CIRCUIT ORDERS RECONSIDERATION OF AWARD TO PHOTOJOURNALIST OVER MISSING IMAGES

NYLJ 5-31-07

3. CIRCUIT ORDERS RECONSIDERATION OF AWARD TO PHOTOJOURNALIST OVER MISSING IMAGES

3. Break it down to the element and the 2nd Circuit panel vacation of the award in Grace v. Corbis-Sygma, 02 Civ. 8597 meant two things: a bad calculation methodology by the judge and bad record-keeping by the defendant. You don’t have to be perfect, but you should come closer to half.

When the top photog terminated his agreement with the Agency in 2001, they failed to return thousands of images to him. When Justice Chin rejected the industry’s liquidated damages of $11,500 per lost transparency, he based his verdict in the fact it would lead to “an absurd result”—as the lost images were neither unique nor irreplaceable—and would’ve resulted in a number like $40 million. Which sounds rational only if you don’t consider one picture worth a thousand words, or $1,500 bucks.

It was Judge Miner who dug out the nut in this bit: the defenses own wrongdoing prevented the plaintiff from proving his losses. “Mr. Grace had no obligation to offer a mathematically precise formula as to his loss.” And the formula? Why not go back to the videotape: if he earned X amount of $ over the years for Y amount of submissions, then compute that in progressions of what was worth what when and then multiply then by now, etc. Which makes a whole lot more sense. And dollars. And probably a lot of headaches for the SDNY judge who took it on the Chin.

As for the boilerplate, depriving Grace of possession and enjoyment? If the figure comes any closer to the industry damages, then he’ll probably agree that absence makes the heart grow fonder.