Photojournalist Chris Usher Wins Lost Images Lawsuit Against Corbis

 

NEW YORK, NY (November 7, 2007) - Photographer Chris Usher has won his lawsuit against Corbis Corporation for the loss of some 12,640 analog images, his lawyer Edward C. Greenberg said from Manhattan today, receiving a favorable decision from the United States District Court, Southern District of New York, more than two years after the completion of trial.

The amount of monetary damages that will be awarded Usher will be determined at a hearing that is scheduled for December 18.

"It's been a very long time, and all of those missing images were pretty much selects and I'm very sad not to have them," Usher told News Photographer magazine today. "Regardless of what they are worth - the money is nice but I'd rather have the pictures back - and a lot of the pictures were of [George] Bush, and [Al] Gore, and the campaign of the century that was ultimately decided by the Supreme Court, and it was all on film. I worked hard on that material; I know what was there because I see the outs, and I'm so sad that there's so much of it that's missing."

"This is a case on which I share the credit with my associate Erica Galinski, who unfortunately did not live to see the decision," Greenberg said in a release announcing the verdict.

"After nearly a decade of litigating lost image cases against Corbis on behalf of photographers, we have yet to hear an explanation or excuse for any loss of any image by Corbis," Greenberg said. "The court found that fully 25%, or one in every four historical or photojournalistic images entrusted to Corbis by Usher, were lost by Corbis."

The case, Chris Usher v. Corbis, et al, claimed that Corbis was negligent and liable for losing some 12,640 analog images shot and owned by Usher. The lost images included Usher's coverage of George W. Bush, Al Gore, the 2000 presidential campaign, Elian Gonzalez’s return to Cuba, and other significant news stories. Usher claimed that Corbis lost or failed to return the images to him when he ended his representation agreement with them in 2001.

Greenberg said that until 2000 Usher had represented his own work, but was then recruited by Corbis and their news director at the time, Charlie Borst, because of Usher's White House access and the fact that his work was routinely appearing in Time, Newsweek, Business Week, U.S. News & World Report, Sports Illustrated, and People magazine. Unhappy with Corbis because of a lack of sales, licensing deals, and billing practices, Usher ended his relationship with Corbis in November 2001, Greenberg says, to start his own Washington-based stock agency. It was at time that Usher asked for the immediate return of his images, and Corbis did not meet with his request.

After nearly two years of pre-trial discovery, persistence, and litigation, Greenberg says Corbis only returned some of Usher's photographs, and that throughout the process Corbis repeatedly denied that they had lost or failed to return any images. That story changed when on the first day of the trial Corbis conceded that they may have lost some images but that the number was a "mere 5,877," Greenberg says.

In today's finding, Greenberg says that U.S. District Court Judge Barbara S. Jones heard testimony from numerous industry experts including photography editors from Business Week, Time, Newsweek, and current and former Corbis employees, before Judge Jones made the following determinations:

• That there were serious deficiencies in Corbis’ tracking and storage practices and that these deficiencies were an obvious cause of the loss of Usher’s photos that he had delivered to Corbis;
• That Chris Usher’s archivist, Adrienne DeArmas, hired by Usher to determine the extent of the loss, had performed a monumental and accurate task of assessing Corbis’ loss by re-constructing the hundreds of transactions by and between Usher and Corbis in order to compute the number of lost images to be 12,666. (Corbis did not employ bar codes on all of its images nor - by admission of its former employees, - had it adequately tracked images in its custody.);  
• That Corbis’ claim that it had digitized all selects was false, and that some number of images suitable for licensing were in fact not scanned, as repeatedly claimed by Corbis;
• That Corbis had a duty of reasonable care with respect to the images and that it failed to exercise that care;
• That Corbis was negligent and that finally and only at trial did it stop disputing its negligence;
• That Corbis’ claim that Usher was somehow negligent in not keeping records was without merit and had nothing whatever to do with Corbis’ loss of the images, a loss which remains unexplained today some six years later;
• That Corbis had breached it duties to Usher and was liable to him for the loss;
• That 99% of Usher’s claim that 12,666 was the actual number of missing images, was valid. (The judge holding that only some 26 out of 12,666 images ought to have been excluded from Mr. Usher’s claims, a number to which DeArmas agreed.);
• That in assessing the amount of damages due Usher, the Court would not permit a “wrongdoer to profit by his wrongdoing at the expense of his victim,” and that Corbis’ acts prevented Usher from proving the exact amount of his damages so the Court would assess the appropriate amount;
• That Corbis’ image return policies were unreasonable and not binding on photographers who were known to Corbis to be on the road and incapable of “objecting within two weeks of return."
  

Greenberg said Judge Jones will follow the Circuit Court of Appeals decision in the case of Arthur Grace v. Corbis for suggesting a way to determine the value of the lost images, saying that some of the facts in the Usher case are "identical" to the Grace decision. In that case, a federal court judge awarded Grace $472,000 for approximately 40,000 slides lost by Sygma, a French photography agency that Corbis bought in 1999. On appeal, Grace v. Corbis was remanded back to the District Court for a new hearing and possibly for higher damages.

In the Usher case, the judge has said that Corbis will not be allowed to receive credits for agency feeds deducted by them or their agents in determining the gross licensing fees to determine the value of the lost images and the licensing revenues that were lost by not having the images for future use. "Corbis’ ongoing failure to report gross licensing fees on its royalty statements to photographers was made an issue at trial and the Court took considerable interest in that point," Greenberg said.

Corbis is a private company wholly owned by Bill Gates.

 

NPPA Marketplace

Join the NPPA

NPPA members receive a wide range of benefits, from educational opportunities to mentoring, exclusive discounts, insurance options, business tips, and much more.