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.
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.
I am a commercial litigator and intellectual property lawyer in Orange County. Although my practice encompasses a wide variety of business disputes, I have a particular fondness for, and am prone to wax philosophical on, the subjects of copyright and trademark infringement in music, literature, art, and film.