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June 2, 2006
A major new magazine has been launched in the US and Canada by one of the world’s largest magazine publishing empires. HFM is a French company that also publishes such well-known periodicals as American Photo, Boating, Car and Driver, Cycle World, ELLE, ELLE Decor, ELLEgirl, Flying, For Me, Home, Metropolitan Home, Popular Photography & Imaging, Premiere, Road & Track, Road & Track Road Gear, Road & Track Speed, Sound & Vision, Woman’s Day and Woman’s Day Special Interest Publications. Their latest magazine is called SHOCK. In the widely distributed press release announcing its upcoming debut, Mike Hammer, editor-in-chief, coined it as “the Life Magazine for the new millennium.”
The people behind this magazine know well the draw of powerful images; they are banking on that power. Hammer has been quoted in numerous publications and websites saying:
“Shock elicits a strong emotional response from consumers when they see these photos and read the stories behind them. Shock is filling a void for today’s consumer whose visual appetite has grown but has not been effectively served by other media properties. Shock provides a dazzling visual feast with attitude.”
They are certainly filling voids with a lot of something, but there is little dazzling about how SHOCK used one of my most important photographs, without my knowledge or consent, as the centerpiece of the first course of that “visual feast with attitude.” The most prominent image on the cover is my photograph of Major Mark Bieger cradling a young Iraqi girl Farah, who was mortally wounded in an insurgent car bomb attack that brutally targeted a group of children who had run out to greet the soldiers on patrol. But smeared across the photograph was the sensational headline claiming:
WAR IS STILL HELL! Jarring Proof that Iraq is the new Vietnam.
The actual article connected to the cover is nothing more than a re-issuing of photographs from both wars, paired in sets that are supposed to “prove” how alike these conflicts are, and using my work might insinuate that this is my opinion.
The circumstances captured in that image, including the key fact that I had taken the photograph, were easily ascertainable. In fact, I don’t know how any professional photo agency or magazine could reasonably claim to not know that it was my photograph, that it was taken immediately after an insurgent car bomber attacked the children, and that I had just emerged from a protracted dispute with the Army in order to protect the copyright. The reason I assert that the team behind SHOCK knew all this and still acted with clear intent is found on the inside cover of the issue.
There, along with the Table of Contents, is a photograph of me, holding a framed copy of the photograph in question. That photograph was taken to accompany an article by Mitch Stacey for the Associated Press. The caption reads:
Picture This: Amateur photographer Michael Yon captured history when he snagged our cover shot while reporting on the war for his blog. Could you be our next cover photographer? Send pics!
And with that caption, no wonder some readers were angry with me. SHOCK implies that I supplied the photo and that I am somehow affiliated with that magazine. But HFM clearly did know that I was the photographer. When confronted, they claimed to have gotten the photo “legally” from a photo agency, Polaris Images, but I have no relationship with Polaris Images and never authorized them to distribute my work.
When we confronted Polaris Images, they at first claimed they might have been given permission to sell the photograph by the wife of the soldier pictured in it. But the Major’s wife has a habit of saving emails that put an end to that nonsense. In the end, it doesn’t really matter outside of the courtroom who learned about it and when they were so enlightened, because once they did learn, the clock started ticking on their obligation to rectify the situation.
That’s why when I learned of this blatant infringement of my copyright on that photograph, I issued an immediate statement clarifying that I had not given anyone authorization for this use, and never would have allowed an image which I’ve called “sacred to me” to be used in a flagrant attempt to profit from discrediting and demonizing American soldiers. What outraged me the most is how the timing of this launch coincided with the Memorial Day weekend, putting 300,000 copies of a slick attack on the very same soldiers Americans were honoring across the country. I am so disgusted with what they did with that image, which to me symbolizes the true nature of our military, that I demanded the publisher take it off the shelves.
HFM not only refused, they intimated in writing that they may have a claim against me for defamation based on the complaints they received from third parties about their unauthorized use of my photo. My attorney, John Mason, began taking the necessary legal steps in this fight, and for the first few days of the dispute, I remained silent apart from the one statement published on my website, out of respect for the process of law.
But my good faith was met with alternating doses of painfully lame excuses and a failure to reasonably negotiate. Armchair lawyers and media critics have entered the fray, and everyone seems to have a wry angle on the truth. But this dispute is about more than the law. It’s about more than money. And the time has come for me to speak out directly on what has transpired.
Like most illegal usages, this only came to my attention after readers found it. Once I began trying to clear my name, several bloggers wrote about it and published contact information to the publisher, who began getting a flood of complaints. That’s when the publisher turned around and threatened me, in writing, with a defamation lawsuit. That’s no misprint: they took my property, used it a vulgar way, further dishonored our military and our country by timing their inaugural launch to Memorial Day weekend, and then, when some patriotic bloggers dared to call them to complain about it, they threatened me. People who go into business deliberately seeking to offend and insult others should probably get used to complaints.
Granted, there is usually something shocking in most instances of bad taste, and in that sense the new magazine SHOCK is well titled. How else to describe a publication that promises its readers glimpses of rectal exams and decaying corpses? If SHOCK stuck to the gross-out material, it’s doubtful it would ever garner mention outside of a small circle of media watch groups and twelve-year-old boys. But if the publication really is about pushing the visual image envelope, why then launch with a politically charged cover story that alleges “shocking proof” of similarities between the wars in Vietnam and Iraq but inside only pairs sets of photos from each war that are somewhat related in content or composition? The only thing shocking is its lameness, and the only thing it proves is how low a French mega-media publishing conglomerate, Hachette Filipacchi Media, will stoop in order to squeeze two bucks out of its sneering mockery of others.
Mike Hammer, SHOCK’s editor-in-chief, was on CNN the other day, relishing his role as “a thing of lowbrow beauty,” as he bragged to correspondent Jeanie Moos that “We find images that most magazines shy away from.” Oh really? Then why launch with a cover photograph that ran on the front page of more than 50 US newspapers, was the Time Magazine online Viewer’s Choice Photo of the Year image, was selected by MSNBC for its 2005 Year in Photographs feature and that was submitted for a Pulitzer?
The answer is probably found in the shockingly few advertisements adorning its pages.
When the Wall Street Journal reported on the impending launch of SHOCK, their analysis centered on viability. New magazines, like new restaurants, are among the riskiest business ventures, and according to Wall Street Journal, SHOCK is at greater risk than most:
“The Outlook: Gross-out photos aren’t for everyone, so the magazine includes a few snaps of celebrities, including one of Jessica Simpson making an obscene gesture. The magazine should attract some of the same readers as lad mags Maxim and FHM, but it will likely have limited appeal to advertisers.”
Turns out that was spot on, as Daryl Lang noted in his article “Gross-Out Magazine Shock Comes To The U.S” For PDNONLINE:
“This issue has just five advertisements, for JVC, Bowflex, Girls Gone Wild, a cell phone service and a film school.”
SHOCK’s future depends on counter sales. I hope the number of people who will pay about two bucks for the “opportunity” to look at a two-page close-up of a pile of bloody chicken heads is not enough to support a magazine with a print run of 300,000 copies. Especially when there is a surplus of television programs (think MTV’s Jackass) and “gotcha” websites (like rotten.com) that supply more than enough sophomoric schadenfraude for even the most jaded middle-schooler. And they are all free.
The magazine can’t succeed unless the publisher gets it on a lot of store shelves and it somehow stands out and apart from all the other covers vying for the consumers’ attentions.
Not with my photo, they won’t.
My attorney is contacting all of the companies listed as distributors for SHOCK informing them of our intent to pursue anyone who has a part in this sleazy backhanded exploitation of a true American hero.
As this fight proceeds, it is important to explain why I have decided to file suit against HFM, Polaris Images, and anyone else who profits from the unauthorized distribution. It is also important to note that I have never sued anyone in my life. We tried to negotiate a settlement, but I insist that taking the magazines off the shelves has to be part of any agreement. They have refused. There has been a lot of spinning and bobbing and weaving, like this morning, when Samantha Melamed reported in MediaLife:
Shock has already yanked the image from its web site, where it had been posted as part of the cover montage and slugged “War Is Still Hell! Jarring proof that Iraq is the new Vietnam.”
Hachette senior vice president for corporate communications Anne Janas says that the company had pulled the photo from the site as “a show of good faith,” swapping out the controversial cover with an alternate cover that had been prepared prior to the launch.
What Janas didn’t say was that at the same time they were showing that “good faith” on the website, they were also plastering Los Angeles with posters of the magazine with the original cover intact.
This was a major magazine launch with a print run of 300,000. The editor was recently on CNN’s Paula Zahn getting free press. My only concern with making this bigger is in giving them free publicity. But HFM is already getting plenty of press and they refuse to come to a reasonable settlement in connection with their unauthorized use. I will not back down.
I can’t stop SHOCK, but the people who shop in the retail outlets that will profit from SHOCK and who subscribe to magazines published by HFM can impact HFM’s future business decisions. Similarly, those companies who use Polaris Images should be wary.
HFM is in the media mega-heavyweight class, and they have dishonored our veterans and our nation, and they did so on Memorial Day weekend. Despite the deception tactics and the outright threats, they will not quiet me. Some of these same distributors have pulled magazines from their shelves that contained cartoons that mocked Muslims and incited riots around the world. Some have pulled magazines from their shelves that displayed salacious images on the cover promoting values the stores were not comfortable sharing. It will be interesting to see how many pull this magazine from their shelves on the principles at stake in this case. I’m betting that retailers will be more sensitive to opinions of their customers, and I’m betting that most Americans would agree that this latest French swipe at our soldiers is one slap too many.
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