As stated in Barrera and Burgos, supra, at *15, a
claimed additional $45,000, which allegedly
reflects the fact that defendants' use of the Photograph was
unauthorized, cannot logically represent part of the
fair market value of a license authorizing such
use. . . . The portion of Elsner's declaration quoted
above suggests that a photographer or stock
photography agency might demand such an additional
fee in order to avoid the need to resort to
litigation to resolve an infringement dispute.
However, the injuries compensable through actual
damages, as contemplated by §§ 504 (a) & (b), do not
encompass the need to engage in litigation.
Such a multiplier has been used to compute actual damages from
unauthorized use in only one case, Bruce v. Weekly World News.
Inc., 150 F.Supp.2d 313
, 321 (D.Mass. 2001), vacated in
part, 310 F.3d 25
(1st Cir. 2002). The Bruce court did not
analyze the issue, because both sides' experts adopted the
multiplier concept, and I decline to follow it, for the reasons
given above. In Baker v. Urban Outfitters, Inc.,
254 F.Supp.2d 346
, 359 (S.D.N.Y. 2003) Judge Preska mentioned, arguendo, the
use of a multiplier, but went no further because the higher
measure of damages was defendant's profits. A similar glancing
reference is made in Fournier v. McCann Erickson,
242 F.Supp.2d 318
at 340 (S.D.N.Y. 2003), but in neither of those
was the court asked squarely to determine the
availability of such a multiplier.