## Facts

- John Ericson, a professional actor, agreed to appear nude in *Playgirl* magazine’s January 1974 centerfold without compensation to gain publicity.
- Playgirl later sought to reuse the photographs in an annual compilation, *Best of Playgirl*, which had about half the circulation of *Playgirl* and carried no advertising.
- Ericson consented to the rerun on two express conditions: (1) selected photos would be cropped for more modest exposure, and (2) his image would appear on one-quarter of the front cover along with five other persons.
- Playgirl cropped the photos as requested but, due to an editorial mixup, did not place Ericson’s image on the cover.
- Ericson sued for breach of contract, seeking damages for the lost promotional/publicity value of the missed cover placement, not for privacy or unauthorized use.
- At trial, witnesses testified that magazine covers are generally not sold and have no direct market price, though cover exposure can benefit entertainers.
- The trial court relied primarily on expert testimony estimating a full cover’s promotional value to an entertainer at about $50,000 and a one-quarter cover at $12,500, and awarded $12,500 in damages.

## Issues

1. Whether the trial evidence established contract damages for lost publicity with reasonable certainty rather than speculation.
2. Whether a plaintiff who proves breach of a promotional-placement promise but cannot reliably quantify monetary loss is limited to nominal damages.

## Decision

- The court found an enforceable cover-placement promise and a breach when Ericson’s image did not appear on the cover.
- The court held the $12,500 award was unsupported by sufficiently certain proof because the claimed “publicity value” was not shown by evidence tied to a measurable market or to Ericson’s demonstrated earnings impact.
- The judgment was modified to reduce damages to a nominal amount and, as modified, affirmed.

## Legal Principles

- Contract damages must be proven with reasonable certainty as to both their nature and their origin; conjectural or speculative damages are not recoverable.
- Potential promotional benefit may be foreseeable, but foreseeability does not substitute for proof of a reasonably certain monetary amount.
- Where breach is established but actual loss cannot be shown with adequate certainty, the proper remedy is nominal damages.

## Conclusion

The court enforced the promotional cover-placement agreement as a matter of contract but limited recovery to nominal damages because the claimed monetary value of lost publicity was not proven with reasonable certainty.


Ericson v. Playgirl, Inc., 73 Cal. App. 3d 850 (Cal. Ct. App. 1977)