Sotomayor and photography

On PDN there is a post about a ruling Judge (Justice nominee) Sotomayor was a part of (she was one of 3 on the panel). People are trying to use this ruling to show she is anti-photographer somehow.

I’d like to point out what I think is the important part of the ruling as quoted, rather than go on about how this ruling is anti-photographer–because I don’t think it does prove any bias against photographers. It looks like the panel was applying the facts and following the law.

The quote from the ruling:

Usher asserts that the district court erred by failing to incorporate the uniqueness of his images into the calculation of damages. But, under Grace, a district court is not required to specifically address uniqueness when, due to inadequate record-keeping, it is impractical or impossible to evaluate.

I added the bold to point out what I think is a crucial take-away from this: if there had been better records to prove the value of the images, the results would have been different. A court is required to take uniqueness into account, according to the above, except in situations where it is “impractical or impossible to evaluate” because there are not sufficient records to do so.

Now, before everyone gets their panties in a twist, let me say that I don’t like the ruling any more than any other supporter of photographers. It’s a kick in the teeth. I feel for the photographer–it’s a heartbreaking loss, I’m sure.

But, the members of the industry must accept responsibility for their own actions and not only lay blame. In an ideal world a photographer would not have to prove the value and/or uniqueness of his(her) work, at least not to the degree that is now required. But this isn’t a perfect world–it’s the real world and while we work for change, we are bound by the rules as they are now. The rules require good records to prove uniqueness and value.

Photographers, like many other creatives, have a tendency to be lousy at keeping good records. It’s a pain in the ass to do, sure, but it’s an important part of your business. You need to be able to track YOURSELF what image has earned what, to show that, for example, a particular stock image has brought in $100,000 in licensing over the years and now, after it being ripped off, is bringing in almost nothing. The courts just do not care if you think your image is worth $100,000 (or whatever), you have to be able to prove it. Otherwise, fair or not, they’re going to fall back on the default methodology for determining value and that’s minimal.

Relying on the stock house (note: NOT agency anymore…they aren’t looking out for your best interests!) to keep the records is essentially asking the wolf to tell you how many chicken are in the henhouse.

Getting back to this actual case, I have NOT read all the docs and I don’t know if there were a bunch of records or other proof that the courts ignored or discounted. It doesn’t seem likely, but anything is possible, of course. Regardless, to use a ruling like this to leap to the conclusion that Sotomayor is anti-photographer is too big of a leap. I’m not saying she’s fabulous, I’m just saying let’s not rush into a judgment about that yet.

(and whenever I talk about anything legal these days, I must remind everyone that I am NOT a lawyer and this is in no way legal advice–just personal opinion.)

4 Responses to “Sotomayor and photography”

  1. Rich Green Says:

    Question – if you have a stock photo that has generated nothing, are you suggesting that I might get nothing if the photo – copyright registered – were ripped off?

  2. info Says:

    My guess is that if you have good records and the image has generated nothing so far, then the court would award nominal damages, probably using a formula like they did here. Maybe. Because you can’t predict the future they’d likely award something, but based on the past (as they tend to do), not much.
    -L

  3. Angela Says:

    Leslie,

    I agree with you regarding the Sotomayor spin the media has put on the USHER v. CORBIS ruling…which only stands to dilute the true issue at hand…the value of an image and the subjectivity behind it. However, I disagree that the outrage and viral spread of the ruling isn’t warranted. You, me and anyone reading the ruling who knows anything about our industry knows that Usher’s images were worth more than $7/ea. But why doesn’t the community at large appreciate or understand that…why don’t the courts grasp that…because there are missing links between our industry and the society at large. It is our duty to change this and change is often brought about by outrage and loud, squeaky wheels.

    Even if, as it is written, Usher did not have his “papers in order” does the ruling still make sense? As a rep or photo producer we work with numbers and pricing “images” or concepts constantly. It is not an exact science, but there are tools and guidelines we refer to and abide by to establish those numbers and pricing, so why then can’t the courts begin to recognize those same standards…? Furthermore, when we establish those numbers we aren’t asked to provide a slew of papers to justify how those figures came to be. If a lawyer says his rate is $400/hour…does he have to justify his rate…more than likely not. The point being that we again have a duty to begin eliminating some of the “subjectivity” of the value of photography just as the film industry has done with regards to hourly/day rates, hours per day, benefits, etc.

    Of course, those of us who did not participate in the proceedings or know what occurred first-hand, or who isn’t a lawyer, should not make judgments about people and laws we are ill informed about. But from a photo insider perspective we owe it to ourselves and to those we represent, hire and whose work we admire, to make lots of noise when it comes to something as ludicrous as lost images being priced for 7 bucks a piece.

    ALM

  4. info Says:

    Angela: Thanks for posting and I appreciate that you want the best for the industry. We all do. I’m concerned that people are missing a fundamental point in this case, though: the value the court imposed on the images was so low ONLY because Usher could not prove the images were unique, and he couldn’t do that because he himself did not know exactly what images were lost. That’s more than not having your papers in order–that is inexcusable, in my opinion. A photographer should never submit anything without noting exactly what s/he is submitting!

    I have read the briefs and the controlling cases (the perils of being a law student…I had to find out more) and in this case the court did use what it thought was the best methodology available to it–that is, the past history of sales of his images even though it was short. There has to be some “system” that appears objectively fair to the courts (although it clearly did not accurately value Usher’s work here, of course).

    Think of it outside of the creative world… imagine you hit some clunker Pinto with your car and the owner sued for $100K because that car was worth that to that owner (his first child was born in the car or something). The courts would never give that owner that figure if he could not PROVE that value, objectively. They would say “a Pinto in perfect condition today is worth $X and that’s what you get.” But if he could, if he could show that he had invested that much into restoring/rebuilding the car (yes, this is a crazy hypothetical–think 24k gold dash or something), then he would get that $100K.

    That is sort of what happened here. If Usher had taken better care of him images, if he had decent Delivery Memos with some sort of inventory of the images, for example, the damages awarded would not have been so low. But in the briefs the court record is quoted and Usher didn’t do that–at trial he even said, “So I jammed everything that I had as it was into a couple of big boxes and sent off a number of a lot of [film] sheets to them.” What?!

    Any businessperson in any industry has to value their own work product enough to take care of it and that will have the added benefit of making damage awards like this not happen. It is a terribly harsh lesson and one that happens every so often in our world. What I hope is that photographers will learn that they must take the minimum steps necessary to protect the value of their work. An inventory on a delivery memo is not too much to expect from a professional.
    -Leslie