A jury decided Thursday afternoon that common sense, not industry standards, should determine the value of a professional photographers work destroyed in a fire two years ago at St. Labre Indian School in Ashland.
The photographer, John Warner, was awarded $150,000 for the loss of about 73,000 negatives and prints. The trial began Monday with U.S. Magistrate Richard W. Anderson presiding.
Warner left his job as a photojournalist at the Indianapolis Star newspaper to work for the school in 1991. A fire in his studio on the St. Labre campus on Oct. 29, 1999, destroyed nearly all his work. The school accepted blame for the fire, but did not agree to Warners request for damage compensation.
Warner now works for The Billings Gazette.
Warner sued in U.S. District Court, saying that as a professional photographer, he was entitled to an industry standard of $1,500 for each marketable image destroyed by the fire.
The schools attorney, Fritz Pierce, called the $1,500 industry standard a sham and said applying it to Warners work is a stretch thats absolutely beyond belief.
In his closing argument, Pierce asked the seven-member jury to look at the surviving photographs and ask themselves, What kind of money am I going to spend to buy these photographs?
The focus of the trial was establishing value for Warners destroyed work – not an easy task considering that most of his work was destroyed. Both sides used experts to cull through surviving prints and negatives to determine what percentage of Warners work might have had commercial value.
Warner said he spent 17 days after the fire digging through the ashes of his studio, trying to find surviving prints and negatives. He managed to find scraps of prints and remnants of about 3,000 negatives.
Warners attorney, John Crist, had an expert examine about 200 surviving prints to determine the value of Warners destroyed work. The expert testified that about 12 percent of Warners work – 8,800 images – would have had commercial value and that his losses should be covered by a $1,500 industry standard. Using this standard, Warners lost images were worth about $13 million, Crist said.
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St. Labres attorney urged the jury to use common sense, not any industry standards.
Pierce had the 3,000 negatives salvaged by Warner printed and placed into six photo albums. The photos included children riding school buses, graduation ceremonies, tribal elders and pastoral landscape scenes. These photos were displayed to the jury, as were Warners prints.
Warners work was used by the school in calendars, newsletters and fund-raising efforts. He extensively photographed the Northern Cheyenne Reservation. His work has appeared in books and magazines, including National Geographic and Smithsonian.
Yet Pierce said Warner showed little track record of trying to sell his work – not that there would be much of a market for it.
When is the last time you saw a Native American in a TV commercial? When is the last time you looked in a magazine and saw a Native American portrayed as Native American? Pierce told the jury. There is really very little market for Native American photographs.
After the trial, one member of the jury said it was too difficult to determine how much of Warners work could have sold. He also said he was frequently confused by the technical nature of the trial.
There wasnt enough evidence, the man said. Too much was lost in the fire.
Warners attorney, Crist, said the lack of evidence was not Warners fault but was being used against him.
The only reason any of this is uncertain is they destroyed (Warners) stuff. … These pictures could have generated money for a long, long period of time, Crist said.