which Getty's efforts could be measured or evaluated.
Gentieu concedes that best efforts clauses have not generally been enforced in Illinois but replies that the clause at issue here is not unduly vague in light of the structure and context of the 1993 Contract. She argues that the clause should be held enforceable because of the exclusive nature of the license, citing Wood v. Lucy, Lady Duff-Gordon, 222 N.Y. 88, 118 N.E. 214, 214 (1917) and Bidlack v. Wheelabrator Corp., 993 F.2d 603, 607 (7th Cir. 1993) (en banc).
Wood, 118 N.E. at 214-15 held that an exclusive licensing arrangement did not fail for lack of mutuality because the licensee had an implied obligation to use reasonable efforts to promote the licensor's work. Discussing Wood as an example of contract interpolation, Bidlack, 993 F.2d at 607 explained that by granting an exclusive license to market her work, the licensor "had delivered herself into her licensee's power, for unless he had a contractual obligation to market her designs he could threaten to sit on the license and do nothing unless she increased his compensation." Analogizing the agreement in Wood to Getty's exclusive license for her images, Gentieu contends that the best efforts clause should be read as imposing on Getty a like obligation to use good faith, reasonable efforts to market her images.
Although Gentieu cites no Illinois caselaw for her position, Illinois courts have generally implied a best efforts obligation "only if it is necessary to prevent the contract from failing for lack of mutuality or to otherwise achieve the clear intentions of the parties derived from their express agreement" (Beraha, 956 F.2d at 1442). Beraha, id. declined to imply such an obligation to the exclusive license there because an advance royalty payment to the licensor constituted independent consideration for the agreement (see also Permanence Corp. v. Kennametal, Inc., 908 F.2d 98, 102 (6th Cir. 1990)). But here as in Wood, Gentieu's compensation for images accepted under the contract was completely dependent on Getty's sales of those images, and her share of the licensing fees was the only consideration for her exclusive grant of authority to Getty.
Under such circumstances this Court views Illinois law as imposing an obligation on Getty to use good faith, reasonable efforts to promote Gentieu's images. Hence the best efforts clause in the 1993 Contract is enforceable as an express articulation of that otherwise implied obligation. Gentieu's challenges to Getty's complained-of conduct will be measured against that yardstick, despite the language's lack of precise measurement.
To begin with, as indicated in n. 31, Getty has already paid Gentieu the full amount of her requested damages for her claims of withheld payments and obstruction of her audit. Those claims have been dismissed by this Court's January 13, 2003 order (2003 WL 132513, at *4).
Further, the portion of Gentieu's breach of contract claim that echoes her rejected breach of fiduciary duty claim fails for the reasons discussed earlier. Getty did not breach its best efforts obligation by representing multiple baby photographers, and Gentieu has failed to raise any reasonable inference that Getty undertook a campaign to create or commission images by other photographers in an effort to replace the Gentieu images in the Getty collection.
Getty is also correct in contending that another of Gentieu's claims—that Getty assertedly withheld contract information from Gentieu that it shared with members of the PAG—is both unsupported by admissible evidence and irrelevant to her breach of contract claim. There is much evidence in the record that Gentieu was actually kept abreast of PAG activities and was aware as early as July 1997 that PAG was involved with the terms of a new photographer agreement (S.R. St.¶¶ 102-10). Gentieu's assertion of secrecy in the process is supported only by anonymous e-mails from an internet message board that are inadmissible hearsay evidence.*fn35 Moreover, Getty's sharing of information with PAG cannot tenably be construed as a breach of its obligation to promote Gentieu's work.
Gentieu's claims that Getty breached the best efforts clause by licensing her images at discount prices, authorizing licensing restrictions and allowing cancellations also fail as a matter of law. Under Illinois law, best efforts clauses (even when express rather than just implied) may aid courts in the construction of ambiguous contract provisions, but they cannot be read to override or modify the express meaning of other contract terms (Coleman v. Madison Two Assocs., 307 Ill. App.3d 570, 578, 241 Ill. Dec. 97, 718 N.E.2d 668, 675 (1st Dist.1999)). And although Getty was obligated to use its best efforts in promoting Gentieu's images, 1993 Contract ¶ 2.5 expressly vested Getty with "sole discretion" in setting the terms and conditions of the licenses. That clause is unambiguous. So despite any enforcebility of the best efforts clause as such, Gentieu cannot claim that the way Getty set terms or conditions of its licenses breached the 1993 Contract (Wright-Moore Corp. v. Ricoh Corp., 980 F.2d 432, 437 (7th Cir. 1992)).
Gentieu's claim that Getty breached the best efforts clause by failing to market her images digitally on its website*fn36 fails for the same reason. Getty did not have a website when Gentieu signed the 1993 Contract, and Gentieu concedes that Getty was under no obligation to create one (S.R. St.¶ 181). Gentieu argues nonetheless that once Getty later developed a website, it had an obligation under the best efforts clause to include her images on the web, even though she did not sign the 1998 Contract that specifically addressed and allocated the costs of licensing on-line images.
But 1993 Contract ¶ 2.4 (emphasis added) likewise gave Getty "the right and sole discretion to reproduce and use any of the Images in catalogs, advertisements and promotional materials of TSI & A in any and all mediums throughout the world." That provision goes on to state that if a photographer's images were included in a catalog, the photographer would share in any publishing costs. Although Gentieu claims that Getty made later promises to put her images on the website, she fails to provide necessary supporting documentation for those promises (G.St.¶¶ 46, 49, 101)—and more importantly, any such statements lack independent consideration to supplant the "sole discretion" provided for in the integrated 1993 Contract (S. Ex. 7 ¶ 12.7). Because the express terms of the 1993 Contract were unambiguously at odds with any claimed obligation to put any of Gentieu's images on the web, Getty's failure to do so cannot constitute a breach of its best efforts obligation (Wright-Moore, 980 F.2d at 437).
Finally, Gentieu claims that all of Getty's conduct raised in all of her other claims breached its implied covenant of good faith and fair dealing. While Illinois law recognizes that such a covenant is implied in every contract, it does not constitute an independent source of duties to the parties of a contract, but rather guides the construction of explicit and ambiguous terms in a contract (Beraha, 956 F.2d at 1443). Although for that purpose the implied covenant can come into play when one party to the contract is given broad discretion in performance (id.), that role is a limited one—as Northern Trust Co. v. VIII S. Mich. Assocs., 276 Ill. App.3d 355, 367, 212 Ill. Dec. 750, 657 N.E.2d 1095, 1104 (1995) explains:
Parties to a contract, however, are entitled to
enforce the terms of the contract to the letter and
an implied covenant of good faith cannot overrule or
modify the express terms of a contract.
So the same reasons that have been stated earlier preclude the unambiguous terms of the 1993 Contract from being nullified by the implied covenant of good faith and fair dealing. This last claim by Gentieu cannot stand either.
Once more by way of summary, none of the conduct about which Gentieu has complained constitutes a breach of the 1993 Contract. Accordingly Getty's motion for summary judgment on Gentieu's breach of contract claims is granted as well.
What this opinion voiced by way of criticism below the * * * divider in its subsection on Digital Compilations could have been repeated at numerous other stages of the discussion—and it certainly merits recall here. Although Gentieu had a legitimate claim for unpaid royalties under the 1993 Contract when this lawsuit was instituted, it is one that could have been resolved long since—and without the enormous expenditure (really a waste) of resources that has ensued*fn37—if she had not coupled that claim with contentions obviously ascribable to an overexaggerated sense of self-importance.
At the end of the day, however, that attempt at self-aggrandizement has failed entirely. No genuine issue of material fact preserves any of Gentieu's myriad claims against an adverse judgment as a matter of law. Getty's Rule 56 motion is granted in its entirety, and this action is dismissed.*fn38