Legal value of a slide photo

[kafin8ed]

I am hoping sombody with professional business experience can point me in the right direction here. I know that in most photographic contracts there is a clause that states that if a slide is lost or damaged then the photographer will be compensated $1500. What I am trying to find is what is that based on? I imagine it's some sort of legal precedent. What case determined that $1500 was the correct value of a slide? I have looked through the US Copyright Act but can't locate what I'm looking for. Does anyone know? Thanks!

[Photo-John]

Why are you trying to find out? Did someone lose one of your slides? I don't know anything about an established precedent for a slide value. My guess is, whatever you put in the contract is what the value is. If you put nothing in your contract about compensation for lost materials, then you're in a tough position. $1500 seems like a random amount of money. If I have a slide of someone catching the winning touchdown at the Superbowl, it would be worth a lot more than $1500.

[freygr]

I am hoping sombody with professional business experience can point me in the right direction here. I know that in most photographic contracts there is a clause that states that if a slide is lost or damaged then the photographer will be compensated $1500. What I am trying to find is what is that based on? I imagine it's some sort of legal precedent. What case determined that $1500 was the correct value of a slide? I have looked through the US Copyright Act but can't locate what I'm looking for. Does anyone know? Thanks!

I would never send out an orginal slide unless I've 1) scanned it , 2) have a second shot of the exact same image, 3) it's a copy or, 4) it's in the contract and I get paid if the shippment is lost or not. I would never send it using the postal service, I've had too many missing bills, rebate checks, and like.

GRF

[kafin8ed]

I can't really talk about it here. But yea, a slide was lost and basically I'm trying to help out another photographer and track down this info. I've read in numerous resources (see www.editorialphoto.com for instance) where a slide was given a default legal value of $1500 and I want to find where this came from. I imagine it helps if there is a written contractual agreement, but I'm not sure if that is even necessary. To be sure I'd like to find the source of this value.

[Photo-John]

I've read in numerous resources (see www.editorialphoto.com for instance) where a slide was given a default legal value of $1500 and I want to find where this came from. I imagine it helps if there is a written contractual agreement, but I'm not sure if that is even necessary.

I just talked to someone in the legal business about this. It's doubtful that a slide has any legal value. It could be argued in court that a particular slide, from a particular photographer, has a value. But you'd have to fight that out and demonstrate the value. Without a contract, you'd be in a very bad position. The legal battle might cost more than the amount you could reasonably win. The contract constitutes a legal agreement between the parties that the slide, if lost, has a given value. But without the contract, there is no such understanding. Having a contract is your best protection.

Makes digital seem even better, to me.

[Asylum Steve]

It's doubtful that a slide has any legal value...

Well, original photographic material can have any value you assign to it, but as John points out, you need to have that value in writing BEFORE the business transaction occurs.

As far as I know, original materials have no default value, and if you've ever looked at the small print that photo labs have in their disclaimers, you'll notice that they only replace damaged or lost film with new rolls.

Now, of course, this is not the same as a pro shooter dealing with a client, but my point is the lab has a value in writing that you must agree to to use their services.

It's the same with photograhers. By providing original material to a client, you assume a huge risk. Having a replacement value in writing and agrred to ahead of time passes this risk directly along to the client.

Not being a legal expert on the subject, my guess is your friend is screwed in this situation, unless the client is big enough (and feels badly enough) to fairly compensate them without being legally required to.

[kafin8ed]

alright, that's not what I really wanted to hear, but it makes sense, thanks for the response.

[Danny Dub]

I think I can answer this question. What you're looking for is not in the Copyright statutes. The $1,500 figure is considered the industry standard simply because it pops up in many standard contracts. It is thought to represent the average license fee that a commercial photograph could earn over the full course of the photographer's copyright. If you have a contract that sets a different figure, then of course your contract overrides the industry standard. However, courts have recognized the $1,500 figure in cases where there was no contractual term regarding the value of a lost slide (or no contract at all).

For example, just last year the federal district court for the Southern District of New York decided the case of Grace v. Corbis Sygma, which can be found in the legal casebooks at 403 F.Supp.2d 337 (2005). The case involved the famed photojournalist Arthur Grace, who loaned his slides to someone who was supposed find licensing opportunities for the images. Needless to say, the slides were lost - 40,000 of them! - and Grace sued to recover his losses.

The court's opinion says that the industry standard in the 1970s and 1980s for a lost transparency was $1,500, and that some courts have accepted this as a reasonable value for lost images that were of "superior quality," "unique," and/or "irreplaceable," and where that amount comports with the reasonable earnings potential for the image.

However, the court went on to say that the $1,500 standard would not apply in Grace's case, because 1) it would lead to an absurd result, namely, a court judgment of $60 million for the loss of 40,000 images; and 2) the images were not unique or irreplaceable. In addition, the court noted that the average licensing revenue earned by the particular photographer in question should be considered in the valuation.

Ultimately, Grace was awarded $472,000, or an average of $11.80 per image. That's a lot less than $1,500, but then again Grace's case was unusual. For your purposes, what the court seems to be saying is that $1,500 is a fair average, but that downward adjustments may be appropriate when there is a large number of images involved or when the images are not top-quality, not unique, or not irreplaceable. Likewise, adjustments may be appropriate (including upward adjustments) if the stature and track record of the photographer, or of the particular image in question, indicates that the image would be worth something more or something less over the course of the owner's copyright. Finally, one might think about whether the $1,500 figure is due for a revision, given that it was the industry standard way back in the 1970s and 1980s.

I hope this helps.

[kafin8ed]

Thank You! that's exactly what I was looking for!

[Asylum Steve]

Welcome to the site, Danny. Thanks for the info...

A legal precedent always makes things at least a little clearer, but not always. As you yourself say, the case you cite was indeed unusual. Not only that, but even though compensation without a written contract may be implied in various legal decisions, I think it would still be a roll of the dice taking this client to court.

Again, IMO it comes down to something John mentioned. Are the potential damages won in a court case, if any, worth the time, money, and effort it will most likely take to win the case?