How much is the worth of your digital photographs?

Few will doubt that digital photography has overtaken conventional film for amateur and professional photographers. With our daily use of social media networks – Flickr, Facebook, Instagram and others – it’s easy to understand why. Once captured, digital photographs are already in a format that makes them incredibly easy to use and share. Digital is about sharing the content now and not so much about sharing photographic creations.

With point-and-click technology, we tend to take our photos for granted. Unlike analogue images we shot onto 35mm film and paid the processing fee to have developed, we only keep the digital images we want, the others we simply delete.

Smartphones, with their gigabyte storage, sophisticated lenses, built-in filters and the ability to automatically apply single-shot HDR (high-dynamic range) processing, have become a valid camera line for photography. They’re easily portable and we have them on us almost 24/7.

So, we snap away, download those images we want to keep: some going into cloud storage, others onto various other storage devices and some will even be used on our websites.

Unless you’re a professional photographer, these images will generally only have sentimental value. Or will they?

Not having a crystal ball makes it difficult to look into the future. Take a look at the picture above and place a value on the image. Does it have any financial value or is it just something of a sentimental reflection for those involved.

The girls, from left to right, are Angela Higney, Michele de Gennaro, Colette Marx-Neilsen and Lynn Veronneau. They made up a group called Les Horribles Cernettes and the picture was the first photographic image published on the World Wide Web.

Silvano de Gennaro, an analyst in the Computer Science department at CERN (the European research organisation based in Switzerland that operates the largest particle physics laboratory in the world) who helped form the band, said that Les Cernettes were the subject of the first photo of a band on the Web.

“Back in 1992, after their show at the CERN Hardronic Festival, my colleague Tim Berners-Lee asked me for a few scanned photos of “the CERN girls” to publish them on some sort of information system he had just invented, called the “World Wide Web”. I had only a vague idea of what that was, but I scanned some photos on my Mac and FTPed them to Tim’s now famous “info.cern.ch”. How was I to know that I was passing a historical milestone, as the one above was the first picture of a band ever to be clicked on in a web browser!”

Who knows what financial value “ Les Horribles Cernettes” will have in the future but take a look at the following photos and place a value on them (answers at the bottom of the page):

1. Just a holiday snap or something more valuable? Shot by Dmitry Medvedev in 2009, the Tobolsk Kremlin is the sole stone Kremlin in Siberia.

2: Business as usual: The Chicago Board of Trade, 1997, taken by Andreas Gursky.

3: An Arab Summit? No, the Kuwait Stock Exchange, 2008, another by Andreas Gursky.

The Independent, in a December 2014 article on Australian self-acclaimed fine-art photographer Peter Lik who had just sold a photograph taken in Antelope Canyon, Arizona for more than £4 million (the most expensive photo in history), quoted Martin Parr, the renowned British photographer: “I’ve never even heard of him. It’s pretty astonishing. I’ve looked at his work today and though he’s a very good commercial photographer who can take pictures people like, he has no standing whatever in the fine-art world that I belong to.”

Michael Hoppen, a leading British photography gallerist, says in the same article: “It’s an abomination. I remember when he sold the picture [another by Lik of a man in snow by a river. Ed.] in 2010, my jaw dropped. I thought, who could be persuaded to part with $1m for a piece of tat? You could have done it with an iPhone.” Perhaps Peter Lik did!

But it’s one thing to take photos that could end up being worth millions, it’s quite another what we do with them after they have been taken. With analogues photos we have hard copies, but digitised images are a very different matter.

I’ve commented in the past about the need to adequately protect our digital assets, and that need is getting ever greater. Apple, Google, Twitter and others have announced that they intend to introduce strong encryption measures into their products and services to safeguard against surveillance overreach by government agencies and others. This could mean that photos stored in smartphones, tablets, in cloud storage etc., are lost forever in the event the owner of the images dies.

In their 2013 report regarding individuals’ digital assets, PwC wrote that 25 percent of respondents claimed that nobody would be able to access their digital content after their deaths (because they are not doing enough to protect the digital assets they value).

But even if they are not lost, who is entitled to the images: the person inheriting the device where they are stored or someone else? It is very difficult for traditional estate planning vehicles to handle the issue of unmanaged digital assets, so it’s important for lawyers to provide the right advice to their clients so that the digital property they value is properly addressed and taken care of.

And just how valuable are the photographs above? Each sold for the following:

1: $US1,750,000

2: $US3,298,755

3: $US1,014,354

If you have a valuable digital photograph or photographs you would like us to keep safe, please do get in touch!

The right to communicate

The history of the Internet is a debated subject, but what we do know for sure is that the US National Science Foundation (NSF) funded the establishment for national supercomputing centers at several universities and provided interconnectivity in 1986 with the NSFNET project. This was the beginning of the Internet as we know it today.

That said, why, then, is 1993 an even more important year in the history of the Internet?

On April 30, the directors at the CERN laboratories in Switzerland, one of Europe’s largest research facilities, made a statement that would change the world. They declared that the WWW technology created by Tim Berners Lee three years earlier would be made freely available to everyone; no fees or licences required. It was a stunning and visionary announcement, very much in line with the decisions of other Internet pioneers.

As the worldwide web grew from those early days, we started to understand the implications of access to, or lack of access to, the net. Even back in mid to late 90s, there were significant forums arguing the case for universal access. Some even went as far as suggesting access to the powerful information and communication features of the Internet should be a basic human right: the right to communicate.

That gave birth to the term Information Superhighway, coined by Vice President Al Gore in a 1994 speech describing the future of computers accessing and communicating over a worldwide network.

Today, that superhighway is alive, thriving and flowing faster than ever.

According to some findings, in 1998 there were 50 million Internet users; eleven years later that figure had climbed to 1 billion worldwide. Today, more than 3 billion people – a little over 40 percent of the world’s population – have an Internet connection.

Furthermore, in a 2014 BBC report quoting IBM, 2.5 exabytes (2.5 billion gigabytes) of data were generated every day in 2012.

Staggering numbers, but who owns these data? As we’ve written in the past, ownership can be a legal minefield because much depends on who hosts the data and the jurisdiction where they are stored. Unfortunately, digital property laws have not kept pace with technological change so, inevitably, much of the data traveling along the Information Highway will be lost.

This can be prevented, however, if people realise the value of their data – be it financial or sentimental – and take a proactive approach to ensure it is well protected.

The digital vs physical issue – seen from a distance

During the dotcom boom in the late 90s, the period when digital technologies were beginning to make their mark, it would have been inconceivable that digital property should be included in estate-planning documents. Ten years on and still the issue of digital legacies would seem absurd.

It took the fairly recent media disclosures of the difficulties parents faced with trying to access the social media accounts of their deceased children to highlight the issue of who actually owned this content.

Today, digital estate planning is essential because virtually every part of our lives, personal and professional, is impacted by this digital era. Smartphones, tablets, laptops and other digital gadgets have become reflections of our personalities, our interests and our identities, to the point that, for many, they have become the very fabric of our being.

In the recent 2014 Digital Impact Survey conducted by the Apigee Institute (developer of the intelligent API platform for digital business acceleration) and Stanford University’s Mobile Innovation Group, figures demonstrated that rising numbers of smartphone owners are becoming increasingly dependent on their devices. More than 90 percent reported that having a smartphone has altered how they connect with friends, and many claim they could not maintain a relationship with someone significant or find new friends without their smartphone.

Perhaps that might be seen as a sad reflection of our society today, but the reality is that digital is not going to decline any time soon and that we need to be taking a much more proactive view of the digital assets we’re accumulating.

Estate planning and administration practitioners should be discussing with their clients what they want to happen to their digital estate in the event they become permanently incapacitated or die. We hear a lot about parents’ anguish at not being able to access their children’s social media accounts after their death, but what if these children didn’t want their accounts exposed? What if they wanted them permanently erased when they die? It is vitally important that these wishes are included in any digital estate plan.

Digital property includes all digital assets such as music, films and photos, usernames and passwords, websites, Frequent Flyer Miles; anything that is stored digitally, also digital accounts (online banking, social media, online subscriptions etc) and digital hardware (smartphones, tablets, laptops etc).

Equally, there may also be different types of digital assets and digital devices – those personally owned and those owned by an online service provider and licensed under a terms-of-service-type agreement.

And herein lies a conundrum. Digital property may not necessarily comply with the same legal characteristics as physical property.

Take, for example the viability of the copyright regime; one area that has been considerably challenged by the advent of the Internet and digital technologies. The registration of domain names is a good case in point. The creation of the Internet has generated a new type of property with similar characteristics to trademark rights, but without inherent ties to the trademark law of any individual country. Since Cyberspace has no physical boundaries, defining rights in this new, valuable property presents a number of questions, including those relating to transferability, conditions for ownership (such as payment of registration fees), duration of ownership rights and forfeiture if there is abandonment.

Then there is the case of physical property – media such as books and music for example – that are generally protected by the first sale doctrine. Digital media, on the other hand, is universally governed by an EULA (end user license agreement). The purchase of such assets universally requires creating an account with the content provider, an account also governed by an EULA. As such, the first sale doctrine does not apply to digital media.

Whilst there continues to be considerable discussion internationally on this topic, there has been no formal legislative recognition of digital property in estate planning or estate administration, apart from some states in the US.

That said, there are clear definitions of what constitutes digital property and they are broad enough to cover the field for estate planning and administration purposes. A carefully drafted inventory, along with the rights of access and clear instructions for inheritance, will allow the digital estate to come into the legal possession and/or control of an executor or administrator, in the absence of a law or agreement to the contrary.

Even though the owners of digital property may have a written Will regarding their physical assets, the two property forms should be kept separate. Given the formality attendant to the execution of nonholographic Wills and the often rapidly changing nature and ownership of digital assets, Wills can be an awkward vehicle for digital property.

Furthermore, it remains unclear whether service providers will respect the terms of Wills to transfer ownership of digital assets.

A record with the Will (instead of in the Will) of where the digital inventory (including usernames and passwords) is being held is the best option.

The management of digital property is not difficult and there is a growing number of dedicated professionals who can help and support law firms with this process. The starting point is the realisation that digital property certainly has value and that is should be protected accordingly.