Ex-Drum photographer Jrgen Schadeberghas won the battle for ownership of his photographs, reports Hazel Friedman
Legendary photographer Jrgen Schadeberg has finally won his David versus Goliath battle against publisher Jim Bailey. The long, bitter war waged by the ex-Drum photographer against the former owner of the pioneering African magazine in the Fifties and Sixties, centred around the issue of who owned copyright of the Drum photographs. Last week Bailey withdrew all claims to Schadeberg’s pictures. Schadeberg’s victory could now unleash a flood of suits by photographers who believe they have been exploited both by South Africa’s outdated copyright laws and publishing companies that continue to profit from their work.
The conflict over copyright first surfaced in 1995 when Schadeberg and a former colleague, photographer Peter Magubane, attempted to win back the rights to own and use their pictures. But Magubane subsequently reached a separate agreement with Bailey, leaving Schadeberg to fight alone.
When Schadeberg worked for Drum in the 1950s South African copyright legislation was based on a feudal law derived from Britain. Called the Patents, Designs, Trade Marks and Copyright Act of 1916, it stipulated that copyright ownership rested solely with the “proprietor”.
Although the Act was amended in 1978, it still lags behind copyright legislation overseas, where – in France and Germany, for example – photographers retain ownership of their work but license it out for publication. And many South African photographers are ignorant of their limited rights to ownership — a situation which has laid them open to abuse. During the 1950s, in particular, when photographers were motivated primarily by adventurous zeal, the details of who owned what occupied a lower rung on the ladder of priorities.
“When Drum was at its peak, it was the only publication that reflected the lifestyle and values of black South Africans,” explains Goolam Amer, of Dison Norval and Wheeler, the law firm representing Schadeberg. “Photographers working for Drum were idealists and many were ignorant of copyright implications.”
Schadeberg’s photographic contribution and opposition to apartheid during that period is well-documented. The German-born photographer fearlessly covered one of the most oppressive eras in South African history and was frequently the victim of police harassment. “The pay was low, the risks were great, but I did it for Drum in the belief that it was worth it because I was capturing an essential slice of history,” he recalls.
Even today, Schadeberg is still 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. Yet almost 40 years after he left Drum, he does not even have a pension and even though Bailey still uses his photographs, he has not yet been paid a cent.
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 supreme court application he argued that the constitutional protection of freedom of artistic creativity was being violated by current copyright legislation. He subsequently tried to challenge the validity of the law in the Constitutional Court on the grounds that the new Constitution protected the freedom of artistic creation which contradicted sections of the country’s copyright laws. But at the time, the odds seemed firmly stacked against an argument lodged on ethical grounds.
Schadeberg ultimately won his case on factual evidence. In his lengthy affidavit, Bailey alleged that Schadeberg was employed by Drum and was, therefore, not entitled to copyright of his pictures.
He claimed that Drum owned all the photographic equipment used by Schadeberg to take the pictures and had paid for the cost of developing them. Furthermore, he alleged that Schadeberg had not acted in the interests of the archives and that he had unlawfully exploited photographs taken by his colleagues by either crediting himself or not paying them royalties.
He also claimed that Schadeberg had been employed by him to take care of the Bailey archives from 1984 to 1990 and had illegally removed negatives from the files. During an interview on Radio South Africa in January 1995, Bailey accused Schadeberg of “lying continuously”.
Yet the court papers reveal the contrary. In fact Schadeberg was never officially employed by Drum but worked – like most of his colleagues – on a freelance basis, for financial reasons. He also brought his own equipment from Germany. And 80-year-old Eric Horowitz who owned a chemist store in Fox Street during the 1950s also confirmed on the witness stand that Schadeberg had an account with the shop where he paid for his own films to be developed.
Over the years, Schadeberg -unlike Bailey – has also paid his colleagues a percentage for using their photographs in his publications. Last year Tilly Gosani, the widow of fellow photographer Bob Gosani, 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”.
And Schadeberg was never employed by Bailey to tidy the archives. Rather, he voluntarily embarked on the unenviable task of sorting out the bashed-up cabinets containing bits of termite-eaten envelopes after Bailey’s wife threatened to throw them all away.
Ever since he began his battle, Schadeberg has received widespread support from a younger generation of photographers as well as from former colleagues . And ultimately, the battle is bigger than either Schadeberg or Bailey; it concerns the right to ownership of intellectual property by every South African photographer. But it has taken one man to wage and ultimately win it.