Single-Publication Rule Applies to Publicity Claim

In a limited victory for publishers, the California Supreme Court ruled on Aug. 17 that the state's single-publication rule applies to the tort of appropriation of likeness. Christoff v. Nestl' USA, Inc., S155242. The ruling came in the case of a model who said Nestle USA used his face ' without his knowledge ' to sell Taster's Choice instant coffee for years.

The model had won $15.6 million at trial, but the supreme court sent the case back to determine whether his claim is barred by the statute of limitations. “We decline to resolve this important issue without the benefit of a sufficient factual record that reveals the manner in which the labels were produced and distributed, including when production of the labels began and ceased,” ruled Justice Carlos Moreno, writing for the unanimous court.

A Face in the Crowd

Searching for a high-resolution image for its new Taster's Choice coffee label in 1997, a Nestle USA employee chose the “distinguished” face of Russell Christoff, whom Nestle Canada had paid $250 for a two-hour photo shoot 11 years earlier. In addition to the label, Christoff's picture also was used in transit ads, magazine and Internet advertisements, and coupons in newspapers. In some markets Christoff's faced was “youthened” ' made to appear younger ' and in others the image was altered to darken his complexion and add sideburns. It wasn't until 2002 that Christoff discovered his face on a jar of Taster's Choice. He sued Glendale, CA- based Nestle USA in 2003.

At trial Nestle invoked California's single-publication rule, arguing that the statute of limitations began running the first time it published Christoff's likeness without his consent ' and not with each successive publication. But Los Angeles County Superior Court Judge Charles Stoll ruled that the single-publication rule applied only to claims like defamation. A jury subsequently awarded more than $15.6 million in 2005. But L.A.'s Second District Court of Appeal disagreed with Stoll and threw out the judgment.

Guidance for Publishers

The California Supreme Court's ruling “will clarify something that has been uncertain” in publishers' use of images, particularly in new media, says Jedediah Wakefield, a Fenwick & West partner who specializes in intellectual property litigation. In an environment where images are used in media that is constantly updated, a plaintiff could argue that each iteration of an image is a new publication. “For publishers of electronic materials, this is a good result that will serve to limit the exposure from right of publicity lawsuits,” Wakefield says.

The state supreme court also ruled that the statute of limitations is triggered when an image “is distributed widely to the public,” even if the subject doesn't find out until later.

Nestle claimed victory in a statement, saying it was “pleased with the court's decision ' affirming the Court of Appeals' ruling that the single-publication rule applies to Mr. Christoff's claims and that Mr. Christoff is not entitled to a windfall of nearly 50 times his actual damages.”

But the court did hold out some hope for Christoff, saying more fact finding was needed to determine how recently Nestle published his image. In a concurring opinion, Justice Kathryn Mickle Werdegar suggested that the statute of limitations could have restarted whenever Nestle made a “conscious, deliberate choice to continue, renew or expand the use of labels” bearing Christoff's image.

Christoff's attorney, Colin Claxon of San Rafael, says his client is committed to retrying the case. “Anybody whose face or voice is important to their career, is now at risk,” Claxon says. “We cannot allow that to stand.”

The case attracted attention from Hollywood and media organizations. “For publishers, this case will help them have some degree of certainty about whether a plaintiff has a claim and for what length,” says Kelli Sager, an attorney with Davis Wright Tremaine who represents several major news organizations.