Justice Sonya Sotomayor’s recent ruling in Usher v Corbis-Sigma doesn’t bode well for photographers.
In yesterday’s New York Times “Lens” blog, David W. Dunlap shed some revealing light on a recent case, Usher v Corbis-Sigma that was heard at the United States Court of Appeals by a three judge panel that included Judge Sonia Sotomayor. Since Ms. Sotomayor is the nominee for Supreme Court Justice (and will likely be approved), and the case concerns a lawsuit brought by a photographer against the largest stock agency, photographers who earn their living from the sales of their photos need to pay attention.
Photographer Chris Usher had entrusted Corbis with more than 12,600 slides that he had shot of the 2000 presidential campaign—valuable, unique images, according to Usher and witnesses—but somehow, Corbis lost them. Usher sued for damages, and a district court awarded him $157,000, which works out to a paltry $7 a photo.
“The value of these images is certainly more than $7 each,” Usher was quoted as saying. However, Sotomayor agreed with Corbis’s argument, which calculated the reward based on Usher’s past earnings over his 16-month licensing history with Corbis, and that the the district court was “not required to specifically address uniqueness when, due to record keeping, it is impractical or impossible.” Sotomayor and the rest of the panel sided with Corbis.
But author Dunlap dug deeper and revealed that the attorney for Corbis, Douglas C. Fairhurst, had a history with the supreme court nominee. According to the article, “Mr. Fairhurst said in an interview Wednesday that he has known Judge Sotomayor since the 1980s, when they both served on the legal committee of an imported automobile trade association. (She represented Fiat, he Jaguar.)” In the blog post’s comments, Usher’s lawyer, Edward Greenberg, commented that “This article was the first indication we had that Judge Sotomayor and Corbis’ counsel had (according to Mr. Fairhurst himself) a working relationship. No disclosure was made to us by Judge Sotomayor and thus we had no opportunity to request that she at least consider recusing herself from hearing the case. Had we known of this relationship we would have sought another appeals panel.”
The bottom line for photographers? This case has set a legal precedent that leaves photographers unprotected in case their agency loses their photographs, since the agency will only be required to pay a minimal fee for incurring the loss. And one of the judges that allowed this ruling to stand may soon be sitting on the Supreme Court.
While this has outraged the photographic community, Fairhurst was quoted as expressing a deliberately self-serving lack of understanding that could only benefit his client, Corbis: “Why would photographers be immune from the laws of economics?” he said. “If I had a 20-year-old business selling nails, and you were interested in buying my nail business, would you not look at how it performed?...Why would photographers think they’re immune from these things? It’s a commodity.”
So, if I got this right, stock photos are now legally considered a commodity in the same category as nails, and photographers who disagree may not get much help from the supreme court, if Justice Sotomayor's opinion prevails.
Might this be another nail in stock photography’s coffin?
That’s a wrap. What do you think? Comment below.
Photo montage credit: APCortizasJr/istockphoto.com (nail), spxChrome/istockphoto.com (gavel).