Losing photographs

Having an original photograph lost of damaged while in the hands of a client isn't something you'd welcome, but if you cover your back you could be laughing all the way to the bank.

Posted 15/Jan/2002 - 12:00AM

Having an original photograph lost of damaged while in the hands of a client isn't something you'd welcome, but if you cover your back you could be laughing all the way to the bank.
Words and pictures Lee Frost

It may seem a rather ironic way to make money from photography, but having your picture lost or damaged by a client can be rather lucrative - and needn't spell disaster if you're wise.
Whenever I take pictures of anything I almost always take too many, so it's not uncommon for me to end-up with at least half a dozen perfect in-camera dupes. I do this mainly because I tend to spread my work around quite a lot - it goes off to picture libraries, plus there are always shots out with publishers, or being used to illustrate magazine articles and books that I write. I hate the thought of needing a shot for something and finding that it's elsewhere, or not wanting to send an original that I really like out to my picture library (which means I will never see it again) because I only have one original copy of it.
   The obvious solution would be to have duplicates made, but it's actually far cheaper just to take more shots in the first place - you can shoot and process a whole roll of film for the cost of a decent dupe. An original in-camera dupe is also going to be better than a second-generation image.
   More importantly, having lots of original copies of a shot also means that if a client loses or damages one, it's not the end of the world because I can reach into my filing cabinet and pull out another.
   Consequently, I'm more than happy for the odd shot to get lost - or preferably several at the same time - because the financial returns are often considerably higher than the repro fees I would have received if the client had managed to look after it. Even better is for the client to use the shot then lose it, so you win on both counts.
   A few months ago, for example, I received my regularly quarterly statement from one of the picture libraries I supply only to find out that four original trannies had been lost by the same client. Was I upset? Not on your nelly - I received £1100 in loss fees (the library charged £550 per shot, of which I received half).
   A couple of years ago a regional tourist board asked permission to use a shot on mine on the cover of its annual visitor guide for which we agreed a fee of £400. Unfortunately (for them) they didn't package the slide properly for its return journey back to me, it arrived folded in half and damaged beyond repair, so they had to pay a further £750 for the loss fee.
Actually, I was livid in that instance because the tranny in question was the best from the set I'd taken. But it's demise didn't lead to lost sales because the other near-identical shots taken at the same time were just as usable, several have since been published, and the cheque I finally received for £1150 went a long way towards cushioning the blow.
   If I look back over the last five years or so I could probably add at least another £1000, maybe more, to these figures, which means I have pocketed in excess of three thousand pounds from the loss of a handful of trannies - none of which have been missed. That's enough to buy a decent medium-format camera system, or pay for a stock trip to an exotic destination.
   I'm not the only one either. A photographer friend of mine received a whopping £1500 recently for the loss of a single large-format transparency. A few years ago that same photographer was awarded several thousand pounds in an out-of-court settlement because a clumsy calendar publisher had lost a batch of original slides. I also know of another whose Mamiya RB67 system was financed by the loss fee he received from a publisher who again managed to lose a dozen or more shots in one go. Ooops!

Small print
The key to claiming loss fees is making the client aware of them when you first make the submission, otherwise you're going to have a fight on your hands.
Picture libraries do that as a matter of course so you don't have to worry about work being marketed by a library - if a loss occurs they will deal with it and you can sit back and wait for payment.
   When you're sending material out to clients direct, however, you need to enclose a letter detailing the terms and conditions of the submission.
This is unlikely to be accepted with on-spec submissions - if you send pictures out to a publisher which they didn't ask for, then they are unlikely to accept responsibility for them. Once you have been informed that one or more of those pictures are going to be used, however, you can then set-out your terms and conditions in writing and that should include a loss fee.
   The easiest way to do this is to buy special photographers submission sheets which come in duplicate form (BAPLA sell them, phone 020 7713 1780). You simply fill-in a form for each submission, send it with the pictures, and ask the client to sign it and return one copy so you have written acceptance of your terms. Alternatively, make-up a template on your computer, which you can complete, print off two copies and send with the pictures. If you don't do this and a loss occurs, you will struggle to recover any kind of loss fee because the client will simply say that you never informed them of any loss fee - even though it's widely known in the publishing world that if a picture is lost, compensation will be sought by the photographer.
How much should you charge? Up to you within reason. The standard picture library loss fee these days is around £550, but some will charge more. I know photographers who charge £1500 for loss of an original.
   The key is to make sure the client knows what that loss fee is. If they feel it's too high then they will say so - a calendar publisher contacted me last year to say they were only insured for £500 per shot so would I accept that instead of the £750 loss fee I had put on my submission form. I agreed, though I never needed to enforce it because the pictures were returned safe and sound.
   Should you ever need to claim for loss or damage of original pictures, do so in writing then leave the client to respond or pay. If, after an acceptable period of time such as 30 days or 60 days, no payment or response is forthcoming, write again. If this second letter falls on deaf ears, write again stating that if you do not receive payment within ten working days you will pursue the matter through legal channels.
   Most clients, in my experience, will pay on receipt of this threat. If they don't, pop along to your local magistrates court and speak to someone about issuing a summons against the client through the small claims court. This doesn't cost a great deal, but the court will issue a summons and the client then has no choice but to pay-up or argue the case with you in court. If you have done everything properly and your terms were clearly stated from the outset then the client will almost certainly pay-up - or agree on a fee with you in the case of multiple losses - because they will be well aware that they don't have a leg to stand on.
   This may seem like a rather harsh way to resolve a problem, but sometimes it's the only way. What you should never do is just shrug your shoulders and walk away from a situation just because you don't seem to be getting everywhere with it.
   I may have been a little flippant earlier in this article, but actually this is a serious business. Loss fees are there primarily as a deterrent, to make sure that the people handling our work respect it and look after it. If there were no penalties to pay, there would be no reason for anyone to do this, and although the vast majority of picture uses do look after the images in their possession, there will always be a tiny minority who don't give a damn - unless it's going to cost them dearly.

This is a similar shot to one damaged in transit by a client who failed to package it properly before mailing it back to me. Hopefully the £750 loss fee they had to pay me will make them a little more considerate.



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