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

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