by Joel Hecker, Esq.

Advance Notes: The nightmare of attempting to receive original slides from photo suppliers is almost a forgotten memory for most photo researchers. Digital delivery has nearly erased the legal and monetary responsibility that photo researchers experienced in the past. However, the phantom still remains. Transparency delivery will still be around in our generation –if rarely.

I have previously reported on cases involving loss of slides and questions of evaluation, and on other cases involving copyright infringement. A case in Washington State had both!

The case involved Chase Jarvis, a photographer engaged in outdoor sports and active lifestyle photography, and K2, Inc. and its subsidiaries, the maker of skis and other sporting goods equipment.

The photographer had a relationship with the defendant for a number of years and provided photographs for limited use. They had both oral and written contracts depending upon the time frame and photographs concerned. At issue in this case were two written and various oral contracts.

The written contracts each contained a clause that stated that it constituted the entire agreement of the parties and could only be modified in a writing signed by the parties. This of course is a standard type clause and is called a "fully integrated contract". This is important because the photographer, after completing each photo shoot, submitted the images along with a standard Delivery Memo that provided for the customary $1500 per image liquidated damage clause in the event of loss or damage.

The Court found on the loss claim that 396 slides had not been returned but that the Delivery Memo containing the $1,500 evaluation could not be considered because it constituted an unacceptable oral modification of a written contract. Since the integration clause of the contract did not permit oral modifications, the Court found that the Delivery Memos, which were not negotiated in advance nor accepted by the defendant, were not admissible.

The Court then went on to consider fair market value of images used by the photographer, taking an average of licenses granted for various markets and various uses within the markets. The photographer's expert witness testified that it was impossible to know the value of the lost slides and what their potential value in the future might be. This was in part because the photographer was not able to identify which slides in particular were missing from all those submitted (a substantial portion of the submissions were in fact returned). In addition, the expert testified that perhaps 90% of the lost slides might have no value.

As a result of this and other evidence, the Court concluded that while some of the missing slides were potentially very valuable and might have generated thousands of dollars in licensing fees, others would have no value at all. The Court concluded that for all but one of the images the average value was $500. The one exception was where the defendant acknowledged that $1,500 was due and in that case the Court granted $1,500. The total awarded for the loss of slides was $199,000.

As to the copyright infringement, which consisted basically of use beyond the licensed term, the Court found that none of the uses occurred after registration of the copyrights with the Copyright Office and therefore the photographer was not eligible for statutory damages or attorneys fees. The Court made an analysis of the types of work and placed evaluation of the infringements for $40,107.

Although there are fewer and fewer cases involving loss of slides with the advent of electronic digital delivery of images, these cases still occur and the courts clearly still, in the appropriate occasions, place substantial value to professional photography, as they should.

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.