From: jay@metran.UUCP (Jay Ts)
Newsgroups: rec.photo
Subject: Re: Lab Screw-Up!
Date: 7 Apr 92 18:52:08 GMT
Organization: Metran Technology, Tampa, Florida


: ... was an assignment on which I spent all
: of the preceding weekend, not to mention considerable expense. The due
: date is tomorrow and so I have NOT A CHANCE IN HELL of reshooting. Their
: official response: "We're sorry, but there's nothing we could have done
: to have avoided 'it'"

: So what did they do
: about "it"? Well, they ever so generously reimbursed the processing
: charge (I'm so grateful- ya, right) and gave me two rolls of Ektachrome
: 100 in liue of my original roll of ESS which they don't stock.

: What I wan't to know, is what kind of legal protection (if any) do      
: photographers have against the incompetence of others?

I find myself in the rather uncomfortable situation of having to disagree
in part with donl mathis, even though I agree with almost all of his response
to this post.

(In any case, I suggest your first course of action is to visit your teacher
and tell him/her what happened, and see if he/she is understanding.  You may
be surprised to find that the matter is not too difficult to work out.)

Partially as a result of the somewhat wild thread in this newsgroup
concerning copyright, I recently read the following:

	The Photographer's Business and Legal Handbook
	Leonard Duboff, Attorney
	Images Press, Inc.
	ISBN 0-929667-02-6

	(If the thread on copyright confused you as much as it did me, I
	recommend you give this book a read.  A lot of the information on
	usenet is just trash!)

In it, the author covers the subject of lost originals.  I was surprised to
read that in a number of cases similar to yours, the photographer was able
to successfully sue the processing lab.  Since you were not expecting to
make money from the sale of your photos, I suspect the most you could expect
to recover would be the cost of redoing the work.  Of course, this may be a
significant amount.

donl writes:
+ There's a notice on the side of *every* Kodak product I've ever
+ seen, that goes something like this:  "We warrent this product against
+ defects in materials, packaging, and labeling, and if there is a
+ problem, we will replace the product.  We accept no responsibilities
+ for any other problems, if we're incompetent or make some kind of
+ stupid mistake."  If you don't like those rules, you don't use the
+ product -- it's that simple.  Kodak doesn't really owe anybody a
+ specific level of competence.  They cannot legally lie about what their
+ products can do, or that sort of thing, but they are not obligated to
+ provide a certain level of quality.

If Kodak were including the processing with the product, this would be true.
However, the disclaimer on the box of film has nothing to do with the
service provided by an independent lab, where the processing is sold as
a separate service from the film purchase.

+ Similarly for their processing
+ labs (even when they were still Kodak-owned and operated).  If you
+ don't like the way they do business, or the promises they make about
+ their business, you should not use them.  The same goes for any other
+ lab.

What really matters here seems to be what disclaimer did the lab state, and
how was it presented?  Was the customer informed in advance that the lab
would take no responsibility, or was that statement put in fine print on
the receipt after the service was accepted and paid for?  I quote the above-
listed book:

	In Mieske v. Bartell Drug Co. the plaintiff was a home photographer
	who sued a drugstore for losing the plaintiff's thirty-two reels of
	home movie film.  Although the drugstore gave the plaintiff a receipt
	that included a clause disclaiming liability beyond the retail cost
	of the film, the court found the disclaimer invalid and unconscionable.

+ Step one, then, is to learn from it, and find a lab you can trust for
+ next time.  (This also touches gingerly on the "getting on with life
+ after a tragedy" theme, for whatever that's worth.)  Maybe it will cost
+ you more money, and maybe it will be less convenient, but maybe your
+ chances will improve.

This pretty much says it for any honest business.  You can be more careful
and put the statistics more in your favor.  But remember, the first three laws
of thermodynamics are

	1) You can't win.
	2) You can't break even.
	3) You can't get out of the game.

	;-)

In other words, nature abhors perfection, whether that be in the form of
a vacuum or crystal.  In other words, sh*t really does happen.

I just wanted to point out that in the case where your film was ruined as
a result of careless negligence or wanton abuse, you really do have a legal
recourse.

+ If that doesn't work out, you can do what I did, and move on to step
+ two -- buy a Jobo, and do it yourself.

Or, you can overshoot and send film to more than one lab.  I do this a lot,
using different film in different cameras, and switching between them often.
Then, if one lab messes up, the loss is not so great.  It's much better to
plan ahead to cover for mistakes than have to sue somebody.

- Jay Ts