A long struggle for copyright

FOUR black-and-white images of Nelson Mandela in his autobiography, Long Walk to Freedom, are at the centre of a new twist in the row between a former Drum photographer and Jim Bailey, founder of the famous magazine, over how a rich store of photographs in the publication’s collection will be used in future.

Jurgen Schadeberg, who recorded many key events during the years of the Defiance Campaign and the Rivonia Treason Trial when he worked for Drum in the 1950s and1960s, has asked that the Constitutional Court strengthen the rights of photographers to own and use their creative work.

“The new constitution protects the freedom of artistic creativity and I feel these are not consistent with sections of the country’s copyright laws which give employers great powers to use and sell the work of their photographers,” says Schadeberg.

The photographer says scores of his photographs, including numerous stills of Mandela, have been used in publications, books, films and exhibitions without his consent or any remuneration. He first filed a case in the supreme court to have clauses of the Copyright Act that allow this to be removed but has since decided to challenge the validity of the law in the Constitutional

Bailey, owner of an archive of photographs taken by Drum photographers in those years, is steadfastly resisting threats against his legal ownership of the famous and very lucrative negatives. “The copyright laws at the time stated rights belong to the employer and I doubt that there can be retroactive changes to alter old contracts.
This would make nonsense of the law of contracts.”

Now Little Brown Publishers, the producers of Mandela’s bestselling biography, have telephoned Schadeberg to say they want a refund of some US$1 500 (about R4 500) paid to him for the use of his six black-and-white prints, including four pictures of Mandela. The publishers say Bailey has been in contact with them to demand payment on the grounds that he owns the rights to the pictures.

Schadeberg is presenting his battle with Bailey as a case of David versus Goliath. He says he will refuse to pay back the money paid to him by Little Brown and will go to court in the United States, where copyright laws are more favourable to the photographer, if he is forced to contest the case. “I spent many years of my life taking hundreds and thousands of photographs and now I do not even have a pension. I am determined to fight this case to the end, even if it forces me to go

The former Drum photographer was originally joined by a colleague, Peter Magubane, in the legal bid to win back rights to own and use their pictures. The pair worked together at a time when Drum nurtured some of South Africa’s most famous black writers.

Magubane has since reached an agreement with Bailey that allows the photographer to make use of his negatives without interference from the Drum founder.

“There is also an agreement to set up an institute that can be used by scholars, researchers and historians,” says Magubane. “The institution will be funded by sales of our work.”

Schadeberg has now asked the supreme court to grant an amendment to his original application so that his fight with Bailey can be referred to the Constitutional Court. If this application for an amendment is turned down, he says he will go to the new court anyway.

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