Ft. Meade, Maryland, –
A tectonic shift in combat documentation recently landed military members and the Department of Defense in a policy no-man’s land. The shift began around 2009, with the introduction of the GoPro HD Hero camera. What followed was a proliferation of affordable, small video cameras designed to record and post high-impact action videos on social media. In short order, a new genre of internet action video was born, generating viewership in the millions. Military members took notice and quickly adopted the use of personal cameras to document combat action.
A search of YouTube for “US+soldier+combat+video” returns more than 15 million results with such titles as, “US Soldiers in Afghanistan – Rare Combat Footage – Heavy Firefights,” and “US Soldiers Kill Taliban in Afghanistan Shocking Footage.” There are hundreds of YouTube channels specializing in the military combat genre. The public can now spend hours and even days viewing military action videos that often start with disclaimers like, “Contains Scenes of Violence; Viewer Discretion Advised.”
Then the inevitable happened. Commercial media producers began to notice the popularity of these military reality videos with gut-wrenching drama and action.
They decided it would be great to weave free military action videos from the front lines into documentaries they could sell or license for a profit. Today, you can purchase documentaries like “Citizen Soldier,” from Walmart, or watch “Taking Fire” on the Discovery Channel and “The Fighting Season” on DirectTV.
In a Marine Times article in November 2015, “Your war story wanted for a new ‘Fighting Season,” TV producer Ricky Schroder made a pitch for Marines to submit their action videos directly to his production company. According to David Evans, who handles documentaries and non-scripted entertainment requests for the Assistant to the Secretary of Defense for Public Affairs, Mr. Schroder even offered to pay up to $100 a minute for military action video in an ad he placed in the Army Times.
For DoD Public Affairs, Visual Information, or Combat Camera professionals working in the Department of Defense, watching uncleared soldier video go straight from combat to YouTube to commercial sales is a huge misdirection of government information. We now find ourselves in that previously mentioned policy no-man’s land somewhere between the operational security program, Federal ethics law, copyright law, and the First Amendment of the U.S. Constitution.
How can we move forward? What should we tell our troops about using personal cameras on the battlefield? What current DoD policies and Federal laws inform the capture, release and commercial use of these videos? In an effort to help educate and inform DoD employees and service members on the requirements and risks of using personal cameras on the battlefield, what follows is a brief overview of policies and laws.
Q: “If a service member/employee is documenting military operations but was not tasked to do so, who owns the imagery?”
As a basic premise, the service member/employee who takes the photograph or video becomes the owner of the legal copyright interests (absent an official tasking, use of government cameras, or written order/agreement to the contrary). However, there are DoD policies and other legal principles that may limit or restrict this basic premise.
First and foremost, DoD personnel who capture mission-related imagery may NOT release this imagery to media outlets or other public forums, (including social media), without first obtaining a security review for clearance from the appropriate level of command. See DoD Directive 5230.09 and ATSD(PA) memorandum, “Guidance for Use of Visual Information Captured by Department of Defense Personnel on Personal Equipment,” dated November 8, 2016, for more information about this requirement. U.S. Coast Guard employees should consult Coast Guard External Affairs Manual COMDTINST M5700.13; page 53; paragraph 4, “Official and Personal Imagery” for more information.
Secondly; (1) If the service member or employee uses government cameras/equipment, or (2) if the operations they are documenting are connected to their official duties (regardless of who owns the equipment), or (3) the government employee is charged with creating imagery as part of their official duties and voluntarily uses their personal equipment to do so; that imagery is normally considered official United States Government federal records under Title 17, U.S.C (A “work of the United States Government” is a work prepared by an officer or employee of the United States Government as part of that person’s official duties).
For example, the Naval Special Warfare command recently determined that approximately 20,000 images taken by a Navy training instructor using his personal camera with the intent of publishing a commercial book for sale were in fact all Navy VI Records.
Lastly, DoD personnel should always consult their local and component-level policies for specific guidance on photographing military operations. For example, military personnel deployed within the USCENTCOM Area of Responsibility were subject to GENERAL ORDER NUMBER 1C (GO-1C), dated 21 May 2013. GO-1C defines official and unofficial photographs and prohibits photographing certain specific scenes. It also requires a non-delegable approval from a commander in the grade of 0-5 or higher before any non-government equipment can be used for official photographs or videos.
Q: “Does the service member have a right to sell this imagery?”
No, and doing so could result in Uniform Code of Military Justice or other legal action against the service member/employee. By selling imagery of military operations taken for ostensibly personal use, the service member/employee now becomes subject to laws and statutes dealing with ethics and commercial use. Federal law prohibits federal employees and military members from accepting any outside compensation for activities that pertain to the member’s official duties.
Although such imagery may belong to the individual from an intellectual property standpoint, if that imagery pertains to the member’s official duties, or was captured while conducting their other assigned official duties, they are prohibited by federal ethics laws from selling the imagery (or profiting in any other way, such as payment in kind). Furthermore, individuals depicted in the photographs and videos may legally sue the service member/employee for violating their rights of publicity (i.e., the right of an individual to control the commercial use of his or her name, image, likeness, or other unequivocal aspects of one’s identity).
Q: “What advice would you give to military members who want to use their personal cameras to document the battlefield?”
Overall, the best guidance is to use personal cameras only to document personal activities or when absolutely needed to document operational activities. Consult with your local and component-level policy for guidance/restrictions. Always submit your mission-related imagery for a security review for clearance from the appropriate level of command before releasing it to public forums (including social media), or to media outlets.