Pricing question - The Jaws of Life.

[Ken Phillips]

What is or isn't evidence is often up for debate. So the photos are evidence of what? The cause of the accident? Not likely. The drunkeness of the other driver? Not likely. Either the police already have that, or they are lost.

There were medical and rescue technicians that can attest to the fact that the 'jaws of life' were needed. The damaged car likely still exists. The hospital will have records of the injuries.

The pictures, I suspect, are to get sympathy from a jury, or put pressure on an insurance company.

(I've been on the wrong end of a suit once, arising from someone's sheer stupidity. Filed in Philadelphia, home of 'liberty'. Extortion is all that it was, and by the time we 'bailed' the legal fees had exactly equaled the settlement. Let's see ... lawyers got 100% of our legal fees, and 30% of the settlement. And they write the laws. Hmmm ... a conflict of interest. Perhaps ... no lawyers should run for public office!)
KP

While some of you may believe that this is only a civil case, it
may be a criminal case as well (esp. if the driver was drunk).

If there is a criminal case, and you deliberately deleted the files
you could be charged with, at the very least, exfolation of
evidence.

Personally I would offer her prints at a fair price, and offer to
print poster size prints with foam board backing for use as
exhibits in her court case. These you can mark up a lot. 200% 300%

I might put a copyright notice on the back along with
"do not reproduce" and "All Rights Reserved"

Remember you still hold the copyright. And you don't need a model
release; You were shooting a "News Worthy" event.

--

29 lbs. of Canon stuff in a backpack that I carry everywhere. A closet full of things that are banned in Britain. A minivan and a Fender Stratocaster. A three bedroom ranch with three owls on an acre. An aversion to rumours. Also, absolutely no Canon 1200mm f/5.6. Yet.

 

[Manta Ray Arts]

How do you interpret me as saying:

.....when you see a wreck and the person is getting medical
attention.....keep on going.

When I ACTUALLY WROTE

you should be willing to help an accident victim (like any other witness) when your out of pocket costs are minisule and you've already gotten public acknowledgement in a newspaper."

The photog in this case GAVE the images for free to a newspaper (which profited from it by selling newspapers) yet somehow wants to hold up an accident victim who might have to sue to be made whole from injuries and pain and suffering? And if the victim is a golddigger looking for an undeserved payday you want to play that game too?

Right place, right time, wrong motive.

Maybe people should run around trying to shoot accident scenes and profit from them? Great business. Maybe photogs ought to chase famous people into an accident, then try to get a grisly photo and get paid a million bucks by a tabloid? Oh, sorry, its been done. Old hat.

Or maybe, someone who's out of pocket nothng and has the chance to help someone easily, ought to give that help.

And i thought lawyers had a bad name (and they do).

--
It has to be about the Art, but it is also about Science

Fuji S2Pro, Nikkor 35mm 2.0D, 50mm 1.4D, 85mm 1.8 AF, and 35-70mm 2.8D.

 

[CliffB]

Maybe people should run around trying to shoot accident scenes and
profit from them? Great business. Maybe photogs ought to chase
famous people into an accident, then try to get a grisly photo and
get paid a million bucks by a tabloid? Oh, sorry, its been done.
Old hat.

I am sad to say that this practice already exists. There are some, who refer to themselves as professional photographers, who are in the habit of keeping a police scanner turned on, so that they can hear the calls for police, ambulances, fire and rescue to respond to accident scenes. These "professionals" then rush to the accident site, camera equipment in tow, to take photographs, that they later try to sell to the victims.

It is quite troubling to read how many on this "pro" digital talk forum seem to find nothing distasteful in taking advantage of the injuries and misfortune of another for personal profit. Greed has clearly reared its ugly head. There is a great deal of difference between being a professional and being a mercenary. It is disconcerting how many, in this thread, do not care to draw that distinction.

Cliff

 

[jason97259]

Ken,

I know you are a regular here, and I respect your opinions and advise greatly; I'm not trying to start a p*ssing match or a flame war.

That said: I really feel that suggesting that he delete the files is a Bad Idea(tm).

What is or isn't evidence is often up for debate.

With the images gone, it would be very difficult to tell if there was any evidence in the images.

Deliberately destroying the images out of spite could land you with a contempt charge.

As for the problems of the U.S. civil courts, I agree with you whole heartedly.

Ok. I'm done.

While some of you may believe that this is only a civil case, it
may be a criminal case as well (esp. if the driver was drunk).

If there is a criminal case, and you deliberately deleted the files
you could be charged with, at the very least, exfolation of
evidence.

Personally I would offer her prints at a fair price, and offer to
print poster size prints with foam board backing for use as
exhibits in her court case. These you can mark up a lot. 200% 300%

I might put a copyright notice on the back along with
"do not reproduce" and "All Rights Reserved"

Remember you still hold the copyright. And you don't need a model
release; You were shooting a "News Worthy" event.

--
29 lbs. of Canon stuff in a backpack that I carry everywhere. A
closet full of things that are banned in Britain. A minivan and a
Fender Stratocaster. A three bedroom ranch with three owls on an
acre. An aversion to rumours. Also, absolutely no Canon 1200mm
f/5.6. Yet.

 

[Art Lamb]

You will need to look at the laws of your state, but digital pictures are not admissible in many courts. I can tell you this as a Shift Commander for a Fire Department that documents our actions at accidents, rescues, and fires. So you need to look at this first before you decide what to do.

They may be good for the newspaper, but that may be it. Most pictures of accidents are not taken correctly and lawyers tear them apart with ease.

Art

 

[emocmo]

I guess the question I would ask, is if these are just pictures of the person laying by the side of the road, what use are they. I think the X-ray's would be enough to stipulate that the accident happened. I doubt if they need pictures of the jaws of life...the firemen or EMTs would testify to that.

If you have pictures of the hit-and-run driver actually hitting her, or leaving the scene, then you should turn those over to the cops. Thats more a criminal issue.

Other than that, I just wonder if you really have a "gold mine" in your hand.

 

[CliffB]

You will need to look at the laws of your state, but digital
pictures are not admissible in many courts.

Art:

I am curious as to what courts you have encountered that would find a blanket inadmissibility for digital pictures.

I noticed, from your profile, that you are in Massachusetts. I practiced law in Massachusetts for about twenty years, and know of nothing in the rules of evidence of that state that would create a blanket exclusion of digital photographs.

All photographs, film or digital, are amongst that group of evidence known as demonstrative evidence. When evidence is created by a process, the court must determine whether the process is capable of producing accurate results. In order to determine that digital photographs are not admissible into evidence, the court would have to conclude that the process of taking an image with a digital camera does not produce an accurate record. I cannot imagine that any court has found that the process of making images with a digital camera does not produce accurate results.

Do not confuse the question of whether a digital camera can take an accurate image with the question of whether a particular digitally produced image may have been altered. Only the former goes to the images admissibility. The latter goes, not to the question of admissibility, but to the question of how much weight the jury might give to such evidence.

It should be noted that an image taken on film is equally susceptible to manipulation as is a digitally taken image. Both may be impeached if alteration can be shown.

Photographs, whether film or digital, like other demonstrative evidence, are admissible when they are accurate representations of what they depict, and their use will be helpful to the trier of fact (the jury). To be admissible the photograph must be "authenticated". Generally, a photograph may be authenticated by anyone who is familiar with the person, scene or object depicted, and can testify that the photograph is an accurate representation of what it depicts.

Whether a photograph is relevent and has been properly authenticated is within the discretion of the judge. However, I have never encountered a jurisdiction that has determined that digital cameras do not produce accurate results; which, as I said above, would be required to have a blanket denial of admissibility of digital images.

I might also, anecdotically, point out that I have presided over numerous trials of claims arising from automobile accidents. It is the norm that many photographs are presented into evidence at such trials. Though I have, for various reasons, found many photographs to be inadmissible, I have never had a party object to a photgraph's admission solely on the ground that it was digitally created.

Cliff

 

[Tony B.11964]

You will need to look at the laws of your state, but digital
pictures are not admissible in many courts.

This simply isn't true. In the rules of criminal and civil procedure there is the Best Evidence Rule and whether an image is digital or film makes no difference. Copies of documents are routinely admitted as evidence in cases where the original isn't available or has been lost. The "best evidence" in that case is a copy since the original is not available.

The original .nef files unaltered could be used as evidence assuming they were relevant to the case. Additionally, images can be USED in court but not admitted as evidence. This is true of other documents and items that provide some relevancy to a case but otherwise wouldn't be admissible under certain circumstances.

I can tell you this as a Shift Commander for a Fire Department that > documents our actions at accidents, rescues, and fires. So you need to > look at this first before you decide what to do.

Since there has been no criminal or civil complaint filed I can do whatever I wish with MY images. The images are my property. To be in contempt of court there must first be a complaint filed with a court of competent jurisdiction to hear the victim's complaint. As of this time there is noe "case" therefore, I can not be held in contempt of court. [In passing I generally have nothing but contempt for most courts in this country since they are inherently corrupt.]

That said I do not delete any of the images I take as I use them all to further my education in my craft. I archive them on DVD discs and will have them available if needed for whatever reason.

They may be good for the newspaper, but that may be it. Most
pictures of accidents are not taken correctly and lawyers tear them
apart with ease.

Huh? I don't understand what you're saying here. A picture is a picture is a picture. It shows what is in the picture and no more. In this case the 70 some odd images I've taken show the rescue and condition of the victims car and accident scene. Nothing more.

Tony

 

[CliffB]

You will need to look at the laws of your state, but digital
pictures are not admissible in many courts.

This simply isn't true. In the rules of criminal and civil
procedure there is the Best Evidence Rule and whether an image is
digital or film makes no difference. Copies of documents are
routinely admitted as evidence in cases where the original isn't
available or has been lost. The "best evidence" in that case is a
copy since the original is not available.

The original .nef files unaltered could be used as evidence
assuming they were relevant to the case. Additionally, images can
be USED in court but not admitted as evidence. This is true of
other documents and items that provide some relevancy to a case but
otherwise wouldn't be admissible under certain circumstances.

Tony

Tony:

Your conclusion "...whether an image is digital or film makes no difference..." is correct, but the basis for your reasoning is a little off target. Though the Best Evidence Rule may be invoked in the introduction of a photograph, the issue of whether a digital image is admissible is a question of the admissibility of demonstrative evidence and rarely involves the best evidence rule.

A print made from an image taken by a digital camera would be considered an original (unless it were lost and a new image printed). The print is an end product from the process of taking digital images. The computer file would be considered a step in the process of arriving at that final image. The print is not a "duplicate" (as that word in used in rules of legal procedure). A duplicate of the computer file would be another computer file.

The best evidence rule would only be involved if there were an issue of whether the image presented in court was an inaccurate duplicare of a previous image. It is well accepted that multiple exact prints of a digital image may be printed from the same file.

The issue in the presentation of a photograph, be it film or digital, is its authentication. That authentcation occurs when a witness, under oath, testifies that he/she is familiar with the scene depicted in that photograph; and, further that the photograph is an accurate representation of that scene. The issue for admissibility (assuming no relevence or hearsay problems) is therefore the believability of the witness authenticating the photograph. This involves niether the issue or whether the image was recorded via film or digital; and, it does not involve any application of the best evidence rule. The issue is not whether the photograph is an original print, but whether it accurately depicts that which it is claimed to represent.

The best evidence rule would be of consequence only if it was important that the print presented in court was the same orignal that may have somehow been involved between the parties at some earlier time. If the issue, as is almost always the case with photogrpahs, is the accuracy of the thing depicted, it would make no difference how many copies of the print had been made.

I guess this is a long winded way of sating that your assertion that it makes no difference, in court, as to the admissibility of a photograph, whether it was created with film or digital equipment.

I might point out, that in my seven years as a trial court judge, I have never had anyone ever question the fact of whether a photograph presented as evidence was created vis film or digital. In regard to admissibility, this is a non-issue.

Cliff

 

[Victor Engel]

That would be tampering with evidence. Aren't there laws against that?

 

[Tony B.11964]

Tony:
Your conclusion "...whether an image is digital or film makes no
difference..." is correct, but the basis for your reasoning is a
little off target.
Cliff

I sit comfortably corrected. lol

Tony

 

[Tony B.11964]

That would be tampering with evidence. Aren't there laws against that?

The images are evidence only after a complaint, criminal or civil, has been filed and the images, having some relevancy to the proceedings, are subsequently subpoenaed (sp). In the absence of an action before a court of competent jurisdiction the images are just photographs of a woman being rescued after an automobile collision and nothing more.

Tony

 

[Doug MacMillan]

I happened to be at the right place at the right time and took some
70 images of a hit and run accident wherein the victim had to be
extracted from her auto by the fireman using the jaws of life. One
of my photos ran in the local paper wherein the victim saw the
photo and now wants them all.

Please contact her and ask her for the name of her attorney and deal with him/her.

What is an appropriate amount to charge for these 70 odd images I
took of this accident?

A reasonable print price would be in order. Back in the 80's when I did a fair amount of legal photography, lawyers didn't blink at $20.00 per 8x10.

When discussing this with her attorney, also advise him of your court appearance fee. I saw no difference in my time, whether I was behind a camera or sitting in the witness chair. If you are a photographer by profession, your testimony will carry more weight. 90% of the cases where we supplied photographs were settled out of court. Of the ones that went to court, I only had to testify twice. My customer won both times. In other words, it is very doubtful you'll have to appear.

Wouold it be better to put them on a cd for her or print them out
hoping for further sales from say her lawyer or the district
attorney if it ever goes to court?

Don't give them anything but prints. The images are your property.

It is indeed unfortunate that this young lady was injured. If she is entitled to some compensation because of the actions of others and your photographs can help her realize that compensation, then they've served a purpose. It is entirely reasonable for you to be adequately compensated for your foresight. I'm as opposed to ambulance chasers and "lottery seekers" as anyone, but it is not our place to determine the motives of the victim. The jury will decide the legitimacy of the claim.

Doug

Thanks in advance,

Tony
--------

My camera is bigger than your camera!

Is not!

 

[Art Lamb]

In numerous arson cases that I have been involved with the judge would not allow the use of digital. His concern was that it was to easy to manipulate the pictures. Even when we do picture (film) we need to show the chain of custody for the film. Most of the photographers we use are police or state police photographers as they can easily show where the pictures were taken, who developed them, and that these are the origionals.

If we do them ourself we take the camera directly to the lab, a police lab is best, but we can use commerical labs if we stay there while it is developed, and printed. We then get a signed statement from them show what was done and where.

After this the pictures, and negatives are tagged locked up in an evidence locker and not touched by anyone without the keeper of the records authorizing them, in writing.

As a lawyer you know that you are going to base you fight on what did we do wrong, not so much on anything else. What evidence can you get thrown out and what did the people developing the case do wrong.

Digital has been admitted, but it is not the easiest or best way to do it. In time it will be easier, and if don't by a photographer recognized by the court ( usually meaning police photogrpher) then so much the better.

Art

 

[CliffB]

In numerous arson cases that I have been involved with the judge
would not allow the use of digital. His concern was that it was to
easy to manipulate the pictures. Even when we do picture (film) we
need to show the chain of custody for the film. Most of the
photographers we use are police or state police photographers as
they can easily show where the pictures were taken, who developed
them, and that these are the origionals.

Art:

I am surprised at at judges refusing to allow the use of digital. It sounds like a judge who is unfamiliar with digital photgraphy, and, therefore, afraid to accept a newer technology. There is nothing inherent in the process of digital photography that should make photographs so produced any more suspect than film images.

Even if there were a concern about manipulation, the showing of a proper chain of custody should resolve any such fears. That is exactly the purpose of showing a proper chain of custody. Once you have the testimony of the police photographer as to the making of the original image, the showing of a complete chain of custody should satisfy even the most exacting judge. To hold otherwise, would require a finding, by the Court, that the testimony of the officer is untrustworthy.

Though it is easier to manipulate a digital image, a talented darkroom technician can perform the same manipulation to a film image. Furtheremore, photographs printed from film are not without manipulation. When being printed, adjustments are routinely made to correct color, tint, contracst and brightness, and, depending upon the size of the print, some cropping is likely to be applied. Therefore, the same chain of custody that satisfies the court as to the admissibility for a film based image, should also suffice for a digital image. (It does in my court anyway.)

This doesn't even get us into the question of whether the photograph is of such a fungible type of evidence as to require the showing of a chain of custody in the first place. That is probably getting a little too technical for this discussion, so I will stop there.

By the way, I spent most of my life not far from Plymouth. I still miss much of what that area has to offer.

Cliff

 

[Art Lamb]

Oh Cliff I forgot to say I do live in Plymouth MA, and it has changed tremendously over the years. If you have not been here in 5 years you may not recognize the place.

I believe in time that digital will be totally accepted, but we are staying with film for now. I carry a digital camera with me all the time for pictures we use internally, but also carry a film based camera for anything else. We tend to use detectives for all of our photography, and many times rely on the State Fire Marshal to get this done. Again that would mean the State Police.

Art

 

[Art Lamb]

They may be good for the newspaper, but that may be it. Most
pictures of accidents are not taken correctly and lawyers tear them
apart with ease.

Huh? I don't understand what you're saying here. A picture is a
picture is a picture. It shows what is in the picture and no more.
In this case the 70 some odd images I've taken show the rescue and
condition of the victims car and accident scene. Nothing more.

Tony

Tony,

You are correct a picture is a picture, but when we do pictures of say an arson fire we need to start outside the building. We first take pictures to show where is the building so to prove that is the building that burned. We prefer to start at an intersection showing a landmark or street sign while showing the building. We then move towards the building and show it so it can be placed in the neighborhood, and then move inside to where the point of origin is. We need to take pictures from enough angles to position where the fire started from and any evidence we find.

We even try to use a normal lens so as to not have any distortions in the pictures if possible ( compression from a telephoto). It is a standard drill we do so we can prove everything we encounter. Not that a bystanders photos may not be of use, but we tend to do our own.

We even take pictures of the crowd when the fire is going on besides the fire itself.

We do the same with accident photos as that is how we are taught to do it in courses related to fire ground photography.

Art

 

[CliffB]

Oh Cliff I forgot to say I do live in Plymouth MA, and it has
changed tremendously over the years. If you have not been here in 5
years you may not recognize the place.

I believe in time that digital will be totally accepted, but we are
staying with film for now. I carry a digital camera with me all the
time for pictures we use internally, but also carry a film based
camera for anything else. We tend to use detectives for all of our
photography, and many times rely on the State Fire Marshal to get
this done. Again that would mean the State Police.

Art:

To get very off topic, and bore everyone else------Yes, Art, I was in Plymouth in August. I spent several days at the Plymouth Sheraton, as my two daughters were flower girls at a wedding in Hanson. Can I create enough of a tie to this topic by pointing out that the bride's father is a member of the State Police?

Anyway, Plymouth was as lovely as always.

Cliff

 

[Tony B.11964]

I took some 60 images of the accident I described in the original post. I took the .nef files and created 480 x XXX at 72 dpi jpgs and put those on a cd. Sold the cd to the victim for $30.

All told I have about 2 hours of my labor in the final cd I sold her. I think that this was fair. She and her lawyer can obtain enlarged prints if they need them for court but I don't see this one going to trial. It will be settled long before that point imho.

Any that's what I did. Anyone disagree with me?

Regards,

Tony

(The guy that allegedly hit her was apparently drinking and took off after he hit her. He was in a company truck. He then allegedly called and reported the truck stolen and some few minutes later showed up at the accident scene with his employer. If her lawyer is any good this will never go before a jury.)

 

[Art Lamb]

It all sounds fair to me as that is not much money, and it did take up your time. I did shoot a car into a house, and a buidling fire in the past couple of days. Nothing special as these are for internal use, but it does keep me on my toes at getting pictures.

Art

I took some 60 images of the accident I described in the original
post. I took the .nef files and created 480 x XXX at 72 dpi jpgs
and put those on a cd. Sold the cd to the victim for $30.

All told I have about 2 hours of my labor in the final cd I sold
her. I think that this was fair. She and her lawyer can obtain
enlarged prints if they need them for court but I don't see this
one going to trial. It will be settled long before that point imho.

Any that's what I did. Anyone disagree with me?

Regards,

Tony

(The guy that allegedly hit her was apparently drinking and took
off after he hit her. He was in a company truck. He then allegedly
called and reported the truck stolen and some few minutes later
showed up at the accident scene with his employer. If her lawyer is
any good this will never go before a jury.)