Zavick & Ulric's washline fire burns brightly - South African Art Times

South African Art Times. December 08 - January 09 Page 3
Media24 back off from defamation
Staff writer
In another David and Goliath
court case, Media24 appear to
have bitten off more than they’d
like to chew when they attempted
to sue Cape Town photographer
and copyright fundi Geof Kirby for
defamation after he questioned the
legality of their freelance contracts.
But in a turnaround, rather than
breathing a sigh of relief at the
withdrawal, Kirby would like to haul
them back to court to face up to
their syndication activities, which
Kirby believes have been illegally
carried out with no recompense
to freelancers, for at least two
decades.
It seems Media24 unwittingly
sprung their own trap when,
following an email to colleagues
within a closed e-group expressing
this opinion, they served him with
a letter demanding a retraction
within 24 hours or face a R100
000 defamation suite.
But Kirby, incensed at the
contracts Media24 expected
freelancers to sign, as well as by
their “bullying tactics”, refused to
back down.
He said Media24 were using their
contracts to legitimise their foreign
syndication practices, which he
said he “believed” were illegal in
terms of existing legislation, which
includes the South African Copyright
law (1978) with amendments,
and the Berne Convention, to
which South Africa is a signatory.
On the cover of their contracts
Media24 state that their agreement
claim against photographer
is merely a restatement of the law
itself, something which Kirby said
is “disingenuous”.
“In fact it’s actually an attempt at
deceit, especially in light of Media24’s
past behaviour in trying to
enforce rights they didn’t have.”
In section six of their agreement
they state the freelancer has to
hand over all intellectual property
rights and their moral rights (i.e.
the right to be identified as the
author and not to have their work
mutilated in any way) to Media24.
Furthermore, the section indemnifies
Media24 from “any claim
made against it that the use of the
work infringes any copyright or
other Intellectual Property rights
held by a third party and against
any loss incurred by Media24
pursuant to such a claim”.
This effectively makes the
freelancer assume the responsibilities
of a publisher, said Kirby,
as should the publisher be sued
for publishing an image, the
freelancer would have to pay the
costs.
The main reason Media24 want
to grab all these rights, he said,
is so that they can syndicate the
work on their business-to-business
syndication arm, Images24,
without having to pay the author
of the work a cent. Their foreign
syndication, he says, goes back to
the ‘80s.
After refusing to retract, a summons
for defamation of character
- in Afrikaans, was delivered to
his door. He said he sent it back
politely asking for an English
translation.
Media24 responded by saying he
would suffer a default judgement
if he didn’t deal with it in seven
working days.
Kirby then found a lawyer and
started preparing his defence. He
said he has found three legal opinions
which argue that Media24’s
foreign syndication violated South
African copyright and the Berne
Convention.
And, he said, whether or not corporations
can sue for defamation
is an unanswered legal question
in this country. (The well-known
SAB vs. Laugh it Off case involved
infringement of trademark)
After two “false starts” in court,
Media24 withdrew the case
subject to both sides bearing their
own costs.
He said he does not know why
they withdrew, but suspects that
his requests for contracts pertaining
to photographers whose work
he knew had been syndicated
abroad indicated the background
knowledge he had, and put them
on the run.
However, Kirby has refused to
bear his own costs as he says
doing so would effectively penalize
him for a case which never went
through court, and has filed affidavits
compelling Media24 to meet
his costs on a taxed basis.
Responding to emailed questions,
Media24 communications head
Lutfia Vayej said: “Media24 has al-
ways acted in good faith to protect
its good name and reputation and
in the Geof Kirby matter Media24
acted within its rights. Media24
confirms that for operational
reasons and for good relations
with photographers generally, the
matter was withdrawn.”
In response to questions posed
over the validity of their contracts
in relation to South African
copyright law and the Berne
Convention, Vayej said copyright
was a “complex area of law” that
was subject to “a very high level of
specialization”.
“We therefore do not wish to
express a legal opinion without
taking specialized advice.”
The final settlement date of the
case is at this stage unknown.
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