Meyer v. Marilyn Miglin, Inc.

• Decision Date: 30 June 1995
• Docket Number: No. 1-94-0664,1-94-0664
• Citation: 652 N.E.2d 1233,210 Ill.Dec. 257,273 Ill.App.3d 882
• Parties: , 210 Ill.Dec. 257 Gordon MEYER and Gordon Meyer Photography, Inc., an Illinois Corporation, Plaintiffs-Appellants, v. MARILYN MIGLIN, INC., an Illinois Corporation, Defendant-Appellee.
• Court: United States Appellate Court of Illinois

Page 1233

652 N.E.2d 1233

273 Ill.App.3d 882, 210 Ill.Dec. 257

Gordon MEYER and Gordon Meyer Photography, Inc., an Illinois Corporation, Plaintiffs-Appellants, v. MARILYN MIGLIN, INC., an Illinois Corporation, Defendant-Appellee.

No. 1-94-0664.

Appellate Court of Illinois First District, Second Division.

June 30, 1995.

Rehearing Denied July 28, 1995.

David L. Clark, Chicago, for appellants.

Flamm, Teibloom & Laytin, Ltd. (Richard Orlikoff, of counsel), Chicago, for appellee.

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 "go[es] 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 full frontal nudity and because it needed to be softened and set against a different background. He suggested that it be "air brushed."

Stephanie Hayano corroborated plaintiff's testimony regarding the unsuccessful negotiations for defendant's purchase of the rights to the photograph and the parties' eventual agreement to a sale of usage rights in a redesigned or retouched version. She prepared the purchase order, using her notes from the negotiations as the basis for its contents. The invoice and purchase order contain the same language because the parties had discussed the wording to avoid confusion. Lee Miglin authorized the purchase by signing his initials on the purchase order.

When plaintiff requested payment on the purchase order, the Miglins told Stephanie Hayano that they did not believe that they were obligated to pay him because they were unable to produce a suitable retouched version for the campaign. She pointed out to them that they had used the "Flying Nude" on "sell-in brochures." Nevertheless, she signed the letter dated June 21, 1989, cancelling the purchase order.

Stephanie Hayano recalled that several retouched versions of the photograph were produced after defendant sent out the purchase order, but that none was made after the letter of cancellation was sent to plaintiff. She explained that sell-in brochures were packages of materials sent to retailers to introduce a new line. They contained graphics, descriptions of the product, and other advertising. The composite packaging for Destiny was made by blowing up the magazine picture of the "Flying Nude", cutting the figure out, and superimposing it on a blue background. The Destiny sell-in brochures were shown to buyers from Nordstrom, Saks Fifth Avenue, and Marshall Field's. Defendant approved of the redesigned version of the "Flying Nude" used in the sell-in brochures.

On cross-examination, Stephanie Hayano testified that the sell-in brochures were sent to department stores to facilitate sales and not merely to determine whether they liked the concept. However, she conceded that in an earlier deposition she had stated that their purpose was to get feedback on the concept. She testified that the composites created using the "Flying Nude" were not used in any advertising; a different packaging was used. She further testified that at the time that the purchase order was issued, a redesigned version of the "Flying Nude" was in existence and had been used in the sell-in brochures. She stated that the term "unlimited usage rights" did not mean use only in advertising. She also testified that under the terms of the purchase order, the redesigned version was to come into existence "[a]t any time in the future." She conceded that the sell-in brochure did not utilize a retouched version of the actual photograph. She was unsure whether any retouched versions existed before the issuance of the purchase order.

Christopher Hayano testified that he sent the original transparency out to be copied in early April. He returned the original transparency to plaintiff after the copies were made, but he did not give plaintiff the retouched version that defendant worked on.

Plaintiff rested after this testimony. Defendant moved to dismiss the case, but the court denied the motion.

Marilyn Miglin, defendant's president, testified that the brochure using the "Flying Nude" was not a sell-in brochure because it did not contain a marketing plan, a promotional plan and an advertising campaign. The "Flying Nude" brochure was a "concept brochure" used to get comments from retailers regarding whether they felt it was suitable for a national campaign....