R2.1bn copyright claim over Madiba image

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The R2.1 billion smile: The image at the centre of the storm was taken in 1999. Photo: Shaun Harris/afrikamoves.co.za
The R2.1 billion smile: The image at the centre of the storm was taken in 1999. Photo: Shaun Harris/afrikamoves.co.za

What is believed to be the largest copyright infringement claim involving a South African artwork – R2.1 billion for a photograph of former president Nelson Mandela – is again before the high court in Pretoria and heading for a costly showdown with the state.

The three-year-old case involves photographer Shaun Harris’ claims that his image of the statesman was used – criminally and without the correct copyright clearance from his then agents PictureNet – by the Government Communication Information System (GCIS).

GCIS, say the court papers, chose the image as the official photograph to be used at Mandela’s funeral, for which they bought some rights, but then also sent it out into the world for official use after removing Harris and PictureNet’s credits.

GCIS acting director-general Phumla Williams denies the image was used unlawfully.

“This case has gone to and fro and he has changed lawyers several times. We asked Harris repeatedly to prove his claims, which he never could,” she said.

In 2014, Harris made news when he sued GCIS for R20 million for the use the picture.

But what is now driving the case forward is a new preliminary forensic report PictureNet commissioned on the photo’s use.

The 62-page forensic analysis and its 165-odd pages of annexes paint a damning picture of GCIS’ use of the image, racking up at least 2.1 million uses around the world, each penalised at R10 000 per infringement which amounts to the R2.1 billion claim. Although the amount is astronomical, copyright experts told City Press that in the US, for example, such infringements each receive a $150 000 (R1.7 million) penalty.

The report, which City Press has seen and surveyed, was sent to GCIS, but Williams said she hadn’t seen it and couldn’t comment in detail. “If there is now proof, then we will take it from there,” she said.

Photoshop tricks ...

According to the court papers, GCIS licensed Harris’ photo for use twice. The first time was in 2006 for a single use in a book on Mandela.

The forensic report states the photo was apparently not removed from the GCIS system.

Using the back end metadata on Adobe Photoshop, the report tracks how, from February 12 2010 at 5.32pm, the photo was scanned by GCIS who allegedly removed the photographer’s name, the agent’s name and the caption provided from the description field in the metadata.

The photo was taken when Mandela met then UK prime minister Tony Blair in January 1999.

This action of removing the credits, says PictureNet’s lawyers, was “premeditated and reprehensible” and in flagrant disregard for the Copyright Act.

The report names nine GCIS staff members, including Williams, who could be held criminally liable for copyright theft.

It also investigates 15 other parties who have licensed the image to prove none of them used it unlawfully.

When Madiba died

As Mandela’s health declined, his family approached GCIS in 2012 about formal preparations for his passing.

They wanted to sign off on an photograph for the funeral, which is when Harris’ photograph was shown to them and selected as the official portrait.

Despite this meaning a more widespread usage, GCIS did not, says PictureNet, try to take out a new licence agreement or even inform Harris or PictureNet of the planned usage.

In fact, says the report, GCIS even entered into a contract with Shereno Printers in June 2013 about printing the image across a wide range of memorial merchandise.

Then Madiba died and it was up to the GCIS to send out the announcement to other government departments.

A copy of an email containing the photograph, which is annexed to the forensic report, was sent at 3.11am on the morning of December 6 2013 to more than 340 government email addresses by GCIS’ deputy director of electronic information resources Sanita Groenewald.

“Dear colleagues,” it starts, “You should have heard by now that former President Nelson Mandela passed away last night.” It shares details of a website for dedications and news on funeral arrangements and concludes: “I attach a photo you can use.” The photo is Harris’ and contains no credits.

It was also, says the report, sent to every South African embassy, consulate and mission in the world with the same words: “I attach a photo you can use.” It would go on to be used in advertisements, banners, pamphlets, magazines and brochures, across electronic and print media globally, on billboards and T-shirts.

It was also used on Mandela’s funeral and memorial programmes, banners and posters.

This is when GCIS took a second, limited licence for the photograph. It did not, says PictureNet, inform it of the widespread other uses of the image for which it had not bought a licence.

Devastated in QwaQwa

“This whole mess almost destroyed my life,” Harris told City Press this week from a village without electricity in QwaQwa, Free State, where he helps an education NGO.

He desperately approached GCIS and other departments, including the Presidency, trade and industry, and the Companies and Intellectual Property Commission. No one, he says, wanted to listen and most told him to prove the image was his.

He had the negatives but that didn’t help. He wrote to 24 law firms asking for help, but only one took the case but dropped it after a year because it did work for the government. Harris denies Williams’ claims that he changed lawyers more than once or that he failed to offer proof of his case to GCIS.

He says state bodies tried to drag the matter out so that his three-year period to seek justice would run out.

He spent hours on the pavement outside GCIS’s Pretoria headquarters, desperately phoning GCIS bosses who refused to meet him after a few initial meetings.

The Jamaican-born South African citizen first visited the country in 1994 to cover the elections and returned to live here in 1995. His work dried up after he began his court challenge against the state; his wife also left him.

“The stress was getting to me and I needed to stop and figure how to move forward,” he said. He ended up in QwaQwa.

“I’m trying to bring my life back together, trying to get back to Joburg to find work.”

By allegedly removing his credits from the photo, GCIS created what is called an “orphan work” that will continue to be used globally without the photographer being credited and paid.

“To be honest, I put my camera down. Copyright is what enables a photographer to make a living from taking photographs. What is the use of taking pictures if they steal your copyright and you can’t live?”

That Madiba smile

Harris said he took the photograph after arriving early at the Mahlamba Ndlopfu presidential residence.

“I parked the car and walked up to the residence and the president was standing outside. He greeted and I asked if I could take a photograph. He said I could. He took two steps to the left and gave a big smile, direct to camera. I took three or four shots.

“Mandela said: ‘I am waiting for the British Prime Minister Tony Blair.’ I said that was why I was here and I went around the house to where the press conference was to be held.

“When I got home I first scanned the photos of Blair and Mandela together, because that’s what the demand was for. Two days later I scanned in the portraits.”

Asked why he thinks the family chose his image, he said: “If you look at it compared with the many other portraits of Mandela, in this one he looks particularly calm, at ease, happy. He gave me a full-face shot, not a studio shot or set up in his home. It’s warm. Sunny.”

Harris insists he never wanted the case to end up in court and he has often tried to mediate a settlement, but GCIS, despite admitting several times that it might have erred, never came to the table.

“I would’ve received belated celeb status as the photographer who took the image that was used for the Mandela funeral. The official image,” he said. “This prestige would be sold on by my agents and propel me into a higher-market bracket. Instead, it has caused hell in my life for years.”

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