October 27, 2009

RE: Open Letter to Sycuan, a 1,000-day grievance process

Welcome good people of the world — this is my personal blog to explain about my June 22nd Open Letter to the Honorable Sycuan People in case you stumbled across that private Web petition to the Sycuan band members and their tribal council: Chairman Daniel J. Tucker, Vice Chairman Ricci LaBrake, Candelita Billingsly, Cody J. Martinez, Pilar T.A. Pettiford, Orlando Sandoval, Deedra Tucker.

My purpose for posting that petition was to give Sycuan tribal members a private opportunity to review the documented facts of my grievance — but because my site statistics show my link was visited only one time — I am publishing this public blog to ensure Sycuan band members have the opportunity to read my petition and I can confirm one way or another that this is how they want Sycuan doing business.

Unfortunately, this has now become a train wreck for everyone concerned....

World's greatest quote about dealing with honest and dishonest people: "Me, I'm dishonest. And a dishonest man you can always trust to be dishonest. Honestly! It's the honest ones you want to watch out for, because you can never predict when they're going to do something incredibly stupid." Captain Jack Sparrow (actor Johnny Depp) timeless immortal words spoken as he betrays Barbossa in the Disney movie, The Curse of the Black Pearl.

may not be a very smart person when caught in the headlights — but I believe I am an honest, straight-forward person who has certainly worked hard and played by the rules my entire life.

So I stand here today for everyone who has ever worked hard and been faced with unfairly losing their Life’s Work, their Good Name, their Livelihood, their Good Health, and their Peace of Mind.

I do this while I possess the interest and fortitude of mind to stand up for myself — to finish my business at Sycuan and find closure, to move on — to set the record straight today for future references about how Sycuan got my photographs and what happened to my business as a consequence of asking a Sycuan Casino manager for an explanation.

SYCUAN TRIBAL MEMBERS

FIRST, I NEED TO SAY UP FRONT the Sycuan Indians I’ve worked with directly over the past 20 years on the Sycuan Indian Reservation in San Diego County — including the Sycuan Fire Department — have always treated me fairly and respectfully.

Likewise, I've been honored to work with many other good people at Sycuan whom I also like and respect.

Together we have produced mountain ranges of positive, interesting work that millions of people have enjoyed on our popular cultural and education Web sites and multi-media presentations over the past several years alone.

These successful American Indian Web sites include www.kumeyaay.info, www.sycuanfire.com, www.gehotshots.org — I built these Native American Websites all from scratch and currently maintain them. These young sites are getting some 2-million hits a month and their key words are dominating Google and Yahoo search engines.

ONE-PERSON COMPANY successful 20-year business relationship with Sycuan

As a one-person independent creative enterprise, I worked my butt off for Sycuan mostly under commercial photography contracts since 1989 — my business was literally formed around Sycuan and I served the Sycuan people on a near exclusive basis for well over a decade, always as a free-lance, independent contractor.

During my 20 years serving Sycuan and its various business enterprises, I have performed every contract and I have never been noticed of a single complaint against me or my work.

I have given back thousands of free hours to Sycuan and our communities — most dramatically on www.kumeyaay.info — I spent some 4,000 hours of my free time creating and maintaining this huge multi-media Web site at my sole expense and I never took in any money off this Web site whatsoever.

I never cared much about making money beyond paying my rent and buying the tools necessary to practice my craft — but I believed I was working intelligently in the "Sycuan family" team environment — to have something meaningful at the end of my productive years to leave behind as my professional legacy for future generations to enjoy and learn from.

The Nutshell: After a protracted 1,000-day Sycuan grievance process — the Sycuan Tribal Council left me to conclude they have thrown out 20 years of our business contracts, and just took my valuable intellectual property to use royalty-free for all time. THE INTELLECTUAL PROPERTY AT STAKE is substantial, including my exclusive contractual rights — copyright — to some 30,000 photographic film negatives, some 20,000 digital photographs, some 100 hours of digital video, several published movie DVDs, and some very successful Native American Web sites, including www.sycuanfire.com, www.gehotshots.org. That material includes ONLY the work I produced related to my Sycuan contracts — that Sycuan material forms the cornerstone of my greater life's work on tribal communities of northern Baja California, and the Southern California Indians. That Sycuan material does NOT include an additional mammoth 250,000-megabyte digital archive of still images, writings, or video cultural documentaries I produced on my free time for The Kumeyaay Information Village Web site and its historical image and video archives. Exclusive rights to the complete G. BALLARD multi-media library — and the Good Will contained therein — represent the total equity I built into my 23-year publishing business and my professional legacy. The simple truth of my complaint is: If I do not enforce my copyrights today — as I have done adamantly with Sycuan mangers, infringers and plagiarizers in the past — I will have no copyrights tomorrow (and several years from now no one will know or care who photographed my historical images). My original grievance against Sycuan Casino managers was based on a documented pattern of unethical management practices that included professional Sycuan Casino employees and/or their vendors acquiring my digital files illegitimately, rubbing out my watermarked copyright notices and Studio file information and archiving the altered files to disks, and using the altered images in print, Web and commercial projects without my permission in direct breaches of crystal-clear written licensing terms. The final straw(s) involved Sycuan Casino employees taking my personal high-resolution files in for a Studio pow-wow AD and a Sycuan TV commercial, then later rubbing out my credits and copyright notices behind the scenes and printing them into large posters in flagrant breaches of crystal-clear licensing terms and devoid of professional ethics (not once, but twice)! In response to the second instance, I wrote to the offending casino manager and asked him for an explanation about the second infringement — his supervisor (a Sycuan Casino executive) responded to my request by E-mail. The executive's strange and unprofessional written responses to me are what set my grievance in motion. Moreover, my grievance was brought to the Sycuan Tribal Council only after: Only AFTER I gave the Sycuan Casino executive a written free offer for Sycuan to use my pictures royalty-free for all time (to close the matter then and be done with his shoddy casino management); Only AFTER the casino executive let my free offer expire just as he (allegedly) resigned from Sycuan; And then, only AFTER his subordinate casino manager did not respond to my subsequent written request to discuss the matter. If all that wasn't disappointing enough: AFTER I placed the documented facts in the Sycuan legal director's hands and we were discussing my complaint in Good Faith — the pow-wow director informed me tribal members ordered her not to use my creative services anymore on the Sycuan powwow because of untrue and damaging statements they (allegedly) made to her about me, she said to me. Losing the powwow under these (alleged) circumstances was quite a personal blow because I had previously photographed 15 Sycuan powwows, and the trust and relationships I built with these tribal peoples means a lot to me to have them (and the community) hear I was dismissed from the Sycuan powwow because I am "suing Sycuan" over their pictures — because it is a baseless and untrue statement that never should have been said to the pow-wow director (or anyone else). In fact, my contracts, licenses and copyright laws were written to protect their pow-wow pictures. Yet this all took place in spite of my clear and convincing evidence, my spotless 17-year record at Sycuan (and in the Indian community I serve), and before my complaint had any reasonable time to cure after it was handed over to the Sycuan Tribal Council. Today — more than 1,000 days later — I have exhausted Sycuan's grievance process and reached my wit's end dealing with one of the most powerful sovereign Indian gaming tribes in Southern California and trying to get closure with a tribal chairman who refuses to discuss the problem any more so we can finish our business like professional business people and settle our differences. As a result — most regretfully — his administration, the Sycuan Tribal Council, has left me to conclude: The sovereign Sycuan Tribal Government has no intention of Honoring: 1) our established 20-year written contract terms, or 2) the agreements its Sycuan Casino executives signed, or 3) my agreements with the Sycuan Fire Department, or 4) the binding written terms Sycuan employees and Sycuan vendors agreed to when they downloaded, altered, archived and used my commercial images off my Internet servers and portfolio CDs for countless Sycuan tribal, and casino projects.

Because I desperately need to get this all off my chest and get on with my life, I am making the following points now so I don't have to make them later:

SYCUAN'S OFFER (Sycuan’s Price, Sycuan’s Terms)

IT IS TRUE THE SYCUAN COUNCIL MADE ME AN OFFER to resolve the problems.

Sycuan's offer boils down to: My (Sycuan's) Price — My (Sycuan's) Terms.

I don't see how "My Price — My Terms" is fair in any negotiating sense, but here is the complete price and terms of the Sycuan Offer:

The Tribal Council “reached the decision to offer (price edited) for full rights to all photographs.”

I basically agreed to accept Sycuan’s low price to close the matter, but what does “full rights to all photographs” mean in any contractual sense?

How could I possibly agree to that meaningless legal wording, those terms?

I've produced a mountain range of unrelated work on the California Indian Peoples — was Sycuan trying to include "full rights to all photographs" contained in this greater work in their vague terms?

After all — I was crystal clear from day one with the Sycuan legal director that any acceptable agreement would have to specifically and clearly distinguish and exclude my unrelated but similar work on California Indians.

Maybe I don't understand how hard-ball "professional" negotiators operate, but when I questioned Sycuan's vague wording again and provided my detailed counter terms to resolve all the problems (based on previous writings), I received no further response from the Sycuan Tribal Council — and most importantly — no closure.

Further, their legal director did not respond to my three subsequent written requests asking her to acknowledge receipt of my last counter offer.

Even further than that, Chairman Tucker also did not respond to my two subsequent letters to him asking his administration for its response — and most importantly — for its closure.

My opinion is:

Sycuan's vague offer was "take it or leave it" — either simply agree to Sycuan's Price and Sycuan's Terms or Sycuan clams up — because that's what happened at Sycuan.

SYCUAN ALREADY PAID FOR PHOTOGRAPHS — NOT!

The Sycuan Tribal Council stated in their initial offer, it based their price on the theory they had somehow already paid for the photos “in the normal course of business when the photos were originally taken.”

Because the contracts are crystal clear about who owns the "sole and exclusive" rights to my Sycuan photographs — I do — the above statement is a pretty strange point to argue after reading our long-established contract terms, in my opinion.

All the hundreds of Ballard-Sycuan invoices have included (clauses 2, 5):

[2] Except as otherwise specifically provided herein, all photographs and rights therein, including copyright, remain the sole and exclusive property of Studio. Any additional uses by Sycuan (Sycuan) require the prior written permission of Studio on terms to be negotiated.
5] ...This agreement incorporates by reference Article 2 of the Uniform Commercial Code, and the Copyright Act of 1976, as amended.

I pointed out this crystal clear contractual detail to both the Sycuan Casino executive management, the tribal council and the Sycuan Business Committee throughout this process.

I also detailed the facts that I have invested over 2,000 hours of my free personal time developing and organizing a massive 190,000-megabyte digital Sycuan archive (not including video files) mostly by converting the best of my Sycuan film negatives to high resolution digital scans — plus an additional 4,000 hours developing the valuable Good Will associated with my now famous Sycuan art and greater work on California American Indians.

ECONOMIC REALITY

Sycuan's last Counter Offer, the last response I received from Sycuan, dated December 16, 2008, stated Sycuan's "offer reflects the economic reality of the current market."

While I appreciate the "economic reality" Sycuan faces — because I and most other people who work for a living are in the same boat — Sycuan's Price, the price I agreed to, was greatly reduced for the current business environment and my wish to give Sycuan a genuine opportunity (at its own price) to acquire clear uncomplicated and legitimate rights to my Sycuan pictures, and resolve the damages its employees and vendors caused to my long-established creative business.

The Reality, in any case: The Sycuan Casino created the "reality" when their employees and vendors started rubbing out my copyright notices, scanning hundreds of my photographs to disks, separating my Studio/copyright information from my photographs, archiving my altered and unlabeled work to who knows where, printing and releasing it to who know who, using it on countless Sycuan projects — they set in motion an unfortunate situation that is impossible for them or anyone else to unwind: You Can't Put the Paint Back in the Can. My photographs were so poorly mismanaged at Sycuan that no one there now (or in the future) can possibly distinguish my photos from Sycuan's anymore. Furthermore, the damages to my good name and business on the Sycuan reservation were certainly compounded by tribal members (allegedly) just weeks AFTER I brought my grievance to the council, and compounded again now in the greater Indian community I serve by HOW this administration has dealt with my grievance. The only possible solution here to clean up these very unfortunate problems is for Sycuan to pony up to the "reality" it created, honor our contracts and try to restore the damages it caused to my business and good name.

RESPONSIBLE GOVERNANCE

Sycuan Mission Statement states:

Our Mission:
To protect Sycuan's sovereignty and preserve the well-being of our people through self-sufficiency and responsible governance, while having a positive impact on our community.

-source: www.sycuan.com/mission_statement.html

Those are very noble words, indeed....

WHY DO THIS? (lastly)

I am talking about clear contractual rights to TWENTY YEARS of my hard, dedicated life's work, my livelihood, and my professional legacy — for goodness sake!

What would you have done in my shoes?

Regards,

GARY G. BALLARD

ENC: My open letter to Sycuan band members for more information.

FURTHER BLOG ENTRIES:

October 29, 2009:
With a couple days now to reflect on this, it has to be a lot more healthy than than keeping this all bottled up inside.