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June 30, 1995



Rehearing Denied July 28, 1995. Petition for Leave to Appeal Denied December 6, 1995.

Presiding Justice Scariano delivered the opinion of the court: DiVITO, and McCORMICK, JJ., concur.

The opinion of the court was delivered by: Scariano

PRESIDING JUSTICE SCARIANO delivered the opinion of the court:

In 1989, defendant Marilyn Miglin, Inc., a cosmetic and fragrance company, issued a purchase order whereby it agreed to purchase from plaintiffs Gordon Meyer and Gordon Meyer Photography, Inc. (hereinafter plaintiff) the right to use a redesigned or retouched photograph for use in the promotion of a new perfume it was marketing. When defendant did not use a retouched version of the photograph, it cancelled the order and refused to remit payment.

On October 15, 1993, plaintiff filed his amended complaint, alleging that defendant "vexatiously and unreasonably refused" to make payment under the contract. The purchase order, typed on defendant's form and initialed by its chairman, Lee Miglin, stated:

"Exclusive, unlimited usage rights to Marilyn Miglin, Inc. to Redesigned/Retouched version of Gordon Meyer's 'Flying Nude.' Gordon Meyer retains all exclusive rights to original transparency."

In its "Answer and Affirmative Defenses to Amended Complaint", defendant claimed that it was a condition of the purchase order that a satisfactory retouched version of the photograph come into existence before defendant would be obligated to pay for the rights to use the photograph. When defendant could not successfully create a satisfactory version of the photograph, it cancelled the purchase order. Defendant also asserted as an affirmative defense that the purchase order was not an enforceable contract because: it was not signed by the parties; its terms were so vague that the subject matter of the contract could not be determined; essential terms were omitted from the order, and the terms of the order were so inconsistent and ambiguous that the parties' intent could not be discerned.

The following facts were gleaned from the evidence presented at the parties' bench trial. When, in 1989, defendant began developing marketing strategies for its new perfume, "Destiny", it hired Chris Hayano, a free-lance art director, to design the packaging, logo, bottle graphic, and other marketing products. He determined that plaintiff's photograph, "Flying Nude", would be desirable for the project after seeing it in a trade magazine advertisement for plaintiff's photography studio. The concept was approved by defendant which subsequently attempted to obtain the rights to the photograph from plaintiff. Defendant wanted to use the photograph after retouching it to remove some of the detail and definition from the subject of the photograph. Plaintiff and defendant could not agree on a price for unlimited rights to the photograph; however, they eventually agreed that defendant could purchase exclusive rights to a retouched version of the photograph for $15,000, while plaintiff retained exclusive rights to the original transparency.

Plaintiff testified that he was contacted by Chris Hayano regarding defendant's use of his photograph, "Flying Nude" early in 1989. Negotiations regarding defendant's use of the photograph began in March 1989; plaintiff received defendant's purchase order, dated May 17, 1989, a few days after it was issued. He testified that the purchase order encompassed all of the terms of his agreement with defendant. Plaintiff had delivered the original transparency to defendant before receiving the purchase order; he testified that he often "goes ahead of the paperwork" with clients so that they can meet their deadlines and he can increase his chances of getting the job. He believed that defendant had sent out the transparency to have dye transfers, or copies, made to begin the process of retouching the photograph.

In March or April 1989, plaintiff photographed composites of packaging for Destiny for a $500 fee. The composites had an outline of the "Flying Nude" on them which had been traced from the original. This project was completed before the parties had finished negotiations regarding defendant's purchase of the photograph. Plaintiff testified that he did the "shoot" to "show my willingness to negotiate, to come to a deal."

Plaintiff invoiced defendant for its use of the retouched photograph on May 10, 1989, prior to receiving the purchase order. The invoice contained the exact same language as the purchase order. Plaintiff often invoiced clients before receiving purchase orders to "expedite the paperwork." Plaintiff never received the dye transfer print defendant made in attempting to come up with a retouched version of the photograph. However, defendant returned the original transparency to plaintiff after cancelling the purchase order in June.

On cross-examination, plaintiff acknowledged that the purchase order did not state a time for payment. He stated that although his invoice requested payment within 30 days, defendant never agreed to that term. Under the agreement, plaintiff could use the original transparency for any purpose, including another advertising campaign. Plaintiff did not know when a redesigned/retouched version of the photograph was supposed to come into existence, although he knew that defendant was responsible for producing it. In response to questioning regarding whether he knew that the redesigned version had to be satisfactory to defendant, plaintiff responded, "That's not my area. That's not for me to determine."

Stephanie Mendel Hayano (Stephanie Hayano) testified that in 1989 she was vice president of marketing for defendant, although at the time of trial, she no longer worked for defendant. She hired Chris Hayano, who eventually became her brother-In-law, as a free-lance art director for the Destiny promotion campaign. She approved of the concept of using the "Flying Nude" in the campaign, and subsequently obtained Marilyn Miglin's approval. Lee Miglin, chairman of the board, had reservations about using the photograph because it showed ...

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