While the world of photography was busy trying to figure out how to squeeze one more dollar out of every image, pointing the fingers at potential scammers, or listing, day after, the name and addresses of every single newspaper closing its door, the hallways of the supreme court justice in Manhattan echoed of the fainted footsteps of a mostly forgotten, yet highly important case.
A very well to do photo agency, back in the days when it was still trying to make a dent in the news editorial market had reached out to a very talented photographer based in the nation’s capital, Washington DC. Having lost its main contributor in the White House, it called for the service of an already well implemented and well establish photographer to cover the ins and outs of the political establishment. The photographer, already the recipient of many many assignments from top news publication like Time, Newsweek, Us World and many more, thought, at the time, “hey , why not”.For him, it was an opportunity to grow his reach worldwide, or so he thought.
In these days, film was still mainly used , and so he submitted many of his archives, and his recent work, in slide and film format. The well to do agency had a battery of photo editors looking at the material and selecting the ones to be scanned to be added to its online delivery system.
Time went by, and after 16 months, not seeing any tangible results , the photographer decided to terminate the relationship. Up to now, nothing special.
But upon termination, he was incapable of getting all his images back. Not a few, but more than 12,000 of them. Gone, vanished, disappeared. At first, the well to do agency denied any wrongdoing or hugely minimized the count. That didn’t work too well. They were found guilty for the whole amount.
Lets take a pause here. 12,000 slides, or negatives, that is a lot. out of 50,000 submitted. Its not one slide that fell behind the back of the lightbox. Its 12,000 of them. well 12,640 exactly.
Out of all the images submitted, only 763 were scanned to be put on the website and thus attempted to be sold. Less than 1%. Either the photographer was really, really bad, or the editors were really, really lazy. Or, very simply, the big wealthy company was so overwhelmed with images to scan from everywhere that they just couldn’t do more.
My take is on the last option.
Anyway, guilty of lost of images, the Photo Agency and the photographer went on to quantify the lost. How much ?
That is always an ongoing issue, isn’t it ? How to quantify the value of an image if it has never been sold and cannot even be seen by anyone anymore? Some of these images could have been masterpieces or just plain film in a mount.
Of course, the Big Photo Agency took the low approach. In a nutshell, backed by “experts”, they figured out how much money they made with the photographers work over 16 months and added some . After 2 years of testimony, a Judge declared that $100,000 was a fair compensation. A mere $7.26 per roll of 36 frames !!! including processing. If you can make a deal like that, its worth dropping digital and going back to shooting film.
Obviously, the photographer was in shock. Never in the history of lost film was an award been so low. Here is one of the issue : Because the amount of images lost is so high, a more regular award of lets say, $400 per image ( still low) would quickly bring the total to Millions of dollars. Usually people loose a few images. or a few hundred. but not 12, 000 !!!
So, the judge was trying to make an overall acceptable amount instead of looking at the details. For the photographer, the lost of income is almost incalculable. It’s blood ( hopefully, not to much), sweat ( a lot) and tears ( especially after hearing the judgment). An appeal has been made, obviously.
The big bad unprofitable photo agency has a battery of full time lawyers that have nothing else to do then to drag this forever. The photographer, well, not really. This has been going on for 7 years now with more than 10,000 documents and a battery of witnesses. And it ‘s not over.
Why is this important ? Because, like any judgment, this will become a judicial reference. If the Agency gets away by paying $7.36 for 36 frames, then subsequently, all lost images in the future will be awarded accordingly. And that affects every single photographer out there. Like any other trade profession, ones work should be respected to its real value. Not just for the cost of the support it lays upon.
What is even more upsetting here is that this appeal went on completely silently in the industry. Instead, everyone is busy looking at their navels, making sure their backyards is clean. This should be everywhere, talked about in all trade association and debated publicly. There is no predefined amount, obviously, and determining it is very difficult. But since it will affect everyone, it should be everyone responsibility to join the debate.
Why not include the name of the agency – Corbis. The name of the photographer – Chris Usher. The size of the award given Mr. Usher after winning his case, was appealed and argued in front of the 2nd Circuit Court of Appeals in New York on March 31, 2009.
We have the pleasure of being Chris’ attorneys and have litigated against Corbis over “lost” photojournalism several times for several other photographers. We do not expect a decision from the appeals court for several months.
Thanks, Paul for bringing this story up. It is sad that no one in the industry (PDN, NPPA, etc) is following the story or frankly even knows the story is ongoing! The responses we’ve gotten on FaceBook are mostly, “dude, I thought this was over!” For anyone who is interested, the case is Chris Usher v. Corbis, the atty is Ed Greenberg, the jurisdiction is Federal Court, Southern District. Thanks again Paul… sometimes this whole experience feels like a tree falling in the forest.
The what is more important than the who. That is the reasons the names of the parties were not revealed. But it certainly not a secret.