Pro-Imaging

7 November 2007

We are delighted to report that more than two years after the completion of trial, Judge Barbara S. Jones in the United States District Court, Southern District of New York, has found in our favor holding Corbis Corporation negligent and liable for losing some 12,666 analog images shot and owned by photojournalist, Chris Usher. The decision in Chris Usher v. Corbis, et al.  03-CV-4366 (BSJ) dated November 6, 2007 will be available on line shortly.  This is a case on which I share the credit with my associate Erica Galinski, who unfortunately did not live to see the decision.

Mr. Usher had claimed that Corbis had lost and/or failed to return some 12,666 images shot by him of George W. Bush, Al Gore, the 2000 presidential campaign, Elian Gonzalez’s return to Cuba and other significant news stories. Corbis had specifically recruited Chris Usher who had a White House Hard Pass, hoping he would agree to permit it to serve as his agent and representative.

His work which was then appearing regularly in Time, Newsweek, US News, Business Week, Sports Illustrated and People was lost by Corbis. Up until 2000 Chris successfully licensed his own work.  From mid 2000 until November of 2001, Corbis acted as Mr. Usher’s agent.  Decidedly unhappy with Corbis’ lack of sales, questionable licensing deals made by Corbis with its clients and shoddy billing practices, Mr. Usher terminated his agreement with Corbis announcing that he would start his own Washington DC based stock agency. In an attempt to hold on to Mr. Usher, Corbis advanced monies and attempted to keep him. He elected to leave and requested the immediate return of his images.

Only after much persistence, litigation and a period of two years of pre-trial discovery, did Corbis return some, but hardly all, of Mr. Usher’s images. Corbis repeatedly denied that it had lost or failed to return any of the images provided to it by Chris Usher. It could not account for the loss of any image. On the first day of trial however, it conceded for the first time that if it lost or failed to return any of Mr. Usher’s images, the number was at most a “mere” 5,377."  While Corbis readily admitted that it could deliver an analog image to a client magazine within 24 hours “easily”, it has been unable to deliver images to their rightful owners/creators for periods of years, typically never.

After hearing the testimony of numerous witnesses including photo editors from Business Week, Time, Newsweek and Corbis employees and ex-Corbis employees, the Judge 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 him to determine the extent of the loss (because Corbis maintained virtually no records), had performed a monumental and accurate task of assessing Corbis’ loss by re-constructing the hundreds of transactions by and between Chris Usher and Corbis in order to compute the loss number to be 12,666. Corbis inexplicably 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 not in fact 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 Mr. Usher was somehow negligent in not keeping records (as Corbis should have) 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 Chris Usher and was liable to him for the loss;
• That 99% of Mr. 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 Ms. DeArmas agreed;
• That in assessing the amount of damages due Mr. Usher, the Court would not permit a “wrongdoer to profit by his wrongdoing at the expense of his victim” and that Corbis’ acts prevented Chris 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”;

Following the Circuit Court of Appeals decision in Arthur Grace v. Corbis suggesting a method for the determination of damages in lost image cases and referencing some of the facts in Usher as “identical” to Grace, Judge Jones set the matter down for a hearing for the sole purpose of determining the amount of money it will award to Mr. Usher. That hearing is to be held on December 18, 2007.

In determining the value(s) of images and licensing revenues generated by such images, the Court noted that it would not allow Corbis to receive “credits” for agency fees deducted by it and/or its sub-agents from the gross licensing fees received from licensees. 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.

Corbis is a private company wholly owned by Bill Gates. Its failure to employ an adequate tracking system which could locate film in its possession and report on the gross licensing fees received by the company, was never explained to the Court. 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. This court found that fully 25%, or one in every four historical or photojournalistic images entrusted to Corbis by Chris Usher, were lost by Corbis. Add another 12,640 newsworthy images that have disappeared into the bowels of Corbis never to be seen by the public, clients or their creator again.

We will of course, keep you posted regarding further developments.

Edward C. Greenberg, PC

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