Jacqueline and John F. Kennedy, NYC 1960. Copyright George S. Zimbel.

A Freelance Photographer vs The New York Times

Many media companies are often at odds with freelance writers and photographers over who owns the words and images once they have appeared in print.

What follows is an exchange of letters about a single picture. It was triggered by an e-mail from the photographer, George S. Zimbel, to Barbara Cox of Photokunst, a consulting firm for both individual photographers and archives, including The New York Times archives.

Who owns this picture? George S. Zimbel -- not The New York Times. © George S Zimbel.
This piece originally appeared in the May/June 2001 issue of the Columbia Journalism Review.


November 21, 2000
Dear Barbara,

I currently have a retrospective at Sala Millares in Madrid and on the swing back, stopped at Paris Photo where several of my dealers had booths. My wife saw your booth and suggested that I might have some prints in that collection. Although I have freelanced for the [New York] Times for over 40 years, I said "no" because I always sell "One Time Rights" and The Times does not own any of my work. Surprise!! #122, George S. Zimbel: Jacqueline & John Kennedy, NYC 1960 8/10 print described as "vintage." Price (US)$4,000.

I have not authorised the sale of any of my work through The New York Times and would like that print and any others that you may have of mine returned safely to me at the address below. Thanks for your attention in this matter.

Yours truly,
George S Zimbel

November 28, 2000
Dear Mr. Zimbel,

I am counsel for The New York Times Company. Your November 21, 2000 e-mail to Barbara Cox has been referred to me for a response.

You assert in your letter that all physical photographs taken by you and submitted to The Times for one-time reproduction are not owned by The Times. We disagree.

Our understanding has always been that title to the physical prints passed to us upon payment to you for the right to reproduce the photo. This understanding is reflected both in our practice of retaining or disposing of prints without the involvement of the photographers, and in the fact that, in the many years since we first acquired the photographs, you have never before seen fit to request their return or otherwise challenge our ownership. Indeed, to accept your position one must believe that for all these years, The Times has been providing free storage for your property.

In sum, it is our position that we own the prints you refer to in your letter. Therefore, we decline to comply with your request that we first comb our extensive archives for photographs from you and then return them. Please feel free to contact me in the event you have further questions.

Very truly yours,
Maggie R Drucker

November 29, 2000
Dear Maggie,

You get paid when you write letters and I don't, but sometimes I have to come out of the darkroom and tend to business and ethical issues.

First I will deal with the philosophical aspects of this situation. You always had a wonderful photography staff ... Bill Eckenberg was a friend when I was still at Columbia; Pat Burns and I used to trip over each other on the political beat, etc., etc., so your true New York Times archive is rich in content and available for whatever commercial exploitation The Times feels is profitable. You have paid these people a salary. Their negatives are undoubtedly in a file somewhere at The Times.

The freelance people traditionally have worked for The Times on a one-time reproduction rights basis with the modest remuneration based on that fact .. I don't know how many freelance photographers or the estates of deceased photographers have contacted you, but if the letter I received is the response they get I am very sad that you have seen fit to treat us in this manner. To quote a letter which (New York Times publisher) Arthur (Ochs Sulzberger) Jr. wrote to me last year: "times have changed," but they have not changed so much that you can take my property to sell for your profit. If I rent a car from you, I am just renting a car. It doesn't give me the right to sell the car once I am finished with the rental.

I would suggest the following process to deal with this situation. First, talk to your photo editors to better understand the procedures which have been followed by The Times in dealing with free-lance photographers. Then, for those photographers who are lucky enough to still be alive, offer to return their material, or if they wish to participate in this process pay them a 50 percent commission on any sales which The Times may make. My personal wish is to get my material back, but others may opt to sell through The Times.

I hope you give this serious attention because it is a serious matter.

Yours truly,
George S Zimbel

December 6, 2001

Dear Mr. Zimbel, I am in receipt of your November 29 letter.

I have conferred with my clients and have determined that there are no plans to sell any photographs taken by you and printed in The New York Times.

I am hopeful that the foregoing will satisfy your concerns. Please feel free to contact me if you have any questions.

Very truly yours,
Maggie R Drucker

December 11, 2000
Dear Maggie Drucker,

Thank you for your letter of December 6 in which you say "there are no plans to sell any photographs taken by you and printed in The New York Times." When I first read your letter I had a feeling that it didn't say anything that would address the issues I raised with you. Then I thought, "you are being too suspicious" and I brought it home for my wife to read. She said "It doesn't address any of the issues you raised." So here I am again when I should be in the darkroom.

First is the question of the "Jacqueline & John Kennedy, N.Y.C. 1960" print... It is my property and I would like to have it safely returned. I assume that it is the only print of my work that Photokunst/The New York Times is offering for sale. If there are others let me know. In regard to whatever prints of mine may be in your archives I would like them returned to me and, in any event, I do not give permission for them to be sold.

Thanks for your attention to this matter.

My best regards,
George Zimbel

P.S. I have only one addiction in my life, and that is reading The New York Times. I have read it since I was a teenager in 1943, and have worked for it since the early 1950s, so my position is not antagonistic. I just want this settled.

December 20, 2000
Dear Mr Zimbel,

In your recent letter, you requested the return of your photographs, including this one. Let me explain why (in addition to the fact that there is no legal basis for returning photos, which we have discussed) we can't comply. That photo, through the years, has become a historical document by virtue of The Times' possession of it. The back of it has become as important as the front because it is a passport to its life at our newspaper, showing captions and date stamps. In fact, it is this very documentation that gives value to the scuffed print. I'm sure you know that, in Paris, we framed the pictures to expose the backs, and we were not surprised when visitors were as interested in that part of the picture's history as they were in the image itself.

As a photographer who has shot extensively throughout his life, I know you understand the worth that The Times brings to history, and now your photograph has become part of ours. I hope you can understand our position and that we have satisfied your concerns.

Very truly yours,
Maggie R Drucker

January 3, 2001
Dear Maggie,

What an eloquent letter. Please fax or e-mail me the front and back of my Kennedy picture which was offered for sale in Paris. I know it was not made for The New York Times and I want to know its provenance. After I receive it, I will respond to your letter, specifically in regard to that print.

My best regards,
George S Zimbel

January 12, 2001

Dear Mr Zimbel, Pursuant to your January 3, 2001 request, I have enclosed a copy of the front and back of the Kennedy photograph. Please feel free to contact me with any further questions or concerns.

Very truly yours,
Maggie R Drucker

January 16, 2001

Dear Maggie, I have now received the photocopy front and back of my photograph "John & Jacqueline Kennedy 1960, NYC" that you offered for sale through Photokunst in Paris. The provenance has now become clear. The print was requested by your photo editor.. At that time I lived in Dobbs Ferry, New York, as indicated from the stamp on the back. It evidently was used by your women's page and was not returned to me after use as is the normal procedure but instead was put in your morgue. It was not shot for The New York Times. (See American Politicians, MoMA, 1994 -- page 34). It was done for an ongoing personal documentary project on American politics.

Now I am going to reply to your letter of 20 December 2000. I do not agree that you own the print, despite your citing a "legal basis" for your claim. You get paid to cite legal bases which then have to be challenged in court in order to be resolved. That is not my path. I am a documentary photographer who is trying to do my work. I could walk away from this, but I don't choose to do so, despite the urging of my doctor/art consultant.

You mention that my photo has become a historical document by virtue of The Times' "possession" of it. My photograph is a historical document because of its content. The fact that The Times stamped dates on the back and used red grease crayon on the surface "gives value to this scuffed print" and so, in the new world of commercial exploitation, The Times offered my photograph for sale in Paris for $4,000 through Photokunst.

I am getting very upset as I write this, but I will continue and quote your last paragraph and respond. You wrote: "...I know you understand the worth The Times brings to history, and now your photograph has become part of ours." That is very eloquent but the reality is that the reproduction of my photograph has become a part of The Times' history. My Kennedy photographs are in the collections of MoMA, ICP, Museum of Fine Arts Houston, Musée du Québec, Musée d'Art Contemporain de Montréal, Institut Valencia d'Art Modern, and other collections. That is a historical context.

You have my permission to scan that print, front and back for your archive, with any future sales from that scan paid for in the normal manner which has been our way of working together for nearly fifty years.

I value The Times more than you will ever know. My concerns will be satisfied when I receive my print properly packed here at my studio. That is a Times tradition.

Best regards,
George S Zimbel

January 17, 2001
Dear Mr Zimbel,

I was pleased to hear that the issue of your Kennedy photograph has been resolved and that the print is being returned to you. As I think Jim Mones [director] of The New York Times Photo Archive made clear to you, our return of the photograph does not suggest that we do not stand by our legal position. We continue to believe in our ownership of the print, but, in the spirit of compromise, we have agreed to make an exception in this case.

Sincerely,
Maggie R Drucker

February 12, 2001
Dear Maggie Drucker,

Jim Mones used terms such as "valued contributor" and "longtime relationship" in our final conversation before he returned my photograph of "Jacqueline & John Kennedy, 1960." In the conversation prior to that he said that the archive was returning my print, and then added the proviso that I would have to pay 50 percent to The Times if I sold it! I used several expletives to let him know that the photograph belonged to me and I expected it returned properly packed. He urged me "not to get excited" and said he would call me the following day. He did, stating that the photograph would be returned with no provisos. It was and he kept his word. So, after thirty-nine years the print was where it was supposed to be - in my possession, in my archive with the original negative. It is and always has been my property.

Then I received your letter dated 17 January on 6 February ... I will begin by saying that I consider that letter as insulting as the first one your wrote. I am not an exception, I am one of those freelance people who you seem intent on denigrating in the name of increased profits for The New York Times Company. Now I know what Arthur Jr. meant when he wrote me "times have changed." So, that is clear.

I am ashamed of you and your management colleagues. I still have the highest regard for your editors, writers, and photographers. Your statements have the feel of events in Florida during the last election with lawyers and persons of authority depriving people of what was theirs. You are expending huge amounts of highly paid time to deprive freelance photographers of their property and consequently of income for the minimal amount of profit that will be generated by this mean-spirited policy. It is not acceptable. You use your muscle in words in a court of law because you are lawyers. I will use my muscle in words in the court of public opinion because I am a communicator.

George S Zimbel