Lost Profits Award For California Right Of Publicity Violation Requires Showing that Plaintiff's Identity or Persona Contributed to the Profits

Case: Christoff v. Nestle USA, Inc., (Cal. App. 4th Dist., No. B182880, 6/29/07)


The One Sentence Summary: In considering claims under California's statutory right of publicity, Civil Code section 3344, in a case involving Nestle's unauthorized use of plaintiff's photograph on its Taster's Choice labels and advertising, a jury verdict for plaintiff was reversed and remanded where the trial court should have applied the single publication rule, and plaintiff did not establish that defendant's profits were attributable to the taking of his identity and persona.



California 4th Appellate District Holdings:

• The Single Publication Rule ("SPR") applies to actions under California's statutory right of publicity, California Civil Code § 3344. The SPR, codified at Civil Code § 3425.3, provides: No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to any audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.
• The discovery rule (which only starts the statute of limitations running when plaintiff discovers the tort) is generally inapplicable to claims subject to the SPR, but equitable circumstances that would make it difficult for a reasonable person to discover the tort can allow the discovery rule to apply. Here, this factual record was not developed before the jury because the trial court incorrectly held the SPR did not apply.
• On remand, the trial court should consider whether there was a single publication, or multiple republications by using the plaintiff's photographs in different media. The questions will be whether different audiences were targeted and whether the original publication was altered.
• The right of publicity is a property right to commercial exploitation of one's likeness. Accordingly, the 2 year statute of limitation for torts to property rights applied.
• The court rejected Nestle's arguments that it did not "knowingly" use plaintiff's image, or that there was no liability under section 3344 because he was not a celebrity.
• On remand, plaintiff must show that a portion of Nestle's profits was due to use of his identity or persona. However, if he shows that, then Nestle would bear the burden of disentangling that factor from other factors that contributed to profits.