Every hardcore Marvel fan has watched the Netflix series of Daredevil by now.
Every regular fan has googled about the Easter eggs and references in the massively popular show.
And none will be surprised by this blatantly obvious reference to the Battle of New York reference when I show the below picture to them.
When I looked at that picture of the Chitauri army... The first thing I thought, which daring journalist was flying overhead on a helicopter taking pictures while Iron Man was turning everything back or turning it to ash.
The answer, no one.
Come on, you really thought Tony Stark would let a helicopter enter an active war zone? So active that government agents ordered a nuke there?
So, what is the alternative? Someone had to take the picture for it to be published, right?
So the evidence opens up the possibility of a young journalist named Peter Parker.
Kevin Feige has already said that a boy is running around in a homemade Spider-Man suit already and we just don't know it yet. And he didn't show up to the Battle of NY simply because he was a kid and it was out of his league.
But what if he actually came to help them? Maybe even beat up a couple of the gliders...
But when he saw the huge snake-ships or whatever they were, he saw that it was way out of his league and instead became a journalist covering the event rather than a hero.
Now, the picture captured is one of the scenes in the movie. It might even be possible that some of the scenes we see in The Avengers during The Battle of New York are from Peter's journalistic point of view.
It can be argued that Peter Parker has always worked for The Daily Bugle and not for New York bulletin. However, Ben Urich does work for it. And in the comics, Peter Parker and Ben Urich often worked together as investigative journalists. So, it's not completely implausible.
Also, we know that he is still 15-16 years old, so maybe he isn't working for Daily Bugle yet and this is one of his freelance work. Maybe a summer internship. Who knows? (...Feige does)
This explains how it was taken from such a height when no helicopters or any regular human dared to enter the area.
As for the questions, it could be said that it was taken after the fight as the robot lays on the building defeated.
But no, it's live... See the dust around it... It's the second defeated robot. The dust would have had settled until the fight was over. So, we know that the picture was instant.