The opinion of the court was delivered by: ROBERT P. PATTERSON, JR.
ROBERT P. PATTERSON, JR., U.S.D.J.
This is a diversity action for breach of bailment which was tried non-jury on June 10 to June 15, 1994 and reconvened on July 21, 1994 to complete the evidence on the issue of damages. This opinion constitutes the Findings of Fact and Conclusions of Law of the Court.
Plaintiff Kathleen Jo Ryan is a professional photographer and photograph producer residing in the State of Washington. Defendant Aerlinte Eireann PLC, doing business as Aer Lingus ("Aer Lingus") is a corporation organized and existing under the laws of Ireland, whose shares are owned in whole or in part by the Republic of Ireland, and is doing business at 122 East 42nd Street, New York, New York.
Aer Lingus is in the business of air travel and, in that connection, promotes tourism to Ireland and from time to time uses photographs in its advertising and promotional materials. Since 1979 Plaintiff and Aer Lingus have had a professional relationship. In 1983, Aer Lingus became one of the sponsors of a book authored by Plaintiff, Irish Traditions, (Pl. Ex. 5), featuring 122 of Plaintiff's photographs, as well as articles by prominent Irish poets and authors. In that connection, Defendant provided Plaintiff with free air transportation to Ireland and back on five occasions.
Irish Traditions was published in 1985 for Harry N. Abrams, Inc. During the period 1979 - 1985, Plaintiff also had a professional relationship with the Irish Tourist Board and Bailey's Irish Cream (Ex. 10(a-f)), and photos used by those organizations were also among the 122 photographs in Irish Traditions (Pl. Ex. 5). Irish Traditions was also the source for a calendar, comprised of 12 photographs, two posters and six note cards. In 1981, Aer Lingus purchased 4,000 of Plaintiff's shamrock photo design note cards (Pl. Ex. 20(a)), and in February 1985, Aer Lingus purchased 5,000 of Plaintiff's 4-color embossed custom design note cards featuring a photograph of Slea Head, Dingle, Ireland. (Pl. Ex. 20(b))
In the summer of 1990, Plaintiff got in touch with the person she knew best at Aer Lingus, Patrick Hanrahan, Manager of Public Relations, for Aer Lingus in New York. Plaintiff said she was planning to do a video on Ireland, and Hanrahan agreed to provide her with a complimentary round-trip ticket. On October 9, 1990, prior to leaving for Ireland, Plaintiff met with Hanrahan and asked if Aer Lingus would have any interest in using any of her photographs from the trip in its brochures. Hanrahan told Plaintiff that the advertising department was doing a new brochure, and Hanrahan and Plaintiff visited with Richard Murphy, Manager of Advertising at Aer Lingus, who had responsibility for producing brochures. Murphy indicated he would be glad to have Plaintiff's photographs considered for the new brochure.
Plaintiff, who had not been to Ireland in five years, flew to Ireland two days later. After staying two days in Dublin, she travelled west to photograph landscapes and antiquities, shooting 20 rolls (720 exposures) of film. She returned to Dublin after a week of photography to pursue other projects. (Pl. Ex. 43(b))
Plaintiff returned to the United States on October 27, 1990 and went to the State of Washington where she developed the 720 exposures, edited them over a week or two week period, and selected 100 color transparencies of the landscape of western Ireland and antiquities. She also selected forty color transparencies from her "classic collection," including a few from Irish Traditions and sent them in archival sheets, stamped with a copyright, by Federal Express to Hanrahan and Murphy with a letter dated November 27, 1990 (Pl. Ex. 21). The letter reads:
122 East 42nd Street, 7th Floor
Thank you again for the opportunity to travel in elegant style on my favorite airline enroute to photograph my favorite country.
Enclosed are one hundred forty (140) original color transparencies to consider for advertising and brochure production for Aer Lingus. The slide sheets, each containing twenty (20) slides, are numbered. The sheets numbered 1 - 5 are from my trip in October, while 6 - 7 are from past ...