South-Western Legal Studies in Business

Use of Photograph for Commercial Purposes without Payment Is Unjust Enrichment
Description Appeals court held that the trial court properly found that on grounds of unjust enrichment, a commercial photographer was due payment of royalties for mass reproduction of a photograph that was used without permission. The damages would be estimated based on industry standard payment rate.
Topic Intellectual Property
Key Words Copyright; Unjust Enrichment; Damages
C A S E   S U M M A R Y
Facts Bruce, a freelance photographer, took a photo of Bill Clinton in 1992 as he was shaking hands with a Secret Service agent. Bruce cosigned the photo to a photo stock agency, which allowed the tabloid, World News, to use the photo. World News used the photo by superimposing, in place of the agent, a "space alien." The photo was used numerous times in publications and on t-shirts, showing Clinton shaking hands with the alien. Bruce was paid a total of $1,775 in licensing fees, but he sued, contending that he was owed much more. Given the sales of t-shirts and other uses of the photo, the district court awarded Bruce $20,142 in damages, plus interest. Bruce appealed, contending that he was due another $359,000.

Affirmed in part, vacated in part and remanded. The photo was used numerous times without the permission required by the licensing agreement. As such, on grounds of unjust enrichment, Bruce is due a 50 percent share of the licensing fee that he would normally have received for all the uses of his photograph, altered or not. That is the industry standard, which will be followed. The district court will recalculate the damages to ensure Bruce has been given proper royalty payment.

Citation Bruce v. Weekly World News, Inc., 310 F.3d 25 (1st Cir., 2002)

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