Another Lost Slide Victory!

by Joel Hecker , Esq.

Advance Notes: Even though we’re in the thick of the Digital Age , cases of loss or damage to original film images still crop up.

  As you are undoubtedly aware, before the advent of digital imaging , there were a number of lawsuits arising out of the loss or damage of photographic images, both in negative and slide formats. Since digital imaging has largely replaced the use of film there obviously has been less opportunity for clients to lose or damage original irreplaceable photography. That is not to say, however, that cases do not still occur.

  The latest decision concerning the failure to return original images involved a case brought by photographer Lloyd Shugart in Federal Court in Seattle, Washington, against Propet USA, a shoe company. The case alleged claims for copyright infringement , removal of copyright management information under the Digital Millennium Copyright Act, and failure to return original images.

  The case also stands for the proposition that one should leave well enough alone when faced with potential adverse consequences of taking action!

A NEW TWIST

  The photographer photographed Propet’s shoe products for advertising between 1999 and 2005 pursuant to what he alleged to be limited licenses. When the photographer asked Propet to make payment for using the photographs outside the scope of the usage agreement, Propet sued the photographer for a determination that it had the right to do what it did and to prevent the photographer from licensing the images to anyone else

  Propet obviously did not consider the possibility that it had to return the original images to the photographer, claiming it either owned the photographs it paid the photographer to produce, or it had an unlimited license to use them. The photographer then of course counterclaimed for failure to return the images, copyright infringement for use beyond the license terms, and removal of copyright information. The latter claim emanated from the fact that Propet removed certain copyright information contained in the metadata. 

  The jury, after trial, found for the photographer and awarded actual damages for copyright infringement in the sum of $12,800, $500,00 for statutory damages, another $500,000 under the Digital Millennium Copyright Act and $303,000 for failure to return his original images.

  Since the case will undoubtedly be appealed both as to liability on each claim and to the amount of damages awarded, we will be hearing more about it in the future.

  The case certainly is instructive to the extent that original images still have value in this digital age, and pursuing situations where clients or others fail to return them is still in the photographer’s best interest.

Attorney Joel L. Hecker lectures and writes extensively on issues of concern to the photography industry. His office is located at Russo & Burke, 600 Third Ave, New York NY 10016. Phone: 1 212 557-9600. E-mail: HeckerEsq@aol.com.