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Can I put in my 2 cents' worth on Hendrix?

The real trouble with Hendrix is that it seems to have been argued, and therefore decided, as though Blake was somehow relevant to the remedy to be granted. This seems to me to be a mistake. As most of us, bar Andrew, now seem to agree, disgorgement (whole profit) is fundamentally different from "use value", "royalty basis" or "buy-out cost" (all of which are very similar and yield part profit). My own view is that the latter are all essentially loss-based, and that there isn't much point in trying to shoehorn them into unjust enrichment. It also follows that Hendrix isn't really an unjust enrichment case at all.

The reasons:

1. Buy-out appears not only in Wrotham-style cases but also in, for example, eminent domain compensation, where profit/enrichment isn't in issue (eg Stokes v Cambridge Corp'n (1961) 13 P. & CR 77).

2. Use value or buy-out is simply a rough and ready measure of loss where the plaintiff has been deprived of the use of a thing or the benefit of some legal right. A thief who steals my picture has to pay me its value even if I hate it, never look at it and plan to burn it as soon as it stops raining: faute de mieux, this is the only plausible way of reckoning my damage. Similarly with "borrowing" my car, or using my music contrary to a previous settlement agreement, as in Hendrix: I've been deprived of something, and a perfectly sensible way of quantifying my damage is use value or royalty value.

3. There are cases where total profit may come in even though the plaintiff's claim is loss-based and there is no argument for a Blake award. That is where I would have made the profit myself. I agree by contract to let you use my land for dumping trash, and further agree that you can charge others to use it, which you do. In breach of contract I lock the gate against you and your customers and charge my own customers to use the facility just as you would have. Here I have to pay over the whole profit: the reason is that in this scenario we don't need a rough and ready measure, because we have a more precise one. As you might imagine, this is a real (US) case: see Short v Wise, 718 P. 2d 604 (Kansas 1986), & the comments on it in Beck v Northern Natural Gas Co, 170 F.3d 1018 (1999).

All the best

Andrew

Andrew Tettenborn MA LLB
Bracton Professor of Law

Tel: 01392-263189 / +44-392-263189 (international)
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[School homepage: http://www.ex.ac.uk/law/]
[My homepage: http://www.ex.ac.uk/law/staff/tettenborn/index.html].