Judge: Mark H. Epstein, Case: 19SMCV01008, Date: 2023-09-07 Tentative Ruling

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Case Number: 19SMCV01008    Hearing Date: April 19, 2024    Dept: I

The court is setting forth some of its thoughts from yesterday’s hearing for the parties’ benefit.  Yesterday, the court held a 402 hearing as to plaintiff’s expert Jon Albert.  He is opining as to two methodologies to calculate the damages to which plaintiff believes he is entitled.  Albert described his work roughly as follows (this is more a thumbnail than a detailed recitation of the testimony).  He is like a broker in a way.  Usually an advertiser will approach him with an idea to use talent in an ad campaign.  Albert will find out the scope of what the advertiser seeks and will then contact the talent’s agent or manager.  If there is interest by the talent, then Albert will work to conclude the contract by which the talent will participate in the ad.  Albert testified that his work has been extensive over a long period of time, and the list of talent which whom Albert interacts is quite extensive and impressive.  However, in almost all cases, the talent is a celebrity of greater or lesser stature.  What the court understands that to mean is that the talent is recognizable either by the public as a whole or at least by niche segments of the public.  For example, Albert might work with the world champion Frisbee thrower for dogs (that was an example he gave during testimony).  Probably fair to say that such a person is not a household name, but perhaps among super-dedicated dog/Frisbee throwers, that person is known.  Sometimes the name will not be known, but the job title will be known.  Albert has worked with models, but the court’s sense is that generally those models are more super-models than regular models.  Albert has worked with models similar to plaintiff here, but the court believes that he testified it was rare and generally done only as a favor to an advertiser who is a major client.  That is important because one of the major aspects of what Albert does is deal with what are in essence celebrity endorsements—tacit or explicit.  In other words, it is the celebrity herself or himself and the notoriety surrounding the celebrity that is being bought, not just a picture of someone that is not recognized.  An extreme example might be Tom Selleck selling reverse mortgages to seniors or Beyonce selling Verizon’s services.  It is the celebrity’s notoriety or expertise that sells the product, not just a more generic picture.

One criticism defendant has raised is that Albert’s work is not really with people like plaintiff.  Without meaning any disrespect, the court has no evidence that Jaeschke has achieved celebrity status (or had at the relevant time) such that he was known by name or likeness as a particular individual.  Rather, he was a model—a good one and relatively higher end, but a model nonetheless and not a celebrity.  That leads to some disconnect between Albert’s actual practice and the case at hand.

Albert testified that the amount of money that a licensor would demand in a contract would depend on the scope and duration.  Scope is the type of product and the general places where the ad will be placed—narrow, broad, limited, product, and other parameters.  Duration is obvious—how long will the advertiser be allowed to use the image.  The broader the scope and the longer the duration, generally speaking the larger the fee.  Albert opined that if the contract is breached and the image is used for wider scope or longer duration, then the amount of the contract does not reflect the actual usage or agreement.  That much seems plain to the court. 

What the court needs to know specifically from plaintiff is what the precise methodology is that Albert used in “Albert I” and “Albert II.”  The court did not hear any methodology with any specific heft to it.  Rather, Albert seemed to opine that he would just know what a licensor would demand to agree to a contract so broad that it was essentially career-ending.  The court is far from convinced that Jaeschke’s career is over, but even beyond that, the court is at a loss to know what objective factors Albert used to arrive at the number to be used.  If the theory is nothing more than the broader the scope and duration the bigger the fee, that is one thing, but not particularly helpful to a jury.  If it is that a career-ending contract would command a much larger fee, there is a problem as to whether this was career-ending, but beyond that, it seems right but not particularly helpful.  If it is different from that (and the court believes it is), plaintiff needs to articulate exactly what the methodology is to which Albert will opine.  The court is also troubled that Albert testified that it was highly improbably that the Albert II methodology would actually be used by anyone.

There are other issues, but the court will not go into them in this piece.  One last item.  Although not relevant to the 402 hearing, the court found Albert to be quite candid in his testimony—indeed, refreshingly so.  Of course, credibility and candor is for the jury, not the court, which is why it is not relevant to the 402 hearing.  But the court did want to note that this was the court’s takeaway.