Media Orchard Interviews Michael Yon
Written by: Scott Baradell
If you’re not familiar with Michael Yon, he’s a writer and former Green Beret who’s currently in a donnybrook with Shock Magazine about the unauthorized use of one of his photographs on its debut cover. Taken in 2005, the graphic photo shows a U.S. soldier cradling an Iraqi girl wounded by shrapnel from a car bomb.
Yon has used an Internet campaign against Shock to get the magazine pulled from store shelves. We think the case says a lot about the current state of photography usage rights — as well as the growing power of online mobilization efforts.
Here’s our Q&A with Yon:
MO: Michael, for those who haven’t been following this dispute, can you give us a brief summary of how it started and how it got to where it is today?
Yon: Basically, I learned from my readers that Hachette Filipacchi was launching its new magazine Shock with one of my photographs on its cover. I had not authorized this use. When we contacted HFM, they said they’d bought the rights from Polaris. We informed them that Polaris never had the rights. We contacted Polaris, which first claimed the wife of the soldier in the picture authorized them. She denied this and had e-mail records proving her version of events. I demanded a full accounting of the uses, and that is when I learned from Polaris that HFM had also used the photo on the March cover of their Choc magazine.
After a week of pointless delays (such as “our lawyer is at a conference…”) I demanded the magazine be pulled from circulation. HFM did not comply. My attorney began contacting the distributors listed on the Shock website and made a direct demand. I also posted the first dispatch about this issue on my website.
As the distributors began to comply, HFM agreed to my terms for a settlement. Announcements were issued, demands withdrawn, and on Monday June 5th, I encountered problems that scuttled the deal. Friday June 9th, I published the second dispatch, the “Make Yourself Heard” page went live. A week later legions of readers and colleagues sending emails and making phone calls had a serious impact on the sales of the magazine–it was removed from 7,000 retail outlets.
HFM responded by sending a letter to retailers urging them to continue to commit willful infringement by selling the magazine, accusing me of “censorship” and defending the article claiming it was not a smear piece. I issued a response to that which is being covered widely in the media and on the Internet today.
MO: How much of your problem with Shock is the photo use without permission, and how much is the nature of the publication itself?
Yon: It is evenly divided between three points of contention: first, the fact of the infringement is a clear cut case of using my property without my permission; second, (a)the manner in which the image was used to frame an article that denigrates our military, (the polar opposite message from what I contend is conveyed by the image)(b) the use of the image in a publication that I think is lame, hackneyed, and beneath contempt and (c) the timing of the launch to coincide with Memorial Day; and, third, the bad faith HFM demonstrated throughout our negotiations.
MO: If your photo had been used without permission in a publication that is not as controversial as Shock, do you think you’d have the same level of success in removing the publication from shelves?
Yon: Yes, because the law is pretty clear about willful infringement which is what this has become now that we have notified everyone about the copyright violation. But on the other hand, I have never had to make the demand in other cases because the copyright violation did not include a use so repugnant to me. Every other instance of infringement (there have been many) by a magazine or website has been settled professionally and amicably.
MO: Why did the settlement with Shock break down?
Yon: There were three things that made it clear to me that Hachette Filipacchi Media had no intention of dealing in good faith. First: I requested that they provide the details of the retail and Internet sales for Choc magazine, as well as the retail and Internet sales records for Shock magazine. (These are two distinct magazines and each had used this photograph without my authorization.) I also asked for the details related to any other digital and/or promotional uses of the image associated with either of these publications. I still have not received any of the information I requested.
Second, after having taken down the image from their website as a highly publicized “show of good faith” indicating that they understood clearly that I objected to its use there, they sent out a press release to the media announcing that they were going to put the image back on the website as part of the settlement. I had never agreed to include the use of the image for website promotions, digital subscriptions or anything beyond the printed magazines. It took the entire week for Hachette Filapacchi Media to comply with my demand to take it down. During the course of time from when I first issued the demand to take the image down from the website, to the time at which they finally complied, Hachette Filapacchi offered me an additional $20,000 to use the image on their website. I declined.
Third, when it came time to carefully review the proposed settlement documents I learned that Hachette Filapacchi Media had tried to add Choc magazine to the settlement agreement at the last minute, after both parties had announced that an agreement had been reached. That had never been my understanding or my intent. That they waited until the announcements had gone out before inserting new definitions into the agreement speaks volumes about the way Hachette Filipacchi does business.
MO: It seems that your campaign is made possible by today’s highly participatory Web world — where it’s much easier to mobilize people around a cause. If this had happened to you a few years ago, what do you think your recourse would have been? Anything?
Yon: I think if this had happened a few years ago I would be in the position most freelance photographers are still finding themselves in — left with little recourse against a well funded, well armed, well-oiled machine. I might have a legal case but there is no way I could mount a serious campaign without the Internet. This is partly the cause — I believe — for the way HFM has responded to this issue. They’ve acted like the bully on the playground because up until now they were the bully on the playground. The Internet has leveled the playing field.
Plus, I am not the typical freelance photographer they are used to stealing from. I’ve been dealing with bullies since I was a kid — because I was shorter than most I got picked on a lot. I don’t care if they ever buy another one of my photographs, I am not afraid to assert my rights and risk the possible loss of their business in the future, and, I have a following that has developed in the past year, comprised of many veterans and active duty military. These people act on their principles in large and small ways every day. They are also determined not to have a repeat of the Vietnam era treatment of the soldier.
MO: What’s your general feeling about the current state of photography copyright? Do you think the widespread availability and use of photos on the Web create the impression that photographers do not have rights? If so, how would you suggest addressing this issue?
Yon: I have learned from this experience that photographers have always had a really tough road on this issue. I think the problem is exacerbated by the Internet, which makes image sharing instant. It is also a problem because well-meaning individuals who have blogs and websites are often uninformed about the laws. Currently anyone can start a blog or website and at no point in the process does anyone have to be informed about the rights and responsibilities attendant upon them as publishers.
What I am going to do about this? I am going to add a new section to my website that will allow photographers who have been bullied and ripped off to have a forum to let people know about this. It will be similar to what I did with the Frontline Forum — after hearing so often about the lack of news stories covering the situation on the ground in Iraq and other war zones, I built a new section of my website that offers a forum for soldiers and veterans to share their stories. I think the publicity around this case can be good for raising awareness of this issue but only if accurate information about the law is disseminated.