By DAVID B. CARUSO
Associated Press Writer
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 of New York is threatening to sue over the publication of a new volume containing more than 200 pages of Botte’s work, claiming the photographs are police department property. City officials say that Botte was on duty when he took the photographs and that 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 this week.
That argument is a well-known one 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.
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 is not a slam dunk for either side, in part because of the unusual nature of Botte’s assignment.
Botte 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 out 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.”
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 would not be opposed to making a charitable donation. But he said producing the book has put him “so far in the red financially” that he does not 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.”