The Historic Photos I Thought I Owned; But Not Really

LEARNING THE HARD WAY ABOUT PHOTOGRAPHIC COPYING

ALL MY CUSTOMERS HAD A COPY OF MY PHOTOGRAPH, THAT I DIDN'T SELL THEM

     I MADE A SIGNIFICANT PURCHASE OF AN HISTORIC PHOTO ALBUM, FEATURING LATE 1800'S IMAGES OF BRACEBRIDGE, ONTARIO. IT WAS BACK IN ABOUT 1993, AND IT COST ME SEVENTY-FIVE DOLLARS. THE OWNER KNEW WHAT IT WAS WORTH, AND HAD OTHER BUYERS INTERESTED. SO I DID PAY A LITTLE BIT MORE THAN I SHOULD HAVE. IT WAS A LOT OF MONEY FOR ME, BECAUSE OF THE RECESSION AND THE FACT I WAS RUNNING A SEASONAL BUSINESS, AND IT WAS THE OFF-SEASON WHEN I MADE THE PURCHASE.

     THE MOST IMPORTANT ASPECT OF THE SMALL ALBUM, OF ABOUT TWENTY IMAGES, WAS THE FACT ONE OF THE COLLECTION, OFFERED A VERY RARE IMAGE, SHOWING A GROUPING OF STEAMSHIPS IN BRACEBRIDGE BAY, JUST BELOW THE FALLS. THE SIGNATURE OF THIS PHOTOGRAPH, WHICH MADE IT MOST UNUSUAL, WAS THE BANNER FLAG OF THE SMALL STEAMSHIP KNOWN AS "THE CITY OF BALA." THE OWNERS OF THIS BOAT HAD RUN INTO FINANCIAL TROUBLES, AND THERE AREN'T A LOT OF CLEAR PHOTOGRAPHS OF IT IN COMPANY OF OTHER FLEET SHIPS. IN THE COMPANY OF OTHER SUPPLY AND PASSENGER STEAMSHIPS, MOORED TOGETHER IN THE BAY, WITH THE BACKGROUND OF A SAW MILL AND LOG CHUTE, I BELIEVED, WITH SOME ASSURANCE FROM MY HISTORIAN FRIENDS, WAS A VERY MARKETABLE IMAGE AT THE TIME. JUST THIS ONE PHOTOGRAPH WOULD HAVE BEEN WORTH THE MONEY I PAID FOR THE ALBUM. BUT STUFF HAPPENED IN THE MIDLANDS, BETWEEN THE ANTIQUE AND PHOTOGRAPHIC BUSINESSES, THAT TAUGHT ME ABOUT THE NECESSITY OF MAKING A CONTRACT……A REAL TIGHT ONE, WHEN HAVING ORIGINAL PHOTOGRAPHS COPIED.

     I DECIDED THAT I NEEDED TO EMPLOY A PHOTOGRAPHER, WHO COULD COPY THESE HISTORIC IMAGES FOR ME, AND PROVIDE AT LEAST THREE OR FOUR COPIES EACH, SO THAT I COULD OFFER THEM FOR SALE TO MY STEAMSHIP-LOVING CUSTOMERS. I DIDN'T OPT TO HAVE THE WHOLE BOOKLET COPIED…..JUST THE ONES OF WELL KNOWN ARCHITECTURE AND SUBJECTS I KNEW WOULD BE DESIRABLE FOR COLLECTORS AND HOBBY HISTORIANS IN OUR COMMUNITY. IT STILL WAS QUITE A BIT OF MONEY TO GET THE BLACK AND WHITE COPIES OF THE ORIGINALS. WHAT MADE THIS SITUATION WORSE, WAS THE FACT I HAD ONE FOOT IN THE PHOTOGRAPHIC COMMUNITY, BECAUSE OF MY WORK WITH THE LOCAL PRESS. I HAD NUMEROUS PROFESSIONAL PHOTOGRAPHERS I COULD HAVE ASKED FOR ADVICE, INCLUDING MY FRIEND FRED SCHULZ, WHO I WROTE ABOUT IN YESTERDAY'S BLOG. IT'S NOT LIKE THE INSIDE SCOOP, SO TO SPEAK, WASN'T AVAILABLE TO ME. I SIMPLY MADE AN ERROR IN JUDGEMENT. AND SO YOU DON'T MAKE A MISTAKE AS WELL, I HOPE YOU CAN LEARN SOMETHING FROM MY MISADVENTURE.

     SO I CALLED IN A PHOTOGRAPHER I KNEW VERY WELL. HE USED TO COME INTO THE SHOP ABOUT ONCE A MONTH, AND HE MUST HAVE KNOWN I HAD THIS VICTORIAN ERA PHOTO-ALBUM, BECAUSE HE WAS THERE ONLY A FEW DAYS AFTER I MADE THE PURCHASE. I ASKED HIM IF HE COULD DO THE COPYING FOR ME, AND I DIRECTED HIM TO THE PHOTOGRAPHS I WANTED FOR MY CUSTOMERS. HE KNEW WHY I WANTED THE COPIES. THERE WAS NO MISTAKING THIS, WHICH MADE THE COLLATERAL DAMAGE SO MUCH MORE UNSETTLING. THE PROBLEM WAS, FROM THE BEGINNING, THAT I HAD NOT SPECIFIED, CLEARLY, AND IN WRITING (AS I HANDED HIM A NOTE, WITH A LIST OF THE PHOTOS TO BE COPIED), THAT WHILE NEGATIVES WOULD NEED TO BE PRODUCED, IN ORDER TO GET A HIGH QUALITY PRINT, THESE SAME NEWLY CREATED NEGATIVES WOULD BE TURNED OVER TO ME. THIS WAS THE INTENT, AS I HAD HOPED TO HAVE THE POWER TO RE-PRINT THESE HISTORIC IMAGES ON DEMAND. WHAT I DIDN'T APPRECIATE, THAT IT WAS HIS PLAY THAT I WOULD GO THROUGH HIM, EACH TIME MORE GLOSSY PRINTS WERE NEEDED. THAT MADE SENSE IN MANY WAYS, AND IT WOULD HAVE WORKED, EXCEPT FOR ONE THING. HE WAS VERY CLEVER AND I WASN'T!

     WHAT I SHOULD HAVE DONE, WAS DEMAND TO PAY FOR THE CREATION OF THESE NEGATIVES, WITH THE STIPULATION, THAT NO DUPLICATE NEGATIVES COULD BE PRODUCED FOR THE PHOTOGRAPHER'S ARCHIVES. WHEN I GOT MY INVOICE FOR THE WORK COMPLETED, THERE WAS NO FEE ATTACHED FOR THE CREATION OF THE NEGATIVES. I ASSUMED, IN ERROR, THAT THE PRICE OF THE NEGATIVES WAS INCLUDED IN THE AMOUNT OWING. THE FIRST DEFICIENCY I SHOULD HAVE NOTICED, WAS THAT IN THE MIX OF PHOTOGRAPHS, THERE WASN'T A SINGLE NEGATIVE INCLUDED. ON THE INVOICE, WHICH I READ LATER, THERE WAS NO REFERENCE TO TIME SPENT ON NEGATIVE CREATION. IT WAS A LOT OF WORK RE-PHOTOGRAPHING THESE PICTURES TO CREATE A NEAR PERFECT NEGATIVE, FROM WHICH THOUSANDS UPON THOUSANDS OF PHOTOS COULD BE THUSLY PRODUCED, WITHOUT ANY SERIOUS DIMINISHING OF IMAGE CLARITY. SO THE FOOL WAS ME. I HADN'T BEEN CHARGED FOR THE NEGATIVES, WHICH I LATER UNDERSTOOD, WERE FOR THE PHOTOGRAPHER'S CONVENIENCE, WHENEVER I PLACED A NEW ORDER FOR MORE PRINTS OF THE SAME IMAGES…..WHEN MY FIRST BATCH SOLD-OUT. WELL SIR, THAT WASN'T GOING TO HAPPEN. HERE'S WHY.

MY HISTORIC COUP WAS SHORT LIVED

     One day after getting my copies of four or so of these spectacular vintage photographs, of my hometown circa 1890, one of my good customers came thumping down the stairs, yelling for me before he had even rounded the bottom corner of the basement shop. His enthusiasm was based on a swell picture he had just purchased, (for ten bucks I think) from the photographer who had copied my album. He showed me the nice eight by ten glossy to me, placing it on the counter, right beside the same images I had listed for fifteen dollars. "Hey, where did you get those," he demanded. "Where the hell did you get that one," I demanded. Not only was the photographer tapping into my customer base, he was under-cutting my retail price for the photographs. My cost was more than he was selling them for, and no, I wasn't impressed. In fact, I was staggered, that I had allowed this to happen. Within a half hour, I had two other steamboat lovers, show up at my counter, wanting to share this wonderful image with the moron who had made it all possible.

     One day, my mother came into the store, after walking our lads, Andrew and Robert downtown, and told me about the large steamship photograph in the window of a local gift shop on Manitoba Street. I just had to go and have a look. Sure enough, my photographer friend was covering the whole community with these images I thought I owned……but alas, did not. It was about a week later, that a local historian walked in with a much larger photograph of the same image, that he wanted to have framed in the business above our antique shop. He offered to show me the photo he had wrapped up. "Is it of steamships in Bracebridge Bay," I asked with resignation that it was going to be? "Say, how did you know that," he responded. "It's a story I would like to forget as soon as possible." That's when he showed me copies of the other historic photos the technician had also re-produced without my permission, and sold as if there was no doubt who owned the negatives. Not me.

     I even found my paid-for photograph of Bracebridge Bay in a newly published local history, but by that time, I had worked out my anger issues, and given up on getting much out of the photo album other than maybe the $75.00, I had paid for it. In fact, I sold it for the same purchase price, but I did have to explain that the images had been copied and made into negatives. After he paid me for the album, he also said that the album was the original, and that trumped the negatives. The historian who bought the album knew the photographer, as well, and the copying ceased after this transaction. It seems, much to my chagrin, that because I had the album of original images, and that there had never been a duplicate album…..or at least made available, this was the critical asset, and would have been considered this way if there had been a court case to resolve the issue. As it was, the historian was not interested in duplicating the album. There was content he was more interested in, than making money off reproductions. So basically, I'd been a fool going and coming. No one ever told me the antique profession was going to be smooth sailing.

     The photographer had heard that I was mad about the fact, he had been selling what I understood to have been my photographs……and targeting my customers which was quite unfair in my estimation. He tried to explain to me how it worked, in his world of technical photography, and where I had slipped up, when asking for the copies instead of the "copies and negatives please." Even then, I would have had to insist, with a written agreement, that the photographer hired to do the copying, would not make a separate negative for company archives. He was pointing out to me, that I had been a stupid antique dealer. That's what it came down to. I looked him in the eyes, and let him know, that in my world, in my hometown, this shit didn't happen amongst colleagues, associates, neighbors and friends, for the sake of a few bucks. He was legally within his rights so I wouldn't have been able to beat him, on this matter, if I had pressed for a judicial decision. Honestly, I didn't have the money to fight it anyway, and I just slid the photographs, at that moment, while he watched, into a briefcase behind the desk……..letting him know that he won…..and ignorance had claimed yet another victim.

     It was at that precise moment, as our eyes locked, that he knew, we would never, ever do business again. It was my only way of striking back on a budget. I still have those photographs tucked away in my own archives, just to remind me, of the way things can go if one isn't careful. For years after this debacle, I could see those old photographs all over town, and even at town hall, which reminded me, each and every time, the importance of due diligence, when getting historic images copied for posterity or profit. A few years before this, I was given a quantity of photographs and negatives that had belonged to a well known studio in Muskoka. These were destined for the garbage, but the chap who was disposing of them, handed me the full bag instead. I was shocked to find the negatives of photo orders over decades, which by possession, might have entitled the holder "me" to exploit them by making copious duplicates. I would never have done this, because I wasn't the owner of the rights. At least this is what I assumed. What's funny about this, is that I had this knowledge at least two years prior to the photo album incident…..and I could plainly see what photographers did in order to make prints for customers. They needed to make negatives. But to keep the customers coming back for more prints, they kept the negatives. Which is pretty obvious if you consider wedding and family photographs taken by professionals. The only time it becomes an issue, is when they are reproduced without the knowledge or permission of the subjects….or the customer who had the work completed. This has occurred when, because of sudden notoriety, an image in the archives of a photographic studio, is offered for sale to publications. Most of us would think this requires permission. There have been many challenges to this situation. So my little Victorian photo album issue, is pretty small in comparison to these much more significant and intrusive negative-ownership cases.

     If it is an issue to you, the best advice is to make a binding contract, that no negatives can be held by the photographer after the work is complete. If the photographer in question refuses this concession, then look for a studio that will comply. It's a peace of mind thing.

     This isn't a cheap shot at photographers. It's a public kick in the ass, in retrospect, administered upon an antique dealer, newspaper photographer, who should have known better. Thanks very much for dropping by today. I hope you don't think I was too hard on the photographers of the world. I took this misadventure personally, because it was at a time when I didn't have a lot of money to spare, and the financial hit was a big one. But it was, if nothing else, a learning experience I have never forgotten. So over the long-run, it has stopped me from making similar investment errors. See you again soon.