Chris Usher has lost his appeal after a seven year battle against Corbis and each of his 12,640 images lost will be compensated for a lousy $7.00 a piece.

This ruling means that from now on, any agency, any magazine, any publisher will never have to worry about losing your photographs, since it will cost them peanuts to pay you back. It will be cheaper for them to trash them then returning them to you.

Over on the Bohemian.

Recommended Posts

42 Comments

  1. Another reason to be thankful for the digital switch. Although hard drives crash more often than ever. Back ups to CDs is a must.

  2. Yeah its a sad case but I dont think its definitive in any sense (with regard to precedent) primarily because its unlikely to occur again in future.

    No one under 30 is even remotely interested in shooting for a rights forfeiting agency (the business model is dead) and most of us have our own servers (mirrored) hosting our own archives delivering our content live to any photo editor we want anywhere in the world about 8 seconds after we get it in the can (if we so choose to work at breakneck speed).

    Most of us under 30 have an IRON GRIP on our editorial content. If traditional publications go digital it plays beautifully into our hands. It means we can choke access to our content (serving it from our own servers to targeted client domains – exclusively – on rights managed terms and then blocking off the image at the end of the term). No editorial rights licencee will ever come within a bulls roar of our raw data again. They pay an upfront access usage fee and a bandwidth usage fee from our server.

    If they dont want to play by my terms then they get the (polite) single finger solute. Its pretty simple.

    We are standardising how copyright content should appear in digital format (standardisation in expressions of image copyright ownership on digital platforms is important). It helps protect against ‘screen grabs’.

    This particular legal case (as well as the more recent demise of digital railroad) are classic reminders as to why you would have to lazy, stupid or down right complacent to even consider going down the ‘livebooks’ or ‘photoshelter’ pathway (in terms of comprehensive archival hosting – they do offer a number of other benefits I do admit!!).

    How to deal with digital magazines or commercial clients without handing over files is more problematic. The solution will involve some clever editing software that allows creatives to licence photographic content and work on it ‘live’ from the photographers server without actually downloading the file. So they can dodge/burn/crop/cut/straighten and add type to a ‘virtual copy’ without ever actually downloading pixels. So the original file is served from the photographers server and the adjustments to the file are performed (rendered) locally and overlaid on the file to deliver the final output from the clients domain. They just play with the file during the rights managed period and then we block access to the file once their rights expire for that particular digital publication (domain).

    Its a beautiful platform for really tightening the screws on wayward clients extending the boundaries on their usage terms.

    The way to protect intellectual property in the digital medium is to always serve the content direct from the source (originator) of the content. This lets us rule our content with an iron fist and helps expose stolen/rights expired content when/if we discover it appearing somewhere digitally that we know it has no right to be appearing.

    Bottom line is I feel horrible for the guy involved in this legal case. But I can assure him that the new generation of professional digital visual artists coming through will laugh in the face of any commercial entity attempting to ‘own/control/exploit/abuse/disrespect’ our content on terms that we dont deem acceptable.

    The game has shifted in our favour and we wont be looking back.

    Oh and we now get paid upfront too or our content isn’t available digitally. That’s another one of the new rules we just invented. Whoops I wrote a bit more than I had intended.

    Take it easy and see you out there! And keep up this awesome blog!

    • @Dan: Interesting, but I can’t see how serving images from a separate server can work on high-traffic websites. I work in a CMS company focusing on media, and all our customer’s websites are dynamically cached. How can your approach work on, let’s say Times Online? (http://www.timesonline.co.uk/)

    • @Dan, it would be great to see how this is implemented – can you post links to your or some other website(s) where this approach is used? Thanks.

  3. @Dan,
    I don’t know if its an age thing. under 30 doesn’t mean there are more protection. Sure, we are talking about film in a digital world, but film is not going to die, its just not going to be used as much.
    Funny, I am just finishing the specs on a tool that will do just what you describe in part II of your reply. Stay tuned.
    Paul M

  4. All i can say is i have been shooting for about 15 years now and have never given anyone my negs or slides(original art)?????Except of course my lab.Thats partly his fault for entrusted someone with his orignals.A big no no.I too am syndicated at Corbis and have presented scans of originals.
    Not sure what he was thinking?In response to Quavondo up top “another great thing about digital”a really not great thing about digital is that clients
    basically have an original of your image…4 EVER,meaning back in the day when you had prints made they were good for one run and then scratched and fucked…now you send a hi-rise file and guess what …mags,other clients have that image in tip top quality for ever…trust me they will use it without having to call you up and ask for another print(paying for the image again)…it’s happened to me all ready.

    • @bobbyfisher@earthlin,
      Most magazines wouldn’t take a scan done by a photographer up until 5 or 6 years ago because inevitably someone who didn’t know what the hell they were doing would send some jenky scan in and on deadline when the randoms came back from the color house via fedex we realized the scan sucked and it was too late to do anything about it so we’d go to Corbis because they had reliable scans… well except for that one time I asked for a higher res and the moron just res’d up in photoshop without telling me.

  5. @bobbyfisher,

    Well bobby, as someone who only a year ago quit shooting film I can speak to why they had his originals. Did you see the number of slides? Multiply that times 10 or so and you will have the number of images he sent in originally to be considered. So, roughly 120,000 high res scans from film? Do the calculation. Not in this lifetime.

    Also, to Dan: So how exactly does that work for print? Advertising print usage still pays something like 4 or 5 times what any web usage is paying. Do you just forgo those sales? I know you kids see a brave new world where nothing happens in reality, it all happens on the web but you will be older than I am before that is even close to the way things are.
    Don’t get me wrong, I’m fascinated by this idea, I’ve been fighting these same battles for three decades now and I’m tired of making money for lawyers but I just don’t see how it’s practical today.

    The bohemian is right though, I’ve experienced the same thing: zero help from our associations when doing battle with the big corporations and their armies of lawyers.

    • @Mark Gamba, I just stopped shooting film about 2 months ago…but the point i was making was not so much why did he give up his negs ..but why didn’t he submit slowly..batches at a time.I just sent negs to Nat Geo imaging to be scanned and sent 40 at a time..any way i feel for him but still think what he did should always be avoided.Never give up original art work…ever…

      • @REF, I’m Chris’ archivist. It’s so funny how there are so many different photography worlds! When Chris was covering both Al Gore and George Bush for the 2000 campaign, primarily for Newsweek, the routine was for the photographer to shoot film and send it to the magazine unprocessed. The mags processed the film, made their selects, ran whatever they selected in the mag, and then forwarded, per the photographer’s direction, all of the slides or negs to the photographer’s agency who would then market it for the photographer by making dupes and/or scans and then return the originals to the photographer. That last step is what Corbis didn’t do… for the selects, that is.

        • @Adrienne DeArmas, Yes definitely a different world…i have been in this “world” for about 20 yrs and never met a photographer who handed over his film…..ever.This world i speak of is the World of working for Conde nast,Amex pub.,Hearst etc.(Editorial)..so it sounds like the P.J world deals with film in a much more TRUSTING fashion.Did Chris ever say “i want to come over and look for myself”?Can’t believe some moron tossed them.I have had another photographers film returned to me from Corbis before and called his agent to have it picked up…..which brings me to the point that it’s your “baby”(film)not theirs and no matter what they won’t treat it with the same care and respect.Strange thing is …it has to be somewhere….out there.

          • @blobby, Never met anyone who handed over their film to their client? Really? I’ve never met any real working pros who haven’t. I’ve never had a deadline that was far enough out from the shoot date that would allow either duping or scanning of 3000 slides. And besides, who was going to pay for that, certainly not the client. Hence the contracts and delivery memos. Not that they mean much when you are talking about thousands of slides because that’s when it is cheaper for the client to engage lawyers.

            • @Mark Gamba, Maybe i’m confused?I’m specifically talking about…people who shoot editorial..including myself.If you consider G.Q,Travel&Leisure,W,New york Times.etc.venues that are for NON WORKING PROS..then i guess that’s your opinion.I meant why on earth did he dump that many “original art” pieces at Corbis at 1 time.I would figure that most folks like myself would do it in batches?I repeat myself..i do not no any Photographer who would hand over negs to a magazine?I understand the corbis deal given cost.

              • @BOOBS, No, I’m hot saying that aren’t a talented and working shooter. I guess I should have rephrased to ask you: When you were shooting film and came back on deadline from a month long shoot how did you deliver the imagery to your client?

                • @Mark Gamba, Well as i was trying to point out in an earlier reply..We are indeed from 2 different worlds..One would never get an assignment that was that long ..if one were working for the above mentioned mags.So it has never happened to me with the exception of last month…and i am convinced the reason my client needed it a.s.a.p was because they found out i was shooting digital(for the first time in my 13 yrs)…anyway thats the different world i was talking about..Photo Journalist vs. Commercial…whatever you call us?

                  • @BOOBS, hmmm, I’m not sure I understand your answer but I’ve had both editorial (photojournalism) and commercial (advertising) assignments that lasted that long and that’s really not the point. Make it a 10 day assignment. My point was that when you come back with thousands of images and the client needs them within a couple of days, there is no time to scan or dupe even if someone were willing to pay for it. So my question stands: How do you deliver your bigger film shoots to clients?

                    • @Mark Gamba,I have never had to hand over negatives to an editorial client is what i am saying..rush an edit yes…rush processing film ..yes…Why would i trust a photo editor to edit an 8 page story for me? You are your EDIT simply put..period.Thats nuts…I don’t shoot thousands of images either…sounds like you shoot too much film?Advertising/catalogue..thats a different story ..they can have it all and keep it.

                    • @BOOBS, First of all I almost never shot neg, National Geographic and most of the rest of my client demanded or strongly preferred slides, so no contact sheets to send. Secondly, I don’t get a lot of assignments shooting people standing around. I shoot mostly sports, action, adventure. The things that motor drives were invented for and required by. Hence a lot of film and with the rare exception of Haggart most of my clients wanted everything except the bad frames.
                      Your advertising and catalog shots must be much different than mine. Mine have a great deal of secondary value, but again, different subject matter. I still tried never to just let any client keep the film indefinitely even if the images were worthless to me. It teaches them the wrong lesson and it has come back to bite me when other photographers had that cavalier attitude.

                    • @Mark Gamba, Well their you go……I have shot with a pentax 6×7 for the last 15 yrs..(just switched to a nikon d3x)and would never give my negs to any mag.Thats the way it is done here in NYC…In this world of Commercial photography.
                      I am by no means saying this is the “SHIT” i am just stating a fact.I assisted a ton of the top photographers back in the day here in the city and they too would never think of giving their negs up…BUT THAT IS WHAT I WAS STATING 2 OR 3 REPLYS BEFORE…WE ARE IN DIFFERENT WORLDS.

                    • @BOOBS,
                      Ok you two, that enough. One shoots slide one shoots neg. If you shoot slide the slides go to the client. If you shoot neg the contact sheets go and the negs sit at the lab.

                      I have received slides from every level of photographer in the business so I know it can’t be that uncommon but I don’t doubt you have never done it Bobby or that you don’t know anyone that does.National Geographic had their own slide film processing facility because they spent so much on it. In sports and especially outdoor sports it’s very very common. If you shoot chromes you had to send them in so we could scan them. We also lost them once in awhile. The biggest cases were when UPS delivered them to the wrong address. I could go on and on about this because it was the biggest nightmare about working in the photo department. Every month we had a million dollars worth of photography in a couple file cabinets.

  6. @Dan,

    Dear Dan,

    Boy oh boy . . . I’m not even sure where to start on this one.

    I suppose first off I’d have to assume (hope) you’re independently wealthy? If not, you may find your ‘assignments’ few and far between, because as much as you may want to believe that you’re ‘in charge’, err sorry, I meant to say “capable of maintaining an ‘iron grip’ on your career’s progress”, the reality is a bit different.

    Like Mark G. (great shooter-seen his stuff for years) and Chris Usher (who’s a friend of mine) I’ve been in the game for what would seem to be a wee bit longer than you have. And as much as you might like to think that you can politely ‘wave the single (middle?) digit’ at clients who ‘cross you’, it actually doesn’t work that way. And I’m talking from personal experience . . . you might want to re-examine that approach. Do check back in with all of us in a year or so, and let us know how it’s fairing along . . . recession and all that.
    Oh yeah, let me know how that whole ‘upfront access usage fee’ idea goes-in light of the current 90 pay cycle, and the current Omnicom sequential liability gyration . . . I’m just curious.

    I did notice that you neglected to post a URL so we’re all at a loss to see the work you’re so far doing.

    If, as Tyler above presumes, you’re expressing yourself via sarcasm my apologies, just kind of hard to discern given the level of vitriol.

    As to your statement regarding ‘no one under 30 wanting to shoot for a ‘rights forfeiting agency (the business model is dead)’, that would be another premise you might want to investigate. With the advent of digital-as both a production & distribution tool the sheer volume of people attempting to enter the field of ‘professional photography’ is staggering.

    With basically only Getty & Corbis left standing in the stock world (both backed by LOTS of private money) they can afford to not only wait for people to sign on the dotted line but also dictate terms. Have they offered you a contract, and if so did you decline? Just curious.

    Sure, it’d be ideal if all the ADs, ABs and PEs out there had infinite amounts of time to peruse the multitude of visual venues for images, however guess what? They don’t. And so they go more often than not Getty or Corbis, and ‘the house’ makes the money. A bad thing? Not necessarily, especially if you’re shooting for one of them. Not so good for the rest of us though.

    Guess what? Investment Banks usually don’t spend $2.5B if they think the ‘business model is dead’. No, I’d wager money that Getty will still be making a LOT of money long after you’ve left the business.

    The point that’s seemingly been missed or not fully appreciated (except by Mark, and Adrienne) is that a precedent’s been set, and it’s another bad one for photographers.

    I was talking with Chris about this issue last week, and we were both in shock over the apparent general lack of concern on the part of the ‘industry’ (that’d be us-the photographers) and what we were sure was great glee on the part of Corbis, Getty, Google, et al.

    While many people reading this don’t (and haven’t ?) shot film, there is (as ‘REF’ states) still film being shot. And yes, ideally it would be scanned by the photographer and then the files sent on. However the reality is that this is still not always going to happen-there WILL be instances where film will be shot, shipped and subsequently (although hopefully no one will EVER take a hit like Chris did) lost. And the result . . . well-the precedent’s been set. That photographer, or photographers will most likely receive not more than $7.00 per image. Why? Because, as usual we were too busy look out for ourselves instead of after our own. ‘United we stand, divided we FALL’. So true.

    I’d go so far as to extrapolate that this plays very well into the hands (and wallets) of the giant corporations pushing the Orphan Works legislation along- any and all possible ways of devaluing what we do (the intrinsic value) of photography and photographs is good for them, bad for us. And the more they can do to reduce the equation to ‘photograph = widget’ which is pretty much how they played part of Chris’ case . . . well, that’s bad.

    Back to precedent , The Bohemian and Dan’s post.

    The Bohemian is exactly right on this- it IS shameful that it did not get more press, did not get brought up in EVERY APA/ASMP and other group’s meetings nationwide, on an ongoing basis. And Dan (despite your apparent lack of legal knowledge) there is a VERY real danger regarding precedent in this case. ‘Unlikely to occur again’ ???? Believe me, it WILL occur again, and we ALL will be f’ed as a result of our collective inaction. And sadly I’m as guilty as the rest of us- I didn’t do enough.

    Regards

    Robb Scharetg

    • @Robb Scharetg, Thank you.

    • @Robb Scharetg,

      Hey, thanks for the kind words. I would add one small ray of sunshine to this otherwise depressing issue. Gallery Stock! Check it out, great contract, good folks, top notch imagery (yours would fit right in) and they’ve made me more in one sale than Corbis has in a handful of years combined.

      • @Mark Gamba,

        Hi Mark, I’ve watched your work since . . . early 90’s I’d say-always loved it. Glad you’re still at it, and cheered by the fact that you’ve ‘just switched over’, I’m in the process but still love film. Anyhow, I’ll check out Gallery Stock, I have stuff on LensModern now, have to see how they do. Getty’s offered me a contract, I’m not sure. 900lb gorilla and all that.

  7. I did not read anything from the article that states there was a contract that had provision for a set amount if the slides and film were lost. He should have had a contract, and I’m not saying this in hindsight. When you take your film for development, you basically have an agreement with the lab on how much you will be compensated if the film is lost or damaged. It is unfortunate for Chris Usher, but now we all know what will happen if this subject of loss is not address from the start. Knowing there is always a potential for lost, a contract should have made it clear what the compensation would be if the film or slides were lost.

    • @David O.,

      Hello David

      As the tabloid, err I meant trade press is so often lacking in the full reporting of the facts and details I would not presume (as you apparently have) to deduce that Chris Usher (a LONG time and VERY experienced PJ with years of syndication experience under his belt) had simply shipped film to his stock agent without a delivery memo, or before having notated the image count, the image content and the potential market for said images. IF that was the case, he would NOT have had a case, and Ed Greenberg would NOT have taken it on. Both Ed and Chris are intelligent men, they’re not crazy. Think about it- what Counselor with a busy practice NEEDS to take on work where there’s NO chance of prevailing???

      Chris DID have a contract-the standard delivery contract that most of us (shooting film) use when we send/deliver film to clients/stock houses/etc. In it, the ‘standard’ stipulated amount of $1,500.00 PER image was clearly and succinctly stated. And thus, with contract in hand and verified correspondence from those involved in the Art Dept who lost OVER 12K images they began a legal fight that by not prevailing WILL affect all of us. Negatively.

      Do the math- 12K x $1,500.00. It’s significant. THIS ($1,500 ea.) was the amount that Corbis fought against, and this is just ONE of the main reasons that this ruling sets such a bad precedent.

      Granted, Corbis COULD have paid Chris the monies duly and rightly owed. And they would have gotten off cheap- even at $1,500.00 per image that STILL would not have equaled the long term historical value of some of the images, or their potential long term earnings potential-see Jacques Lowe, Burnett, various other prominent PJ’s work for that valuation. See the Arthur Grace suit records for that matter.

      The reason they fought SO long, and paid their legal team SO much is ALL about precedent. Apparently they had a ‘fair number of suits’ in the Courtroom, given my experience in legal matters it’s a fair extrapolation to increase that amount by a factor of 3x to get the total staff head count involved, and then bill that out at about . . . $2K per hour x (maybe?) 300 hours- for all the legal staff costs. THAT is what they spent to fight Chris, conservatively.

      However (here’s the point) while they could have simply written a check for 7+ figures and been done with it that would have established precedent. In OUR favor. So FAR better to spend the money on legal up FRONT, and save monies down the road.

      Now I don’t know who filed Amicus briefs on the side of the defending party, I do believe that several Amicus briefs were filed on the Plaintiff’s behalf. I would not be surprised at ALL to find out that others with a vested interest in reducing the ‘inherent value’ of imagery came in on the defendant’s side, as hopefully the trade groups came in on Mr. Usher’s.

      I’m going off topic-my apologies.

      You raised the ‘implied contract’ issue in your post- based on your site I’m fairly certain you’ve shot little/any film as a ‘Professional Photographer’. And that’s ok, digital has it’s value. However, WHEN you take film to a lab, ANY lab, ANYWHERE in the WORLD there is a clause that you agree to and it’s boldly and clearly stated- ‘IF there is a problem with the film laboratory in ANY way and as a result your film is damaged (beyond retrieval OR use) your (the customer) SOLE compensation is ONLY the equivalent amount of RAW, unshot, un-processed film. That’s it. And that is why people will carry their film across the globe and not let it leave their hands until it’s in the hands of those at a lab that they trust that they feel safe. And still, until it’s run, dryed, sleeved and on the box-still you worry. However, that’s the compensation. Nothing more, nothing less.

      So you see, equating raw unprocessed film (where you don’t actually know what you have) with 12K + slides of never to be repeated HISTORICALLY valuable images is . . . well, missing the point. A LOT of those images were worth a LOT more than $1,500.00 each-that’s what they were afraid of. VERY afraid.

      One other thing- just because you have a contract . . . doesn’t mean a thing. Corbis could have litigated this for the next decade (or two), written off the legal costs and basically held Chris at arm’s length until either he quit out of frustration, or ran out of money. I don’t know personally the status (or possibility) of an appeal, however I’d feel safe in saying that ‘seven years is enough’.

      He fought the good fight, and indirectly did so for all of us. In letting him down we’ve screwed ourselves.

      Robb Scharetg

      • @Robb Scharetg,

        Hadn’t thought how badly they need to set a price for the images they’ve already lost that nobody knows about or for cases headed to litigation. Now they can send out checks and point to the seven years will get you seven dollars if you want to fight it.

        • @A Photo Editor,

          Rob Hagert-

          EXACTLY. They might have spent $xx,xxx,xxx.00 fighting Chris Usher but A) just think how much they’ve now ‘saved’, B) it’s a ‘write-off’ and C) if they lost 12K of Chris’ images (and he’s only one guy) just imagine how many might be missing??? All of a sudden you’re talking REAL money. Far less expensive to pay the suits and fight, than settle. Especially if there’s an ‘apparent problem with keeping track of tangible goods’.

          People will figure ‘well, I guess $7.00 per is better than nothing’ . . .

          Thanks for posting it.
          Best
          Robb Scharetg

  8. Hi Robb

    There is a misunderstanding of what I wrote. I was in no way equating the value of unprocessed images to processed images. I used the lab as the example because that’s a typical scenario where most people entrust their originals to someone else. Not everyone sends their original out to clients/stock houses/etc.. Some people make duplicates at the lab, some have the images scanned, or make prints, then send these duplicates out for review.

    Moreover even if he does not have a contract, he still has a case, it only means he has a harder case to prove.

    If the contract stated that Corbis is obligated to pay $1500 per film or slide lost there was no way they could have fought against it unless:

    a.) they were in bankruptcy court.

    b.) the terms regarding compenstation for loss is ambiguous, leaving it open to different interpretation.

    c.) the contract, for some technical reason, was not legally binding.

    If the contract is legally binding, and clearly stated that if lost, Corbis must pay $1,500 per image, then case should have been clear cut.
    I was not being presumptuouse when I concluded there was no contract stating this. Consider the press release from Edward C. Greenberg’s law firm. The release said they won the case. But the release did not mention anything about Corbis being contractual obligated to pay $1,500 per slide or negative if lost. If this case was about the legal system circumventing contracts to appease big business, then it will affect every one who signs a contract not just photographers.

    • @David O., There’s only thing clear cut about lawsuits and that is nothing is clear cut.

    • @David O.,

      Hey David

      I can see your point about the source of the misunderstanding.

      What’s important in this instance (amongst a lot of other things) is that in each case there is an implicit expectation that the ‘responsible body’ (lab/stock house/etc) will do its utmost to protect the tangible goods. However it’s perhaps more critical for the stock house to protect and preserve said assets-they generate their revenue directly from the licensing of those images, and the multiplied value is potentially FAR higher than the lab-hence the $1500.00 per image valuation that’s long been the ‘industry standard’, vs. the simple ‘replacement with raw film’ that’s the lab standard world-wide.

      Now, this was the Bush/Gore election that basically changed the direction of the country- the world really if you think about it. And the election results were . . . modified, as such the imagery surrounding that election had particular value-from a historical/political/social/economic etc p.o.v, hence those images DID have high residual value. Not anymore-they’re lost.

      Anyhow, this was clearly in the ‘transition time’ when news was still being shot on film, and given the speed with which news moves there’s simply not the time for dupes/scans/prints etc. You shoot it, run it, edit it, ship it and it’s on the stands in three days. And that’s another problem. Not only did those . . . people lose the images, they did not get them OUT (by their own admission) and thus not only cost Chris Usher long term residual revenue over the life of the images but also the short term licensing revenue that would have come from those frames (at least more than did actually make it out) seeing the light of day and being reproduced world-wide. Remember (sorry to be pedantic) the WHOLE world watches US elections, and that one was a DOOZY.

      Okay, so have I clarified that?

      Now, as Ms. Weiss so aptly and succinctly states about lawsuits . . .

      Here’s my take on it- in 99.99999% of the cases tried, the party with more money is going to win. There is the rare exception, granted. And ‘the winner writes the history books’.

      As to the value of contracts- well, I’ve had some that even though I thought they gave me (what did Dan say?, oh yeah) an ‘iron grip’ on the situation, well in the end they didn’t.

      Corbis could have (and would have given their apparent potential financial liability as Rob Hagert points out)fought this all the way up the line, maybe even to the Supreme Court, although I don’t really see the Justices wanting to weigh in on this. And Getty would do the same, you can bet on it.

      I don’t think the legal system ‘circumvented contracts to appease big business’, what I think happened is that Big Business ran roughshod over an individual citizen; whose intellectual and physical property is/was protected by Federal Law, and who in the end got screwed by the system.

      Seven years is a long time to fight a case, and I’m guessing it probably cost the Plaintiff almost a $1M, I don’t know that- I’m simply guessing based on my own legal knowledge. There’s SO many cases in the courts that have been there literally for decades and in the end it’s just cheaper for the party with more to lose to just keep fighting. Until the litigants die. Really. Look at Exxon/Valdez- on appeal, Exxon/Bhopal-on appeal, DOE/’Downwinders’ still fighting, US VA/Gulf War Syndrome, etc. etc. etc.

      It sucks, but it’s life. ‘Nothing’s clear cut’.

    • @David O.,

      You are categorically wrong in your assumptions. I’ve been through two similar lawsuits. In both cases I had not only signed delivery memos with a price of: “a minimum of $1500 per image” but signed estimates that stated the same thing. In neither case did that carry the day. What you have to understand about the legal system is that it is not about justice or what is right, it is about who can spend the most on an attorney. Imagine that, a system designed to benefit the very people who designed it. In the end I “won” both cases but it was my attorney that actually benefited, not me and in neither case did we get anything close to $1500 an image. Corbis has also lost a few hundred of my originals (that were on file with The Stock Market and were transferred to Corbis after the sale of the TSM to Corbis). My attorney advised me that there was no way that we were going to beat Corbis, no matter what, because they could outspend me by a factor of 1000000x.

      • @Mark Gamba,

        I sympathize with your loss, but at least we’re having this conversation for the benefit all reading.

        If I’m wrong how were they able to circumvent the contract ? Were they bribing judges ? Or were the judges just impressed with all the finely dressed and highly paid lawyers they assembled in court ?

        I’m familiar with the legal system, have sued companies without the aid of a lawyer, and “it’s not about who can spend the most on attorneys”, attorneys are not mini gods or magician. With money, you can afford to hire the most knowledgeable attorney or law firms. With money you can bribe people in power. But these attorneys can’t magically change the law or contracts. They know the law well, it’s their job, that’s their advantage. Most of us creatives don’t.

        Here is what i think….
        Mark, keep in mind your statement, technically, can be misinterpreted to mean something different for what you intend it to mean.

        “a minimum of $1500 per image”

        is not the same as

        “$a minimum of 1500 per negative lost”

        or

        “$a minimum of 1500 per slide lost”

        Why ? because an image can be interpreted as the final piece of work, a print, what exactly is the word “image” intended to designate? That should have been noted in the contract. Moreover you mentioned “delivery memos” & “signed estimates”, signed memo and estimates can be easily disputed in court.It’s important to have a formally signed contract by both parities with legal authority to do so. The memos and estimates should not be the contract, but the paperwork to show that you faithfully fulfilled your end of the contract. Once again “$1500 per image” is not forthright, I pointing out potential holes. Terms of a contract can sound redundant and excessively obvious, but it’s for a good reason.

        So once again I sympathize with your loss, but If I’m indeed, “categorically wrong” how were they able to circumvent the legally binding contract ?

        • @David O., Because there is no such thing as a legally binding contract. That is a fantasy. Contracts are only as binding as the amount of legal muscle you are prepared to apply to back them up. No, they don’t even need to bribe anyone, they just go through lots of legal maneuvering causing you lawyer to respond (which equals=spend your money).
          I did not copy from my delivery memo when I wrote what I wrote, I just gave the essence of the bottom line. And yes one of the maneuvers that was used against me during one of the suits was that “a minimum of $1500” “didn’t actually establish a value” so it was thrown out and we had to prove value (more of my money spent). I have since changed my delivery memos to read “a value of $2500” since I have given up any belief in justice. In any case it’s nearly moot since we only rarely send out film these days.
          I’m curious, did any of the lawsuits you prosecuted yourself involve potential payouts in $100,000+ range? Were you paid what was stipulated in your contracts? If so you should send your contract to the ASMP to have them create a new standard. I’m also curious if you have each new, small magazine that is going to hire you for a one day job sign this contract? And if so, who at the magazine do you have sign it? How do you know that they “have the legal authority” to do so? How long does that take? I have literally flown off to Alaska for an intensive 10 day shoot within hours of a phone call for an editorial client.

          • @Mark Gamba,

            I’m curious, did any of the lawsuits you prosecuted yourself involve potential payouts in $100,000+ range?

            No, significantly smaller, which made it much easier for me to win.

            Were you paid what was stipulated in your contracts?

            Yes, although the company refuse to pay and it took almost a year to for the legal system to get the money from them. Regaridng the ASMP comment, ASMP should hire the lawyers that wrote the AIG executives compensation contract, and have them create a new standard.

            I’m also curious if you have each new, small magazine that is going to hire you for a one day job sign this contract?

            Every situation is different, typically the small magazines don’t pay much. If something goes wrong it’s not the type of case anyone would want to spend thousands on lawyers. But I will also ask for advance if the cost is significantly high.

            And if so, who at the magazine do you have sign it? How do you know that they “have the legal authority” to do so?

            If it’s small magazine typically the senior editor is also the publisher/owner of the magazine. The publisher of the magazine has legal authority to do so. For larger projects, $10,000+, I would get a lawyer involved. And the lawyer would have to do due diligence.

            How long does that take? I have literally flown off to Alaska for an intensive 10 day shoot within hours of a phone call for an editorial client.

            I think that’s the risk we all take when we take jobs on good faith, this is not to say I’ve never done that I have it’s the nature the business. But I’m also guessing it’s a client you’ve worked with before, and you’ve built the trust, that allows you to work that way.

            If It was me, I would have to get an advance to fly to Alaska for a 10 day shoot. Say you were getting paid $25,000 for the job, I would ask for at the very least $10,000 before I pack my bags. Perhaps you did this, perhaps you got even more, that’s a good thing. This way at the very least if something goes wrong you would get paid something. And yes I’ve turned down jobs, and it’s not easy for me to get jobs being demanding, and being relatively new, but for me it’s not worth the risk if their is potential for significant loss.

  9. Haggart, Haggart, Haggart. Sorry about that Rob- for a guy (me) with such a hard to spell last name I should be more careful. My apologies!

  10. Hey Haggart check out the explosion of comments in this post thread. Great stuff. You owe me a beer I reckon ;)

    @Scharetg – Yeah good points. I will be around for a while in this caper though – its in my blood. To be honest you are the least of my worries…..

    http://cgi.ebay.com.au/ws/eBayISAPI.dll?ViewItem&item=280333699645&_trksid=p2759.l1259

    ….I’ve got Martin hot on my heels shooting weddings for $99 offering 800 files in full ‘definition’…….

    FULL “definition”!! Where is that button? Is it a custom function submenu item?

    Sometimes I dont know how I sleep at night. Must be all those images I’m holding for ransom.

    You know this industry sometimes feels a bit like a spit roast that I never asked for – agencies at one end and idiots at the other.


Comments are closed for this article!