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|| SportsShooter.com: Member Message Board
Court ruling on value of photos
Derick Hingle, Photographer
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David Harpe, Photographer
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Allen Murabayashi, Photographer
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Jeff Stanton, Photographer
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Princeton | IN | USA | Posted: 10:26 PM on 07.21.09 |
| ->> And now she will be our newest Supreme Court justice. Hang on, gang. |
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Jim Comeau, Photo Editor, Photographer
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Los Angeles | CA | USA | Posted: 2:09 AM on 07.22.09 |
->> I believe Thomas Witte posted something regarding this earlier. I had barely read it and when I tried to reread it later, it got pulled due to being flagged as inappropriate.
I don't recall the details, but now I'm glad that more have surfaced. |
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Jon L Hendricks, Photographer
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Hobart | IN | USA | Posted: 8:50 AM on 07.22.09 |
| ->> How can the court just award actual perceived value of $7 an image and not take into consideration his court costs, time spent shooting, potential unrealized future value, and punishment? If you were the victim of an accident that was caused by someone's gross negligence wouldn't you receive a lot more than what your actual medical bills would be. Pain and suffering? Wouldn't there have to be a harsher punishment so other companies wouldn't ignore this? How does a company lose over 12,000 images which they individually looked at and cut out from rolls of negatives and not know where they went? And then deny they lost anything until put on trial? Corbis should not be in business and no one should do business with people like this! |
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Samuel Lewis, Photographer
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Miami | FL | USA | Posted: 9:00 PM on 07.22.09 |
->> It is disappointing to see so many people jumping to conclusions without having any actual information upon which to base those conclusions. Do any of you know whether Sotomayor wrote the opinion? Did any of you see or listen the oral argument? Have any of you read the actual decision?
If you haven't, perhaps start by reading the decision. You can find it here:
http://tinyurl.com/knln7r
As for the decision itself, perhaps the question that should be asked is why the photographer appealed. Fortunately, the decision was not selected for publication, and thus should be of limited precedential value. Nonetheless, it is difficult to fault the appellate court for what happened. As a general matter, appellate courts take the view the finder of fact--the trial judge or jury--are in a far better position to make factual findings, and as a result, the appellate court will only reverse a factual finding if there was no basis for the trial court's decision.
What seems to have doomed Usher in this case was the lack of records. When proving damages, one may not engage in speculation. Bigelow, the 1946 Supreme Court decision referenced in Usher's decision, expressly holds that a "jury may not render a verdict based on speculation or guesswork. But the jury may make a just an reasonable estimate of the damage based upon relevant data, and render its verdict accordingly." In such circumstances--where the defendant's wrongdoing prevents a more precise computation--the jury may act on probable and inferential proof.
Of course, the nagging question that still remains--at least for me--is why Usher didn't have a backup or copy of even the selects somewhere? |
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Jody Gomez, Photographer
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Murrieta | CA | USA | Posted: 11:48 PM on 07.26.09 |
->> "If you were the victim of an accident that was caused by someone's gross negligence wouldn't you receive a lot more than what your actual medical bills would be. Pain and suffering?"
Jon, I believe I have a little insight to this question for you. When my oldest son was eleven, he was injured because of the gross negligence of an orthopedic surgeon. My son broke both bones in his forearm and thanks to this doctor violating every standard of care and refusing my demands to remove the cast when it was obviously done wrong, my son's arm is permanently bent at a 22 degree angle and he lost the rotation in his hand (i.e., he can't turn his hand over to take change). My son won a very large (fall off your chair large) settlement and we are under no gag orders so we can tell who did this to him if we choose. But despite the obvious violation of standard of care and the damage done to the arm, we still had to provide mountains of records proving future lost wages, actual damage, etc. The court costs were not taken into consideration, nor was time spent going back and forth to the hospitals, travel, pain and suffering, or punitive damages. Medical bills were not covered as we had insurance that paid 100% so there was nothing to reimburse. What he was awarded was the malpractice cap in California, plus what we could prove would be lost wages over his lifetime due to his injury.
I think the problem in this matter is quite nicely summed up by Mr. Usher's attorney himself when he said, "She displayed absolutely no empathy or compassion for an individual who’d won his case against the world’s richest man by upholding an award to him in the exact same amount of money that a six-year-old would have gotten from Walmart or Walgreens merely for asking. The judge did not understand the uniqueness of the images and their historical significance and that they were unrecreatable.”
I was a bit surprised to read that this statement was made by an attorney because he (of all people) should know that monetary judgments are not made in our court system because of empathy or compassion. My experience (through my son's case) is that although a judge may be extremely empathetic and compassionate towards a person, they must push those feelings aside and rule based on the law and what proof one can provide. Had Mr. Usher been able to provide some sort of records that helped to prove the uniqueness of the images, I'm sure the judgment would have been much different, which is exactly what the court said in this case.
Mr. Usher's attorney went on to say, "that Sotomayor had no understanding of the historical context of the photo business." The question I have to this statement is how does one place value on historical context without actual proof of that value?
I agree that the judgment is pitiful, however I applaud the judges for remaining impartial and ruling not on emotion but rather on the facts as presented. The moral of the story here people, is that we must keep records of every image we send out (always) and what is done with those images and their value (whenever possible) in case we find ourselves one day having to prove either through copyright infringement or a situation similar to this the value of the images in question. |
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