Former model Russell Christoff was looking for bloody mary mix in his local drugstore but found a picture of himself on a Nestle coffee jar instead. Five years later the $15.6m damages award he won from Nestle is set aside. Veena Srinivasan wakes up and tells the story.
Topic: People in advertising
Who: Nestle and Russell Christoff
When: August 2007
Law stated as at: 29 August 2007
..you're walking down the aisle of your local supermarket in search of that elusive product, which would make your day complete, when you find yourself staring at your own face on a jar of coffee.
Well, this is exactly what happened to Russell Christoff, a model turned kindergarten teacher, back in 2002. Christoff had posed for the photo for Nestle Canada in 1986 and even had a written agreement with Nestlé, under which he was paid a sitting fee of $250 and was to be paid a sum of $2000 if his image was to be included on coffee bricks sold in Canada. The agreement provided that the parties would conduct further negotiations in respect of any additional uses of the photo. However, when he heard no more from Nestlé, he assumed that they had decided not to use his image.
However Nestlé did use the image in Canada from 1986 onwards and following a pack redesign used a cropped version in the US, mexico, South Korea, Japan, Israel and Kuwait.. As they had already been using Christoff's image in Canada, Nestlé assumed that they had the necessary consent to use the photo on the labels in the other countries, including the USA.
Christoff was oblivious to this until 2002, when he came across the pack whilst shopping for Bloody Mary mix in a California drugstore. Christoff sued after claiming he never even received the $2000 for Canada use let alone any additional fee for the countries beyond.
Christoff filed suit in 2003 and in January 2005 a California jury awarded Christoff $15.6 million. The award included more than $15 million in profits being 5% of the profit Nestlé enjoyed in respect of the Taster's Choice brand during the years 1997-2003.
Nestlé USA vowed to appeal the verdict, and appeal it they did. This time around, luck was in Nestlé's favour.
On 29 June 2007, the California Court of Appeal reversed the decision. A key element here was the finding that the so called "single publication rule" applied to "right of privacy" cases like this just as much as it already did to defamation cases, for example.
Single Publication Rule ("SPR")
This rule provides that:
"No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to any audience or any one broadcast over radio or television or any one exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to any audience or any one broadcast over radio or television or any one exhibition of a motion picture."
The rule also provides that:
"[..] recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions."
The appeal court held that this rule applied to the instant case. The upshot is that Nestlé should have been penalised for its tort (using Christoff's likeness without his permission) only once; the first use of Christoff's image without his consent.
Once we take SPR into account, it is the first publication, which is relevant. In this case, the use of Christoff's image on the label back in 1997.
In this context, the court considered that ordinarily the claimant would not have been able to bring an action more than 2 years after the tort. The exception is where the claimant, for some reason or another, was not in a position to discover the tort within the 2 year period.
At around the time of the initial proceedings, Christoff explained the reason that he hadn't discovered it sooner:
"I don't buy Taster's Choice; I do beans."
We will have to wait and see whether this is an acceptable explanation for the delay in his discovery, as this is yet to be decided.
"for food in the plains of Africa. Our eye is attracted most immediately to two things – the human face or the shape of an animal."
Why this matters:
The good news for US advertisers is that if this decision stands they cannot be penalised indefinitely for one mistake. UK law is not the same on these aspects but there is one clear message from this case that applies in all countries.
This is that it is important to check that you have the rights to use each image, piece of footage/music, voice over before including them in an ad. When in doubt, have someone look over the underlying agreement to ensure that the licence extends to the proposed use. If a kindergarten teacher knows about and is willing to pursue his rights, then it is safe to presume that a marketable celebrity, with an agent in tow, will be too.