Shots in the Dark

My apologies: Preparing my interview with Nina Berman for publication took more time than expected, and right now, I don’t have an excess of free time.

Enough excuses. On with the work.

Shots in the Dark readers will remember that last week I published a post titled “Art, Theft and Shots in the Dark.” That post detailed how I received a threatening letters from lawyers at the New York Times demanding that I take down a photograph, “Marine Wedding,” taken by New York-based photographer Nina Berman. It’s a picture of former Marine Ty Ziegel, wounded by a roadside bomb in Iraq, with his high school sweetheart and bride Renee Kline.

When I responded pleading my case, Berman herself wrote me back, insisting that I had no legal ground to stand on and should remove Marine Wedding from my site.

Here’s Berman’s picture, by the way, so you know what we’re talking about. (Reprinted with her permission.)

(You can see all the photos in this series by Berman here.)

Not wanting more guff from the Times’ fatcat lawyers, I already had taken down the pic—but I found Berman’s email compelling and wanted to turn what had been a testy exchange into something more positive. I asked the photographer if she would sit down with me for an interview about her work and the issues our correspondence had raised. She graciously agreed. We met twice, in the small garden next to St. John the Divine cathedral and in the Hungarian coffeeshop (good coffee, inedible pastries) across Amsterdam Avenue.

A few biographical words about Ms. Berman before I roll the transcript. The paragraph below comes from her website, NinaBerman.com.

Nina Berman is a documentary photographer with a primary interest in the American political and social landscape. Her work has been extensively published, exhibited and collected, receiving awards in art and journalism from the New York Foundation for the Arts, the World Press Photo Foundation and the Open Society Institute documentary photography fund among others. Her images of wounded veterans from the Iraq war have been exhibited worldwide at galleries, universities, community centers and museums including the Whitney Museum of American Art. She is the author of two monographs, Homeland and Purple Hearts-Back from Iraq, both published by Trolley. She has received editorial commissions from Harpers, the New York Times Magazine, National Geographic, German Geo, Fortune, Colors, TIME, Newsweek, and others. She is on the faculty of the International Center of Photography (ICP) in New York City. In 2009, she joined the NOOR photo collective based in Amsterdam.

What can I add to that? That Berman is a native New Yorker who attended the University of Chicago and the Columbia School of Journalism. She is smart, intense, passionate—old-school. She’s fiercely independent and unafraid to speak her mind. I liked and admired her a lot. Journalism would be better off if more journalists were like Nina Berman—and because of her work, the country, I think, might be a little wiser and a little humbler. I think.

This interview will be published in three parts over Wednesday, Thursday and Friday. It’s not short, especially by blog standards. I hope you’ll stick with it; it’s worth the trouble.

Richard Bradley: How did you find me? Was it you or the Times?

Nina Berman: I found you. I have a Google alert for my name. Just to track down…

..but I wrote the post about Marine Wedding years ago, in 2007.

When I saw what Google was up to [with Google image search] and decided to pull the photos off the Times, I became really afraid about protecting my copyright. I did a search and started looking particularly at who used the Times crop, because the Times cropped the picture.

And after I told the Times that I wanted to take it down from their site, they said, “You know, we go after people who pull from our site, so if you find someone, let us know.”

Well, I found you and said, “Oh, he’s in publishing, he should know better.” And I wanted to test the Times. To see if they really would do something.

They did. But my instinctive reaction when I get demands from lawyers is to say “screw you.” But that appeal coming from you—totally different.

Normally I would do it. But I wanted to test this Times promise.

Tell me why you feel so strongly about people posting your photos on blogs.

For bloggers, exposure is the endgame—the only endgame.

But for photographers , not all exposure is necessarily good or beneficial to the person who’s creating the image. I’m putting out pictures that are really difficult to look at. They’re sensitive to people’s lives. I don’t know how those images are going to be tossed around. Maybe I want to limit that conversation, and that’s my right.

Do you have some concern that use like mine will make it more difficult for you to take pictures in the future—that potential subjects might say, “Hey, I trust you, but who knows what happens when the pictures are on the Internet?”

I’ve never thought about that but it’s a good question.

It’s like that famous, not very sophisticated quote—you know pornography when you see it? I know what’s wrong use when I see it. If you had just written to me first, and said, ‘Hey, I was really moved by these pictures, I’d like to post one on my blog and maybe generate a conversation,” I would look and see who you were, what you talk about, and 99% likely I would have said “sure.”

But people just assume that once it’s on the Web, or even worse, once it’s on Google images, that it’s a fair-use picture. So this has been a huge fight.

For example?

Someone took that picture of Ty and Renee—I don’t know how they got it, if they got it off the Web or scanned it from a magazine—but they blew it up, cut out the girl’s face and put a white piece of paper on it. And wrote, “Be a hero—marry a hero.” And put it in the national gallery in Prague.

Who was behind that?

The artist was unnamed. I only found out because a graduate student in France who was writing a paper on my work wrote me and said, “Hey, I’m curious to know about this collaboration between you and them.”

I was like, “What the hell?”

Now someone may say, “Look, that’s fair use. He took your picture. He transformed it in some way. That’s an artist’s right.” And if we went to court, who knows who would win? The likelihood is that I would because the picture wasn’t transformed enough. But still….

That’s also a lot of time and money to spend protecting your work.

As long as I do have some laws protecting me, I can at least talk to people and say, “Hey, you like the work because it provoked something in you, you want to be sensitive to it, then be sensitive to the dissemination.”

The argument that all exposure is a good thing is ultimately a financial argument—that exposure leads to money for the content creator.

No it doesn’t.

Why not?

It leads to money for bloggers if they’re selling ads. It doesn’t lead to any money for me.

Doesn’t the dissemination of the photos provoke interest in them and therefore elevate your value?

No way. I have yet to see that happen. Absolutely not.

Are your photos more valuable if they’re scarce—if it’s harder to see them?

I don’t know. But I do know that many people have made money off that picture by posting it on their site because of the number of hits they’ve gotten.

Regardless of whether the financial argument is true, it certainly ignores your argument about the context in which the art is presented.

Recently a guy from the Huffington Post went to the Whitney [Biennial], saw the work, and wanted to write about it—I guess it affected him very personally. There was a press picture, but he wanted to use some other ones. He wrote me, we had a conversation, and I gave him two pictures and said you can only leave them up for a week. Because I thought it might bring more people to the Whitney, which would be great.

Now, I don’t get any money from the Whitney. I don’t get any money to produce the show, to frame the pictures, when people go to the Whitney. But it allows people who wouldn’t normally see it to see it in a place where many of the pictures are together and they’re not surrounded by a lot of other stuff that maybe I dislike. And so that’s good.

You’ve obviously given a lot of thought to these issues.

I’m on a little chat group with other photographers and we talk about them. My issues with this work are not quite the same as the rest of the group—I’m not upset because I’m worried about losing licensing fees. But people are terrified about the prospect of all magazines becoming entirely Web-based, because licensing fees are much lower on the Web. And people who’ve spent decades, careers, creating their archives are seeing them plummet in value. They’re furious, and rightfully so.

What you’re getting at sounds again like the blogger argument that everything should be free because all exposure is good.

Exactly. The New York Times is a good case. They have this “Lens” blog.

There are three kinds of photographers up there. There are [Times] staffers, who are paid anyway. There are pictures from what we used to call the wires—AP, maybe Getty. The Times pays a fee for those. But most of the pictures come from freelancers who give them material. The Times doesn’t pay for it.

So why shouldn’t all the pictures the Times uses one day just come from Lens? They wouldn’t have to pay anybody.

Then there’s the issue of what happens with the pictures once they’re online.

My concern—and I’ve expressed this to people at the Times—is that you may say these pictures are not the New York Times’ property, they’re the property of the copyright owner. But let’s say someone buys the Times in the future. And that person says, “Hey, man, this is in our archive, this in our system. This is ours.” What about Carlos Slim coming and saying, “Look at this archive…”

You can’t tell me that I’m going to be able to fight that.

So what do you do?

One solution is to put time limits on how long images can be posted. But what we [photographers] really want is for some terrific geek to make a self-destruct code.

I’m a little surprised someone hasn’t already done that.

Someone should, but they haven’t. So you have people like me pushing back.

I’m sure many people don’t have the time.

They don’t have the time or they don’t know. A new photographer coming u wouldn’t know [all his rights]. They don’t know. So they’re going to be working at even more slave wages.

Since they’re early in their careers, they may feel they’re not in a position where they can insist upon getting paid for all the uses of their images.

Exactly. But I know people who have achieved the highest honors accorded in my profession who also feel they can’t afford it anymore. They’re afraid that maybe they won’t get a job. We’re already working at day rates that I worked at in 1990.

So what are the consequences of these economic pressures?

The changes in people’s ability to make a living and the changes in the market and in distribution have put a lot of pressure on photographers—the amount of time you’re allowed to produce a story has shrunk while the pressure on a photographer to get these great pictures has actually increased. So people will start to create them. You’re going to find more examples of suspicious pictures.

The viewer may not know the difference, though.

Actually, I think people are growing suspicious of a lot of photos they see in the media. I recently saw a cover of Entertainment Weekly featuring the four women of Sex in the City, and the image was so Photoshopped they looked like college coeds.

I hate to be in the position of some moral dinosaur, but if you still believe that photographs have some reference to reality, or that there’s an expectation of a reference to reality, then you should care about this.

I want to ask you some questions about yourself. You grew up in New York?

I grew up first in the Bronx, then in New Jersey.

Was photography in your family?

No. My mother was a social worker, my father was a periodontist.

And you went to the University of Chicago?

Yeah. I went to U of C, stuck around after for two years. I was a political organizer during the election of Harold Washington as [Chicago’s] first black mayor, and then I wrote and photographed for left-wing newspapers.

So why journalism school at Columbia?

I wanted to leave Chicago, and j-school seemed like a good way to do that. At that point, it was kind of a ticket to a job.

And at Columbia you decided that writing wasn’t tfor you?

They had a photo class in still photography, and I really liked it. The joke around campus was, “Does she even know how to write?”

When I graduated, I got a writing job at the Bergen Record. But I hated sitting still at a desk. I looked at the photographers going out and I said, “I want to do that.” I would take vacations and do projects. I worked in Nicaragua and shot a story. For the paper, I went to Vietnam in 1987 with a bunch of vets. I think that is the basis for a lot of this current work.

How so?

It was interesting to me to see the difference in the resolution with the war. The Vietnamese people, it appeared to me, had moved on, while some of the vets couldn’t get it out of their heads. I learned from that experience that my interest in war was not about the battlefield. It was all the stuff afterwards.

I was following one vet in particular. [After we got back to the U.S.,] he was calling me up at 2 in the morning—30 years later, from his little apartment—totally living the war. And so that was all very interesting to me.

Judging from the images in Homeland, you started becoming concerned about the direction of the country after 9/11.

Oh, yeah. I wasn’t here for 9/11. If I had been, maybe I wouldn’t have made those photographs. I might have been too emotionally connected to the events.

Where were you?

In rural Oregon doing a story about migrant farm workers. I was up at 5 in the morning West Coast time following them to the fields. I heard on the radio about the planes, and I spent the day with people who couldn’t have given a shit about it. What they cared about was feeding their families.

I came back to New York a few days later and the first thing I noticed was cops in weird places. I remember cops saying to me, “You can’t take our picture unless you get written approval from the New York Police Department.

I was like, “You have no power to protect us but now you want power over who takes your picture?”

Did you go to Iraq when that war started?

I had no interest in going to Iraq.

Why not?

If I see other people doing a story, I don’t want to do it. I think, what can I offer that they aren’t offering? I’m just going to be part of the show. I don’t want that. People can do what they want and jump on the bandwagon, but I don’t see any reason other for it than ego gratification.

Ego gratification? That seems kind of harsh.

At the end of 2002, I was in [Washington] D.C. for some reason—I forget what I was covering, but I was in the White House press room and all the TV people were gearing up for the war, and gleefully. I mean…gleeful. “What kind of flak jacket are you going to get?” Blah-blah-blah.

So then I saw the TV coverage—the graphics, the promotion. “21 days to Bagdad!” The rescue of Jessica Lynch—that narrative was so predictable: “We need a white girl who’s going to be raped and we need to rescue her.”

Of course it was all fake. The “freedom fries,” the gorgeous shots of bombs of Baghdad. Never any shots of what those bombs did. No pictures of dead people. No pictures of wounded people. Nothing.

I was beside myself with anger. So I said, okay, people are getting wounded. What does that look like in this war? And I went out looking for them.

One of my reactions when I saw your photos was, “How come she’s the only one doing this?”

Good question.

What’s the answer?

Well, what was hilarious—maybe not so hilarious, but mystifying—so I did these Purple Hearts pictures in 2003, 2004. I approached some long-term clients, but no one wanted to touch the story. Finally Time gave me some funding, but never published anything. They had it laid out in a nice spread, and then I was told there was a [space] conflict: Russell Crowe had a new movie out.

Hard to believe that’s the real reason.

I think it was.

So I approached the New York Times Magazine first in July, said I want to do this. They sat on the idea for six weeks then said, no, not for us. I went to Time—nothing. I asked Newsweek, they said no but you can use our name if it will help you get in.

So I found three great soldiers, went off on my own money and did these portraits and interviews. I had no one helping me. Showed them to Newsweek—no. These publications, I am sorry to say, were completely bought. Not literally, but…invested in the progress of the war. It was disgusting. I’ve had rejections in the past, every journalist has. I have never had this experience that I had with this story that was so obviously going to be a big story and people just wouldn’t touch it.

What happened next?

Time comes to me in October. Nina, we’re going to do a story, three guys, all lost their legs, same attack in Fallujah. You can go to Walter Reed [Army Medical Center] for one day. Two of them are there. The other guy’s in Colorado but we can’t send you there because that would cost too much.

I go to Walter Reed, take these two pictures of these two guys, I say to Time, you want to see what else I’ve been doing? I show them the [Purple Hearts] pictures. They go, “Wow.”

I give them the names, I give them the stories—all of which I found myself. No help from anybody. I just spent like a million hours on Google looking for newspaper stories. So they laid out this big spread and then they cut it because of Russell Crowe. And ran something this big. [Berman holds two fingers about the distance apart of a postage stamp.]

That must have been incredibly disappointing.

It was the best thing that happened to me ever in the world, because if it [the full story] had run, I probably would have said, “Okay, I’m satisfied.” But I was really motivated. And the art department at Time was like, “The pictures are really strong, you should keep doing it.”

So no one was interested in this story until Mother Jones comes along and does a big spread. March 2004. And then CBS News calls me up. “Oh, let’s do a story about this photographer photographing veterans.” So they do a little story.

And what consistently happened [after] was that I publish this book and it becomes, “Let’s not report on wounded veterans because that would be anti-American, let’s do a story a about this odd little journalist in New York.” [The media] had to spend no money. They had visuals created already. They’re not invested in it politically.

And I kept saying, “Why? Go find your own people. Go find your own.”

And so at some point things changed and people started doing their own stories, I think when they started to realize that the war wasn’t going to be so squeaky clean. And when they realized that, hey, all these people are surviving—“Hmm…what are we going to do about this?”

End, Part I.

Coming Thursday in Part II of Shots in the Dark’s interview with Nina Berman: the story of Ty Ziegel and Renee Kline.