World-renowned photographer Arthur Grace began his photojournalism career in the 1970s working for numerous prominent publications, including United Press International (UPI), the New York Times and Newsweek. In the 1990s, he turned his attention to pho­tograph­ing celebrities and celebrity events. During his career, he received numerous awards and was even nomi­nated for a Pulitzer Prize.

In 1974, Grace retained Sygma, which had offices in Paris and New York, to act as licensing agent for his photographs. Unfortunately, they did not have a written agree­ment, and there was no understanding as to how Grace’s trans­parencies would be stored or cataloged by Sygma; nor was there any agreement as to how or when the images would be returned.

Regrettably, Sygma’s recordkeeping was deplorable. When Sygma was acquired by Corbis Corporation in 1999, it became clear that Sygma had not cataloged, inventoried or tracked Grace’s images in any way. Grace, too, failed to keep records of the transparencies he had sent to Sygma.

When Grace terminated his relationship with Sygma in 2001, he requested the return of all of his images. Since Sygma’s records were virtually nonexistent, it was unable to locate all the Grace images, though it returned the transparencies it could identify.

Because Sygma was unable to return Grace’s images, Grace filed suit to recover the value of the lost transparencies, claim­ing that 67,473 of his images were missing. Sygma disagreed with that figure. Neither party could establish the number of images lost, nor could they identify how many were unique and how many were outtakes or duplicates. Also some images appeared to be double counted and others never given to Sygma. Additionally, the expert used by Grace to establish value was criticized by the district court as evasive, non­responsive and his testimony as non­sensical. The expert did not even review the amount of licensing revenue actually earned from the Grace images. The district court did, nevertheless, award Grace damages of $472,000 for the lost transparencies based on its conclusion that 40,000 images were lost. Grace appealed this judgment, claiming he was entitled to more.

The United States Court of Appeals for the Second Circuit recognized the difficulty faced by the trial court in trying to determine the value of lost images when neither party to the case kept records. While it complimented the district court’s legal analysis, the appellate court felt that some guidance would be appropriate in a case such as this where the trial court is forced to deal with so many unknowns.

The challenge presented was the determination of the value of the lost images when neither the number nor the quality of those images could be established. The appellate court held that Sygma’s liability for lost images must, nevertheless, be the reasonable value of the lost images as of the date of the loss.

Generally the complain­­ing photographer has the burden of proof in establishing the value of any lost images. However, in a case such as this where the wrong­doer has made it impossible to determine the number or quality of images lost, then some other method of establish­ing damages must be used. That method may not be based on spec­u­­la­tion or conjecture but must have some support in the record.