Did exorbitant cash for likeness damages claim cost plaintiff his attorney’s fees?
If you happened to see advertisements for Versace, Ralph Lauren or Calvin Klein in GQ and Elle back in the 1990s, you might recognize Jason Olive, a model who graced print ads in these and other magazines. Olive commanded big fees at the height of his original career — reportedly $25,000 per day for certain modeling jobs.
But he has since moved on to a somewhat successful acting career, including stints on several TV shows, most notably Tyler Perry’s For Better or Worse.
As his acting prospects grew, his modeling rates began to decline. One of his latest modeling gigs was a 2010 shoot for vitamin manufacturer and retailer GNC’s “Live Well” campaign, for which he received roughly $12,000; the fees included an initial one-year contract with a one-time right of renewal for GNC, and further rights to use his likeness on trucks and other vehicles.
But when the campaign launched in 2011, Olive was shocked at its scope; he claimed that the shoot was “a very small job” for a small fee. When GNC didn’t renew the contract for the initial shoot, he had a representative email GNC and forbid further use of his image.
Through a series of snafus at the GNC office, the expiration of Olive’s model release (and the releases of other models hired for the same campaign) was not noticed, meaning that his images were used after the established release agreements expired. When the error was discovered, GNC negotiated settlements with every other model involved in the original shoot except Olive.
Olive held out, but GNC’s final offer of $150,000 wasn’t enough for him; he sued GNC for common law misappropriation of likeness and statutory misappropriation of likeness.
Olive also sought restitution for unjust enrichment based on GNC’s profits derived from the use of his picture. The case went to trial — a relative rarity — and the jury sided with Olive, granting him $1.1 million, consisting of $213,000 in damages and $910,000 in emotional distress. The trial court ruled against Olive’s unjust enrichment claims.
And then the trial court made an interesting decision. Both parties had moved for attorney’s fees, but the court ruled that there was no prevailing party to award them to.
As the California Appeals Court wrote in its opinion affirming the trial court’s decision, “The trial court noted that both parties were visibly disappointed after the jury rendered its verdict. It found there was no prevailing party because ‘the jury accepted neither side’s recommendation but instead awarded a middling sum amounting to a tie.’”
The disappointment on Olive’s side certainly had something to do with how far short the jury award fell from his original demand — somewhere in the neighborhood of $20 million (the opinion mentions several figures; for a full breakdown of the events and an explanation of the damages request estimate, read Eric Goldman’s excellent summary here). GNC, on the other hand, probably felt it was overpaying given its previous settlement offer and expenses incurred by tearing down Olive’s image from all those trucks and vehicles.
While we have no real insight into what led to the jury’s damages and emotional distress awards, we do know that the appeals court agreed with the trial court on attorney’s fees, which must have been substantial in Olive’s case. His large initial demand meant that the final $1.1 million award wasn’t impressive enough to name him the winner.
“Given that the mixed results in this case did not amount to a lopsided verdict in Olive’s favor,” the appeals court wrote, “the trial court did not abuse its discretion in determining that neither party prevailed for purposes of awarding attorney fees.”
So, Olive won $1.1 million, but how much did he lose?