Nescafe model awarded millions for two-hour photo shoot

My wife pointed this out to me yesterday. Apparently former model Russell Christoff did a two-hour photo shoot for Nestle USA in 1986. Nestle doesn’t tell him that it used his image on the Taster’s Choice coffee jars. Then sixteen years later, in 2002, Mr. Christoff sees the jar for the first time. He sues Nestle and is awarded US$15.6 million dollars. Wow, that is some hourly rate!

Apparently he stumbled across his likeness on a coffee jar while shopping at a drug store a couple of years back. The reason for the delay in noticing his image was: “I don’t buy Taster’s Choice, I do beans”.

Come on, I “do beans” too, yet I instantly recognized the unique shape of the Taster’s Choice jar. Even his mug on the Nestle jar looks familiar. Perhaps it is because I go to grocery stores and even walk down the coffee aisle (I pickup my coffee filters there). Maybe it was from print ads or even television ads. It also makes you wonder why the guy’s family or friends never came up to him and said “Hey Russel, I saw your face on the Taster’s Choice jars”.

At any rate, in Canada I can see Mr. Christoff having a somewhat harder time with his case. One reason for this is that the law regarding misappropriation of personality is still being developed and therefore somewhat uncertain. Currently the right of an individual to control the use of his or her persona, and to commercially exploit their personality, is protected by a combination of Privacy statutes and common law decisions.

To be successful, the plaintiff should probably establish that the defendant intentionally appropriated his or her persona for gain. The plaintiff should also try to proof that his or her image is sufficiently known to the public and that the public can identify the plaintiff as a celebrity (probably hard to do for Mr. Christoff, Tim Horton on the other hand…).

Even if successful, the measure of damages for a wrongful appropriation of personality is a lost user fee, that is, the amount that the plaintiff would have received had his permission been given. In one case, the damages awarded were a mere $500 (and that is Canadian dollars).

Some relevant Canadian cases includes: Athans v. Canadian Adventure Camps Ltd. (1977), 17 O.R. (2d) 425 (Ont. H.C.), Joseph v. Daniels (1986), 4 B.C.L.R. (2d) 239 (B.C. S.C.), and Dubrulle v. Dubrulle French Culinary School Ltd. (2000), 8 C.P.R. (4th) 180).

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