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“Fiji Water Girl” and Contract Formation

If you watched the recent Golden Globe Awards (or saw photos after the fact), you probably saw the “Fiji Water Girl.” As an advertising promotion, Fiji Water Company, LLC, the company that bottles and sells Fiji Water, hired a model named Kelly Steinbach to stand near and behind various Hollywood celebrities on the red carpet holding a tray containing several bottles of Fiji water. A couple of the stars actually took a bottle from the tray and took a drink or two. The marketing gimmick was spectacularly successful leading to a flood of social media interest and discussion. Ms. Steinbach gained nearly instantaneous notoriety. Interestingly enough, Ms. Steinbach was hired by a modeling staffing agency, not by Fiji directly. Her instant rise to fame was a surprise to her, to the staffing agency, and to Fiji.

In an effort to further capitalize on the success of the marketing campaign, Fiji Water Company brought Ms. Steinbach into their offices and allegedly negotiated an agreement with her whereby she allowed them to use her image on near-life-sized cardboard cutouts. During her visit to the company headquarters, an elaborate signing ceremony was filmed. A video shows Ms. Steinbach at a table smiling and signing documents while Fiji upper management and advertising executives smile in the background. A day or two later, the cardboard cutouts began appearing in shops and grocery stores across San Diego, California, and in other parts of the country. The cutouts and other images of Ms. Steinbach were also used on Fiji Water’s Twitter, Facebook and other social media accounts. The cutout marketing campaign has been wildly successful.

So far, this sounds like a wonderful example of instant success in Hollywood and also of the correct legal procedures. Here in San Diego and throughout California, a person must agree to allow their image and likeness to be used in advertising. See Cal. Civ. Code, §3344. That provision provides that:

“Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising … without such person’s prior consent … shall be liable for any damages …”

However, appearances may be deceiving. Ms. Steinbach recently filed a lawsuit in Los Angeles County in which she claims that she never signed any contract or agreement allowing Fiji to use her image for the cardboard cutout marketing campaign. She claims that the signing ceremony on January 9, 2019 was staged. Nothing had been agreed to on that date and no contractual agreement has been reached since then. See news report here. It is important to note the Fiji Water Company claims that the lawsuit is frivolous.

That being said, there are a few lessons that are immediately apparent. First, make sure you have your contracts finalized and signed before proceeding to execute. An experienced San Diego corporate attorney is essential. Second, if time is so important and crucial — and sometimes it is as in the case of advertising — then be prepared to litigate and be prepared to pay the cost if you lose. Ms. Steinbach is suing for over $12 million in damages under Civil Code §3344. If she prevails and wins that amount, she will recover vastly more than she would have received under any reasonable modeling, endorsement, or use-of-likeness contract.

From the vantage of Ms. Steinbach, we can see another lesson. If you think your contract and legal rights have been violated, begin litigating immediately. Do not linger and wait because sometimes that can be seen as evidence of agreement. As an example, maybe there were oral discussion between Fiji Water and Ms. Steinbach. Maybe Fiji misunderstood and thought she had agreed; but Ms. Steinbach thought no agreement was reached and everyone was just “brainstorming.” If Ms. Steinbach did not sue immediately, a court or jury might be able to find that she agreed via conduct or that she accepted the benefits of a contract or that by her conduct and silence, she ratified an oral contract after-the-fact. This is made more likely by the video of her engaged in a signing ceremony. Maybe the ceremony was staged, but that along with silence and non-action might be enough to bind her to contract made via conduct. Her immediate lawsuit may foreclose any argument that she agreed or ratified by virtue of her conduct.

It will be interesting to see how the case proceeds. Likely, the parties will come to agreement and the case will be settled.

Contact San Diego Corporate Law

For more information, contact attorney Michael Leonard, Esq., of San Diego Corporate Law. Mr. Leonard focuses his practice on business law, transactional, and corporate matters, and he proudly provides legal services to business owners in San Diego and the surrounding communities. Mr. Leonard can be reached at (858) 483-9200 or via email.

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