News Archive

Photojournalist Larry Davis Dies In Seattle

By Donald R. Winslow

Former Los Angeles Times photojournalist Larry Davis, 61, died Thursday near Lake Washington in Seattle. His death was confirmed tonight by Los Angeles Times assistant managing editor for photography Colin Crawford, and by Davis’s long-time friend and former coworker Hyungwon Kang, a senior staff photographer for Reuters News Pictures who is now based in Washington, DC.

Larry Davis, photo by Tom StoryDavis took his own life Thursday afternoon soon after friends in Seattle, as well as many from around the country, became concerned for his welfare when they received an eMail from Davis that was titled “Good bye.” Friends in Seattle who got the eMail tried to call him and then went to check on him, Kang said. When friends could not find Davis they realized that he might be at a boat dock on the lake where Davis spread his late wife’s cremated ashes on the water two years ago this week.

Kang said the friends went to the dock and found Davis alive, “But he was locked inside his van and would not be talked out of his plans.” Kang said the friends told him tonight that “Larry was clear and determined and asked us to leave. When he saw that we wouldn’t leave, he ‘bolted’ in the van (drove away quickly).” The friends called 911. “By the time they and the police caught up with him, it was ‘too late,’ he was dead,” Kang said. Davis apparently circled around the parking lot and back close to the edge of the lake before killing himself.

Tonight the friends told Kang, “We were there to tell Larry that he was loved, but Larry was very clear in his wishes and in his course of action.” Kang, who knew Davis very well over the years, said, “Larry has always been a very focused guy. Once he says something, he does it. His eMail was titled ‘Good bye.’ He said, ‘This is my final note to all my friends.’ I couldn’t read it at first. It was shocking. But then I read it through, and that’s when I called Larry’s sister-in-law (in Seattle, Lori Benner). She said police had located him and were going to talk with him. Then I didn’t hear back from her and I was worried. Then I called Bob Chamberlin (at the Times’s picture desk), and he told me he'd just talked to her, and that she'd just learned that Larry killed himself.”

Davis’s wife, Bertha Jo Hagfors ("B.J."), died two years ago this week from cancer, Kang said, and the photographer was heartbroken. Davis left the Los Angles Times in 1995 when a buyout package was offered to senior staff members. Kang said Davis and his wife decided to take the buyout, pack up, and leave town. “He bought a Ford Explorer,” Kang said, “and it was the first private car that he’d bought. He’d always had company cars until then. They loaded it with everything they owned and went to Seattle, and when they left town he was so happy then. He was freelancing for The New York Times and some others, and they had family in the area.”

Kang stayed in touch with Davis because they were good friends. “He interviewed me for my internship at the Los Angeles Times in 1986, and he became my mentor and then my good buddy,” Kang said tonight. “The Times had several darkrooms that photographers had to share, and he was a generous person, the kind of person who would share his darkroom with an intern. He was a gifted photojournalist. I’m going to miss him. He was a wonderful human being.”

Davis saved Kang’s life several times on the worst night of the Los Angeles riots in South Central, Kang remembers. “Larry volunteered to drive me while I shot photos of the riots. People with baseball bats and weapons chased me down several times that night while I was shooting. I’d jump in the car and we’d take off, and then go shoot again. Larry saved me.”

Seattle's Dr. Hugh M. Foy, MD, a trauma surgeon for nearly three decades, was one of Davis's newest friends in Seattle. He was on the scene Thursday near the lake moments after Davis took his own life. Foy is an associate professor at the University of Washington School of Medicine, and he also received Davis's "Good bye" eMail on Thursday. Responding to the group of other people on the eMail's address list Thursday night, Foy wrote (used with Foy's permission), "I am sorry for all of you today, as I think most of you knew Larry better than I. But for our short friendship I feel honored that he included me in his obvious last eMail. He helped me with my computer, sent me political blogs. We shared dreams of the return of compassionate democracy. He was my "IT" (information technology) guy and did it well. What an ultimate irony of modern life that he 'penned' his suicide note via eMail.

"I was the first on the scene arriving just before the police and medics," Foy wrote to Davis's friends. "I told the assembled dozen or so police and medics that he was a great man, a Pulitzer-winning photographer, and a great guy who had lost his wife after a long battle with cancer. They were respectful and grateful for my sharing a few remarks of his character." And Foy attempted to comfort Davis's friends in his note with a doctor's insight: "I have been a trauma surgeon most of the last 28 years ... I can assure you that he felt no physical pain as he died ... You are all fortunate to have known him as well as you did. I am grateful for his friendship."

Photojournalist Tom Story in Phoenix, AZ, also got Davis's "Good bye" eMail on Thursday afternoon. He remembers the photographer as one of his best friends, going back to their college days together at Arizona State University and Con Keyes's photojournalism class. "I met Larry back when we were in Con's class in the mid-1970s with Bill Frakes, Andy Hayt, and John McDonough (who all went on to shoot for Sports Illustrated). Con left ASU to become director of photography at the Los Angeles Times when Jim Dooley went to Newsday," Story remembers, "and Larry started freelancing for the Los Angeles Times." Davis had already left a job in the clothing business to shoot for the Mesa Tribune and the Tempe Daily News. "Con told him, 'Come on over and we'll see what we can do,' and Larry quit and moved to L.A. and freelanced, and then he joined the staff."

Story said that when Davis moved to Seattle his major shooting client was The New York Times. "But when the contract flap came up for freelancers, he told me, 'I can't do this,' and he refused to sign the new contract and he stopped getting assignments from The New York Times." Story said that by this time Davis had established a new computer technology business for himself, and that it was a source of income. Davis confided in his friend that it was just as well that he wasn't shooting at the time. "He was having health problems, and B.J. was fighting her long battle with cancer."

Story remembers being in San Francisco the night of the October 1989 Loma Prieta earthquake, and he was shooting a collapsed and burning building in the Marina District when he heard a familiar voice shout out from behind him, "Is this the Kodak designated picture spot?" Story said Davis had been on the first plane into San Francisco after the quake and was already in the middle of town and shooting that night, just hours after the disaster. "He told me what he'd already seen and shot, and where the good stuff was to go cover, and he filled me in on what he already knew. He was one of my dearest friends," Story told News Photographer.

Photographs from Los Angeles riots by Davis, Kang, and fellow staff photographer Kirk D. McCoy were the main images in the Los Angeles Times’s Pulitzer entry that year for spot news. It won the 1993 Pulitzer Prize for Spot News team coverage. (At the time, many thought the dramatic pictures should have been entered separately in the news picture category, instead of part of the overall coverage.) “On the day of the Pulitzer announcement, Larry told me, ‘Great job!’ and he never lost his composure taking in the news,” Kang told News Photographer tonight.

Tonight Crawford said that Davis had been one of the Times’s “heavy hitters.” “He covered the Pope for us, the riots, the first Gulf War from Israel, and he traveled a lot for us.” Davis was also well known for his world travels and coverage of conflicts in the Middle East and Central America.

Kang left the Los Angeles Times in 1997, two years after Davis, and went to work for the Associated Press in Washington before joining Reuters News Pictures. “Photojournalism has lost a great guy, a truly dedicated photojournalist,” Kang said tonight. In addition to photography, Davis was a great Apple Macintosh computer aficionado. “The last time we talked we had this great conversation about Macintosh. He knew Macintosh inside and out. Whenever I needed to know anything about my computer, I called him. I don’t know who I’m going to call anymore.”

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Nikon's Michael "Mike" Phillips, 60

SAN FRANCISCO, CA - Michael "Mike" Phillips, 60, of Nikon Professional Services, died suddenly on January 9, 2006, in San Francisco. He was found at his home by a coworker who went to check on him after he failed to appear for work at a Nikon display booth at the Apple MacWorld Conference at the Moscone Center, the San Francisco Bay Area Press Photographers Association president told its members today. Phillips was active in SFBAPPA events and was one of the association's frequent speakers at seminars and workshops, as well as a long-time supporter.

A San Francisco native, Phillips spent his entire professional career at Nikon, joining them in 1970 after college at San Jose State University and the University of California at Davis, according to the family-provided obituary in the San Francisco Chronicle. Phillips worked for Nikon Professional Services (NPS) as a technical advisor and as a liaison between NPS and professional photographers. He was also a photographer, attended many major news events with NPS to assist working professionals on assignment, as well as shooting his own photographs at Olympic Games, World Series, Super Bowls, Kentucky Derbies, space launches, and other big events.

Phillips is survived by his mother, Marie Phillips Japs, of Davis; his sister, Suzanne Finigan of San Francisco; his brother, Kirk, and a nephew, Collin, both of Northern California. There are no funeral services planned at this time, but Paul Sakuma of the SFBAPPA reports that plans for a wake are pending.

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Dai Baker, Travis Fox, Top WHNPA TV Winners

WASHINGTON, DC – The White House News Photographers Association has announced that ITN photographer Dai Baker has been named “Photographer of the Year” for 2006 in the “Eyes of History” video contest, and NPPA member Travis Fox of washingtonpost.com was awarded video “Editor of the Year.” Judging of the WHNPA still photography contest will be held in Washington later this month.

WHNPA said Baker, who has worked for ITN for 12 years, also won “Photographer of the Year” in 2005, giving him back-to-back wins. Baker’s work for 2006 included several pieces on Hurricane Katrina. “I am especially proud of the fact that people assumed I had a lot of time to film these pieces, but in fact we only ever have one or two days at the most,” said Baker. WHNPA video judge Tim Wall of CNN in Atlanta said, “There was nothing but excellence in every aspect of his work.” Ali Ghanbari, a WHNPA judge from WJW-TV in Cleveland, said, “Baker has a great eye, from framing to punctuation to working with his reporter.”

The WHNPA “Editor of the Year” is Travis Fox of washingtonpost.com. This is Fox’s third title. He won “Editor of the Year” in 2002 and 2003 and “Photographer of the Year” in 2002. “As journalists, we hope to make a connection between our readers and the people on whom we report,” Fox said. “These awards will hopefully bring more attention to the people and issues I tried to illustrate last year, whether it is an authoritarian regime in Azerbaijan or the victims of Hurricane Katrina.”

A list of all TV winners in each category is posted here.

“The work produced by our members is a remarkable visual record of the past year,” said WHNPA president Susan Walsh of the Associated Press. “Baker and Fox should be very proud of their accomplishments. Our talented members cover every aspect of our world, from local to national to international stories. Our members are the best of the best.”

Judges for the video photography contest were Elaine Fisher of WTXF-TV in Philadelphia, PA; Ghanbari of WJW-TV in Cleveland, OH; and Wall of CNN in Atlanta, GA. Judges for the video editing contest were Jeff Chase of CNN; Merry Murray of KSNW-TV in Wichita, KS; and Jeramy Rosenberg of KMGH-TV in Denver, CO.

The top winners of the still and television contests will be honored at the annual “Eyes of History” Gala on May 6, 2006, at the Ritz-Carlton Hotel in Washington. The black-tie event celebrates all the winning photojournalists and nearly 1,000 guests, including the President of the United States, government dignitaries, and industry celebrities, will attend.

The WHNPA still photography contest will be judged January 28-29, 2006, at the Corcoran Gallery of Art and Design. Judging is open to the public WHNPA encourages students, professionals, and anyone interested in photography to attend.

The WHNPA and "The Eyes of History" are sponsored in part by Nikon Spirit Initiative, Tiffen/Domke, and the Corcoran Gallery of Art and Design.

For more information about "The Eyes of History" and to view the winning images and videos, visit the WHNPA Web site at www.whnpa.org.

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ASMP Announces Spring 2006 Grant Winners

PHILADELPHIA, PA - Eugene Mopsik, executive director of the American Society of Media Photographers (ASMP), announced that five ASMP Foundation grants for Spring 2006 have been given to non-profit groups who strive to educate photographers, and that applications for 2006 grants are being accepted until May 15 and November 15.

The five Spring 2006 grant recipients are:

AINA Photo, a Paris-based branch of AINA, Afghanistan's Media and Cultural Center (www.ainaworld.org). AINA Photo trains Afghan men and women in photojournalism. Its goal is to build local talent and foster free expression in a country where even the possession of photographs was once forbidden by the Taliban. The agency was given a grant of $1,500 for its "Afghanistan through Afghan eyes" program to help support photojournalism students.

The Society for Photographic Education (www.spenational.org) was awarded $1,500 to help support student portfolio reviews at the 43rd Annual SPE National Conference to be held in March 2006 in Chicago, IL.

The Santa Fe Center for Photography (www.sfcp.org) offers symposia that educate photographers in key aspects of the business side of fine-art photography: marketing and promotion, book publication, and working with collectors and curators. SFCP has been granted $1,500 to help support the symposium titled "The Creative Edge: The Business of Being an Artist," to be held January 21 in Santa Monica, CA.

FotoFest, an photographic arts and education organization (www.fotofest.org) based in Houston, TX, is the creator of the international Biennial of Photography and Photo-related Art as a showcase for important new photographic talent. FototFest was awarded $1,500 to help support speaker expenses at a workshop called "Making the Most of Digital Technologies" which will be presented at the 11th Biennial of Photography and Photo-related Art, to be held in Houston in March and April of 2006.

The Central Florida Chapter of ASMP (www.asmpcentralflorida.org) has received $350 to help support a student seminar series to be presented over the coming four months. Led by Amanda Sosa Stone, a creative consultant and artist representative, the series will provide instruction on assisting, corporate and editorial photography, and business practices in photography.

 

The ASMP Foundation supports the education of ASMP members and the creative photographic community to which they belong, encouraging the professional and artistic growth of photographers. Grants are awarded twice each year. ASMP says the number of grants and specific amounts given depend on available funds and the needs and merits of applicant programs. The remaining application deadlines for 2006 are May 15 and November 15. Application information and forms are available online at www.asmp.org/foundation.

ASMP Foundation board members include Mary Virginia Swanson, a photography consultant; Kenny Irby, coordinator of the Visual Journalism programs for the Poynter Institute for Media Studies; Ben Colman, a commercial photographer and ASMP board member; John Giammatteo, a commercial photographer and ASMP board member; and photojournalist Dan Lamont, chairman of the Foundation board and an ASMP board member.

For more information contact Mopsik at [email protected].

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Entry Deadline For Payne Journalism Ethics Awards

The deadline to nominate an individual or an organization for the Payne Awards for Ethics in Journalism is February 24, 2006. The program is in its seventh year of honoring the highest ethical standards of print, broadcast, and new media journalism, and is adminstered by the University of Oregon School of Journalism and Communication.

The awards for ethical decisions made in 2005 will be awarded to individuals - including students and professionals - and organizations from among the nominations received before the February deadline. There is a $1,000 USD prize for individual and student awards, and nominations will be accepted from peers or from the individuals or the organizations involved. Information about the simple nomination form is online at http://payneawards.uoregon.edu.

Last year's winners include The Denver Post, for adhering to an established privacy policy by not naming an alleged rape victim even though competing Denver media named the woman; Kevin Sites, for "responding thoughtfully, including use of his Web Blog, when his war footage generated negative reaction"; and a special citation to Jon Leiberman for "speaking out when he disagreed with his employer, even at the risk of being fired." (Leiberman, formerly Sinclair Broadcasting's Washington DC bureau chief, was fired after publicly protesting his employer's decision to air programming critical of Democratic presidential candidate John Kerry just days before the 2004 election.)

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Contracts Of Adhesion: Photographers Beware

By Mickey H. Osterreicher, Esq.

(Author’s note: I write the following as a cautionary tale for those of you who may be faced with a similar situation, so that you are aware of what exactly you are being asked to sign. While working as a freelancer, I signed many such agreements. Now that I’m also a lawyer, I see these contracts through different eyes.)

BUFFALO, NY– In the “footage agreement” that a popular television network requires freelancers to sign, the first paragraph states that the photographer agrees “to coordinate with the assignment desk concerning each assignment, including, without limitation, reaching agreement with regard to the fee for such assignment.” This in itself seems very standard, except for the fact that this “agreement” is a contract that like all contracts requires “offer, consideration, and acceptance.” In this case the “consideration” on the photographer’s side is that s/he will do work and the network’s consideration is that it will pay her/him.

The “offer” comes in the form of negotiating the photographer’s hours and duties and in coming to a mutually agreeable fee. This “agreement” sets forth in its recitations that “in consideration of the mutual promises and covenants contained in this Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, and of the mutual promises and covenants contained herein, the parties hereto agree … .” The issue here is that the network claims to have offered “good and valuable consideration” for accepting the agreement’s terms but it is clear that one must still negotiate the actual “consideration” (which may not be so good or valuable) with the assignment desk, while the rest of the terms of the agreement are already agreed upon.

Those terms go on to state that “the photographer shall supply all of the necessary tools, equipment, and supplies commonly used in the industry to perform the services described in this Agreement.” After enumerating things like cameras, lights, and vehicles, it goes on to say that the photographer shall provide his/her own transportation and that s/he “assumes and bears the sole and exclusive responsibility for any loss or damage to said equipment or any other claim arising in connection with the equipment and for insuring the equipment against all such loss, damage, and claims.” It also states that the photographer shall have insurance on the vehicle that s/he uses and “acknowledges and agrees that the network has no liability in connection with any loss, damage, or claim arising with respect to the equipment.”

In the next section the agreement deals with the “ownership” of the “footage.” With some convoluted language, the agreement states that the footage “shall be deemed a work made for hire” and shall be the network’s “sole and exclusive property in perpetuity” and “throughout the universe” and that it may do anything with the footage that it wants. Should the footage not be deemed a work made for hire, the photographer relinquishes any and all rights to it regardless of its classification.

Just to make sure there isn’t a loophole the network hasn’t thought of, the agreement also states that the photographer grants the network an irrevocable power of attorney, which means that it can draft some other language on the photographer’s behalf modifying the agreement without him/her having to sign it. Rest assured that such new language will only benefit the network!

There is additional language that states that the photographer will “indemnify and hold harmless” the network, its affiliates, licensees, assignees, and affiliated companies and their respective officers, directors, employees, and agents against and from any and all claims, damages, liabilities, costs, and expenses, including reasonable counsel fees arising out of any breach or alleged breach of the provisions of the agreement. In clear terms this means that the photographer will be liable for everything and to everyone and for insuring the network and protecting it.

The agreement gets worse from there, stating that the network or anyone or entity associated with the network in any way is not responsible for anything that happens to the photographer, his/her equipment, employees, vehicle, etc. Even should the network be found liable for something, the photographer further agrees that s/he shall not be entitled to any relief other than for actual damages.

Finally, the agreement states that it shall be construed in accordance with the laws of the State of [omitted]. This clause is known as a “forum coveniens” and means that should a dispute arise, the matter would be heard in a court in the home state of the network for its convenience.

This onerous agreement is known legally as a contract of adhesion. In other words, it is a standardized form contract offered on a “take it or leave it” basis, without affording any realistic chance to bargain and under such conditions that a freelancer cannot obtain work except by acquiescing to its terms. Whereas the concept of “contract” usually involves a traditional form of bargaining, this unconscionable contract is one which no honest or fair person would make and no sensible person would accept.

This brings us to the concept of “acceptance.” It would be a much better work environment if those that employed freelancers did not require such agreements, but unfortunately in their quest to protect themselves from lawsuits they have shifted the liability to the photographers while leaving almost no right to further compensation for the work. The rule of caveat emptor (buyer beware) should also apply here. If such an agreement is required, make sure that you understand all the terms and conditions before signing and then only sign after you have weighed the costs and benefits of entering into such an agreement.

Attorney Mickey H. Osterreicher, Esq., has been an NPPA member since 1972. He is the chair of the NPPA Media Government Relations Committee and is also a member of the New York State Bar Association Media Law Committee. He’s been a photojournalist for both television and newspapers for over 30 years in Buffalo, NY, where he now practices law.

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Photojournalist Todd Maisel & The Sago Coal Mine Disaster

By Todd Maisel
Staff photographer, New York Daily News

SAGO, WV – Photojournalists were mired in mud, braved chilling rain, and faced many belligerent families awaiting word on the rescue of 13 men trapped in a two-mile-deep West Virginia coal mine.

The nearly 40-hour vigil that began January 2 was later eclipsed by miscommunication. Families mistakenly celebrated the survival of 12 of the miners when only one was still alive.

Candlelight Vigil At Sago Baptist Church For Dead MinersThe jubilation was photographed at the final deadline for almost every major daily newspaper in the country. When the mistake was revealed, anger and even deeper sorrow consumed the hundreds who were waiting for news on the fate of loved ones.

It is rare that unverified facts in a big story cause newspapers around the country to print inaccurate information with our photos dominating almost every front page. Church bells tolled just before midnight on Tuesday, January 3, bringing members of this Bible-belt community to embrace each other and “praise the Lord.” It gave photographers a rare view of the Sago Baptist Church where miner families had sought refuge away from the lenses. Like Jesus who spent 40 days of uncertainty in the desert, the Sago community faced its 40 hours of anguish, with a brief respite before learning that only one man miraculously had survived, with an air-pack that should have lasted only an hour.

The inaccurate report about the miners added to the already difficult task of photographing the families of these men in this sleepy, deeply private, Appalachian community.

It made a draining story more stressful and harkened back to the days of 9/11 when families awaited the rescue and then recovery of their family and friends, from the rubble of the World Trade Center terror attack of 2001. Hundreds of bodies were never found.

From the moment photographers arrived after long drives in heavy thunderstorms that allegedly sparked the original explosion in the Sago mine, we were enveloped by bone chilling dampness. This moisture created slogging mud everywhere. Conditions worsened with poor visibility (preventing use of helicopters for aerial photos), atrocious lighting conditions, prickly state troopers, and bossy local cops and firefighters.

Church leaders created a sanctuary from the media hordes, with the pastor saying, “You are welcome to join us for food and drink, but no photos in or on our property.”

Miner Familes Get False Word That Trapped Miners Are AliveNearly all photographers complied with the request until the fallacious news caused a rush to get as close as possible to the celebrations. Prior to that moment, intrepid mining families who didn’t mind the camera lights spilled their pain at the media encampment where some journalists encircled a small campfire to keep warm. So the pressure mounted for any positive info, perhaps fueling the chain of events that led unidentified rescuers to leak word that the miners were alive.

The ongoing vigil by the coal miner families made it impossible for any media outlet to leave the site unmanned. Some photographers slept in their cramped vehicles and spent more than 40 hours straight working on the story. Luckily, local businesses and the Red Cross kept a steady stream of food and provisions coming into the media encampment and the church. But with patience fraying and a rapidly shrinking area for press to travel, shooters were looking for any chance to make a picture, causing some camouflage-clothed locals to shout threats or throw icy stares. Those glares became nastier as the hours wore on, the news became increasingly grim, and the media masses grew.

Monday to Wednesday vigil.

I grabbed the first New York to Pittsburgh flight as soon as it became clear to editors that the mining accident would be an ongoing story. I soon met Anderson Cooper of CNN with his producers and film crew. Also on board were members of CBS and ABC.

There was little to go on at that point, with one CNN producer scanning sketchy wire reports that indicated that this job would not be over soon.

Miner's Family Get News Miners Are DeadOnce in Pennsylvania, the drive in an SUV to West Virginia took more than two hours in violent thunderstorms. I arrived at 8 p.m. with my reporter Derek Rose to find that access to the mine was closed and only a few of the families were within media reach. Family members were mostly kept sequestered at Sago Baptist Church, down a gravel road and off-limits to our cameras.

Few photographers were yet on the scene, and many media operations were still grappling with whether to commit their resources.

With deadlines approaching, photographers, who were struggling to keep equipment dry, had to take what they could get and then leave to transmit by driving eight-miles into Buckhannon, WV, where several sites had Wi-Fi access. But leaving for any reason made many photographers uneasy, as it appeared that rescue or news updates could occur at any moment without warning.

Press conferences were held every few hours inside the cramped company headquarters about a mile from the mine site. The coal mine was defended by a well-guarded bridge, the rapids of the Buckhannon River to the west, steep hills and thick woods to the east. The nearest approaches were at least a mile away. The company provided a pool opportunity for AP, Reuters, and EPA, eliminating the need to find a better but very difficult vantage point. Climbing a 500-foot hill next to the site was of little use as trees obscured any practical view.

It was clear that photographers, who didn’t want to miss anything, would have to sleep in their vehicles and awake for the 2 a.m. and 4:30 a.m. press conferences held by mine executives.

CNN's Anderson Cooper Waits For NewsAt 7 a.m. the next morning, it was quiet, so I walked up to the church to get information. Inside the church, vice president of CGI Gene Kitts from the mining company prepared the crowd for the worst. “Carbon monoxide levels are way too high at 1700 parts per million,” he told the incredulous crowd. “There has been no sign of life.” Families poured out of the church and a few entered the media encampment and poured out their souls. Martha Rial, staff photographer for the Pittsburgh Post-Gazette, said she recalled hearing a woman screaming after that briefing.

“There was barely any light in the sky when the mood intensified from optimism to despair,” she said. “The (Terry) Helms family were comforting each other after they had spent whole nights by the road.” People were hoping for another Quecreek, PA, turnout, where they rescued those miners.

There were several photo ops during the day, including some who trekked to the opposite side of the river to photograph drilling operations to insert cameras and to test for explosive gases further down the mine. Governor Joe Manchin held his own presser at the media encampment, taking moments to hug two family members. He began presiding over all briefings.

When it appeared that there would be only bad news in the next few hours, some media sought to get some rest or send photos. One television network (which I won’t name) took the lull as a time to give cash bribes to families to embargo family photos. The lull, however, would not last: the church bells began to ring at 11:50 p.m.

Family members were screaming “Hallelujah” and singing praises of Jesus. At the church, photographers scrambled to make photos of hugging and crying. Some photographers, including myself, cried too. The emotions had built to a crescendo and prior rules went out the window.

At one point, I was trying to make photos at the top of the steps of the church when a man, who later bragged that he was the Red Cross “bulldog,” kicked me down the hill, causing me to bruise my ribs and end up in the mud. I got up after a few seconds and continued shooting.

Since the deadline was less than an hour away, I drove into town to transmit. My desk was elated to receive photos on time.

When I tried to return to the encampment, West Virginia state troopers had shut down traffic, allowing only emergency vehicles to enter. At that moment, an ambulance, escorted by a police car, raced from the site. I chased the ambulance to St. Joseph’s Hospital in Buckhannon, where police attempted to block access, but I still got through to the emergency room. Unfortunately, police at the emergency room forced me to retreat and kept other arriving photographers at bay.

Since I was not going to easily return to the Sago site, I stayed for a press conference with attending surgeon, Dr. Susan Long. She too wondered about the rest of the miners. It wasn’t until after the press conference at about 2:30 a.m. that I heard on the radio that the other miners perished.

Photographers Transmit Mine Photos From Buckhannon, WVRealizing that the main road was still blocked, I used back roads to work my way to the mine. Randy Snyder, photographer for The Herald-Dispatch of Huntington, WV, said he and three other photographers also went into town to transmit, parked their cars at the roadblock, and then walked more than two miles on pitch-black roads to return. When they arrived, they ran into some irate families.

“We had a sense that what was said at the church, we understood it to be the truth (about the miners being alive), so we shot those images,” Snyder said. “But
I started having questions when they started pushing us back down from church and there was a changing attitude a bit. But there was an opinion that the miners would go to church.”

Annie O’Neill, a staff photographer for the Pittsburgh Post-Gazette was in her hotel when she heard news that the miners were alive. She too had to walk from the roadblock.

“When I got there my colleague John Heller was there and he told me the families were very belligerent and I didn’t understand because they had received good news,” she said. “I felt like something wasn’t right because if these people think that they are just going to walk out and have a meal in the church with their family – it just didn’t make sense. And then I heard someone screaming a long line of profanities at a camera person and a woman pushed him away. Then my editor called me and said, ‘Did you hear that only one miner is alive?’”

Brendan Smialowski, who was covering this story for European Pressphoto Agency, said he went to send photos after the first miner was reported dead and found himself out of position when the jubilation started.

“My desk asked for pictures so I left shortly after the governor gave a briefing and it turned out to be wrong,” Smialowski recalled. “I went to the hotel and it is a good thing because I heard the breaking news with Anderson Cooper so I raced back to the mine just in time to pass just before police put up the road block – it looked like it was a shift change. Most the emotion was after the fact.”

But he too suspected something was wrong because he also noticed a lot of ambulances going to the mine – and only one coming out.

“I knew the men would be in different states of health, but something in my mind told me that they wouldn’t be walking out cheering,” Smialowski said. “But then we saw state troopers showing up in greater numbers and rumors were going around that something was terribly wrong. I was able to drive down muddy, rock-laden roads back over the bridge that separated the mine from the main road.”

Photographers milled about, waiting for remaining family members to cross their paths. The church was again blocked, this time by an army of state troopers. Many family members wouldn’t talk and filed past with blank stares. Others attempted to walk around the media. Most were still shocked and angry over the revelations that only one man had survived.

The day after our longest night, the sun finally peered through the clouds. It didn’t help though, as most of the families had gone home, where some threatened news media who came too close. A morgue had been set up in town and was ringed by police and firefighters who threatened any media with arrest or a “halogen to the head” for those who lingered about. The neighboring Wesleyan College, normally easy access for the public, was shut down to media, and those who entered were threatened with arrest for trespass.

Most media were now focused on the lone survivor, Randal McCloy, and his family. They were available at times, as they had been throughout the ordeal.

Members of the Sago Baptist Church held a candlelight vigil that evening, capping off a terrible time for the community. Some members of the church leadership attempted to keep photographers far back from the ceremony. But on this night, there were even more photographers and cameramen than had been there in all the previous days, so leaders eventually relented and left us alone.

The wakes and funerals turned out to be very difficult also, with police ringing the perimeters of those sites and keeping media back hundreds of feet away. A few of the funerals allowed pool photographers, and some shooters managed to get photos at cemeteries.

Debbie Egan-Chin, a staff photographer for the New York Daily News who was my relief from the assignment, said she was threatened numerous times with arrest, even though she and other photographers were far away from the funeral processions. In one instance, sheriff’s deputies threatened to arrest anyone taking photos of the casket being removed.

Even odder, she said she and a reporter were detained for 45 minutes at one point. Their press identification and drivers licenses were held by state troopers. Troopers suspected them of being part of a hate group that threatened, on a hate-group Web site out of Kansas, to disrupt funerals because they believed the miners to be gay.

“They thought we were part of a hate group because we were taking pictures of people at the wake for David Lewis,” said Egan-Chin. “We both had identification and we were doing our jobs. When he told me what they were looking for, I said, ‘Are you insane?’”

While some photographers were able to get limited access and in some cases pool positions, it was clear that we were no longer welcome. Smialowski said he went to one funeral briefly where there was no access, but then hooked up with Associated Press photographer Haraz N. Ghanbari, who had befriended the brother of another miner. They were given pool positions in the church.

“Once they realized we weren’t there to ruin their day, they warmed up to us,” Smialowski said. “But in the end, we were like fish out of water and while most people were still accommodating and the kindness was still there, it felt more alien after that and we didn’t get a good vibe any more.”

At the funeral for Terry Helms – the first to be found dead, but the last to be buried – even his family asked media to stay away. There were no real angles to shoot from the street.

Could misinformation have been avoided?

The real question comes down to whether there was anything photographers could have done to prevent the mistake in the papers. Listening to Rush Limbaugh (on one of the few audible radio stations in Sago) criticize the liberal media establishment over the error, specifically Anderson Cooper on CNN, made me recall Geraldo Rivera’s reporting on conservative Fox. He was crying while pushing through fellow journalists to get his interviews.

This was obviously not the work of gullible media, but of journalists pushed to their limits and everyone wanting the miners to be alive. It didn’t help that Governor Manchin was part of the jubilation at that midnight hour.

The Dispatch’s Snyder said he photographed a mine accident in Kentucky days later, and once again misinformation was given to the media.

“The irony is we again had a mine thing in Kentucky, almost the same thing happened there and it was grievous for the family,” Snyder said of the Pikeville, KY, mine roof collapse on Tuesday, January 10. “It came out that the miner was dead, and then it was rescinded in a press release saying he was ‘alive.’ The confusion occurred because the brother and sister of the dead miner didn’t want the parents to know before they spoke to them. But in that flip-flop for the family, it caused great confusion and more pain.”

Newspapers that were able to change their front pages, even at that late hour, deserve high praise for the effort, including my own newspaper, the New York Daily News. Unfortunately, some papers are not staffed with such late night editorial operations and could not make the change in time.

One can only report and photograph what happens. If there is any lesson, it has to be that sources need to be ascertained to evaluate the credibility of the information. As photographers though, we can only photograph what is there and hope that our reporters are asking the right questions of the right people.

 

Todd Maisel is a staff photographer for the New York Daily News and is NPPA Region 2 associate director. He can be reached at [email protected].

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VII Photo Agency Announces West Coast Seminar

Frank Evers, the managing director of VII Photo Agency, announced that the photographers of VII will stage their first West Coast VII Seminar in Pasadena, CA, from April 7 to April 9, 2006, at the Art Center College of Design. This is VII’s third such event in a series of sold-out seminars, held previously in Boston in April 2005, and New York City in October 2005. The VII Seminar is sponsored by Canon USA, Lexar Media, Lowepro, Digital Railroad, and the Art Center College of Design.

The nine photographers of VII will each make presentations of their most recent work and take part in panel discussions about photojournalism’s current issues during the event, which spreads over two and a half days. Evers says there will also be a private screening of Lauren Greenfield’s new film, “THIN,” along with guest lecturers.

Pre-registration is required and it’s done online at the VII Web site. Evers says there’s a $150 USD attendance fee for students, a $250 fee for professionals, and a $450 fee for those who also want to book a portfolio review. Repeat seminar attendees will receive a $75 discount on all fees.

The event unofficially kicks off Thursday evening April 6, 2006, at the opening reception for the exhibit “The Democratic Republic of Congo: Forgotten War” at the Stephen Cohen Gallery in Hollywood, CA. The opening will be attended by the exhibition’s artists, James Nachtwey, Ron Haviv, Antonin Kratochvil, Joachim Ladefoged, Gary Knight, and others.

The seminar officially starts Friday evening April 7 at the Art Center’s Hillside Campus with Greenfield’s film, followed by a reception where attendees and special guest have an opportunity to mingle with VII photographers.

The seminar continues at the same location Saturday with a full day of presentations by each of the VII photographers. On Sunday the event features a series of breakout sessions on subjects such as creative innovation, personal projects, assignments, book publishing and fine art. The breakout sessions team VII photographers with invited special guests. The seminar wraps up Sunday evening with a book signing.

For more information including maps, hotel information, and to register, visit the VII Web site or contact Evers at [email protected].

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New York City Sued Over Filmmaker's Right To Photograph

By Donald R. Winslow

A lawsuit filed in the United States District Court, Southern District of New York, in Manhattan claims that New York City’s requirement to have a permit to film in public is unconstitutional, and it seeks a court order against the law’s enforcement. The New York Civil Liberties Union, along with the New York University Law School Civil Rights Clinic, filed the federal suit Tuesday on behalf of an Indian filmmaker, Rakesh Sharma, against the City of New York and the commissioner of the Mayor’s Office of Film, Theater and Broadcasting, Katherine Oliver; a police detective, Daniel D’Alessandro; and five unidentified police officers.

Sharma, of Mumbai, India, a well-known independent filmmaker, came to New York City in May 2005 to shoot a film about the lives of everyday people, including cab drivers, in the post-9/11 world, NYCLU said in a press release. The suit says that after Sharma lawfully filmed various midtown scenes with a handheld video camera while standing on city sidewalks, he was detained by New York Police Department officers, held and interrogated for several hours, searched, and told before he was released that he needed to have a permit for any future filming.

The NYCLU says that Sharma returned to Manhattan in November 2005 and applied for a permit to film so that he would not be harassed again. His request for a permit was denied, and the film office refused to provide him with a written explanation of their denial. Applicants are also required to have $1 million of insurance to receive a permit.

In a statement from the NYCLU, executive director Donna Lieberman said, “In a democracy, people have the right to document activity in public places without being arrested. When the city tried to stop people from taking pictures in the subway, we objected and the city backed down. In the same way, we are challenging the city's arbitrary film permitting scheme, which exposes legitimate filmmakers to risk of arrest for taking pictures on the streets of New York."

The National Press Photographers Association was one of several press organizations that successfully opposed the city’s 2005 attempt to ban photography in the subway system, and opposes any restrictions upon photography in public places. NPPA also recently took formal steps to oppose a proposed ban of photography on New Jersey public transportation and its property by the New Jersey Transit Corporation, which withdrew the proposed ban in early January after it received “an unusual number of public comments” and complaints about the proposed rule.”

Chris Dunn, a professor at the New York University Civil Rights Clinic, is the associate legal director for NYCLU. Dunn said in their statement, “The police can and should investigate suspicious activity, but that does not give them license to arrest people for public photography."

Sharma is a critically acclaimed international filmmaker whose most recent film, “Final Solution,” documents politics in India by studying violence in Gujarat. An earlier film, “Aftershocks – A Rough Guide to Democracy,” tells the story of two small Indian villages that fought a government-controlled company that sought to profit from their destruction by an earthquake. Sharma’s suit against New York City says that the filmmaker makes documentaries, films that “use candid footage of peoples, places, and events. He does not use actors, sets, or a crew in his films, and often uses a small, handheld video camera to film.”

On May 13, 2005, Sharma was photographing taxi cabs emerging from the Park Avenue South Underpass near 39th Street and Park Avenue, and had been doing so for about half an hour, the suit says, and he saw no notices prohibiting filming in the area. He had seen tourists shooting footage in the same area on the previous afternoon, as well as at the same time he was filming. He then started walking toward Times Square, continuing to film images of the city when he was approached by a New York City police officer in plain clothes who flashed a badge and asked Sharma to identify himself.

The suit says Sharma did not hesitate to comply with the officer's request, immediately handing over his passport, and explained that he was a visiting filmmaker. After a few questions the officer, still keeping Sharma’s passport, instructed him to follow him to the corner of 39th Street and Park Avenue, which Sharma did. Other officers were summoned to their location and after several minutes Sharma was told that they thought it was suspicious that he was filming a “sensitive building” (the MetLife building) and that he would need to be investigated further.

As the officers questioned Sharma and searched his shoulder bag one of the officers, according to the lawsuit, charged Sharma and shoved him in the chest when Sharma tried to turn on his video camera to show the first officer his footage, believing that showing the police officer the footage might put him more at ease about what he had been photographing. The suit says that after charging and shoving Sharma, the officer grabbed and retained the video camera and said words, to the effect, “we known how to deal with you guys, asshole,” and told Sharma he was authorized to “punch him if necessary.” The suit says Sharma was stunned and scared and feared for his physical safety.

For two hours police held Sharma at the corner, and he was told he was not allowed to move while police retained his camera and passport. The suit says Sharma was denied permission to make a phone call, and after two hours an NYPD sergeant arrived and questioned Sharma. Detective D’Alessandro arrived along with an unidentified detective and they questioned Sharma further before taking the filmmaker to the 17th Precinct office. In the car, the suit says, Sharma told the detectives about what had happened and that he had been shoved and called an “asshole” by the officer. The suit says that detective D’Alessandro apologized for the event and said words to the effect that “we have some young detectives who have not had adequate time for training.”

The suit says that at the precinct, the detectives allowed Sharma to use a computer to search the Internet for his name in order to verify his identity. The search revealed many Web pages that mentioned him and the detectives were “seemingly satisfied that Mr. Sharma was who he claimed to be,” and they returned his passport but retained his camera. They said it was necessary to show their supervisor the footage.

Finally, several hours later, detectives returned Sharma’s camera and apologized to him for the conduct of their colleague and for having detained Sharma for so long, the suit says, and he was released without being charged with any offense. When his camera was returned, Sharma says the LCD screen flap was scratched and the display window was cracked, which had not been the case when he was using the camera earlier in the day. Sharma says he did not film in New York City in the following days because he was afraid police would harass him again, and cancelled appointments he had made for additional shooting.

In the preliminary statement at the top of the federal suit, the claim says, “This is a civil rights action to vindicate the right of law-abiding members of the public to engage in filmmaking and photography in public places in New York City. The plaintiff Rakesh Sharma is an independent documentary filmmaker who in May 2005 was detained for several hours, searched, and harassed by members of the New York City Police Department for doing nothing more than filming on a public sidewalk in midtown Manhattan… The defendants have violated Mr. Sharma’s rights under the First and Fourth Amendments of the United States Constitution and his rights under New York State law. Mr. Sharma would like to resume filming in New York City but is afraid to do so because he fears further police detention and harassment, particularly since he is unable to obtain a permit.”

The lawsuit filed by the NYCLU for Sharma can be downloaded as an Acrobat .PDF file here.

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Mercury News Loses Attempt To Dismiss "Fair Use" Suit

By Donald R. Winslow

The San Jose Mercury News lost a motion requesting that the Federal District Court for the Northern District of California dismiss a copyright infringement case brought against it by freelance photographer Christopher R. Harris for publishing his photograph of Southern author Walker Percy along with a Mercury News review of the book The Life You Save May Be Your Own: An American Pilgrimage by author Paul Elie. The book contained the photograph of Percy that was taken by Harris, and the newspaper ran the photograph from the book along with the book review.

Harris, an NPPA member who is now a professor at the College of Mass Communications at Middle Tennessee State University in Murfreesboro, TN, shot the photograph while on assignment for Esquire magazine. Harris claims that he was never contacted by the newspaper for rights to use the image, and that he was never paid for its use. He also claims in his suit that the newspaper removed his copyright notice from the photo credit when it published the picture, possibly violating a legal requirement under Federal Copyright statues. Harris worked on assignment for The New York Times, Time, and Newsweek prior to his current teaching position, and he was one of the original photographers associated with the GAMMA/Liaison agency.

On January 3, 2006 the Federal District Court for the Northern District of California ruled against the Mercury News, denying its motion for summary judgment. "[T]he Court cannot say as a matter of law that use of a copyrighted photograph in a book review, in which the book clearly states that the photograph is copyrighted, constitutes fair use," wrote District Court Judge Charles R. Breyer (brother of U.S. Supreme Court Justice Stephen Breyer).

In the motion the Mercury News introduced evidence that its practice of accompanying book reviews with copyrighted photographs taken from the book under review is common to other metropolitan newspapers throughout the country (the Los Angeles Times, The Philadelphia Inquirer, and others), and that the practice is legal under the “fair use” defense.

Denying the motion, Judge Breyer wrote that the "Defendant argues that use of the photo was the equivalent of a pictorial quotation from the book and similarly falls under the fair use exception. Yet the photograph was obviously marked as a copyrighted photograph in the book, both on the page the photograph appeared and then again in the credits in the back of the book. In other words, the photograph was a copyrighted work within a copyrighted work. … As a result, the Court cannot say as a matter of law that use of a copyrighted photograph in a book review, in which the book clearly states that the photograph is copyrighted, constitutes fair use. Accordingly, defendant’s motion for summary judgment is denied."

New York Attorney Mickey H. Osterreicher, an NPPA member since 1972 who was a photojournalist for both television and newspapers for three decades before entering law, said, "The 1961 Report of the Register of Copyrights on the General Revision of the U.S. Copyright Law cites examples of activities that courts have regarded as fair use. The one most pertinent to this case would be 'quotation of excerpts in a review or criticism for purposes of illustration or comment; or for clarification of the author’s observations.'"

Osterreicher said that a December 2005 advisory from the U.S. Copyright Office states that “the safest course is always to get permission from the copyright owner before using copyrighted material. ... When it is impracticable to obtain permission, use of copyrighted material should be avoided unless the doctrine of ‘fair use’ would clearly apply to the situation.”

"All that seems clear in this case is that the Mercury News did not attempt to contact Harris prior to publication, nor did it obtain his permission to republish his copyrighted photograph," Osterreicher said. "This most recent decision by the court holds that whether the doctrine of 'fair use' applies in this situation is a question of material fact to be determined in a hearing later this month."

Harris is represented by attorney Robert A. Spanner, of Trial & Technology Law Group, a Silicon Valley law firm. Spanner wrote to News Photographer magazine, "A photographer’s right to limit distribution and reproduction of his or her copyrighted photographs is a fundamental tenet of copyright law, and the notion that a newspaper can override that right and freely reproduce and distribute – without a license and for free – photographs which the photographer had licensed to a book publisher for a fee, would obviously be a matter of grave concern to the photographer's profession. Mr. Harris stood up for the rights of his fellow photographers because he believed it was the right thing to do, and we are are gratified that his efforts have been vindicated.”

At a hearing on the case last summer, Judge Breyer hinted that the suit brought by Harris against the Mercury News could be an important case in author and photographer rights. Breyer stated for the record that: "On the one hand, this case looks like a very small case. I don’t know whether the copyright fee would have been fifty bucks or a hundred bucks, or whatever it is. I don’t know, but it’s not a large amount. So I must believe that what is at stake here is the principle of whether a newspaper writer can take a photograph from a book and publish it without permission of the copyright holder, and I guess there’s sort of a further – there’s some further arguments as to in publishing the photograph, the copyright notice was eliminated, cropped.”

The case has been scheduled for a hearing before Judge Breyer on January 20, 2006, to set a trial date.

The December 2005 advisory from the U.S. Copyright Office that Osterreicher cites also has this to say about "fair use":

One of the more important limitations on copyrighted material is the doctrine of "fair use." This doctrine has been codified in Section 107 of the copyright act. Section 107 contains a list of the various purposes for which the reproduction of a particular work may be considered "fair," such as criticism, comment, news reporting, teaching, scholarship, and research. Section 107 also sets out four factors to be considered in determining whether or not a particular use is fair:

the purpose and character of the use, including whether such use is of commercial nature or is for nonprofit educational purposes;

the nature of the copyrighted work;

amount and substantiality of the portion used in relation to the copyrighted work as a whole;

and the effect of the use upon the potential market for or value of the copyrighted work.

 

The advisory also states that “the distinction between ‘fair use’ and infringement may be unclear and not easily defined. There is no specific number of words, lines, or notes that may safely be taken without permission. Acknowledging the source of the copyrighted material does not substitute for obtaining permission.”

NPPA member and attorney Mickey H. Osterreicher, Esq., contributed to the research and reporting of this story. He is the chair of the NPPA Media Government Relations Committee and is also a member of the New York State Bar Association Media Law Committee.

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