Mark took those pictures with his own camera. They’re his intellectual property. A week after the White House event, Mark applied to trademark the phrase “subway hero” and “subway angel American hero,” then registered the same phrases as book and movie properties with the Writers Guild. But those trademarks and titles aren’t registered in Wesley’s name. They’re in Mark’s.
The contract Wesley signed that morning in Washington wasn’t a management contract or a retainer. It was a partnership agreement, entitling Wesley to just 50 percent of “any revenues from any and all commercial exploitation” of his “name, personality, story and reputation” in the next three years. The other half would go to any potential producing partners, including Diane Kleiman and Mark Anthony Esposito.
On February 19, I had lunch with Mark and Diane at Odeon to try again for access to Wesley. (I’d covered the Black History Month event with a press pass from the White House.) Mark began the lunch by sharing more of his personal history (“I saw Jimi Hendrix have sex!” he said—twice), but he spent most of the meeting detailing the ways he had dreamed up to make money off the Subway Superman. He said he came up with the idea of dressing Wesley in a Navy uniform so that Bush would gravitate toward Wesley at the Black History event. He said he made sure that the family kept their backs to the media so that he had exclusive pictures. He also said that he and Diane believed that as a black celebrity, Wesley could keep his name out there all through 2008 by dangling the prospect of his endorsement in the presidential race. Mark’s plan: Come out for Hillary now, then switch to Obama next year, citing racial loyalty. Then Mark and Diane hinted that Wesley was concealing a secret about his personal life that would make his story even more marketable. They wouldn’t reveal what it was, they said, until the right offer came along.
A few weeks later, on March 1, at yet another meeting to wrestle over access, Mark suddenly seemed to imply that access was no longer a problem. I was free to talk to Wesley anytime, he said. He spoke as if he and Diane had never been an obstacle.
What I came to find out a few days later was that Mark and Diane had been fired earlier that week. Wesley and Linda had come to believe that Mark and Diane weren’t acting in Wesley’s best interests, and that the 50 percent share they had staked out for themselves was unreasonable.
But Mark didn’t seem to care about being let go. He had his trademarks, and he and Diane had their contract. “Wesley could be living or dead now, it doesn’t matter,” Mark told me. “He is an intellectual property now, and we are protecting our interests.”
On March 22, Wesley filed court papers against Esposito and Kleiman, accusing the pair of embarking on an “unconscionable scheme” that began at their first meeting. The lawsuit alleges that when Wesley met her at the Waldorf, Diane had said she wouldn’t charge for her legal services; that she falsely said she was an entertainment lawyer; that the duo promised nothing would be done without Wesley’s input; that they sprung the contract on him in Washington and took advantage of him. The suit also argues that Diane signed the contract a day before everyone else, giving Wesley the impression that she had reviewed it to make sure his best interests were represented—and that Diane misrepresented herself as Wesley’s attorney when in fact she was signing on as his business partner. He also claims that Diane never mentioned a section of the contract that makes Wesley pay for Diane’s legal expenses in any arbitration.
Finally, the lawsuit claims Diane and Mark were never working in Wesley’s best interests, citing two examples: that Diane tried to get a public elementary school to pay for an appearance by Wesley, and that Mark and Diane tried to get this magazine to pay for their airfare to Washington.
The day the lawsuit was filed, I called Diane. She was furious. She’d been taking calls from reporters all day. “His argument is, ‘I’m an uneducated black man who didn’t read the contract so the contract shouldn’t apply to me because my attorneys are smarter than I am’?” she asked. “I don’t need this shit in my life right now.” She insisted Linda was the one who wanted to charge the elementary school. “She told me, ‘Wesley don’t do nothing for free.’” (Linda denies this.) Diane also denies that she had a conflict of interest—she says it was clear she was his business partner, not Wesley’s lawyer. She also revealed that she was no longer on speaking terms with Mark. Now both Mark and Diane say they’re considering filing countersuits.