This was published 8 years ago
Warwick Capper in legal stoush with fast-food franchise Nando's
By Jon Pierik
Former AFL star Warwick Capper is in dispute with a leading fast-food chicken franchise, claiming his image has been used without consent.
Capper, the one-time high-flying Sydney Swan and Brisbane Bear, is seeking almost $300,000 in a spat with Nando's Australia.
Fairfax Media can reveal Capper has engaged law firm Browne and Co and sought advice from the AFL Players Association.
In a chain of letters between Capper, his manager Matthew Gray and Nando's, Capper is seeking recompense for a four-week advertising campaign in July last year when he his name was mentioned in a radio campaign and plastered on the side of buses without his knowledge. The campaign was run by Banjo Advertising.
Former AFL player Warwick Capper with both a mullet and DIY bleach. Credit: Tony Nolan
An angry Capper has sought $289,300 in damages but last July Nando's offered $10,000 but "without admission of liability".
In a letter to Gray, Nando's marketing director Helen Reece said: "We calculate that the value of the usage of his name only in a single execution should be no more than $5000. Having said that, without admission of liability, we appreciate that Mr Capper's permission was not sought for the usage of his name in the outdoor execution and, therefore, in good faith and with an apology to Mr Capper, we are willing to offer an additional payment of $5000 for this."
In a detailed response, Gray said: "Nando's forfeited the right to negotiate the fee to use Mr Capper's image with Warwick Capper Pty Ltd when Nando's chose not to seek permission from Warwick Capper Pty Ltd for use of Mr Capper's image.
"Warwick Capper Pty Ltd and Warwick Capper Pty Ltd's image rights management partner Image Sportivo Internationale, along with both parties' legal representatives, as well as the AFL Players' Association and its legal representatives, continue to wish to have the matter settled as soon as possible."
In a statement on Monday, Nando's said: "Last year Nando's celebrated its 25th birthday in Australia with an advertising campaign highlighting key moments from the 1990s. As part of this campaign we produced a series of outdoor ads, including one that referenced Mr Capper specifically, saying: "25 years ago Warwick Capper had the shortest shorts in footy and Nando's hatched down under".
"We, unfortunately, didn't get Mr Capper's approval to use his name in this ad. As soon as this oversight was brought to our attention we apologised and took action to remove the advertising from the market. Based on the work we have done previously with Mr Capper, we also offered what we believe is fair and reasonable payment for referencing him in these ads.
"Nando's agrees that Mr Capper should be paid, however, we disagree with the level of payment that has been requested. Our offer to Mr Capper is still open and payment will be immediate upon receipt of an invoice from him."
In a letter to Capper, Banjo executive Andrew Griffiths conceded Capper's rights "may have" been infringed in the bus-side advertising in "163 locations nationally" but denied this had been the case in the radio advertising.
"In relation to the radio, Warwick's name was not used in isolation, but rather in connection to other famous names, characters, TV shows, and events from 25 years ago. The reference to him is brief and there is no sole or undue focus on him in the radio ad and nothing to suggest he is associated with Nando's in any way," Griffiths said.
"Nando's therefore do not consider this an infringement of his rights, in their view. That said, without admission of liability but out of respect to your client's concerns the radio was discontinued on Wednesday, 15th July."
Banjo's also agreed to hand over its media plan for assessment. Capper responded with an invoice for $289,300. He will deliver a letter of demand this week.
Capper believes the case has strong similarities to the out-of-court settlement basketball great Michael Jordan had last year from two supermarket companies for alleged unauthorised use of his name in advertising. Jordan pocketed about $9 million.
Capper had been the face of a Nando's campaign in 2009 but that was contracted through another advertising agency.