The cost to the publisher, producer or ad agency for the loss of an irreplaceable negative may just have gone up. A June 2003 decision of the New York Supreme Court by Justice Heitler may have moved the marker in a case brought by George Dubose, well known photographer of celebrity musicians, whose web site says it all: "Twenty years later, Warner Bros. Records used this image for the B52s Greatest Hits package and then proceeded to lose the original negatives for this [image of B52s in front of Unisphere for Rolling Stone magazine] and three other shots. Stay tuned for further legal ramifications." George needs to update his website: the June decision is itself a "ramification" of significance in its analysis of applicable tort law on the damages available to the plaintiff photographer for negligent loss of personal property in the form of original negatives.
Warner Brothers conceded the loss of the negatives and tried to remove the case from the New York Supreme Court where Dubose filed to the New York City Civil Court, New York's lowest court whose jurisdiction covers claims below $25,000. Warner cited as its rationale in support of removal to the lower court the fact that only $6,000 at the very most was in issue in the case because courts "cap" such damages at $1,500 per negative. The court disagreed and discussed the history of the $1,500 figure in a detailed opinion citing two higher New York court decisions from the mid 1990's which recognized the custom of the magazine business to pay $1,500 per lost slide. All three decisions are in harmony on the proper standard to be applied but only the Dubose opinion discusses favorably the possibility of recoveries significantly in excess of $1500. The standard involves analysis of two criteria:
1. Uniqueness of photo subject matter; and
2. Earning level of photographer.
In the DuBose case the court conceded that "no court has awarded more than $1,500 per negative but that is not the same as 'capping' damages by law to $1,500".
What the court focused on in its analysis of uniqueness is also interesting and much to the benefit of older, now irreplaceable images. Since Warner Brothers and the photographer had been working together since the 1970's, Dubose was in the habit of submitting original transparencies to Warner Brothers, as photographers did to stock agencies during the same period and until the mid to late 1990's. Some photographers continue this practice today. Dubose, who is famous for his musician photos of famous people he has met over the years while he worked both as an independent and for record companies, claimed $400,000 ($100,000 per negative) in damages although the license fee for the Warner Brothers usage in question was $5,500 for the album cover, packaging materials, multimedia and ancillary promotion uses.
The court accepted the argument that original transparencies have a "unique ability to produce first generation photographs and prints that retain the artistic quality of the original negative". The court also found the negative unique and irreplaceable because it captured a scene over 20 years old and because one of the B52 band members (Wilson) had died after the original shoot so it was "impossible to reshoot". [The downside of this analysis is the court's other comment that $1,500 may well be too high for generic images which are replaceable at moderate cost, particularly those that are licensed as stock for low fees.] Extrapolating from a single license fee of $5,500, the New York Supreme Court retained jurisdiction because it accepted a multiplier effect yielding damages within its jurisdiction - i.e. over $25,000 or at least $6250 per negative. There is no final decision on damages and there may never be one. The court has scheduled a settlement conference. Failing settlement later this year there will be a trial on the damages issue.
In passing, the court commented on Avedon, Demarchelier, Leibovitz and Ritts whose license fees are in the $10,000 - $30,000 range, saying "an individual determination of value must be undertaken in each case." If uniqueness and earning potential are the clear criteria, the damages exposure, if not limited by contract, is clearly in hundreds of thousands if not millions of dollars if the photographer is a big earner and no reshoot is possible (e.g. due to death, damage or destruction, access restrictions, etc.). On the other hand, the court has clearly articulated the proper standards and those standards are much closer to the ones regularly applied by courts when personal property of other types is lost or damaged: what will it cost to replace or, if it is unique and cannot be replaced, what is the out of pocket money loss to the owner, usually based on lost earnings. Photographs have often been treated in a different manner in earlier decisions based on arguments about "industry standard practices" and the "$1500 cap." This may now be past history.
Over time, digital submissions by photographers may make these cases and issues less relevant, but they will never disappear entirely as to older classic images in situations where stock agencies and clients will not settle for duplicates and will want (or already have) original transparencies which may be lost or damaged at any time. Inevitably, under the Dubose decision, these may be the most valuable of all images because many of them are irreplaceable. Stock agencies are trying to limit their liability by contract if they have a continuing contractual relationship with a living photographer (Getty Images and Corbis contracts today cap liability for loss or damage at $100 per image or a total of $10,000 for all images). Photographers, on the other hand, are adding clauses to their contracts increasing damages to at least $1,500 as a floor or higher for panoramic shots. Since contracts add certainty for both parties and limit litigation expense, this is the best answer if the parties can agree on the amount in advance and reduce it to a single written contract signed by both parties. In a number of common situations, each party has a purchase order or a confirmation which it signs, but the forms specify different amounts of recoverable damages and no form is signed by both parties. Conflicting contract forms (like no contract at all) result in the dispute being decided by the court. After the Dubose decision, there is an increased risk that the court may enter judgment well above $1500 per photograph.