Integrity is important
WHAT SHOULD a photographer do when their work is used in a way that distorts its meaning or damages their reputation? Sue! This is in theory possible under UK law - see the Fees Guide advice on the so-called "moral right" to defend the "integrity" of your work. In the UK it's rare for a breach of these to result in more than a smallish uplift on a judgment for breach of the "economic rights" in a photo. Elsewhere, the moral rights have more teeth, This account by Polish photographer Rafał Wojczal illustrates how important this can be.
BACK ON 26 July 2017 the pro-government right-wing magazine Gazeta Polska used one of my photographs on its front page, with the caption "Refugees brought deadly diseases".
As I said to the newspaper Gazeta Wyborcza at the time: "The photos were taken on 26 February 2016 and they have nothing to do with diseases and immigrants who end up in Europe. This picture is from an internal camp near Mosul in Iraq: these people fled from hostilities several dozen kilometers from their home and ended up there. These are not stock photos, that can be used to illustrate any topic: these are press photos. The places and dates are clear. I object to them being used for such a photomontage as an illustration of a topic detached from the context."
So I went to court. Finally, on 4 November, I got a judgment.
And the court was really harsh on Gazeta Polska. The magazine has to do everything we requested. It must pay 20,000 zloty (about €5000) to a non-governmental organisation that takes care of refugees. It must print an apology for me and to a fellow photographer, a friend whose picture it also used - and it will have to print this on its front cover in a white box.
Of course 20,000 zloty is no problem for a magazine that gets a lot of money from our nationalist government - but the big white box with big black letters on the cover, explaining exactly for what they are apologising, is going to be a really humiliating defeat.
Judge Weronika Klawonn said some very important things about the rôle of reporters in war zones. I was really choked up with emotion hearing the judgment. Translating, part of it reads:
One picture is worth more than a thousand words.
This case, brought before the court by the photographers Mr. Rafał Wojczal and Mr. Wojciech Wilczyński against the publisher of Gazeta Polska and its editor-in-chief, concerned the distortion of the meaning of the images created by the plaintiffs. This meaning was drastically distorted by the collage on the cover of Gazeta Polska with the caption "Refugees brought deadly diseases".
The testimony by the plaintiffs of how they, as war reporters, gained the trust of people who they subsequently photographed was moving and, the court finds, reliable. For a person affected by the tragedy of war, to appear in a photograph is not an attractive proposition and is not a matter of a desire to gain fame or mere vanity. It is to expose your suffering and your humiliation in everyday life as a refugee and in the end it is a matter of helplessness. A reporter, in turn, takes on the difficult mission of showing the evil of this world, to touch the hearts of the richer and more influential parts of the world. In such circumstances, a photograph is not yet another more-or-less-successful image: it carries a significant dramatic message. It is accompanied by a special relationship between the creator, the person photographed and the work they create together.
The court is, therefore, particularly critical of the photomontage on the cover of Gazeta Polska. This was made not only in violation of the rules on licensing images, but above all in a way that constitutes an assault on the dramatic message of the photographs. These photos were supposed to evoke empathy towards people affected by war: they were instead used to scare Poles about refugees allegedly bringing diseases to Europe. The court was not convinced by the defendants' argument that the cover at issue was supposed to draw attention to the need to provide medical assistance to newcomers from the areas affected by the conflict. If that were the case, the caption could have been "Let's help the refugees". In contrast, hand, adding to the photograph the caption "The refugees brought deadly diseases" is, the court finds, aimed at arousing fear and repulsion towards emigrants.
This distortion of the message that accompanied the claimants' works undoubtedly constitutes a violation of their moral rights - the so-called "ties with the work" - and justifies ordering the defendants to take appropriate action to compensate for the harm caused. The court therefore orders the publication of statements containing an apology. The court orders the defendants to pay PLN 20,000 to Polish Humanitarian Action (PAH), which is known for helping refugees, in compensation.
The content of the apology shall be:
We apologise to Mr. Rafał Wojczal and Mr. Wojciech Wilczyński for violating their moral rights by the unlawful use of photographs taken in the internally-displaced people's camp at Al-Khazar in Iraq, and in Afghanistan, during the humanitarian aid operation. We apologise that on the cover of Gazeta Polska No. 30 of July 26, 2017 these were used in a photomontage with the caption "Refugees brought deadly diseases", in a way that completely distorts the meaning of the photographs. We regret that we have distorted the intentions of the authors who wanted to publicise the subject of humanitarian disasters and not to evoke xenophobic and racist feelings in the reader.
My lawyer, Tomasz Ejtminowicz, explains some more about what happened here on Facebook (in Polish).
Unfortunately Gazeta Polska has not learned anything. Its newest cover pages are very similar. One is closely related to "ours": it has the caption "They have brought plague and death" with an image of the leader of the women's rights protests with some celebrity and opposition politicians.
I am waiting for news of further lawsuits - if anyone else wants to risk their money and spend three years in court to hear the sentence, as I did. Or, indeed, perhaps longer than three years, if Gazeta Polska chooses to appeal. The apology has not yet appeared.