Is It Legal? Assigning a Value to Intangible Image Files

[by Nancy E. Wolff]

Q: “My hard drives were stolen while under the watch of a major hotel chain. I was working on my Web site/portfolio, and these were my backup drives, containing my only copies of many years’ worth of images. Now all the images are gone, and I am working with the hotel’s insurance to try to figure out how all this is going to pan out! How do you put a value on something that is not ‘tangible’?”

—Sarah Kerver, via e-mail

A: Placing a value on lost or damaged original photographs was a problem I confronted as an attorney in the days of analog film, when the transparencies used by publishers for reproduction were the same as the film developed from the camera. A misplaced FedEx box, sheets of original slides placed near a trash can or an overzealous editor who punched holes in celebrity outtakes gave rise to claims requiring valuation of original film. When analyzing products that are not readily sold in the marketplace and have no established market value, valuation is difficult. Except for work done under a work-for-hire or buyout agreement, image reproduction rights are generally not sold but rather licensed for different fees depending on the extent of the use. Different clients may license a single image for different purposes over an extended period of time.

Valuation of these intangible rights was complicated, and courts often focused on the uniqueness of the lost or damaged images as well as the photographer’s level of earnings for licensed images. It became a battle of experts, with the industry attempting—without much success—to settle on an agreed value of $1,500 per original transparency. Yet what a photographer can never recover is the money associated with what it would take to actually re-create what was lost. As photographs, by definition, are moments in time, this would be impossible if not impracticable. While photographers can get some level of protection through business insurance coverage, no type of insurance covers the value of replacing a photographer’s archive.

Today, with images that exist primarily in digital format, these claims are increasingly rare. Yet it’s crucial to realize that digital files can be more fragile or subject to corruption than film and, although less common, the danger of losing images in digital format still exists.

A key difference between digital files and analog film is digital’s ability to make perfect copies. Consequently, it is important to practice good digital workflow and have an extensive backup system, using multiple storage devices in the event one is corrupted. Digital preservation is also challenged as platforms change and the stored files must be migrated to new devices. Does anyone still have a computer that can read a floppy disc?

Proper archiving and image file management is a complex subject, and the American Society of Media Photographers (ASMP) has extensive information on best practices for digital file maintenance and preservation. To learn more, visit the Digital Photography Best Practices and Workflow Web site.

In summary, to best protect your work against loss, follow the 3-2-1 rule: Make three copies, in two different storage media and one off-site location. Also, keep good records of every shoot, clearly label the files and retain the associated metadata so that specific files can be easily found (including copies of all model releases). And never travel with your only copy!

Nancy E. Wolff is a partner at Cowan, DeBaets, Abrahams & Sheppard, LLP. Her practice focuses on intellectual property and digital media law.

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