that you would grant said license (otherwise the agency would not have reimbursed CAP for the fuel, etc) and it would likely go against you. 

At any rate, barracks lawyering done for this evening. 

[PHall]

Your survey left out the "correct" answer. No one.

The pictures are not copy righted, trade marked or even privately owned.

The agency that requested the pictures is usually the one who control their distribution.

[RiverAux]

Unless there is a specific contract between CAP and a requesting agency that specifically gives the other agency full control over the photographs, I believe they
"belong" to CAP since they were taken by our members in our planes.  CAP certainly should take the requesting agencie's wishes into consideration, but are under no specific obligation to do so absent a specific contract. 

However, I do think that CAP should develop a specific policy on this issue to clarify it for everybody. 

[CAP Producer]

Unless there is a specific contract between CAP and a requesting agency that specifically gives the other agency full control over the photographs, I believe they
"belong" to CAP since they were taken by our members in our planes.  CAP certainly should take the requesting agencie's wishes into consideration, but are under no specific obligation to do so absent a specific contract. 

However, I do think that CAP should develop a specific policy on this issue to clarify it for everybody. 

Sorry but RiverAux but no.

Lt Col/MSgt Hall is right. The images belong to the "customer" at all times.

We don't work with most agencies without an MOU. Most MOU's specify that the images are owned by the requesting agency.  We need their explicit permission to use them/release them.

It works like press releases. We need explicit permission from the tasking agency to issue releases about any mission.

If we take a tasking and take their money, they get the images.

We can use them and release them if we have the requesting agencies permission.

It's not a big deal, they are usually cooperative unless the images are sensitive such as infrastructure, Counter-Drug, images for Law Enfoceement/Intelligence, etc...

Hope this helps.

[RiverAux]

Most MOU's specify that the images are owned by the requesting agency.

I've seen a couple of MOUs, but by no means all of them, but have never seen a clause saying that photographs taken on behalf of the agency belong to the agency.  I know this is not the case with the MOU between my state and CAP. 

It is my impression that most requests today are being handled by directly requesting assistance through the NOC based on an email or faxed letter rather than by MOU since the AF lawyers more or less put a kaibosh on them about 5-8 years ago.

Please cite some language from an MOU that you are aware of that says that photographs taken by CAP are the actual property of the agency/organization that made the request. 

[PHall]

Okay RiverAux, look at it this way.

Would we (CAP) have been there taking the pictures if we had not been tasked by the agency requesting them?

It's not like we just routinely fly around and take pictures of everything just for giggles.

[a2capt]

It's not like we just routinely fly around and take pictures of everything just for giggles.

I've been accused of that - with the amount of pictures I have come back with from various flights.

[DNall]

We don't work with most agencies without an MOU. Most MOU's specify that the images are owned by the requesting agency.  We need their explicit permission to use them/release them.

Intel ownership in disaster assessment where no sensitive tech is involved? I agree that the requesting agency technically owns the images. Certainly I'm going to send them the take as soon as I have it. I got absolutely no issue CC'ing  that info to AOC, NOC, and 1AF/CAP-USAF LO. Call it for the purpose of AF oversight of our activities. If they then choose to seek release from the requesting agency or to use the material as they see fit, none of that is my problem.

It's not a big deal, they are usually cooperative unless the images are sensitive such as infrastructure, Counter-Drug, images for Law Enfoceement/Intelligence, etc...

Exactly.

I do think you have to seriously limit distribution beyond that. If agencies believe they can get intel for free, they're going to wait around for someone else to pay for the mission & expect to see the results. That ends up w/ no one asking for the mission & us sitting around with nothing to do.

[JoeTomasone]

Unless there is a specific contract between CAP and a requesting agency that specifically gives the other agency full control over the photographs, I believe they
"belong" to CAP since they were taken by our members in our planes.  CAP certainly should take the requesting agencie's wishes into consideration, but are under no specific obligation to do so absent a specific contract. 

Sorry but RiverAux but no.

Lt Col/MSgt Hall is right. The images belong to the "customer" at all times.

We don't work with most agencies without an MOU. Most MOU's specify that the images are owned by the requesting agency.  We need their explicit permission to use them/release them.

That would be the case if the photographer was employed by CAP, but that is not the case.

If the State Police send up a helo with a State Police photographer who takes pictures of a disaster site, then the copyright belongs to the State Police (instead of the photographer) because he is employed full-time by them.   They can then license usage to the EOC, County, or whomever asked for the images.

But MOUs and the like don't override U.S. Copyright Law.  CAP doesn't own ANY image taken by a volunteer member since CAP does not EMPLOY said member.

Who Can Claim Copyright?

Copyright protection subsists from the time the work is created in fixed form. The copyright in the work of authorship immediately becomes the property of the author who created the work. Only the author or those deriving their rights through the author can rightfully claim copyright.

In the case of works made for hire, the employer and not the employee is considered to be the author. Section 101 of the copyright law defines a "work made for hire" as:

   1.

      a work prepared by an employee within the scope of his or her employment; or
   2.

      a work specially ordered or commissioned for use as:
          * a contribution to a collective work
          * a part of a motion picture or other audiovisual work
          * a translation
          * a supplementary work
          * a compilation
          * an instructional text
          * a test
          * answer material for a test
          * an atlas

    if the parties expressly agree in a written instrument signed by them that the work shall be considered a work made for hire.

I also suggest a read of the following:

http://www.copyright.gov/circs/circ09.pdf


That all being said, in the real world, we don't tend to care about these things.  But from a legal perspective, the pictures do NOT belong to CAP unless a court were to decide that somehow our volunteer service was close enough to regular employment to make the photos "works for hire".    It seems a fairly large stretch to imagine that happening.

[DNall]

While not paid, CAP members on mission are legally employees, but not of CAP. On AFAM (including all other fed agencies), they are DAF employees at the GS-9 level for benefits. For state/local it depends on the MOU & state law.

[mikeylikey]

While not paid, CAP members on mission are legally employees, but not of CAP. On AFAM (including all other fed agencies), they are DAF employees at the GS-9 level for benefits. For state/local it depends on the MOU & state law.

Not sure about that.  They are given benefits at GS-9 after a mission if they are deemed necessary, but CAP volunteers are never DAF employees, DOD Contractors, AF Contractors, members of the AF or even "an instrumentality of the US Government".  They are civilians, and if we were invaded by a foreign country, and a CAP plane was shot down.....the crew could legally be considered Spies, and executed. 

We have no benefits, and no classification within the Federal Structure......and that is what should change. 

We can start by issuing all CAP Senior Members the "plain and basic US Government CAC that is now being introduced (the one with the flag on the front of the Card).  There are military CAC and there are US Govt CAC.  We can easily be identified as a Civilian Organization with issue of that card.  But our Leaders and AF "friends" are not as forward thinking as they should be.

As far as this discussion goes, what pictures are taken by CAP equipment is the sole property and is owned by our Corporation.  Unless said material is rated as classified by a federal designating Officer (such as is done on Counter-Narcotic missions). 

[DNall]

While not paid, CAP members on mission are legally employees, but not of CAP. On AFAM (including all other fed agencies), they are DAF employees at the GS-9 level for benefits. For state/local it depends on the MOU & state law.

Not sure about that.  They are given benefits at GS-9 after a mission if they are deemed necessary, but CAP volunteers are never DAF employees, DOD Contractors, AF Contractors, members of the AF or even "an instrumentality of the US Government".  They are civilians, and if we were invaded by a foreign country, and a CAP plane was shot down.....the crew could legally be considered Spies, and executed.

That's incorrect. They are absolutely an instrumentality of the US when and only when on AFAM & are legally employees of the AF. If captured in time of war they are absolutely deemed officers & are by treaty to be treated as such. That's how we ended up in uniforms in the first place.

The non-AFAM corporate relationship with the AF is governed under a contractor statement of work as it would be with any private company.

Corporate missions for state/local may have some other arrangement per the MOU.

We have no benefits, and no classification within the Federal Structure......and that is what should change.

We can start by issuing all CAP Senior Members the "plain and basic US Government CAC that is now being introduced (the one with the flag on the front of the Card).  There are military CAC and there are US Govt CAC.  We can easily be identified as a Civilian Organization with issue of that card.  But our Leaders and AF "friends" are not as forward thinking as they should be.

What's actually required is a Geneva conventions ID card. An alternate version of the CAC or other similar option would suffice. The issue for the govt is that the card only has legal force during AFAM, and should otherwise not be possessed by the individual as they in those circumstance are not legally part of the govt. That's because of the 2000 changes, which were done to remove liability from the AF for an unwieldy CAP over which they had limited authority. The answer there of course is to put it back as the full-time aux, while granting AF full oversight & command authority. .....All of this being completely off topic & been said a thousand times.

As far as this discussion goes, what pictures are taken by CAP equipment is the sole property and is owned by our Corporation.  Unless said material is rated as classified by a federal designating Officer (such as is done on Counter-Narcotic missions). 

That's not the case under copyright law unless the member is a full-time paid employee of the corporation, or has otherwise signed a statement in advance stating that intellectual property & items such as photos created while volunteering for CAP will remain the property of CAP w/o compensation. That's the law.