It was late 2005 when attorney Jonathan Polak received a phone call that ultimately launched an unprecedented legal strategy to force the evasive O.J. Simpson to start paying off his $33.5 million wrongful death civil judgment.
Polak, 38, who chairs the intellectual property practice group at Indianapolisbased law firm Sommer Barnard PC, was awaiting a flight at John F. Kennedy International Airport in New York City when the call came in from Karl Manders.
Manders, 55, owns Indianapolis-based Continental Express Inc., an investigative agency that specializes in intellectual property, and had worked with Polak on previous cases. The two make a formidable tandem despite their opposing appearances: Polak is clean-cut with near-model looks while Manders resembles a disheveled academic.
Upon hearing the plan Manders had hatched, Polak thought it was "brilliant," he recalled.
"The criminal court system failed to put [Simpson] in jail," Polak said, "so it is our responsibility to put him in a virtual jail cell and cut off his ability to fund his lifestyle."
Even so, the courts in California granted Polak's client, Fred Goldman, father of murdered Ron Goldman, just a partial victory. A Superior Court judge in February ordered that Simpson pay the Goldman family the royalties he earns from the television commercials and movies he made. How much can be squeezed from his appearances in "Top Gun" or "The Towering Inferno," for instance, is not yet known, Polak said.
But the intriguing legal maneuver concocted by Manders that has gained national publicity is on appeal. Another Superior Court judge in November denied the motion to grant Simpson's publicity rights to Goldman, and a decision from the California Court of Appeals is not expected until next year.
In the IP community, the opinions are mixed over whether Polak can prevail.
"I think going forward, it has a hard hill to climb," said Christopher Brown, a partner at Indianapolis-based law firm Woodard Emhardt Moriarty McNett & Henry LLP, which specializes in intellectual property.
But Mark Roesler, CEO of Indianapolisbased CMG Worldwide Inc., the world's largest celebrity licensing firm, offered a more optimistic assessment. It was Roesler's expert testimony during the civil trial that led to the decision to set damages at $33.5 million.
"That was my judgment that they're collecting, so I have a keen interest in it," he said. "I think it's only fair that the family be able to collect."
So far, the Goldman family has collected only about $500,000, but spent most of that on expenses and attorney's fees.
Right of publicity
Polak's argument in a nutshell is that Goldman should have control over Simpson's publicity rights to his likeness, name and persona to satisfy the multimilliondollar wrongful death judgment. Simpson was found liable for the killings of his exwife, Nicole Brown Simpson, and Goldman in a 1997 civil case.
The idea to pursue the tactic came to Manders, who has operated his IP enforcement and consulting firm for 18 years, while reading a magazine article detailing Simpson's failure to pay the money.
"The property that is valuable to him personally is his name and likeness. That's what's most important to O.J. Simpson, and he has it," Manders said. "To me, that seemed unjust."
He contacted Goldman, who weighed the proposal with his daughter Kim, before giving it the green light. In turn, Polak filed the motion in early September and announced the move in a brief news conference.
Under California law, the property of a debtor is subject to collection. That's not at all uncommon, but here's where it gets tricky. Polak is asserting that Simpson's right of publicity is property.
The judge agreed, in part, but maintained someone's right of publicity cannot be taken away while they're living, because it treads on their right of privacy. If approved, the result might be products marketed using Simpson's likeness, without his permission, in order to recoup the judgment, she said.
Polak said that is not the intention of the lawsuit, instead arguing they're more interested in wresting the money he makes from appearances and autograph signings. The judge was unmoved.
"Mr. Simpson has, in fact, exploited his fame by such ghoulish activities as appearing at a 'slasher' convention, which exhibited videos and other forms of communication glorifying acts of violence not dissimilar from those that caused the death of plaintiff's son," she wrote. "But to base transfer of the right of publicity ... raises substantial procedural-if not constitutional issues-involving due process rights."
Granting Goldman's request would open a can of worms, said Craig Pinkus, co-chairman of the intellectual property practice at the local Bose McKinney & Evans LLP firm.
What happens, Pinkus asked, if, for instance, Goldman wants to grant a license for something to which Simpson is opposed? And what makes the case even more unusual, he said, is that it doesn't involve a particular item, such as a song, video or work of graphic art.
"When you're dealing with right of publicity, this is something that changes every single day; it's not a package," Pinkus said. "Whatever [Simpson's] sins have been, you've got to assume that he has no entitlement to say anything about how his publicity rights are exploited."
Even so, why would Goldman want to obtain a right that's valuable only by sending Simpson out into the public? wondered Brown at Woodard Emhardt.
"It seems odd to me that Mr. Goldman would want to make hay out of Mr. Simpson's name," he said.
Yet Polak and Manders remain undaunted in their quest to bring justice to the Goldman family. Pending the outcome of the appeal, the two have filed a handful of separate motions in further attempts to extract money from Simpson.
The most interesting involves seizing the reported $1 million advance Simpson was paid for his much-publicized but aborted book, "If I Did It."
The project, in which Simpson was to explain how he might have committed the killings, was abandoned last year amid public outrage. The judge at the February hearing deferred ruling on the request to collect on the advance and is set to rule on the matter March 13.
While the project is dead, the motion includes an assurance that if the book were to be published, the Goldmans could intercept those funds. It's all in keeping with the effort to tighten the noose around Simpson.
Polak and Manders have received scores of e-mails applauding them for tackling the situation in such a creative way, Polak said. A fair amount of notoriety has followed, with appearances on "Nightline," "Nancy Grace" and "On the Record with Greta Van Susteren," among others.