A deal is only good if both parties adhere to the spirit as well as the letter of the terms. Within days of announcing that we’d reached a tentative settlement agreement with HFM, the French publishing conglomerate, for their unauthorized use of my photograph on the cover of their inaugural issue of SHOCK magazine, we learned of the first instance of HFM already violating the spirit of the proposed settlement. Now, on Friday of the same week that began with both parties announcing having come to potential agreement, and before final signatures could be affixed to the legal documents, it is clear that HFM has broken faith with the deal.
The manner in which this behemoth has conducted the negotiations raises questions about whether it ever intended to act honorably in the first place. It’s been a week of watching them bob and weave, spin the story to the media while obfuscating and stretching credulity in its dealings with me with claims such as it takes them two or more days to get an image taken off a website because “their IT department is in France.” As a result, I have ceased negotiations and am issuing a call to fellow writers, reporters, charter members of the blogosphere, and especially photographers who constantly suffer from unauthorized uses of their work, to help communicate our collective displeasure to HFM.
In the course of our now collapsed negotiations, several interesting facts emerged, chief among these is that early actions on the part of the blogosphere, in contacting officials, and particularly in contacting distributors and sellers, had a devastating impact on the launch of a magazine about which I previously stated: “the only thing shocking is its lameness, and the only thing it proves is how low a French mega-media publishing conglomerate, Hachette Filipacchi, will stoop in order to squeeze two bucks out of its sneering mockery of others.” The immediate and powerful actions of a relatively small group of bloggers and their dedicated readers, combined with our formal demand to the distributors to pull all copies of the magazine out of circulation, encouraged HFM to take this case of copyright infringement a lot more seriously than they had up until the blogosphere thunderstorm electrocuted SHOCK.
But once the pressure was off, they resorted to delay tactics, equivocation, and the same kind of thinly veiled threat that has characterized their style of doing business. This time, instead of threatening me with a defamation lawsuit, it was the specter of bad press about me flip-flopping that was raised.
They also used the image on their website and in other promotional media, such as posters and signs, despite the fact that the agreement did not cover these uses and despite the fact that I had clearly and unequivocally said no to any additional use of the image by HFM in a manner intended to promote a magazine I still consider beneath contempt. Their disregard for the terms of the deal reached such heights that a corporate spokesperson asserted in a published interview that HFM would put the image back on their website, prompting a reporter to characterize my actions in the settlement as “an about face.”
After they refused to remove the SHOCK magazine cover displaying my photo from their website, I DEMANDED they remove it. They countered with an offer to pay me $20,000 so they could use my photo to bolster the dismal sales. In a revealing exchange, HFM indicated that the $20,000 would have to be taken out of the amount they had already agreed to donate to Fisher House. I refused that proposal and repeated my demand again, only to be told it would take some time because their IT department is in France. This absurd assertion was made even though the image had already been removed once before, when HFM replaced it with a new cover, in a much publicized “gesture of good faith.”
While HFM today finally took down one instance of its use on their site on Thursday, others remain more than a full day later, and anyone who follows any of the links on their site to purchase the magazine in digital form will find the image prominently displayed.
The final blow to the deal was when HFM inserted language into the first proposed settlement agreement that would effectively release them from an additional, separate copyright infringement claim resulting from an earlier unauthorized use of the iconic imaged in the French magazine, Choc, a different publication with its own distinct editorial staff and a circulation of about 350,000 copies. From our perspective, Choc was never part of our negotiations to resolve the dispute over SHOCK magazine. After more than two weeks of these tactics, I have to conclude that it would be crazy to continue negotiating a deal with a company that has already violated the spirit of our discussions.
I have now repeated my demand to HFM that the magazine be pulled off the shelf.
We are also demanding that any website that depicts that magazine with my photo without my express written permission pull down the image immediately.
From the tone and tenor of their actions, reasonable people can intimate the disdain with which HFM views the blogosphere. The pages of the magazine evince the contempt this conglomerate has for American readers, and I believe many people will stand with me in protesting this way of doing business.
For more information on standing with me click here.
* Polaris is a separate issue and will be addressed later.