No, that photograph isn't of Mr Head. It is instead of Russell Christoff, who modelled for some generic photos about twenty years ago. Nestlè didn't specifically clear the use of his image on the product itself with Mr Christoff. Mr Christoff, being a whole-bean-coffee drinker himself, says he didn't notice the label until 2002. He rejected Nestlè's lowball offer of compensation for use of his image (I'm almost surprised it was that high).
The jury must really have liked Mr Christoff, and believed that he didn't pay attention to an instant-coffee label for two decades, because it awarded him $15.8 milliontwice his final settlement proposal to Nestlè. What this really points out is two things:
- Even big corporations that should know better are often careless about permissions, whether copyright permission or for other rights (such as the right of publicity). Nestlè's counsel was remiss in not clearing the image.
- Sometimes results that at first glance seem odd actually make a great deal of economic sense. The problem here isn't that Nestlè used Mr Christoff's image; it's that the image appears on the label itself, not just in advertising, and is thus part of the common-law mark for Taster's Choice. Admittedly, Mr Christoff's payday (should it survive motions for remittitur and appellate review) is going to be substantially higher than even compounded interest for proper sitting fee in the mid-1980s would have gotten for him… but not much, if any, above the presumptive single-digit-multiplier "limit" on punitive damages.
I expect that the award will be cut to not more than Mr Christoff's final pretrial settlement offer by the judge, and probably substantially less. Were I the judge relying only on what has appeared in public, I would probably take the midrange sitting fee (around $200,000, according to a couple of pro photographers I know), apply compound interestconservatively and rounding off, $700,000and reduce the jury's award to not more than five times that amount and work from there. Instead, it appears that the jury assessed Nestlè 5% of its revenues from the product. Although that is not an unreasonable approach in general, keep in mind that Mr Christoff's contribution is fungible: Nestleè chose his picture, presumably because it was the best one in the mind of the label designer, but could have used another.