Famous Last Words: The 100% Envelope
Many years ago, I got a request from a lawyer to be an expert witness on behalf of a major publisher of books and magazines that was facing a nasty lawsuit.
A test mailing went out for a diet book, and the art director came up with a revolting photograph—a montage of four self-portraits of a stark-naked elderly man in various stages of weight loss, from gross fat and disgusting to simply disgusting. The photographer-model was paid a royalty.
The fact that I was grossed out mattered not. The mailing became a control and the publisher mailed millions—and was about to rake in millions when the photographer-model surfaced and claimed the publisher had not paid him royalties for the rollout.
It was inadvertent, said the publisher. That did not stop the guy from suing the publisher for theft of copyright. He wanted all the money spent on the mailings, all the revenue generated from the mailing (including list-rental income), all revenues from book sales and a fat penalty to boot.
Add up all the square inches of type and design in the mailing, and this photograph took up maybe 1⁄70 of the space. But the guy wanted the moon. The lawyers came to me as a supposed guru in the world of junk mail. (It was Peter Drucker who said that people called him a “guru” because they could not spell “charlatan.”) The lawyers’ challenge to me: assign a percentage of importance to each element of this direct mail package—outside envelope, letter, circular/brochure, order device, lift pieces and BRE. It was their theory that I would assign maybe 20 percent of the importance to the brochure. Since this guy’s naked photos took up 1⁄20 or 5 percent of the brochure, they could offer to pay him 5 percent of 20 percent or 1 percent of the cost of the mailing as the penalty plus the royalties due.