Spaulding Roundup: Football News & Notes

Here is a more detailed recitation of the facts. (I omitted some footnotes and made some deletions (e.g., Nestle Canada is now Nestle.) Maybe Prince would not have the right to sell a UCLA jersey with his name on it, but he sure ought to have a say as to whether UCLA can sell a jersey with his name on it. Civil Code section 3344 is awfully clear on that. Prince ought to be able to come up with a T-shirt with his name on it and sell it. If there is nothing on it identifying it with UCLA, then he ought to be OK. We can all try to capitalize on whatever fame our names might generate.

I, too, would like to see what rights our guys sign away when the accept the free education involved in the offer of a scholarship. It may well be that they have signed away everything that can possibly be imagined.

Anyway, here are more facts from Christoff:

In 1986, Russell Christoff, who was then a professional model, posed gazing at a cup of coffee, as if he enjoyed the aroma. The photo shoot was arranged by Nestlé. Christoff was paid $250 for his time and received a contract governing the use of his image, which was signed by his agent and by Nestlé (Contract). The Contract provided that, if Nestlé used the picture on a label it was designing for a brick of coffee, Christoff would be paid $2,000 plus an agency commission. The Contract also provided that the price for any other use of Christoff’s image would require further negotiations. Without informing Christoff, or paying him according to the terms of the Contract, Nestlé used Christoff’s image on the coffee brick.

Eleven years later, in 1997, Nestlé decided to redesign its label for Taster’s Choice instant coffee. For three decades, the Taster’s Choice label prominently featured a "taster," that is a person peering into a cup of coffee. Amanda Steele, a Nestlé employee, explained that one goal of the redesign was to maintain the "taster" in order to retain continuity. Steele searched for high resolution artwork portraying the image of the original "taster," but was unable to locate any artwork that met the necessary specifications. Steele, however, found artwork portraying Christoff and it satisfied the requirements.

A decision was made to use Christoff’s image because of his "distinguished" look and because he could create continuity with the original "taster" to whom the parties refer as Taster No. 1. Steele believed that she had authority to use Christoff’s image because she knew it had been widely used in Canada. Steele never investigated the scope of the consent and never asked Christoff if he consented to the use of his image. Steele explained that "in talking to my colleague at Nestlé, I believed that we had usage rights for the photo. So, I didn’t think there was any need to [contact Christoff]." Christoff’s image was used in the redesigned Taster’s Choice label beginning in 1998. Only a portion of Christoff’s face is visible and the picture is cropped just above the eyebrows. The redesigned label was used on several different Taster’s Choice jars, including regular coffee, decaffeinated, and various flavors. Labels bearing Christoff’s image also were produced in different languages to be sold internationally. For the label to be placed on jars sold in Mexico, Christoff’s image was altered to add sideburns and darken his complexion. Jars of coffee bearing Christoff’s image were included in Nestlé ’s multiple advertising campaigns for Taster’s Choice, including transit ads, coupons in newspapers, magazine advertisements, and Internet advertisements.

On June 4, 2002, Christoff discovered the use of his picture when he was shopping at a Rite Aid store and happened to see a can of Taster’s Choice instant coffee.

In 2003, Nestlé again redesigned its label using another model, James Vaccaro, as the "taster." Vaccaro was paid $150,000 for the use of his image for 10 years. T he new label started circulating in May 2003, but jars of Taster’s Choice with Christoff’s image were still in Nestlé ’s inventory and could have been shipped to retailers.

PROCEDURAL BACKGROUND

In 2003, Christoff sued Nestlé, alleging causes of action for violation of section 3344, common law appropriation of likeness, quantum meruit (initially labeled "quasi-contract"), and unjust enrichment. The trial court denied Nestlé ’s motion for summary judgment based on the statute of limitations. The court applied a two-year statute of limitations under Code of Civil Procedure section 339. The court further concluded that the jury must determine whether Christoff knew or should have known Nestlé used his image prior to his discovery in June 2002. The trial court also denied Nestlé ’s motion for summary adjudication, in which it asserted that there was no evidence it knowingly used Christoff’s photograph without his consent.

At trial, Nestlé vigorously objected to the testimony of Christoff’s damage expert, Peter Sealy. Sealy’s testimony detailed his opinion that the icon on the Taster’s Choice label was responsible for 5 to 15 percent of Nestlé ’s profits from selling Taster’s Choice instant coffee. This testimony was the basis for Christoff’s argument that he was entitled to 10 percent of Nestlé ’s profits from the sale of Taster’s Choice instant coffee. Christoff’s accounting expert testified that, during the six-year period Nestlé used Christoff’s likeness, Nestlé ’s total profits from Taster’s Choice were $531,018,000 and, based on Sealy’s testimony, Christoff was entitled to $53,101,800.

Joseph Hunter, a former partner at Ford Models, a prominent modeling agency, also testified as an expert for Christoff. According to Hunter, a model generally charges a day rate for a photo shoot and a usage fee for different uses such as packaging, billboards and transit. He valued the use of Christoff’s photograph for a six-year period at $1,475,000. In addition to the six-year time period, Hunter assumed that the photo was used "in virtually all kinds of media that existed." He acknowledged that Vaccaro received $150,000 for the use of his image for a 10-year period but explained that $150,000 is a very low fee.

At the close of Christoff’s case, the court granted Nestlé ’s nonsuit motion on the issue of punitive damages. The court found no evidence of malice.

The jury concluded as follows: (1) Nestlé knowingly used Christoff’s photograph or likeness on the Taster’s Choice labels for commercial purposes without Christoff’s consent; (2) Prior to 2002, Christoff did not know and should not have known or reasonably suspected that his photograph was being used for commercial purposes; (3) Christoff suffered $330,000 in actual damages; (4) The profits attributable to the use of Christoff’s photograph or likeness were $15,305,850; (5) The damages for the common law appropriation claim were $330,000 and for the quantum meruit claim were $15,635,850. The trial court subsequently granted Christoff’s motion for attorney fees. Nestlé appealed from the judgment and the order awarding costs and attorney fees.

If you’ll notice, all NCAA cover boys are recently declared seniors headed for the draft. The reason for this is because they’re no longer amateurs, and EA can compensate them appropriately.