In 1993, I was hired to consult with a law firm whose client was a major health magazine that got itself entangled in a nasty lawsuit.
The backstory briefly: In a direct mail test circular, the magazine had purchased the rights to a series of four photographs of a man showing off his muscled body. These appeared as tiny illustrations deep in the middle of the brochure. The test was a success. The mailing was reprinted and mailed in the millions.
Through dumb, careless oversight the magazine—a paragon of integrity—failed to renew the rights and pay the guy for using his picture in the rollout. He sued for theft of copyright.
The publisher immediately admitted the error and wrote a letter explaining it was inadvertent. He apologized profusely and sent a check. Not good enough. The aggrieved strongman’s lawyers wanted compensation equal to all the money paid to send out the mailing (including creative and postage), all subscription revenue the mailing generated and all advertising revenue for the coming five years.
As founder and publisher of the WHO’S MAILING WHAT! Newsletter and archive, and one of the country’s leading experts in junk mail, I was hired to determine what percent of the success of this direct mail package could be attributed to the guy’s little pictures deep in the middle of the brochure. To do that, I had to first analyze the part each element played in the success of the mailing:
And then what percent of the response could be attributed to this series of little pictures of the muscle man. This was the amount the publisher would offer to pay.
Let me say at the outset, the case was settled out of court and I never had to testify. But I performed the analysis.
Denny Hatch is the author of six books on marketing and four novels, and is a direct marketing writer, designer and consultant. His latest book is “Write Everything Right!” Visit him at dennyhatch.com.