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RAISHEVICH v. FOSTER

July 17, 1998

BORIS RAISHEVICH, Plaintiff, against CHARLES FOSTER, an officer of the New York State Police, Defendant.

William C. Conner, Senior United States District Judge.


The opinion of the court was delivered by: CONNER

OPINION AND ORDER

Conner, Senior D.J.:

 On May 27 and June 1, 1998, this Court conducted a bench trial on the issue of damages in this civil rights action under 42 U.S.C. § 1983. This opinion incorporates the Court's findings of fact and conclusions of law pursuant to Rule 52(a) of the Federal Rules of Civil Procedure.

 BACKGROUND

 Over the course of approximately fifteen years, plaintiff Boris Raishevich developed a collection of photographic transparencies of cannabis, or marijuana, plants. On November 5, 1993, state police officers arrested Raishevich and seized numerous items from his home. Among these items were 59 marijuana plants, bags containing over four pounds of marijuana, and 347 cannabis transparencies from Raishevich's collection. On October 6, 1994, Raishevich pled guilty to criminal possession of marijuana and was fined $ 500. Despite Raishevich's request for return of the seized transparencies, they were destroyed while in police custody by defendant Charles Foster, a state police officer.

 In this action, Raishevich seeks compensatory damages reflecting the fair market value of the destroyed transparencies, as well as costs and attorney's fees. Because defendant conceded liability, the two-day bench trial involved solely the issue of damages.

 DISCUSSION

 I. Measure of Damages

 The basic measure of Raishevich's damages is the market value of the transparencies at the time they were destroyed. "This value is reflected in what a willing buyer under no compulsion would pay to a willing seller, each fully informed of the matter. The market value of the [transparencies] is also affected by the potential for licensing single uses of the product during the life of the copyright, which is fifty years plus the lifetime of the author." Gasperini v. Center for Humanities, Inc., 972 F. Supp. 765, 769 (S.D.N.Y. 1997), vacated on other grounds, 149 F.3d 137, 1998 U.S. App. LEXIS 16177, 1998 WL 374953 (2d Cir. 1998).

 The primary considerations in determining market value are (1) the uniqueness of the transparencies, and (2) the photographer's earning potential from use of his transparencies. See Gasperini, 149 F.3d 137, 1998 U.S. App. LEXIS 16177, 1998 WL 374953, at *3; Gasperini v. Center for Humanities, Inc., 66 F.3d 427, 428-29 (2d Cir. 1995), vacated on other grounds, 518 U.S. 415, 116 S. Ct. 2211, 135 L. Ed. 2d 659 (1996); Blackman v. Michael Friedman Publ'g Group, Inc., 201 A.D.2d 328, 328, 607 N.Y.S.2d 43, 44 (1st Dep't 1994); Nierenberg v. Wursteria, Inc., 189 A.D.2d 571, 572, 592 N.Y.S.2d 27, 28 (1st Dep't 1993); Alen MacWeeney, Inc. v. Esquire Assocs., 176 A.D.2d 217, 218, 574 N.Y.S.2d 340, 341 (1st Dep't 1991). Factors bearing on earning potential include: (a) past earnings from use of the transparencies; (b) the expertise and reputation of the photographer; (c) the extent and nature of the market demand for the use of the particular type of photos; (d) the extent and nature of the photographer's efforts to exploit the economic value of the transparencies; and (e) potential competition or alternative sources of similar photographs. See Gasperini, 972 F. Supp. at 772.

 Although Raishevich bears the burden of proving damages with reasonable certainty, "the need for specificity in proving damages is mitigated . . . by the principle that when there has been a clear showing of some injury, and damages are not susceptible of precise measurement because of defendant's conduct, a fact finder 'has some latitude to make a just and reasonable estimate of damages based on relevant data.'" J.M. Studio, Inc. v. Federal Express Corp., 1991 U.S. Dist. LEXIS 668, No. 89-3550, 1991 WL 7672, at *4 (S.D.N.Y. Jan. 22, 1991) (quoting Electro-Miniatures Corp. v. Wendon Co., 771 F.2d 23, 27 (2d Cir. 1985) (internal quotation marks omitted)).

 II. Uniqueness

 In assessing the uniqueness of a photograph, courts have considered both its subject matter and cost of replacement. See, e.g., Gasperini, 972 F. Supp. at 769-72 (discussing subject matter); MacWeeney, 176 A.D.2d at 218, 574 N.Y.S.2d at 340 (discussing replacement cost). Unlike a fleeting historical event, which by definition is incapable of recreation, cannabis plants are by their very nature capable of reproduction. Cf. Gasperini, 972 F. Supp. at 772 ("While most of the photographs lost were select and classic images which can never be replaced because the historical and physical conditions under which they were taken have ceased to exist, it is also true that some are simply beautiful shots of trees, hills, and waterfalls which are essentially replaceable or generic."). Although even a physically reproducible subject may be deemed unique if reproduction would require great effort, time, and expense, Raishevich offered no evidence as to the effort he expended or the expenses he incurred in amassing ...


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