THE COUNSELOR’S CORNER:Determining the correct face value

This is a strange one. If your face or likeness was on a box of cereal and it was therefore used by the cereal company to sell its product, don’t you think that either you or one of your friends would notice this and point it out to you? Especially if it is a major brand cereal?

This is the story of Russell Christoff, who unbeknownst to him became the face of Taster’s Choice Instant Coffee in 1998. Back in 1986 when he was modeling, Christoff posed for pictures that showed him looking longingly at a cup of coffee. He entered into an agreement with Nestlé so that they could use the photos for some coffee to be sold in Canada only. That was the extent of the agreement.

Fast forward to 1998, and Nestlé decides to “change the face” if you will of Taster’s Choice Instant Coffee, taking off the present visage and putting on a new one. While looking for the appropriate face of the future, a Nestlé employee found Christoff’s photos in the archives, and the company decided to use one of them.

The problem here is that no one told Christoff. Now we flash forward to June 2002, and Christoff is minding his own business shopping at a Rite Aid in San Francisco and he happens to walk past the section where they sell coffee, and what does he see — his face. He then learns that they have been using his face for the last six years to sell their coffee in this country.

Upon further investigation, Christoff learns that his face is being used to sell coffee in Mexico as well, but there they have taken his photo and darkened his complexion and added sideburns to give him a more swarthy look.

All of this of course led to a lawsuit, and Christoff was awarded $15 million by a jury in early 2005.

Unfortunately for Christoff, the Second District Court of Appeal wiped away the award in June of this year, ruling that team Christoff did not introduce sufficient evidence to prove that his face led to $15 million in additional profits for Nestlé.

The justice writing the opinion for the Court of Appeal is Candace Cooper, one of my all-time favorite bench officers. Cooper acknowledged that Christoff’s image may have helped Nestlé sell more coffee, however “ … in order to recover profits on this basis, Christoff must present such evidence.” Sounds fair to me.

The appellate court ruled that one of the factors that the next jury to hear this case must consider is whether Christoff should have noticed his mug on the Taster’s Choice jars within the two-year statute of limitations, which brings me back to my first point.

I remember a number of years ago writing in to the old Ken and Bob show, which was a morning radio show on KABC-AM starring Ken Minyan and the late Bob Arthur. They had done a story on whether a gentleman who was driving a hearse with a dead body in it qualified for use of the carpool lane. They treated the subject in an amusing way, and I did a little research and sent them a letter giving them my whimsical take on the subject.

About a week after I sent the letter, I got several telephone calls from friends who told me that at 5:35 a.m. on a given morning, Ken and Bob read my letter on the air and joked about it. Now, at 5:35 in the morning I am generally fast asleep, so there is no way I would have heard it. However, I guess I am fortunate enough to have friends who are up at that hour to hear it and call me and tell me what I missed.

Which brings me back to Christoff. His was the face of Taster’s Choice Instant Coffee for six years before he sees it at a Rite Aid? And where the heck were his friends, co-workers, family members, or anyone else who might have known him for these six years, and why did no one give him a call one day and say something along the lines of, “Hey Russell, is that you on the Taster’s Choice coffee jars?”

In 2003, Nestlé decided to replace Christoff’s picture with that of model James Vaccaro, who was paid $15,000 a year for 10 years for the use of his face on the coffee. And of course, that is what Nestlé should have done with Christoff at the beginning: They should have contacted him and negotiated with him to see whether they could reach a dollar figure that all would be happy with so they could use Christoff to further the advertisement of their product and Christoff could make some money for the use of his visage.

So, it’s back to the drawing board as Christoff does not get the $15 million, but he does get to try again. I would hope that this case settles before it goes to trial a second time. The reality is, Nestlé did the wrong thing by using his face without compensating him, but $15 million does seem a little bit steep unless team Christoff can prove that he was responsible for that amount of additional profit for Nestlé.