Ericson v. Playgirl, Inc.
96 A.L.R. 3d 427, 73 Cal. App. 3d 850, 140 Cal. Rptr. 921 (1977)
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Rule of Law:
Damages for breach of contract may not be awarded for the loss of general publicity that is speculative and unrelated to the practice of the plaintiff's art or profession, as such damages are not clearly ascertainable.
Facts:
- John Ericson, an actor, agreed to allow Playgirl, Inc. to publish nude photographs of him for free in its January 1974 issue to enhance his career.
- The initial publication did not result in any immediate career boost for Ericson.
- In April 1974, Playgirl sought to republish the photos in its 'Best of Playgirl' annual edition.
- Ericson consented on two conditions: that the photos be cropped to be more modest, and that his photograph occupy one-quarter of the magazine's front cover.
- Playgirl complied with the cropping request but, due to an editorial error, failed to place Ericson's photograph on the cover of 'Best of Playgirl'.
Procedural Posture:
- John Ericson sued Playgirl, Inc. for breach of contract in a California trial court.
- The trial court found in favor of Ericson and awarded him $12,500 in damages.
- Playgirl, Inc. appealed the trial court's judgment to the Court of Appeal of California, Second Appellate District.
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Issue:
Are damages for the loss of general publicity, which is unrelated to an artist's professional performance, too speculative and conjectural to be awarded for a breach of contract?
Opinions:
Majority - Fleming, Acting P. J.
Yes. Damages for the loss of general publicity unrelated to an artist's profession are too speculative to be awarded for a breach of contract because they are not clearly ascertainable and reasonably certain. The court distinguished between damages in contract and tort, noting that contract damages must be foreseeable and certain, not punitive. The court then differentiated between two types of publicity for an artist: specific professional publicity (e.g., losing a role or screen credit) and mere general publicity. The former is compensable because it is directly tied to the artist's professional performance and earning capacity, allowing for a more certain calculation of damages. In contrast, the loss of general publicity, such as a photo on a magazine cover unrelated to a specific performance, is inherently speculative; it is impossible to determine if it would have helped or harmed the artist's career. Therefore, any claimed damages are conjectural and not recoverable under contract law, though nominal damages may be awarded for the breach itself.
Analysis:
This case establishes a critical distinction in contract law between recoverable damages for the loss of specific, professional publicity and non-recoverable damages for the loss of general publicity. It clarifies that for an artist to recover for lost publicity, the loss must be directly tied to the performance of their art or profession, where damages can be correlated to earning power. This decision limits the scope of damages in breach of contract cases involving artists and entertainers, preventing awards based on speculative claims about the value of general fame or notoriety. It provides a clearer standard for courts to evaluate whether claimed damages are 'clearly ascertainable' as required by contract law.
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