CA Supreme Court Considers Publicity Publication Rule

Former male model Russell Christoff didn't think much of it when a woman standing in line with him at a Home Depot store in May 2002 told him he looked just like the guy on her coffee jar. But two months later, Christoff was startled when he, indeed, saw his picture on a jar of Taster's Choice in a Rite-Aid store. The photo had been taken at a photo shoot in Canada 16 years earlier and Christoff had all but forgotten about it.

Christoff's lawyer, Colin Claxon of San Rafael, recently went before the California Supreme Court to argue that Nestle USA Inc., the maker of Taster's Choice, owes his client millions of dollars in damages for using Christoff's image without the plaintiff's consent. Christoff v. Nestle USA Inc., S155242.

A Los Angeles County jury in 2005 awarded Christoff, who was then a teacher, more than $15.6 million. But L.A.'s Second District Court of Appeal tossed the award in 2007 after finding that Christoff's suit was governed by the state's single-publication rule, which limits damages to one cause of action even if the offending statement or photo was published hundreds or thousands of times. Christoff v. Nestle USA Inc. , 152 Cal.App.4th 1439 (Cal. App. 2d Dist . 2007).

Use of Images on Labels

The case raises questions about the interplay of the single-publication rule codified in Calif. Civil Code '3425.3 and the right of publicity set out in Calif. Civil Code '3344. At issue is whether the right of publicity, which involves misappropriation of likenesses ' usually of actors, models, athletes and other public figures ' comes under the umbrella of the single-publication rule, which has normally been applied toward libelous comments in newspapers, magazines and books.

In other words, are labels on commercial products, which can be seen worldwide, synonymous to the pages of print publications, which can linger in public sight for days or years?

The case has generated intense interest in Hollywood and media circles. Nestle is backed in amici curiae briefs by several major news organizations and the Motion Picture Association of America, which are seeking strong reaffirmation of the single-publication rule, while Christoff has the support of the Screen Actors Guild (SAG) and the American Federation of Television and Radio Artists.

SAG contends that the appeals court ruling deprives its members of protections for their names, reputations and likenesses. “The end result,” SAG lawyer Danielle Van Lier wrote, “is to unjustly enrich those who would tread on ' and profit from ' the rights of others while impinging, in some cases severely, upon the innocent victim's career and financial interests.”

Christoff sued Glendale-based Nestle in 2003, claiming that he had never given permission for the pictures from his two-hour, 1986 photo shoot to be used outside Canada. But he argued that, in 1997, Nestle USA obtained his photo from Nestle Canada and featured it on Taster's Choice labels ' as well as in newspaper coupons and ads on buses, in magazines and on the Internet ' that were distributed in 22 countries around the globe.

Some of the labels, Christoff noted, were modified to reflect local culture, such as darkening his hair and lengthening sideburns for sale in Mexico. Under the right of publicity, he contended, Nestle owed him millions of dollars in damages for making more than $500 million in sales off jars bearing his unapproved photo.

Nestle USA defended its actions by saying it mistakenly believed the company had authority to use Christoff's image and also insisted that Christoff had missed the statute of limitations, which it said began running with the first publication.

L.A. County Superior Court Judge Charles Stoll, who has since passed away, denied Nestle's summary judgment motion, though, and in February 2005 jurors awarded Christoff more than $15.6 million in damages and about $580,000 in attorney fees.

In reversing, the Second District held that when the state Legislature enacted the right of publicity it understood it was a form of invasion of privacy, which is governed by the single-publication rule (SPR). “Just as in a defamation case,” now-retired Justice Candace Cooper wrote, “the litigation would have become unwieldy and potentially endless with every coffee can, print, television and electronic advertisement generating a separate cause of action. ' This is exactly the scenario the SPR was designed to avoid.”

In briefs filed with the California Supreme Court, Christoff's lawyer argued that the appellate court failed to recognize that a right of privacy isn't the same as a right of publicity. “Nestle used Christoff's photograph on its label, on millions of jars, in ads, for years ' after first printing it on a label,” Claxon wrote. “These two acts are not one and the same. It is one thing to publish a book or magazine or even to print a label and quite another to appropriate a person's image, place it on a label and then use it to sell coffee.”

In addition, he said, the damages suffered by someone such as Christoff “continue to accrue so long as a defendant uses the image without authorization.”

Nestle, represented by John Taylor Jr., a partner with Encino, CA's Horvitz & Levy, argued in court papers that Christoff can't point to a single case to support him. “Since a publication is also necessarily a 'use,'” Taylor wrote, “the distinction urged by Christoff does not change the fact that a publication is subject to the single-publication rule regardless of what other label is applied.”

Taylor also said that if Christoff had asserted his right of publicity claim in a timely manner, Nestle could have replaced his image immediately at a cost of about $150,000. “Instead, Taylor added, “because of Christoff's delay in asserting his rights, Nestle unwittingly continued to use his image without authorization, for which Christoff belatedly asserted a right to recover more than $60 million in Taster's Choice profits.”