Hazel Friedmnan reports on a new twist in the Jurgen Schadeberg/Jim Bailey saga involving the copyright of Drum photograhs
THE long and bitter battle by ex-Drum photographer Jurgen Schadeberg to reclaim ownership of his photographs from Jim Bailey, who owned the pioneering African magazine in the Fifties and Sixties, has taken an ominous turn. In the latest round of a conflict which could cause the overhaul of existing copyright legislation, Schadeberg has received abusive phone calls and death threats.
”A man with a South African accent phoned three times last week, calling me a nazi and racist, accusing me of having stolen work from black photographers and saying that they were all going to get me,” a visibly traumatised Schadeberg said. ”And the caller also hurled abuse at my wife Claudia.”
Schadeberg does not accuse Bailey of being behind the calls, but photographers countrywide have reacted with outrage to this latest incident. Schadeberg’s photographic contribution and opposition to apartheid is well-documented. Fearlessly, he covered one of the most oppressive eras in South African history, was arrested under suspicion of contravening the Immorality Act after photographing songstress Dolly Rathebe in a bikini, and was frequently the victim of police harassment. He is widely regarded as a living legend, the Alfred Eisenstadt of South Africa, whose tutelage nurtured a new generation of South African photographers: Bob Gosani, Peter Magubane, Gopal Naransamy, Ernest Cole, Alf Khumalo and many others.
As a result, letters of support have been pouring in from colleagues such as ex-Drum photographer Ian Berry, journalist Arthur Maimane, Hugh Lewin from the Institute for the Advancement of Journalism (who also worked with Schadeberg on Drum) and ex-Drum editor Sylvester Stein. They have expressed support for Schadeberg’s herculean battle to own the photographs he took over 40 years ago. And ultimately, the battle is bigger than either Schadeberg or Bailey; it concerns the right to ownership of intellectual property by every South African journalist and photographer. But it has taken one man to wage it.
The abusive calls also follow Schadeberg’s acclaimed restrospective running at the National Gallery in Cape Town. On display are photographs from the Drum years in the Fifties, Schadeberg’s meanderings through Europe during the Sixties, Seventies and Eighties and works from the Nineties which record the return of former prisoners as new leaders to Robben Island. Shortly after the opening Marie Human from Bailey’s archives telephoned the National Gallery, claiming that one of the photographs on display, The Midnight Kids, was in fact taken by Gopal Naransamy.
After Schadeberg’s lawyers, David Dison, Norval and Wheelan, countered the accusation, Human responded that the photograph may or may not have been shot by Naransamy. Naransamy has sent a letter, which is in the possession of the Mail & Guardian, formally confirming that he is not the author of the photograph in question.
But this dispute is merely round ten in a conflict which has seen few punches pulled. It began in 1995 when Schadeberg took Bailey to court for continuing to profit from his photographs. Schadeberg conceded, in terms of South Africa’s conservative copyright laws, he had no ownership rights on most of the photographs he took while working for Drum. But, ironically, several photographs appropriated by Bailey’s son, the artist Beezy Bailey, for his exhibition in Cape Town and at the Market Gallery during the early Nineties, were personally owned by Schadeberg. And many of the images which Bailey lays claim to were, in fact, shot by Schadeberg after he had left Drum magazine in 1959.
In January 1995 Schadeberg sought an order striking down offending sections of the Copyright Act and restoring ownership to him, as well as the return of all the original photographs and negatives currently in Bailey’s possession. In his court application Schadeberg argued that the constitutional protection of freedom of artistic creativity was being violated by current copyright legislation. According to the Copyright Act, which was only slightly amended from the 1912 legislation, copyright ownership rests not with the author but solely with the employer. This conflicts with international precedent, countries like France and Germany, for example, place ownership firmly in the hands of the photographer who then licenses out his work for a particular time and under specific circumstances.
”I worked for Drum in the Fifties for about nine years as a photographer/picture editor and was in charge of the photographic department that trained photographers (facts which have been borne out by Berry, Stein and Maimane). During that time I took hundreds of thousands of photographs. The pay was low, the risks were great, but I did it for Drum as an organisation in the belief that it was worth it because I was capturing an essential slice of history,” recalls the German-born photographer.
”Those pictures belong to Jim Bailey, 40 years later. He still exploits them and sells them around the world without paying a cent to the photographers who took them. If we wish to use our own pictures we are forced to pay him.” He adds: ”Bailey has not even paid Bob Gosani’s widow one cent for using his work.”
By contrast, when Schadeberg published Sof’town Blues in 1995, he paid each photographer represented in the book a percentage, including Gosani’s widow. Since April, Tilly Gosani has formally authorised Schadeberg to hold her late husband’s negatives in his archives and supervise the sale of his work, as well as act on Gosani’s behalf in ”all transactions relating to my husband’s photographs”.
Schadeberg left Drum in 1959 and South Africa in 1964. In 1985, he returned from Europe and voluntarily embarked on the unenviable task of sorting out the Bailey archives. ”They were on a farm, in a barn, kept in bashed up cabinets with bits of termite-eaten envelopes. It took me more than six months to sort out tens of thousands of negatives. And Bailey has been profiting from them ever since.”
Bailey has also demanded money from Schadeberg for Drum, a collection of photographs – precursor to Schadeberg’s Sof’town Blues – published in Germany during 1991. Schadeberg refused, saying Bailey owed him money and had played a part in the breakdown of negotiations for the book’s publication in America.
During an interview on Radio South Africa in January 1995, Bailey accused Schadeberg of ”lying continuously”. He was subsequently sued by Schadeberg for defamation. Both matters are in the process of being settled out of court. But, as the recent incident at the National Gallery suggests, the battle is far from over. ”It has become a war of attrition,” says Schadeberg’s legal adviser, David Dison.
Bailey refused to be interviewed for this article, or on the issue of copyright legislation, because the case is ”sub judice” (Schadeberg refutes this). But in 1995 Bailey went on record to say that ”the photographs are not the personal property of anyone. They belong to the whole of South Africa.” Recently the acting chief curator of the Bensusan Photography Museum in Newtown, Hillary Bruce, wrote to Schadeberg asking whether Bailey could be persuaded to give the archives to ”the citizens of South Africa” by donating them to ”a public body with the facilities and staff to preserve them for the future”. There has also been talk of handing them over to the Mayibuye Centre in Cape Town. But nothing has happened yet.