Coffee Jar Model Case Goes to High Court
This one has been a case that I have been following while sipping my half-caff soy cappuccino. It is the case of model Russell Christoff who is the face on the Nestle’s “Taster’s Choice” freeze dried coffee. Available since 1986 and on the shelves for 18 years.
The story goes that Russell was hired for $250 and had a signed agreement with Nestle to receive more money if the shot would be picked up for advertising. Unfortunately for him, he never heard about it until the year 2002. He was standing in line at his local Home Depot and the model turned teacher was told by the lady in front of him that he had a striking similarity with the image she was looking at every morning while sipping her coffee.
It took Russell another two months while shopping at the local Rite Aid to see his face smile from “Taster’s Choice” as it has for the last 18 years. He did the sensible thing and sued. Nestle’s defense was nothing far from “slick” saying they “thought” they had the rights. A huge settlement was reached for 15.6 million in Russell’s favor. The entire case was thrown out also in 2005 because Christoff had missed the legal deadline to pursue this suit. How that is possible when an image was used for 18 years is absolutely beside me. I am also not aware that it is the infringed responsibility to find possible infringers in time. A suit can only be brought forward when you catch them in the act, right?
Now it gets really tricky and let’s see if we make sense of this. The court said the case fell under the purview of invasion-of-privacy law and would have to be brought forward whitin two years of the publication at issue. Other cases that were decided under that rule were claims of defamation. How that applies goes past me even further. This looks like a case of unauthorized usage of a persons likeness, doesn’t it?
Just last week in Los Angeles Justice Kathryn Mickle Werdegar said the rule was directed at single publications by newspapers and broadcasts but that this one was “a continuing course of conduct.” That sounds more like it to me, too. She said it is more like theft, which I am sure everyone in the photographic community will agree to.
Somehow we have Kelli L. Sager in the picture who represents Los Angeles Times Communications and she said a ruling against Nestle could harm newspapers and threaten freedom of speech. Now the sensible thing for me to do is go “huh”? The judge did the same and says but it’s a commercial enterprise. Now another judge Justice Ming W. Chin indicated that the rule for the news media should apply to product labels while yet another Chief Justice Ronald M. George suggested that the court does not have enough information to make a legal determination. This would be on whether Nestle’s continuous use of the image constitutes a single publication that invokes the two-year deadline. Sure – the repeated reprinting on hundreds of thousands of jars of coffee over 18 years is one use.
Now Justice Joyce L. Kennard asked whether the misappropriation of a person’s likeness was more akin to an infringement of a copyright than an invasion of privacy. Russell’s lawyers said “of course” and Nestle’s said “absolutely not.” The decision is due in 90 days.
This is so stupid that it defies any common sense. Nestle knew they were wrong, offered $100,000 got slammed with $15.6 million. They wouldn’t take a settlement offered to them by Russell for $8.5 million and they rather take a lawsuit through all instances to the state high court spending a multiple of what it would have cost them to settle sensibly. Perhaps an amount between $100K and $8.5 would be advisable? Just idiotic by Russell Christoff to go after 15.6 million in the first place (I mean dude, come on!). I could have told you that for that money a fine fight is definitely worth it. Stay tuned, I can hardly wait what nonsense comes next.
Yikes!! What a mess. Like you though I think the whole thing should be pretty cut and dry. Taster’s Choice should be legally bound by the original agreement. You use the image, you pay me money. I think the biggest problem here is how the whole thing has been argued. It is not a copyright issue nor is it defamation of character and it is not an invasion of privacy. The two parties entered into an agreement, the terms of which Taster’s Choice violated, to my mind a simple breach of contract. This is hardly the first time a model has been screwed in such a way. There should be a number of cases available to provide the legal precedent for the plaintiff’s claim. I think the first step should have been for the model to get a different lawyer, one who understands intellectual property and publicity law. A proper beginning argument by the plaintiff’s attorney would go a long way to putting the case in an appropriate stance that could be argued correctly.
I remember when this came out in 2002. I remember Christoff telling a reporter that he didn’t notice it for such a long time because he didn’t drink coffee. If the courts decided that this should be ruled like a media case, then we are doomed. I agree with Nathan on this, it is cut & dry. Contract = CONTRACT, not Maybe a contract. Nestle is just trying to get out of paying what they know they owe this man. Even if this is the photographer’s fault (the Nestle’s Advertising Agent’s photographer) then they should still be held accountable.
I truely do hope this isn’t the end of this for Russell Christoff. He should fight for what is his.
Nice write-up. Courts decide things based on interpretations of definitions. It’ll be up to the judge to decide who is best presenting the best interpretation of the definition, which could be down to a single word. For instance, in this case, does “publication’ mean first use, or could the last date that the labels were printed also count as a publication, and thereby nullify the original statute of limitations. I agree, it does seem absurd to put the burden of finding an infringement within X amount of time on the creator of the original work.
Beate, the best thought here is that the suit should have been filed for far less then $15mil. At $15mil it is in the best interest of the Taster’s Choice™ folks to fight it tooth and nail.
I’ll bet Mr. Christoff would have been very happy with 2 or 3 million in his account…. today.
Doug, I could not agree with you more on this. It could be that the attorney took it on a contingency basis and therefore went for EVERYTHING. But that is speculation on my part.