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.
#1 by Wayne M Schenk on February 21, 2014 - 11:29 pm
Not only is this large consumer company but they quite probably have had there entire data base or a significant portion of it compromised by not having this documentation.
#2 by Edward C. Greenberg on February 23, 2014 - 8:12 pm
Excellent point and that is why a judge at the request of the attorneys for the photographer/models, can advise the jury that any records of the company are suspect and/or compromised.
You see this legal concept played out most often in criminal law. Periodically you’ll see a story about a CSI lab in a given city which screwed up on a given case – or – a particular detective/cop/prosecutor or judge turns out to be corrupt. For good or ill, just one such incident can call into question or be enough to re-open countless unrelated cases which may have involved that lab or person.
Ad agencies and media companies have fewer employees over the age of 55 in 2014 than they did 30, 40 years ago. If you were raised in a pre-digital age, paper was the norm period. As technologies evolved, people adapted with the times. Folks under 40 have lived the entire lives in the digital age. They were raised in a culture intent on speed, efficiency and “paperless” offices.
Until faced with a problem preventable by the existence of paper documents, many such people have rarely had any familiarity with any business documents not digitally created. Other than occasionally printing an electronic document, “doing” or “handling paperwork” as such, are practices that they have never really performed.
Speaking solely as an attorney the take away is that although there are many substitutes for paper, there is no substitute for paper.
#3 by Jack and Ed on July 28, 2015 - 1:02 pm
Recently Ed received a call from a clerk for a Federal Court judge. The judge received a letter from an infringer and wanted to know if Ed had received the same letter. When told no such letter has come in any form to Ed’s office, the judge’s clerk volunteered to send a copy to Ed so he could read it. Ed starting giving his e mail address and….
The clerk, “We do not send e mails to lawyers. We use faxes exclusively for instant written communications”.
Ed “For security purposes….to prevent hacking”?
The clerk, “I can’t comment on that. We will be happy to either fax it or mail it to you. We no longer communicate via e mails with attorneys”