WHO
OWNS THIS PHOTOGRAPH?
A free-lance photographer vs. The New York Times
Many media companies are at odds with free-lance writers and photographers
over who owns the words and images once they have appeared in
print. The fight is being waged not only in public (see page 13),
but also in private. What follows is a record of one such tug
of war, an exchange of letters about a single picture.
The
exchange was triggered by an e-mail from the photographer, George
S. Zimbel, of Montreal, to Barbara Cox of Photokunst, a consulting
firm for both individual photographers and archives, including
the Times archives.
In
a message to Barbara Cox of Photokunst dated
NOVEMBER
21, 2000
Dear
Barbara:
I
currently have a retrospective at Sala Millares in Madrid and
on the swing back, stopped at Paris Photo where several of my
dealers had booths. My wife saw your booth and suggested that
I might have some prints in that collection. Although I have free-lanced
for the [New York] Times for over forty years, I said "no"
because I always sell "One Time Rights" and the Times does
not own any of my work. Surprise!! #122, George S. Zimbel: Jacqueline
& John Kennedy, NYC 1960 8/10 print described as "vintage."
Price $4,000.
I
have not authorized the sale of any of my work through The
New York Times and would like that print and any others that
you may have of mine returned safely to me at the address below.
Thanks
for your attention in this matter.
Yours
truly,
George
S. Zimbel
NOVEMBER
28, 2000
Dear
Mr. Zimbel:
I
am counsel for The New York Times Company. Your November 21, 2000
e-mail to Barbara Cox has been referred to me for a response.
You
assert in your letter that all physical photographs taken by you
and submitted to the Times for one-time reproduction are
not owned by the Times. We disagree.
Our
understanding has always been that title to the physical prints
passed to us upon payment to you for the right to reproduce the
photo. This understanding is reflected both in our practice of
retaining or disposing of prints without the involvement of the
photographers, and in the fact that, in the many years since we
first acquired the photographs, you have never before seen fit
to request their return or otherwise challenge our ownership.
Indeed, to accept your position one must believe that for all
these years, the Times has been providing free storage
for your property.
In
sum, it is our position that we own the prints you refer to in
your letter. Therefore, we decline to comply with your request
that we first comb our extensive archives for photographs from
you and then return them.
Please
feel free to contact me in the event you have further questions.
Very
truly yours,
Maggie
R. Drucker
NOVEMBER
29, 2000
Dear
Maggie:
You
get paid when you write letters and I don't, but sometimes I have
to come out of the darkroom and tend to business and ethical issues.
First
I will deal with the philosophical aspects of this situation.
You always had a wonderful photography staff . . . . Bill Eckenberg
was a friend when I was still at Columbia; Pat Burns and I used
to trip over each other on the political beat, etc., etc., so
your true New York Times archive is rich in content and
available for whatever commercial exploitation the Times
feels is profitable. You have paid these people a salary. Their
negatives are undoubtedly in a file somewhere at the Times.
The
free-lance people traditionally have worked for the Times
on a one-time reproduction rights basis with the modest remuneration
based on that fact . . . . I don't know how many free-lance photographers
or the estates of deceased photographers have contacted you, but
if the letter I received is the response they get I am very sad
that you have seen fit to treat us in this manner. To quote a
letter which Arthur [Ochs Sulzberger] Jr. wrote to me last year:
"times have changed," but they have not changed so much that you
can take my property to sell for your profit. If I rent a car
from you, I am just renting a car. It doesn't give me the right
to sell the car once I am finished with the rental.
I
would suggest the following process to deal with this situation.
First, talk to your photo editors to better understand the procedures
which have been followed by the Times in dealing with free-lance
photographers. Then, for those photographers who are lucky enough
to still be alive, offer to return their material, or if they
wish to participate in this process pay them a 50 percent commission
on any sales which the Times may make. My personal wish
is to get my material back, but others may opt to sell through
the Times.
I
hope you give this serious attention because it is a serious matter.
Yours
truly,
George
S. Zimbel
DECEMBER
6, 2001
Dear
Mr. Zimbel:
I
am in receipt of your November 29 letter.
I
have conferred with my clients and have determined that there
are no plans to sell any photographs taken by you and printed
in The New York Times.
I
am hopeful that the foregoing will satisfy your concerns. Please
feel free to contact me if you have any questions.
Very
truly yours,
Maggie
R. Drucker
DECEMBER
11, 2000
Dear
Maggie Drucker,
Thank
you for your letter of December 6 in which you say "there are
no plans to sell any photographs taken by you and printed in The
New York Times." When I first read your letter I had a feeling
that it didn't say anything that would address the issues I raised
with you. Then I thought, "you are being too suspicious" and I
brought it home for my wife to read. She said "It doesn't address
any of the issues you raised." So here I am again when I should
be in the darkroom.
First
is the question of the "Jacqueline & John Kennedy, N.Y.C.
1960" print . . . . It is my property and I would like to have
it safely returned. I assume that it is the only print of my work
that Photokunst/The New York Times is offering for sale.
If there are others let me know. In regard to whatever prints
of mine may be in your archives I would like them returned to
me and, in any event, I do not give permission for them to be
sold. Thanks for your attention to this matter.
My
best regards,
George
Zimbel
P.S.
I have only one addiction in my life, and that is reading The
New York Times. I have read it since I was a teenager in 1943,
and have worked for it since the early 1950s, so my position is
not antagonistic. I just want this settled.
DECEMBER
20, 2000
Dear
Mr. Zimbel:
.
. . . In your recent letter, you requested the return of your
photographs, including this one. Let me explain why (in addition
to the fact that there is no legal basis for returning photos,
which we have discussed) we can't comply. That photo, through
the years, has become a historical document by virtue of the Times's
possession of it. The back of it has become as important as the
front because it is a passport to its life at our newspaper, showing
captions and date stamps. In fact, it is this very documentation
that gives value to the scuffed print. I'm sure you know that,
in Paris, we framed the pictures to expose the backs, and we were
not surprised when visitors were as interested in that part of
the picture's history as they were in the image itself.
As
a photographer who has shot extensively throughout his life, I
know you understand the worth that the Times brings to
history, and now your photograph has become part of ours.
I
hope you can understand our position and that we have satisfied
your concerns.
Very
truly yours,
Maggie
R. Drucker
JANUARY
3, 2001
Dear
Maggie:
What
an eloquent letter.
Please
fax or e-mail me the front and back of my Kennedy picture which
was offered for sale in Paris. I know it was not made for The
New York Times and I want to know its provenance. After I
receive it, I will respond to your letter, specifically in regard
to that print.
My
best regards,
George
S. Zimbel
JANUARY
12, 2001
Dear
Mr. Zimbel:
Pursuant
to your January 3, 2001 request, I have enclosed a copy of the
front and back of the Kennedy photograph.
Please
feel free to contact me with any further questions or concerns.
Very
truly yours,
Maggie
R. Drucker
JANUARY
16, 2001
Dear
Maggie:
I
have now received the photocopy front and back of my photograph
"John & Jacqueline Kennedy 1960, NYC" that you offered for
sale through Photokunst in Paris. The provenance has now become
clear.
The
print was requested by your photo editor . . . . At that time
I lived in Dobbs Ferry, New York, as indicated from the stamp
on the back. It evidently was used by your women's page and was
not returned to me after use as is the normal procedure but instead
was put in your morgue. It was not shot for The New York Times.
(See American Politicians, MoMA, 1994 -- page 34). It was
done for an ongoing personal documentary project on American politics.
Now
I am going to reply to your letter of 20 December 2000. I do not
agree that you own the print, despite your citing a "legal basis"
for your claim. You get paid to cite legal bases which then have
to be challenged in court in order to be resolved. That is not
my path. I am a documentary photographer who is trying to do my
work. I could walk away from this, but I don't choose to do so,
despite the urging of my doctor/art consultant.
You
mention that my photo has become a historical document by virtue
of the Times's "possession" of it. My photograph is a historical
document because of its content. The fact that the Times
stamped dates on the back and used red grease crayon on the surface
"gives value to this scuffed print" and so, in the new world of
commercial exploitation, the Times offered my photograph
for sale in Paris for $4,000 through Photokunst.
I
am getting very upset as I write this, but I will continue and
quote your last paragraph and respond. You wrote: ". . . I know
you understand the worth the Times brings to history, and
now your photograph has become part of ours." That is very eloquent
but the reality is that the reproduction of my photograph has
become a part of the Times's history. My Kennedy photographs
are in the collections of MoMA, ICP, Museum of Fine Arts Houston,
Musée du Québec, Musée d'art Contemporain
de Montréal, Institut Valencia d'Art Modern, and other
collections. That is a historical context.
You
have my permission to scan that print, front and back for your
archive, with any future sales from that scan paid for in the
normal manner which has been our way of working together for nearly
fifty years.
I
value the Times more than you will ever know. My concerns
will be satisfied when I receive my print properly packed here
at my studio. That is a Times tradition.
Best
regards,
George
S. Zimbel
JANUARY
17, 2001
Dear
Mr. Zimbel:
I
was pleased to hear that the issue of your Kennedy photograph
has been resolved and that the print is being returned to you.
As I think Jim Mones [director of The New York Times Photo
Archive] made clear to you, our return of the photograph does
not suggest that we do not stand by our legal position. We continue
to believe in our ownership of the print, but, in the spirit of
compromise, we have agreed to make an exception in this case.
Sincerely,
Maggie
R. Drucker
FEBRUARY
12, 2001
Dear
Maggie Drucker:
Jim
Mones used terms such as "valued contributor" and "longtime relationship"
in our final conversation before he returned my photograph of
"Jacqueline & John Kennedy, 1960." In the conversation prior
to that he said that the archive was returning my print, and then
added the proviso that I would have to pay 50 percent to the Times
if I sold it! I used several expletives to let him know that the
photograph belonged to me and I expected it returned properly
packed. He urged me "not to get excited" and said he would call
me the following day. He did, stating that the photograph would
be returned with no provisos. It was and he kept his word. So,
after thirty-nine years the print was where it was supposed to
be -- in my possession, in my archive with the original negative.
It is and always has been my property.
Then
I received your letter dated 17 January on 6 February . . . .
I will begin by saying that I consider that letter as insulting
as the first one your wrote. I am not an exception, I am one of
those free-lance people who you seem intent on denigrating in
the name of increased profits for The New York Times Company.
Now I know what Arthur Jr. meant when he wrote me "times have
changed." So, that is clear.
I
am ashamed of you and your management colleagues. I still have
the highest regard for your editors, writers, and photographers.
Your statements have the feel of events in Florida during the
last election with lawyers and persons of authority depriving
people of what was theirs. You are expending huge amounts of highly
paid time to deprive free-lance photographers of their property
and consequently of income for the minimal amount of profit that
will be generated by this mean-spirited policy. It is not acceptable.
You use your muscle in words in a court of law because you are
lawyers. I will use my muscle in words in the court of public
opinion because I am a communicator.
George
S. Zimbel
