How misappropriation of likeness cost this coffee maker millions

1. Just Say No to Nescafé
November 11th, 2011 · Robert Scott Lawrence
If you are like me, you may have a vague
recollection of a strange case filed some eight
years ago in which Nestlé was accused of
misappropriating the likeness of a former
model to use on the labels of everyone’s
favorite, Taster’s Choice Coffee. Sounds like
much ado about nothing at first, even when
you dig into the facts a bit and discover that
the model, Russell Christoff, was paid $250
for a two-hour Nestlé photo shoot in 1986 and signed a modeling contract
stating that he would be paid a whopping $2,000 if Nestlé used his likeness
in its Canadian marketing. $2,000? Not much, but not bad pay for a
distinguished-looking elder statesman type who didn’t quite have the acting
chops to make it onto Dallas and ended up teaching kindergarten.
The rub, of course, is the contract, which some junior Nestlé functionary
slapped together and never gave another moment’s thought to. So when the
pictures Nestlé had planned to use for the label went missing and someone
dug up an old still of Christoff that looked like he would appeal to rugged
instant coffee drinkers, the clause about “marketing in Canada” was
forgotten. Fast forward five years, when our stalwart notices that his picture
is plastered up and down Safeway’s aisles and complains to his lawyer that
he never got his $2,000 — and in the time it takes to draw breath that
$2,000 is just Nestlé’s fantasy about what might have been. Instead, a jury
awards Christoff $15.6 million based on Nestlé’s failure to seek permission
to use his image, and the then-58-year-old Christoff starts planning his
retirement.

2. Why did this case ever go to trial? As usual, a clash of egos was to blame,
assisted by overt legal bumbling. During discovery, Christoff learned that
Nestlé’s Canadian company began using his image in 1986, and that from
1997 to 2003 Nestlé used his image on coffee labels in the United States,
Mexico, South Korea, Japan, Israel and Kuwait. Having spread his face over
much of the globe (and even photoshopped his image to make him look
more Latino for the South American market), Nestlé’s congenial “Hey,
what’s the harm?” offer of $100,000 was bound to fall on deaf ears, and
Christoff’s angry counter-demand of $8.5 million was more of a battle cry
than anything else.
As expected, Nestlé appealed the verdict, and the case wended its way
through the courts until it finally landed on the doorstep of the California
Supreme Court, which ruled that the “single publication” rule could apply
to misappropriation of likeness cases and sent the case back to the trial
court to determine if there was merely a “single publication,” or if the
millions of different publications of Christoff’s likeness constitute “multiple
publications” that take the statute of limitations out of play. Given Nestlé’s
manipulation of Christoff’s image in various of those publications (e.g.,
darkening his skin and giving him Pancho Villa sideburns for ads in
Mexico), and the sheer number of different publications, my money is on
the court saying that adds up to more than just a “single publication.” And
for Christoff, that ruling should be worth more than just a few pesos.