Sotomayor's ruling on NY Times Photographer Chris Usher

<p>Thought this might interest some people here. http://lens.blogs.nytimes.com/2009/07/15/behind-6/<br>

I can't seem to find a written ruling from her own mouth, so am refraining from agreeing or disagreeing with the article as it is written.<br>

Still, it sucks to lose all those photographs!</p>

<p>a) what professional phographer is so painfully-dumb as to have no backup? <br>

b) see a) above.</p>

<p> </p>

<p>Interesting. His lawyer has an "entourage", a "crew" if you will. If I was a judge having to listen to that guy, I might tend to be a little unsympathetic as well. ;-)</p>

<p>perhaps in the year 2000 pro photographers did not carry backup bodies afterall.</p>

<p>12,660 photos, how many have historical value or any value? I think some one failed to prove the money damage. I guess the photograhers handed over film and I not familar with film, but I am not sure why copies were not retained or the images insured?</p>

<p>Copying a negative can be triple work. It's not like right-clicking on a digicam file; it requires math and technical competence, and it takes up time and resources, on the order of three times the building of the original. What news photo did get duped on a daily basis? Probably almost none, unless it was discovered later that a particular image was important.</p>

<p>He may (I don't know) have been working under an agreement that made all of his images the property of someone else. Who knows? That's not outlined there.</p>

<p>On one hand, I can see why he would be mad; after all is said and done, he probably got his annual salary paid, with nothing for his trouble. But, he still got a salary for the work, and that's more than some people get. If you get as good as you give in this world, you came out lucky.</p>

<p>Does it matter that Corbis is rich? Part of the article seemed to be about the Little Guy sticking it to The Fat Cats, and that didn't happen. Well, their wealth means that they can pay the decided upon amount in a timely fashion. That doesn't always happen.</p>

<p>I know I've seen one court case about something else where someone's property was destroyed, knowingly and willingly, and the payment plan for the decision was parsed out into such small packets over such a long period of time that they were arguably not much of a compensation for the damage done; in that instance, the wrongdoer who had the court decide against him was so poor that it would have been impossible to hold him to anything more.</p>

<p>I'm not saying all of that is a good idea, but a check for something is better than a check that amounts to nothing. Probably the best decision in his favor was court publicity about how the agency (Corbis) trashed thousands of photos and was seen by the photographer as not making things right. It would have been cheaper for them to unroll the red carpet, since they apparently can afford it.</p>

<p>They're wealthy; they'll blow it off and not care. Yet, Usher can make another picture of something.</p>

<p>Bill Gates again. <br>

Sound to me like the award was for projected sales $ and there is nothing for the loss of the negatives.<br>

Maybe photogs ought to get together and form their own assn owned by photogs and run for photogs like Magnum and not deal with Corbis and the like ?<br>

Thats a business model for someone. You may forward the finders fee anytime.</p>

<blockquote>

<p>Mr. Fairhurst, Corbis top lawyer, said...</p>

<p>“Why would photographers be immune from the laws of economics?” he said. “If I had a 20-year-old business selling nails, and you were interested in buying my nail business, would you not look at how it performed? Would you not look at the gross revenue over 20 years and at the net and what the competition is, in order to fix a price? Why would photographers think they’re immune from these things? It’s a commodity.”</p>

</blockquote>

<p>I wonder if they would say that to Van Gogh? He died a pauper and his work at that time was worthless yet his paintings are worth millions now.</p>

<p>I also thought a photographer was considered part of the creative community just like any other artist with the same rights and appreciation of content past and future.</p>

<p>Mr. Usher is a professional photographer. My upstairs neighbor used to be a hobbyist amateur photographer and showed me some of his 100's of Kodachrome slides he'ld taken 20 years ago of Florida events. He said he was paid $500 by rich retired acquaintances he'ld met in bars who saw and liked his photos. Going by that if my neighbor were to lose those Kodachromes in an apartment fire should the insurance company pay him $500 a piece? The guy's a barber by profession.</p>

<p>If this happened to a paparazzi who often get paid six figure sums for shots of celebrities, would Corbis be required to pay six figures for each lost image?</p>

<p>There's some really poor arguments on both sides on this IMO. Mr. Usher needs to keep fighting.</p>

<p>Here's a link to the opinion:</p>

<p><a href="http://vlex.com/vid/usher-v-corbis-sygma-56181687">http://vlex.com/vid/usher-v-corbis-sygma-56181687</a></p>

<p>".. the loss of what <em>he says </em>were more than 12,600 images ...<em>he had entrusted</em> the pictures for a brief period almost a decade ago." (<em>my italics)</em></p>

<p>1) "he had entrusted." ie Usher intentionally put his images at risk, just as everybody did back then when they sent original slides to publishers...he accepted the risk unless Corbis guaranteed something more than he got. I saw guarantee limits of $250/slide thirty years ago, did Usher get a guarantee?</p>

<p>2) "he says" Did he present a receipt for 12,600 images in court?</p>

<p>Ten years ago the images were probably film: he evidently didn't back it up, although that was certainly possible ... some photographers did ...exquisitely good reproduction-quality duplicate slides were available (Galen Rowell did sometimes). 12,600 would have been expensive, but HE evidently decided they weren't worth it, so HE established the value as less than the cost of duplication. Sounds like he was lucky to get $7 each.</p>

<p>Back em' up.</p>

 

<p>Some key points aren't in the article. For example, what was his agreement with Corbis and why did they have his photos? Also, it seems to say that one of the issues was that he didn't have documentation of what the images were. It seems awfully unfair to start commenting on the judge without giving anything to indicate what the law was...</p>

<p>John Kelly: Hi, I'm Chris Usher's archivist, and served as the expert witness in the case. I hope you will allow me to correct some of your erroneous assumptions?<br>

"a) what professional phographer is so painfully-dumb as to have no backup?" <strong>You must be young? or not a professional photojournalist who worked during the pre-digital age? It was called news, and mags had deadlines, and photogs traveled and shot and sent undeveloped rolls of film to their clients (TIME, Newsweek, USN, BusinessWeek, People, etc), who processed them, and then sent the slides or negs on to the photog's AGENCY to distribute for stock. See, back in the old days, they were agencies, not "content distributors." Know why they changed their name? Because legally, an agency is supposed to represent their client (photogs) and not their own interests.</strong><br>

"1) "he had entrusted." ie Usher intentionally put his images at risk, just as everybody did back then when they sent original slides to publishers...he accepted the risk unless Corbis guaranteed something more than he got. I saw guarantee limits of $250/slide thirty years ago, did Usher get a guarantee?" <strong>Please see above for the process, and you're wrong, the going rate "back then" was 1500.00 per lost or damaged image. Guarantees are/were for licenses and yes, Chris was paid $1K a month against licensing revenue. Riddle me this, batman: how can you license something you allegedly "lost"?</strong><br>

2) "he says" Did he present a receipt for 12,600 images in court?" <strong>LOL - um, this was a federal case - do you really think you can go to trial in federal court without evidence?! The judge found my paper trail to be virtually spotless, in fact, she found my testimony and record keeping to be more credible than many of the official business documents of major mags and Corbis that did not support my findings, much to the Corbis' attorney's fury ;-) And, for the record, they lost WAY more than 12,600 - but due to legalities, that was all we were allowed to contest. And by that, if you're interested I mean this: I created a spreadsheet with all of the proof we had on the film's existence. Part of that evidence came from the film envelopes Chris sent his unprocessed rolls to each magazine in. I typed in the info written on each envelope (this supported the claim of what the missing film documented, e.g. Gore Campaign, Clinton in Tanzania, etc). The Corbis attorneys went through my spreadsheet and found every instance where I did not include a ["] at the end of the text AND where I slipped and hit ['] by mistake. "So?" you might ask? They argued that without an endquote, the text was hearsay. The judge threw out every row in the spreadsheet that met that criteria! THAT eliminated THOUSANDS of images that are definitely "lost" but were inadmissable. How about that for justice?</strong><br>

"Ten years ago the images were probably film: he evidently didn't back it up, although that was certainly possible ... some photographers did ...exquisitely good reproduction-quality duplicate slides were available (Galen Rowell did sometimes). 12,600 would have been expensive, but HE evidently decided they weren't worth it, so HE established the value as less than the cost of duplication. Sounds like he was lucky to get $7 each. Back em' up." <strong>Again, see process above. It's called "chain of custody," if you're interested ;-) We proved that the chain was broken with Corbis for every "lost" image. How would you like Chris to have "backed up" unprocessed film rolls? And for the record, let's just say he did have each and every image scanned "back then" - the cost of scanning was determined by Corbis themselves, including the expense of labor and equipment, to be $50 an image. </strong><br>

<strong>As for those who commented and did not assume (in a vacuum) that Mr. Usher deserved what he got, thank you for your support and remember, before you toss stones, get all the information. And remember, this case affects YOU!</strong><br>

<strong><br /> </strong><br>

<strong>Sincerely,</strong><br>

<strong>Adrienne DeArmas, Photo Archivist</strong></p>

 

<p>Thanks, Adrienne - that's more important information that was lacking in the article.</p>

<p>Photo Archivist? mmh, never knew there was such a job. Sounds like a big responsibility. I always trust the guy/gal? who has to take care of the details in any line of work. </p>

<p>Neat how you learn all kinds of things here at Photo.Net, if ya' just hang around long enough.</p>

<p>Adrienne, good.<br>

It's interesting to hear about all your work and good to read about the job you did for Usher.<br>

Imputing dollar value to frames in rolls of undeveloped film (maybe even blank?) , not to mention frames that have never excited anybody enough to purchase, is a <strong>remarkable skill</strong> :-)<br>

fyi there was a time when the best made a point of distinguishing between important and unimportant...their agents had light boxes. The images that weren't important were usually trashed. Sounds like the best investment they could have made would be a 250 exposure back!</p>

 

<p>I am the attorney who with our associates represented Mr. Usher in his multi year litagation against Corbis. Adrienne De Armas has posted some valuable information above but she neglected to advise you (out of modesty) that the <strong>trial judge determined </strong> that Corbis could not account for the whereabouts of 12,640 images out of the 12,644 which Ms. DeArmas claimed were lost. Corbis had <em>no records and had no explanation for the missing images.</em> Ms. DeArmas in effect spent hundreds of hourse recreating records which Corbis inexplicably did not maintain.<br>

Mr. Usher <strong><em>needed and archivist</em> </strong> because his agent, Corbis did not keep records.<br>

Clearly many of you are young and have no concept of how photojournalistic analog imagery was handled, processed and published. You were born into a digital era and your questions and assumptions betray your age(s).<br>

4 Cases were filed in the State and Federal Courts in New York State alone wherein thousands of images were claimed lost by Corbis. 2 went to trial. A similar case was filed in France with the French court finding in favor of a photographer whose images were lost by Corbis. Countless articles have appeared in the trade press, PDN, The Washington Post and NY Times about Corbis losing historic and photo journalistic images since 1999.<br>

2 Federal Courts have made findings that Corbis internal tracking of imagery was "wholly inadequate" and found Corbis negligent. This privately held company owned by Bill Gates did not even employ bar codes on the slide mounts.<br>

Among other things, I teach at the School of Visual Arts in NYC in the Masters Program and lecture nationwide for NAPP, PPA and others. Shooters over the age of say 40+ understand these issues having lived them. I would suggest that to understand the roots of these problems and of you profession you engage in discussions with shooters many years your senior. They blazed the trail for you. Have someone who worked in the trenches for newspapers and magazines in the 50's, 60's, '70s and/or '80s tell you what the life of a news photographer consisted of.<br>

Recently I asked one of my students the following question: "Assume you are in Poland when the USSR is trying to stop Lech Walesa and Solidarity. You have film canisters containing images of secret meetings held by the shipyard workers. How do you get them to Paris where most news materials were being processed? If you are caught with the film the Soviets will put you in prison. So how would you get them out"? A 30 year old erstwhile student answered, "By FedEx".<br>

Everyone over 40 laughed and those under 40 were bewildered at my shock.</p>

<p>You do not encounter the same problems they did because among other things, you have the luxury of instant, easily copied digital images which you can Photoshop and transmit to your clients or potential clients via the net. The world was different pre-digital and that difference allowed photographers to be taken advantage of big time by stock agents and clients.</p>

<p>Edward C. Greenberg<br>

570 Lexington Ave.<br>

NYC, NY 10022<br>

ecglaw@gmail.com</p>

<p> </p>

<p>Excellent points from Ms. DeArmas and Mr. Greenberg, for sure. I'll add this to Ms. DeArmas' point about the lack of "backup" for unprocessed film -- in many instances, there simply wouldn't have been time to duplicate images, even if the cost to do so were reasonable (which it wasn't). Moreover, duplicating analog images has always been less than satisfactory. Maybe you would do that to use the duplicates for presentations of some kind, so as to keep the original "masters" -- which would have been of much higher quality, for sure. But the larger point is that the time frame for delivering film, processing it and readying it for the tight deadlines of news print publication simply wouldn't have been possible. Old news, even in image form, is no news.</p>

<p>Wow, from the horses's mouths and everything.</p>

<p>Thanks for the informative responses, to all.<br>

I agree much about the world of film, its handling, preservation, and its overall wholly different circumstances in regards especially to duplication/'back-ups' makes this more obscure to us who may be younger (or who just haven't deliberated with enough time about the photographic world which has preceded our current understandings.)<br>

Having said that, I'm going to go ahead and say you can lose the condescension about youth and its frivolous thoughts/thinking about the photographic world. I may remind you it was the boomers, the ones who saw both the bloom and decline of the world of film and its knowledge who invented and pioneered the digital revolution - and not only in the world of photography.<br>

What we younger people are left with is the world as it is; and as time goes on, we become so inundated across the bored with 'information' and 'knowledge' that it seems we do lack a historical sense and understanding of how things preceded us. This is a reciprocal corruption, please don't point your finger at us.<br>

The class room question re: smuggling film, makes no sense to me, as through the history of journalism/military photography, there have been men and women of all ages - and I'm sure all of them have there own story to tell about how they got there images to the world. This kind of scenario really has no rational value, and certainly isn't providing us with any real support for your opinion of youth in the digital age.<br>

Ok, end diatribe. Afterall that I'm only 23, and never shoot digitally.</p>

<p>I think he may have a good argument for suing his attorneys for the errors made, that is why attorneys carry insurance.</p>

<p>

<p>Don't know why this thread is centering on whether Mr. Usher's work was backed up or not or whether someone is old enough to understand why that wasn't done when the real issue is about fairly compensating Mr. Usher for years of work lost through Corbis' negligence. </p>

<p>$7 an image at 12,640 images comes to$88,480. Not even close to the ever familiar and popularized amount of $200,000 insurance companies and corporate dweebs feel is fair compensation for the toothless and uneducated wanting to quickly settle out of court on such cases as car accidents, malpractice suits and corporate liability claims. Mr. Usher is an established professional and an educated man and clearly deserves better than even that.</p>

<p>Why is it corporate America feels it's fair compensation to pay CEO's millions in bonuses for basically driving a company into the ground along with the economy, but feels everyone else is worth much less when it comes to compensation for their hard work especially for those in the creative community? </p>

<p>What I know about case law I learned from watching "My Cousin Vinny" but I'm pretty sure Mr. Usher is being lowballed by pettiness within the letter of the law. What's needed is a fairness centered interpretation derived from the spirit of the law from which the source of law is written anyway. But in this case I'm afraid it's being strangled to death by the blinder cloth swiped from Justice's head by those with the arrogance of a CEO.</p>

</p>

<p>Dear Mr. Thompson: I teach and give seminars all over the country. Many of my students and attendees are under 30 even under 20 years of age. Your reference to "condescension" is misplaced.<br>

Let's see if I can make the points in a different way:<br>

Like any other profession photography must be viewed within the context of the time period in which the images were created, marketed, printed etc. Historical context of the technical and business aspects of the industry are needed to give events and techniques context.<br>

You do not "get" to Polish scenario. Here's the point(s).<br>

In the police states of the Soviet block there was no such thing as "FedEx" or even uncensored mail. A shooter had neither option to transport film out of a police state like Poland or South Africa. Smuggled film canisters got via partisans who risked their lives, prostitutes, taped to the undercarriages of trains or automobiles and so on. The photographers literally risked their lives. It may interest you to know that such risks gave the images no "added value" in the view of stock agents. An analogy - How did George Washington cross the Delaware? Answer: by helicopter.<br>

Contrast with one of our clients who in 2009 effortlessly, routinely and instantly transmits images via the net from Mt. Everest. Stock agents compiled libraries consisting of millions of intentionally unorganized analogue images in an effort to retain those images when a shooter asked for his/her images to be returned. This despicable technique was and remains to this day, highly effective as it causes photographers to hire lawyers to retrieve his or her own images.<br>

You are free to ignore the history of your industry. But if you intend to make at living in these times, such ignorance would be at your economic peril. The attitudes, laws and business practices of this industry have been forged by that history which proceeded your entry into the business. The law and business of photography is now rapidly changing but remains well behind the times. One must adapt or perish.<br>

You can't know where you are going unless you know where you have been. I take the responsibility of giving instruction in the business and law of photography as it exists in real life to shooters of all ages. The balance of your post I frankly do not understand, ie "reciprocal corruption".<br>

In any event, I wish you good luck and hope you are fulfilled financially and artistically.<br>

Edward C. Greenberg</p>

<p> </p>

<p>Mr Greenberg<br /> I believe I 'got' the meaning of this scenario the first time, what I said was, it has no rational value. You've asked a leading question, and received a stupid (read thoughtless) answer, and have used it to support your opinion that the younger people won't get Mr. Usher's stance legally, or be in a position to understand his situation historically. Cut out the hyperbole and quit being passive aggressive. If you don't believe we are in a position to judge (those of us participating in the thread) just say so. If, further, you think that we are too young to intelligently grasp the context and the stance of Mr. Usher and his case, then say so. But don't assume in condescension that none of us here know that photographers in other era's risked it all for their photo's, or that shooting film is a much more fragile process than that of shooting digitally. Don't suppose even that we all belong to an 'easy' digital world.<br /> I don't pretend to think Mr. Usher at fault, or Corbis entirely for that matter. I will say, as a photographer, I KNOW where all the important negatives I have are. Period. And, if I ever find myself in a situation, where I have no control over my negatives, then I should count my self lucky for <em>being able</em> to document at all, what is clearly an important occasion, and trust or hope for the best. But nothing entitles us to security, not even having our negatives in our own home.<br /> I thank you for your well wishes, and I wish the same to you in your practice.</p>

<p> </p>

<p>I wonder if Mr. Usher didn't do well because his attorney insulted everyone who didn't get his jokes, and his witness had the sort of attitude that puts, "lol, ummm..." before answering someone's serious question.<br>

<strong><br /> </strong></p>

<p>What the hell are Jared and Damon talking about? I feel like I'm on another planet. </p>

<p>It wasn't clear to me in all that I've read so far, but did Corbis lose the slides/negatives AND the scans from those slides/negatives or just the scans or just the slides/negatives?</p>