As a follow up relating to our “Back to the Future” article, Ed recently took the deposition of an employee of a large consumer company which maintains a stock library of photographs used by/or submitted to it for potential use over the years.
Various documents were needed by it of and concerning an image, containing two people, which was created 10 years ago and used by this company for commercial purposes. Additionally, it permitted other companies to use the subject images in related promotions and ads. It is alleged that uses made violated copyright and the models’ rights.
The company when call upon to produce records regarding the shoot done in 2004, and uses made periodically thereafter by it and others to which it gave permission, had no records. All of the various paper documents – invoices, model releases, estimates, licensing agreements and so on were “thrown away years ago and digitized”. The problem is that they were not scanned, digitized or copied in any format.
The techies did in fact scan all of the subject photos but failed to scan or “digitize” any of the documents relevant to the litigation. They screwed up. No malice – just human error. The result is that there is now no paperwork at all and thus none can be produced at trial. This poses problems at trial of enormous proportions. A jury may under certain circumstances be instructed by the judge to assume that the lack of such documents means that the company destroyed them and/or can assume they never existed and draw whatever favorable inferences it desires on behalf of the photographer and models in the lawsuit.
Running off old-fashioned photo copies of about 50 pages of ordinary invoices, estimates and contracts – or – just keeping the originals in a manila folder, would have saved this mega company from suffering mega grief. In their desire to save money on storing 50 pieces of paper (about 1/2 inch stacked) , they will inevitably pay a sum equal to the price of a few thousand reams of 8 1/2 X 11 copy paper.
Digital is wonderful, but sometimes still, when it comes to record keeping, paper is king.