He Shot an Iconic Photo—and Lost the Copyright

Lester LaRue shot 44 frames on the morning of April 19, 1995, with his employer's camera, his employer's film, and his employer's car to get him there. One of those frames ran on the cover of Newsweek's May 1 issue. A federal court later ruled the copyrights had never been his.

Two Cameras, Three Feet Apart

LaRue was the safety coordinator for Oklahoma Natural Gas Company's Oklahoma City district, and investigating explosions and photographing the scene was part of the job description. The blast that brought down the Murrah Federal Building reached him at his desk. Thinking a gas leak might be responsible, he drove to the site in a company vehicle and started working: photographing the wreckage, photographing company crews shutting off gas lines, watching for falling debris overhead, helping locate and close the lines himself, checking in at the company's command post. While he was setting up on a crew heading into a basement, he saw a firefighter cradling an injured infant, and he took the picture.

Standing about three feet away, according to a 1996 Associated Press reconstruction of that morning, was Charles Porter IV, a 25-year-old credit specialist at a bank. Neither man knew the other was there. Porter had his film developed at a Wal-Mart counter within about three hours and sold the take to the Associated Press bureau chief in Oklahoma City that same day. His frame won the 1996 Pulitzer Prize in spot news photography, cited for haunting photographs showing a one-year-old victim handed to and then cradled by a local fireman.

LaRue's route to publication ran through a Moto-Photo counter, where a clerk asked if he could show the prints to some people. The next day, Newsweek asked to see the negatives, and LaRue sent them. His frame ran on the cover. On April 25, 1995, he signed a contract with the photo agency Sygma granting worldwide syndication rights, with the credit line specified as "Lester (Bob) LaRue/Sygma." He also licensed the image for T-shirts, none of which were ever marketed to the public after the baby's mother objected, and for a line of bronze-look statues, roughly 700 of which were sold or given away.

What "Within the Scope of Employment" Actually Covers

On June 8, 1995, LaRue applied to register a copyright claim to many of the photographs he took that morning. In early July, the gas company applied to register two of them. Under 17 U.S.C. § 410(c), a registration certificate obtained within five years of first publication is prima facie evidence that the copyright is valid and that the facts stated in it are true, so LaRue walked into court with a presumption in his favor.

It did not survive summary judgment. The work made for hire doctrine sits in two short pieces of the Copyright Act. Section 101 defines a work made for hire to include a work prepared by an employee within the scope of his or her employment, and Section 201(b) says that in such a case, the employer is considered the author and, unless the parties have expressly agreed otherwise in a written instrument signed by them, owns all of the rights comprised in the copyright. There was no such instrument. So the question was never whether LaRue pressed the shutter. It was whether he was at work.

The Tenth Circuit answered that with a list, and every item on it pointed the same way. Photography belonged to the job. The morning fell inside his working hours. The camera and the film were the company's, and so was the bill for processing. He checked in with the office repeatedly as the day went on, and never once told anyone he was taking personal time. Six facts, none of them about the picture.

LaRue's counsel had one factual hook, a line from the deposition of company president David Kyle: "I don't see anything in [the cover of May 1, 1995, Newsweek Magazine] that relates directly to the business of Oklahoma Natural Gas Company." The panel called the argument preposterous, noted that the Newsweek cover was a cropped and enlarged piece of one frame out of a whole series, and pointed out that LaRue offered no support for the idea that a photograph has to relate directly to the employer's business at all. What the panel rejected was the narrow proposition that a photograph must relate directly to the employer's business. That is not the same as saying subject matter never matters. It is one piece of evidence among several, and the weight sits on the circumstances of the shoot.

The Ultimatum and the $34,623.50

The company's conflict of interest policy required employees to "avoid any situation or activity that involves, or may appear to involve, a conflict between the employee's personal interests (financial or otherwise) and the interests of the Company," and it listed termination among the available penalties. Executives were not troubled by publication. They were troubled by the appearance of anyone at the utility profiting from the bombing. LaRue's supervisor raised the conflict issue before the Newsweek deal closed. A senior vice president raised it in late April. Kyle came back to it on May 1, and a letter asserting the company's ownership followed on May 18.

By September 6 the company had reduced it to an ultimatum with a two-day clock: concede that the negative was theirs, assign whatever rights he held, and turn the money over for the victims. He refused, and on September 8, 1995, he was fired after 32 years. "I don't feel like I've been treated very fairly," LaRue, then 57, told the Associated Press. "I've been a company man for 32 years. Now, I look over my shoulder and say that was my life. Because it's gone." Company spokesman Don Sherry put the other side just as plainly: "Any compensation ought not go to him personally but should go to the victims or to a victims relief fund."

Oklahoma Natural Gas sued on October 5, 1995. The district court granted partial summary judgment on ownership, held a bench trial on the rest, enjoined LaRue from further use of the photographs, and calculated damages two ways. Actual damages came to $34,623.50. Statutory damages came to $17,311.75 for each of the two infringed photographs, which is the same total. The company elected the statutory award. LaRue never got a jury, because his demand landed 29 days after the deadline in Federal Rule of Civil Procedure 38 in the company's case and 34 days late in the intervenors' case, and his counsel had already signed a joint status report setting the matter for a non-jury trial.

On appeal, LaRue argued that he had complied with the company's demands by making significant contributions to charity. The panel put the arithmetic in a footnote: $4,209.60 given away out of $38,305.15 in income from the photographs.

Why the Baby and the Firefighter Lost

Aren Almon, whose one-year-old daughter Baylee was killed in the bombing, and Chris Fields, the firefighter, moved to intervene on November 9, 1995, with claims under Oklahoma's right of publicity statutes, Okla. Stat. tit. 12, §§ 1448 and 1449. Those statutes reach the use of a person's name, voice, signature, photograph, or likeness on merchandise or in advertising without consent. Where the use is a photograph, they add a threshold: the person has to be readily identifiable, which the statute defines as a viewer being able to look at the photograph with the naked eye and reasonably determine that the person depicted is the same person complaining about the use.

The Tenth Circuit sided with the intervenors on the law and then lost them on the picture. Being readily identifiable does not require fame, the panel held, only that a viewer could pick the plaintiff out of a group. Then the judges looked at the copies of the photograph in the record and described what they saw. The child's face is completely obscured, and a viewer could offer nothing beyond hair color and approximate size, not even whether the child is a boy or a girl. Fields has his head turned down and away. The court's own description of what remains visible is that his “face is covered in the shadow formed by his helmet,” leaving a smudge that might be a moustache and might be nothing at all. He is a white male, and that is the end of the description.

The identification that actually happened in April 1995 proved the point. A fire dispatcher who knew Fields well saw the photograph the night of the bombing and could not identify him conclusively. What narrowed it down was the station number 5 on the helmet, which the dispatcher knew belonged to only three men. Even then, he telephoned the station to check.

The popular version of this story is that there is one photograph from that morning, that Porter took it, and that whatever legal mess followed was a squabble between two amateurs who happened to shoot the same scene. The first part is understandable, since Porter's frame is the one that carried the Pulitzer and the AP wire. The rest is wrong. There are two negatives, LaRue's is the one Newsweek put on its cover, and the litigation was never photographer against photographer. It was an employer against its employee, with the mother and the firefighter intervening against the employee.

The intervenors' final argument was that they were named in the captions running alongside published copies of the photograph. Anyone reading the magazine, they argued, knew exactly who the baby and the firefighter were. The panel refused to look at any of it. The Oklahoma statutes explain exactly what readily identifiable means, the court wrote, and those explanations make no provision for captions. Nothing outside the four edges of the frame was going to be read into the statute.

The panel wrote that it lamented some of the uses the photograph had been put to and sympathized with Almon's distress at seeing the picture of her child so often, and then it landed on this: "This photograph, however, could be of any firefighter and any baby." One of the most recognizable American news photographs of the decade depicted, as a matter of Oklahoma law, nobody in particular.

The One Ruling That Went His Way

LaRue had also sued for wrongful termination in state court in September 1995, and the gas company removed the case to federal court on the theory that it arose under the Copyright Act. Here the Tenth Circuit reversed. His claims did not depend on who actually owned the copyright, the panel held. His extortion theory concerned the value of his claim to ownership at the moment the company made its demand, and a claim can have settlement value whether or not it eventually loses. His public policy theory concerned his right to dispute ownership in court, not his right of ownership. Neither required construing the Copyright Act, so the federal court had no business keeping the case.

The win was narrow and it did not last. The panel spent an entire footnote on LaRue's lawyer, writing that counsel made the case harder rather than easier to decide in his client's favor, and that his most egregious mistake was never explaining which legal right his client was fired for exercising. And back in state court, the outcome did not change. On March 14, 2000, the Oklahoma Court of Civil Appeals affirmed summary judgment against him, finding no clearly articulated public policy at stake in what it treated as a private dispute over photographs.

The case gets cited as settled doctrine, and it is not quite that. The 1998 decision is an unpublished order and judgment. The reporter citation everyone uses, 156 F.3d 1244, is a table entry, and the opinion carries a line saying it is not binding precedent. It is a careful, well-reasoned application of black-letter law, and it binds no other court.

What This Means for the Camera in Your Bag

If you draw a paycheck and you take pictures, this is the case to read. The doctrine does not weigh how good the photograph is, or whether your employer could ever have imagined it, and it does not require the picture to depict the business. The test comes out of agency law and asks three things: whether the work was the kind you were employed to perform, whether it happened substantially within the time and space your job authorized, and whether you were acting at least partly to serve your employer. Whose camera you were holding is evidence going to those questions, not a fourth question. LaRue lost because every one of the three pointed the same way, and staff shooters, in-house content producers, safety officers, and real estate agents lose the same way every year without a Newsweek cover to show for it.

Section 201(b) leaves one lever, the written instrument. Ownership between an employee and an employer can be reallocated, but only in a signed writing, and the practical time to get one is before anything happens in front of the lens. The Copyright Office's own guidance for photographers is blunt about the same point, and if you are building a business around images you expect to license later, the contract side deserves as much attention as the business of commercial photography itself. Freelancers get the better end of this: under Section 101, a commissioned photograph is a work made for hire only in narrow enumerated categories, and only with a signed agreement.

The publicity half of the case cuts the other direction, and it travels badly. Oklahoma tied its statute to what the naked eye can determine from the photograph alone, so an obscured face defeated the claim no matter what the caption said. Other states draw the line differently, and identifiability standards vary enough that a shot that is safe in one jurisdiction is exposure in another.

Fields retired from the Oklahoma City Fire Department as a major on March 1, 2017, after more than 31 years, and has spent the years since talking to first responders about what the job does to the people who do it. The frame of him that ran on Newsweek's cover was, in the eyes of the law, a picture of an unidentifiable man holding an unidentifiable child, and its copyright went to a natural gas utility.

Lead image by FEMA News Photo, public domain. Source.