as to quality in accepting photographs from photographers.
The valuation of Ms. Kinne is weakened by the fact that she never viewed the photographs in question and had to depend on Plaintiff's advice to determine to what extent they had been adequately culled. In Morrin v. 140 West 57th Street Corp., No. 21648/92 (N.Y. Sup. Ct., N.Y. County, Nov. 15, 1993), another case in which Ms. Kinne was called as an expert witness to appraise the value of photographic materials that had been destroyed, Ms. Kinne also reached a valuation of $ 1,500 per destroyed negative based in part on the assumption that 99% of the plaintiff's photographic exposures, whose value had been based on their uniqueness, had been culled. In the case at bar, Ms. Ryan testified that she selected 100 color transparencies from the 720 exposures she took during her October 1990 trip to Ireland and that 40 more were selected from her "classic collection," six of which had been printed in Irish Traditions.2 Ms. Ryan's cull of the 720 exposures taken during the October 1990 trip was approximately 6 of 7 exposures, not 99 out of 100.
Furthermore, since Plaintiff did not accompany her photographs sent to Aer Lingus with a listing of subject matter, which is normal practice in the industry, it is hard to tell to what extent there were duplicative shots, a relevant factor in considering what percentage might be selected for use by a publisher.
Thus, there is some question as to whether Plaintiff's culling of her 720 exposures was adequate to equate her photographs to that of the inventory of a stockhouse and how many of them would have been selected for use by a publisher.
When one considers that the bulk of the lost color transparencies were photographed in a week of photographic activity in Ireland, the capital value of $ 150,000 which Plaintiff seeks to obtain for the loss of those 100 color transparencies seems unwarranted.
Although every photograph is by definition unique, Plaintiff has failed to show any uniqueness of subject matter in her color transparencies. Indeed, views of western Ireland and antiquities are by themselves not unique, and the timelessness of Plaintiff's work, as testified to by Ms. Kinne, would seem to negate somewhat the degree of uniqueness.
Defendant called as its expert witness, James Bitros, a producer and a designer of brochures, who had viewed the color transparencies in 1991 as the designer of Aer Lingus' annual brochure. Bitros found the photos, although technically good (in focus), to be of poor quality, dreary and dark, and to consist of many multiple shots of the same scene. Bitros testified that the photographs were not marketable for the type of quality brochures he designed. If any were marketable, he placed a value of $ 250 - $ 400 for the one-time license of each marketable slide. He also testified that the color transparencies were not unique and could be replaced in a three or four week trip to Ireland at a total cost of $ 15,000. He offered no testimony as to the market value of Plaintiff's lost color transparencies. Bitros' testimony did not establish a market value for Plaintiff's transparencies and his testimony as an expert for that purpose is rejected. It does, however, together with Plaintiff's failure to present greater proof of the value of her photographs, cast significant doubt on Kinne's valuation.
Importantly, Plaintiff has offered no evidence of an established sales price or use price for her Irish photographs, nor has she established the frequency with which her Irish photographs are used or sold. Although such proof could not be demonstrated from the lost 100 color transparencies from the October 1990 visit to Ireland, presumably, it could have been demonstrated from Plaintiff's portfolio of classic Irish photographs and from the photographs taken from the Irish Traditions collection of 122 photographs from which either three or six photographs were given to Defendant. These forty photographs were about ten to twelve years old and presumably a history of the income they had produced over that period could have been presented to extrapolate a value for them during the period of Plaintiff's copyright. Assuming Plaintiff's royalty income of $ 32,000 from Irish Traditions was the sole result of the 122 of Plaintiff's photographs therein and not attributable to Plaintiff's authorship or book production efforts, these photographs generated about $ 262 a piece. If one ascribes the calendar income and note card income to the group of 122 photographs, one reaches a value per photograph of slightly more than $ 300. There appears, however, to have been no sales or uses of these photographs in the last eight years.
In view of this state of the evidence, in order to assess the fair value of Plaintiff's photographs, the Court turns to the value for Plaintiff's Irish Traditions photographs determined by Harry N. Abrams, Inc. and Plaintiff in their negotiations to reach a value for the possible loss of her classic Irish photographs and for her 100 color transparencies. For Irish Traditions, Plaintiff selected and sent 2,000 slides to her publisher, Harry N. Abrams, Inc. From that group, nine out of 10 were culled and 200 were selected for publication. Of the 200, 122 were actually used in the book. Plaintiff acknowledged that Abrams would not agree to a loss value of $ 1,500 per color transparency that he held for reproduction but did agree to a loss value of $ 300 per color transparency. (Def. Ex. D, P 2(d))
Accordingly, Plaintiff is entitled to $ 300 per color transparency totaling $ 42,000, plus interest, from January 21, 1992, the date of Mr. Murphy's retirement from Aer Lingus.
IT IS SO ORDERED.
Dated: New York, New York
October 12, 1994
ROBERT P. PATTERSON, JR.