Call me a sucker for David v. Goliath cases, but I had to find out a bit more about what was happening with Hachette Filipacchi’s alleged breach of Michael Yon’s copyright when the French company published one of his photographs for its new magazine, Shock. It’s apparently dragged on, and Michael says it’s because of additional misbehaviour on the French publisher’s side—namely a republication of his image.
   As I outlined earlier, Michael took a photo in Iraq of a US soldier carrying the body of a child who had been murdered by terrorists. As a former green beret, he intended it to honour the work the US was doing in Iraq, but Shock used the image to show that Iraq was the US’s next Vietnam.
   While American copyright law doesn’t extend to a moral right, it does appear that Michael’s was violated, in addition to his actual copyright.
   Michael would have got some satisfaction in knowing that some North American newsstands voluntarily withdrew Shock. Some, though not Michael, are calling for boycotts, including a blogger called Elizabeth Taylor.
   So is it all over? Apparently not. Last week, the photograph appeared on a Hachette web site for five days. According to Michael, he gave no permission for that. Without reading the agreement, I believe him, because of a simple question: why would he?
   Hachette is sticking to its story, saying it has not violated any agreement, and that Michael has walked away from discussions. It has maintained that it licensed the photograph from Polaris Images, but Michael says he has never done any deals with Polaris. A statement on the Shock web site reads:

SHOCK Magazine has reached a settlement with Michael Yon’s lawyers regarding the use of his cover shot taken in Iraq. Yon is satisfied that there has been a misunderstanding and that SHOCK and its parent company, Hachette Filipacchi, acted in good faith in procuring rights from Polaris, a photo agency. They acknowledge that we have worked responsibly to find a solution, and, after discussions, we have agreed to pay Yon a licensing fee for the photograph and to make a contribution to Fisher House, a charitable organization dedicated to providing low-cost lodging to veterans and military families.

If that’s the case, why would Hachette Filipacchi presume that further usage on its web site, after the incident became so very public, was acceptable?
   Advertising Age, which has also been following the story, was unable to contact Polaris to get a comment.
   Innocent or not, Hachette’s most recent alleged moves fly in the face of several trends, which is why I feel it could be digging itself into a hole:
   • people are more aware of their own rights and copyright now, thanks to Flickr and Creative Commons;
   • people have become sick of old media that aren’t of any great quality, hence the decline in circulation of many titles;
   • there is a greater trend toward individual authors as being more relevant and authentic versus traditional media which may have corporate agenda;
   • individual consumers believe they have the power to suggest and carry out bans.
   As Michael tells it, it eventually took Hachette Filipacchi half an hour to remove his photograph from the Shock web site when he made enough of a legal threat. Prior ‘cautions’ for days resulted in no changes.
   Apparently, money is not Michael’s primary motive: he wishes for the ‘vast majority’ of proceeds from this dispute with Hachette Filipacchi to go to Fisher House. In fact, he has turned down numerous usage requests of the disputed photograph which he feels do not respect its sanctity; Michael says it is ‘sacred’ to him.
   Watch this space. This could escalate in the week ahead. Shock is damaged goods in America, from what the blogosphere reports. It’s gained itself a dose of very bad publicity. But if people like Elizabeth Taylor are still unhappy, will they target other Hachette Filipacchi publications? Will this be the next new media-versus-old media battle? Posted by Jack Yan, 03:55  permalink

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