Pro-Imaging

16 September 2008

Foxnews.com reported on Monday September 15th that Atlantic Editor James Bennet said Greenberg behaved improperly and will not be paid for the session.  He said the magazine is also considering a lawsuit. It quotes Mr. Bennet as saying, "She (Greenberg) has violated the terms of our agreement with her, of our contract with her so we're taking steps".

    A. "In house" legal counsel and/or ready access to attorneys; and

    B.  More than sufficient funds to pay legal fees without blinking; and

    C.  The will to do whatever it takes to achieve a desired result.  

        Had Ms. Greenberg just taken a "lousy shot" of an accessible subject, the Atlantic could have simply rejected it and not paid her.  But I don't think the Senator has the time or (now) the inclination for a re-shoot. He was a "guest" of the client. So The Atlantic was forced to use the "best shot it got" from an independent contractor who openly admits (at least) that she intentionally did not do her best work.

        It is my opinion that some publishers will now change their and/or the photographer's assignment contracts adding additional good faith performance burdens on to the photographer and thereby providing additional excuses for non-payment.  The law requires that you put forth your best efforts in such cases.  If you had hired someone to cut your lawn and unbeknownst to you, after doing a (just) competent job, he intentionally placed fungus or planted poison ivy in your lawn, would you pay him?.   Posting the photos of the client's guest with assorted profane remarks emanating from his mouth is akin to such behavior. 

    In such cases a publication or client could conceivably bring an action for trade disparagement on top of everything else.  A case can certainly be asserted that the photographer has diminished the reputation, mark and brand of the publication and all of its employees and contributors.  Much has to do with whether the actions of Ms. Greenberg are viewed as (merely) those of a "rogue" independent contractor.

    Especially for those of you who are not photojournalists, consider the below.  

     A.-  McCain wins.  He is not required to give any Atlantic reporter access to the Oval office.  A politician punishing a publication for a bad story is not exactly unprecedented.  At least one photographer was recently banned from the White House by a sitting President due to the images created by him/her; or

    B.  McCain loses and thus remains a powerful United States Senator.  In addition to refusing access to him or his people, what if a piece of legislation affecting publishers in general and/or The Atlantic specifically, comes before him.  Think he might hold a grudge? or

    C.  Gov. Palin, win or lose, has a lengthy career in front of her.  Do you think she's likely to be "partial" to or receptive to requests from The Atlantic? or

   D.  Sen. McCain graciously (or cynically) accepts the apology issued by The Atlantic.  Can The Atlantic then run a favorable piece on him or Palin without additional and cynical scrutiny?  Isn't their journalistic integrity and/or objectivity compromised in any or all of the above scenarios? 

    Agree or disagree with its point of view, The Atlantic has a reputation earned over many decades.  That reputation has a monetary value.  Its attorneys will eventually decide whether to actually file suit.  For your purposes however, please note that such behavior by a photographer may be exceptionally risky and may come at a substantial price.

    September 16, 2008