Back in August 2007, I posted a short anti-Bush item on the blog, and as support for my argument against the war in Iraq, I included in the post a photo called “Marine Wedding,” (below), taken by the photojournalist Nina Berman.

I credited the New York Times, which originally ran the photo in a review of a gallery show by Berman, and complimented her series of portraits of wounded Iraqi vet Ty Ziegel and his bride, Renee Kline.

In March of this year, I returned to the subject of Berman’s work, questioning whether it belonged in the Whitney Biennial—not because it isn’t incredible (it is), but because the setting seemed, to me, inappropriate.

And that, I thought, was that.

Until a couple of weeks ago, when I received a threatening email from the Times, printed in its entirety below.


May 6, 2024
VIA Email: [email protected] <mailto:[email protected]>
& U.S. Mail
Mr. Richard Bradley
Shots In The Dark
3117 Broadway, #42
New York, NY

Re: Infringing Use of Nina Berman Photograph
on www.richardbradley.net <https://richardbradley.net/>

Dear Mr. Bradley:

I am with the Legal Department of The New York Times Company.
It has come to my attention that you have posted on your web site at:

https://richardbradley.net/blog/2007_08_01_blogarchive.html<https://richardbradley.net/blog/2007_08_01_blogarchive.html> and
https://richardbradley.net/2007/08/bush-goes-on-offensive.html<https://richardbradley.net/2007/08/bush-goes-on-offensive.html> ,

a photograph by Nina Berman entitled “Marine Wedding” (the “Photograph”), which you state that you copied from The New York Times of August 22, 2007. There is no record that you ever received permission to post the Photograph.
Please note that Ms. Berman is the sole owner of the copyright in the Photograph. While The Times’s use of the Photograph was duly licensed, yours is not and your current use of the Photograph constitutes an infringement of Ms. Berman’s rights under U.S. Copyright law.
Accordingly, on behalf of Ms. Berman I hereby demand that you immediately remove the Photograph from your site and cease and desist from any further use of thereof.
If you have not removed the Photograph within three (3) business days of receipt of this letter, we will have no choice but to pursue all available legal remedies. The demands made herein shall not prejudice or waive any rights or remedies Ms. Berman or The Times may have in respect of the subject matter set forth herein, all of which rights and remedies are hereby expressly reserved.
Sincerely,

Deborah Beshaw
Legal Department
The New York Times Company
620 Eighth Avenue
New York, NY 10018
(P) 212-556-1789
(F) 212-556-4634
(E) [email protected]


cc: Nina Berman
Michele McNally
Richard Samson, Esq.

As some of you know, I do occasionally post photos from other media on the blog, crediting the source whenever possible. Is it theft? Promotion for the content creator? An awkward gray area?

Whatever the case, never previously had anyone complained.

Mostly because I was irritated by the heavyhandedness of the Times, I wrote back to defend myself. That email is printed in full below.

May 7, 2024

Dear Ms. Beshaw,


As a gesture of good faith, I have removed the photograph from my blog.

I do have another photograph of the image, taken by a blog reader with his cell phone during Ms. Berman’s exhibition at the Whitney museum and emailed to me, that I believe I could legally post in its place. But the quality isn’t great and there are other elements in the photo. So before posting that, I’d like to request your permission to re-post the photograph. (Alternatively, I’d be happy to request Ms. Berman’s permission.)

Let me explain why.

Shots in the Dark is a non-profit blog; there are no advertisements on it, and it produces no revenue. I gain no commercial benefit from posting the photo, but promote awareness of Ms. Berman’s work (“remarkable,” I called it) and the Times’ role in publishing it, which was duly acknowledged on the site.

As there is no commercial motive in my publication, and as these photos are widely available online, it seems unlikely that there could be any attendant damages from my posting of the photo. As copyright law reminds, one element of fair use is “the effect of the use upon the potential market for, or value of, the copyrighted work.” This publication could have no effect, other than perhaps a beneficial one, on that market.

The photographs in this series have been widely debated and discussed and have news value in and of themselves. The very prevalence of the images online is testament to that:


http://images.google.com/images?client=safari&rls=en&q=nina+berman+marine+wedding&oe=UTF-8&um=1&ie=UTF-8&ei=f7ONS_v5NI61tgeSi6TwCA&sa=X&oi=image_result_group&ct=title&resnum=4&ved=0CCMQsAQwAw

Consequently, this blog post, as is or supplemented, should fall under the fair use doctrine. This is particularly the case because I used only one of the images in Ms. Berman’s series—my intention was clearly to excerpt a larger whole—and Ms. Berman’s subsequent show at the Whitney demonstrated that the work constitutes many images. As Section 107 of the relevant law reminds, one factor in fair use doctrine is “the amount and substantiality of the portion used in relation to the copyrighted work as a whole.”

The original slide show on nytimes.com includes 11 images:

http://www.nytimes.com/slideshow/2007/08/21/arts/20070822_BERMAN_SLIDESHOW_11.html

In a subsequent blog post of which you may not be aware, I discussed whether these images constitute art or journalism or some mixture of both, a discussion which likely falls under the “nonprofit educational purposes” aspect of the fair use doctrine.

https://richardbradley.net/shotsinthedark/2010/03/02/i-saw-modern-art/

I would be happy to enlarge the original post by adding this discussion to it.

In short, I believe that I have acted legally in posting the photo, but would prefer to resolve this discussion through a compromise that allows me to continue promoting awareness of Ms. Berman’s work and the Times’ role in covering it.

I look forward to hearing from you.

Many thanks,

Richard Bradley

I’m not a lawyer, so I wasn’t particularly confident that I knew what I was talking about. But again—the Times irritated me.

I cc:ed Nina Berman, whose email I found through her website, in the hope that she’d be impressed by my argument.

She wasn’t—and wrote back the email below.

Dear Mr. Bradley,

I am Nina Berman, the creator of the photograph “Marine Wedding ” which you posted on your blog.

There are a few issues here I’d like to explain.

Holland Cotter, an art critic for the New York Times, published a review of a gallery show where I exhibited images from the Purple Hearts project and the one Marine Wedding photograph.


To supplement the images that ran in the newspaper, I allowed the NY Times to run a slideshow of this material in connection with Mr. Cotter’s review.


You saw the slideshow and lifted a photograph from it “Marine Wedding” without asking permission, and posted it on your August 22, 2007with this headline:

“Bush goes on the offensive.”

You then suggested that Bush should give his reasoning for staying in Iraq, to the couple in my photograph.

You are legally free to make whatever point you wish, highlight whatever work you want, praise it or slam it, or make any references you like. But you may not legally post original material regardless of your non-commercial status without first asking permission. The appropriate technique is to link back to the site which has permission to publish the work.

Your argument for fair use is not applicable as you weren’t even commenting on the exhibition or the qualities of the image which was the reason for the Times feature. You took the picture and recontextualized to make a point to your readers that Bush doesn’t see the damage war causes. What is ironic in this whole discussion is that the couple would most likely have welcomed Bush’s statements.

In your letter to the New York Times lawyer you mention that the Marine Wedding is only one part of a bigger project and so you were only using a small piece of the copyrighted work and therefore permitted under fair use. This is not true. All photographs are individually copyrighted. If compiled into a book, the entire book is also copyrighted.

As for the Whitney Museum blog post, the Whitney has a press image which is available for people to post in connection with the exhibition. Your reader who took a cell phone photograph of the Marine Wedding portrait did so in violation of Museum policy as no photography is allowed in the galleries. I can not stop you from posting this person’s image, but I don’t know why you would.

I have a website. The images are on there. If you want your readers to look at what is exhibited at the Whitney, you can direct them to the portfolio on my site.

http://www.ninaberman.com/anb_port.php?dir=mw&mn=prt

Lastly, you mention that the work because of its widespread posting on the web is now a story in itself. I’m not sure how you can make this leap. True, you are not the only person who has illegally posted the image. I have contacted many other sites and explained to them proper protocols, and they have removed it. Some still need to be contacted. Other listings appear but will soon disappear as the sites are recrawled by google spiders. Others are up there because these sites have asked my permission.

I am especially protective over this photograph because it has been abused, manipulated, stolen, and recast and so I kindly ask you to respect my wishes. I do not have an army of lawyers. I can not stop you from doing what you want. But if it is truly your intention to highlight my work, you can do this in the proper way by linking back.

I am grateful that you were moved by the photographs. Please respect my wishes as to their dissemination.

Nina Berman

Well. I had to admit, after reading that, that Ms. Berman’s argument was more convincing than mine. Plus, I felt pretty crummy about it.

So I wrote back to her with a proposal:

Dear Ms. Berman,


I very much appreciate the effort that you put into writing. I don’t agree with all that you say, but after reading a thoughtful and respectful email like the one below, I can hardly deny your request. One wishes that the Times lawyers could similarly write with the voice of a real person and not a machine; their appeals would be more suasive. Heavy-handedness doesn’t go over well in this community, and it doesn’t reflect nearly as well on you as do the words below.

I do have one suggestion: Why not allow bloggers the right to post one (and only one) image of your selection?

Yes, some of us would abuse the privilege. But most, I think, would not, and allowing the dissemination of one particular image would promote your work and the story behind it while lessening the amount of emails, like the one below, that you have to write.

Not unlike a band that releases one song off an album for free to promote the rest of its album.

And then, if your Google spiders found sites containing other images, you could simply send them the one you’re okay with them posting, with some boilerplate explanatory text telling them why you’d like them to post that one rather than the other. I can’t imagine that most bloggers wouldn’t go along with that. A simple request that they include a link to the site would also be respected, and you would probably drive more traffic to your website than at present.

On the heels of my suggestion, I have one request: I’d love to interview you for Shots in the Dark about the story behind your photographs, the impact that they’ve had, and the issues surrounding them that we are now discussing. Let’s take an unfortunate misunderstanding and turn it into something productive that disseminates a greater understanding of the copyright issues that prompted this exchange.
In any event, thank you again for your note, and for creating such powerful and moving work. Consider me an admirer.

Yours,
Richard
To my great pleasure, Nina Berman accepted the offer. We met twice near St. John the Divine cathedral in upper Manhattan, which is close to both our homes. I found Berman intelligent, passionate, outspoken and extremely likable. She’s old-school in the best sense of the phrase.
Starting tomorrow, I’ll run the edited interview in three parts. Trust me on this—it’s fascinating stuff. I hope you’ll read it.