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Why Chris Usher’s Loss Is a Defeat for All of Us
Posted By Paul Melcher On April 14, 2009 @ 7:11 am In Legal Matters | 5 Comments
If you thought the money you contributed to this or that photography trade organization was a worthwhile investment, think again. ASMP, APA, EP, PPA, WHNPA, SA, and their siblings are guilty of the same crime. Silence.
Also guilty are Photo District News, supposedly a trade news magazine, and other industry publications and blogs, which are apparently more interested in pleasing their advertisers than serving the best interests of photographers.
To little fanfare and zero uproar, photographer Chris Usher has lost his appeal against Corbis, which managed to permanently misplace 12,640 of his images. After a seven-year battle, Usher will be compensated a lousy $7 per image.
One day soon, we may all regret that we didn’t pay more attention to Usher’s 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, reached out to a talented photographer based in the nation’s capital. The photographer, already the recipient of many assignments from top news publications like Time and Newsweek, figured, “Why not?”
For him, it was an opportunity to grow his audience worldwide — or so he thought.
In those days, film was still mainly used, and so the photographer submitted many of his archives to the agency, as well as his recent work, in slide and film format. The agency had a battery of photo editors looking at the material and selecting the ones to be scanned and added to its online delivery system.
But after 16 months, the photographer had not seen any tangible results. So he decided to terminate the relationship.
But upon informing the agency, he learned that more than 12,000 of the 50,000 images he had submitted were lost. Gone, vanished, disappeared. That’s not one slide that fell behind the back of the lightbox. It’s 12,640 of them.
And so the agency and photographer went about quantifying the value of the loss. How do you do that when the image has never been sold — and cannot even be seen by anyone anymore? Some of these images could have been masterpieces; others, just plain film in a mount.
Of course, the agency lowballed. Backed by “experts,” they figured out how much money they made with the photographer’s work over 16 months and added some. After two years of testimony, a judge declared that $100,000 was fair compensation — a little over $7 per image. The photographer was in shock.
Corbis may have benefited from the sheer massiveness of its screwup. Because the volume of images lost was so large, a more reasonable award of, say, $400 per image (still low) would have quickly brought the judgment to millions of dollars. The judge apparently decided that was too much.
A Judicial Reference
Why is the Usher case important? Because, like any judgment, it will become a judicial reference. It will affect how photographs are valued in future cases. And that affects every single photographer out there.
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 than to return them to you.
The trade organizations, publications and blogs all should be put on the wall of shame for ignoring one of the longest and possibly most important cases in the history of modern photography. We will come to regret our apathy.
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