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Rights of Publicity – Wake Up and Smell the Coffee!

Did you ever have the experience of someone walking up to you and telling you that you look just like someone . . ? Most of us at one point or another have had that experience. Well, Russell Christoff was in a store in 2002, when someone came up to him and said he thought he looked just like an image he had seen on a jar of coffee. Perhaps he laughed at that moment, but about a month later, when Mr. Christoff actually saw the jar of Taster’s Choice instant coffee on a shelf – with his recognizable image on the label – he bought the jar of coffee, stopped laughing, and called his agent.

It seems Mr. Christoff, a former model, had posed for a photo shoot for Nestlé (owner of the Taster’s Choice brand) back in 1986 and was paid $250, with the understanding that if the company used his likeness in marketing, he would receive $2,000 in compensation. Thus begins the tale and trail of a legal battle that continues to this day. Mr. Christoff filed suit in 2003 alleging violation by Nestlé of his right of publicity. (California Civil Code § 3344 bars, among other things, unauthorized use of a person’s image for commercial purposes.) The statute allows for damages, punitive damages, the award of attorneys’ fees AND (unlike many other state statutes protecting rights of publicity), profits attributable to the unauthorized use.

As the action unfolded, Mr. Christoff discovered Nestlé’s had begun using his image in 1986. Not only had he never been paid the $2,000, but there was more as well. Much more. It appears that from 1997 to 2003, Nestlé had also used his image on eight different varieties of Taster’s Choice brand labels in 18 different countries, including in Israel, Japan, Kuwait, Mexico, South Korea and the United States. At the trial, a jury concluded that Mr. Christoff should have been paid $330,000 for the use of his likeness and was entitled to damages of more than $15 million! California’s right of publicity statute, as it relates to proof of a defendant’s profits, states that the plaintiff needs to “present proof only of the gross revenue attributable to such use,” (emphasis supplied) while the defendant must prove “deductible expenses.”

In this case, even though the jury determined that only 5 percent of the sales of Taster’s Choice over the period of 1997 – 2006 were attributable to the use of the image, a profitable product and extended use made the jury award substantial, to say the least. Now you would think that the jury verdict in 2005 might have put an end to it, but predictably, Nestlé appealed and the saga continues.

Based on Nestlé’s appeal, the appellate court reversed the jury’s verdict based on the fact that Mr. Christoff had not brought his lawsuit before the statute of limitations had expired; but just this past Monday (Aug. 17), the California Supreme Court ordered the case back down to the trial court to take another look. Why, you may ask? Because the Supreme Court wants the trial court to answer the following question: What’s the correct way to calculate the statute of limitations – start date/end date – in lawsuits involving rights of publicity and product labeling?

Since Mr. Christoff brought his lawsuit six years after Nestlé USA, Inc. began using his image (but less than a year after he discovered it), the original trial court instructed the jury to use a two-year statute of limitation, but to use the point at which Mr. Christoff knew, should have known, or could have reasonably suspected his image was being used on the label, as the starting point for calculating when the statute of limitation would bar his lawsuit. It seems the trial court determined that unlike offensive or defamatory remarks that would not be considered “published” over and over again, simply because they were repeated in 100,000 copies of the same book, the “Single Publication Rule” (Uniform Single Publication Act as codified in Civil Code section 3425.3) did not apply to cases involving the use of someone’s likeness or image. So here’s how the wrinkle unfolds . . .

Continue reading “Rights of Publicity – Wake Up and Smell the Coffee!”

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Objects in the Mirror Are Closer Than They Appear

Who would have thought that would refer to our financial system, real estate markets, building developers, technology providers and, lest we forget, automobile manufacturers. This was a year of challenge and change. America elected its first Afro-American President, who inherits a country involved in wars, economic turmoil of unprecedented proportions and a government tab increased by $1 trillion in the past 90 days. The NY Giants won the Super Bowl (and may do it again). The price of gasoline went from $2 a gallon to more than $4 a gallon to less than $1.50 a gallon this year, and the stock market experienced unprecedented swings, some days approaching 1,000 points; and fluctuations of anywhere from 200 to 600 points stopped being unusual—sometimes in the same day! No laughing matter, the Federal Reserve was doling out discount coupons for the purchase of investment banks, banks were buying brokerage houses, and non-banks were lining up to become regulated banks, just so they could share in the bail out fund. Indeed, the term “bail out,” once the domain of skydivers and sinking rowboats, became the most over-used word in the news (and in Congress). Speaking of domains, ICANN turned the world of domain names on its ear with its proposed Draft Applicant Guidebook (Legal Bytes; November 2008). Cyberwarfare no longer remained the domain of motion pictures like “War Games,” “Terminator” and “Matrix” when Georgian websites were under attack while Russians soldiers invaded the real Georgian sites. And speaking of Georgia, a court in the other state of Georgia upheld the validity of promotions held via SMS text messaging. Virtual worlds were in the news: divorces, theft of intellectual property, defamation, performance rights, even the murder of an avatar resulted in an arrest. “Green,” behavioral and children’s marketing, blogs, word of mouth and viral marketing occupied much of the discussion at the FTC; identity theft and data breaches continue to create privacy concerns; ad-blocking technology mounted an assault on interactive advertising; testimonials and endorsements created buzz, as did publicity rights, led by the estate of Marilyn Monroe (Legal Bytes; May 2008); a New York court decided that emails could amend a contract because they are “writings”; and the online, interactive video gaming industry, wireless advertising and content distribution, and the rise of processing platforms that serve as home computers, entertainment centers, Internet access and gaming portals—oh, and some are handheld and wireless. The fact that 2008 marked the 40th anniversary of the conception of the x86 device and the beginning of what we now know as personal computing—spawned by the obsession of a San Antonio engineer named Austin O. “Gus” Roche—and the 10th anniversary of the publication of my law journal article “Privacy on the Internet: Whose Information Is It Anyway?” went pretty much unnoticed.

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The Doors of Perception Can Sometimes Lead to Harsh Reality

Although the California Appellate Court, Second Appellate District, has designated the actual opinion as NOT FOR PUBLICATION (this means you must consult the rules of the court before you cite this case), this past May, two former members of the famed rock band The Doors were held to have engaged in false advertising under California law by advertising a concert band using that name. Although a jury found the band members not guilty of trademark infringement or unfair competition, the appeals court agreed with the trial court that “false advertising” claims are not the same, and upheld a permanent injunction against the individuals using the name “The Doors,” or any name containing that name. The court’s ruling also precludes the use of the name, voice or likeness of deceased band member Jim Morrison, in promoting concert ticket sales, citing prohibitions under the California statute regarding rights of publicity. Rimon knows publicity and privacy, in California—and throughout the United States and the world. Always know before you show. Call us, we can help.

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Some Like It Hot – But Others Do Not!

Last fall, a California court held that CMG, assignee of rights under Marilyn Monroe’s estate to exploit her image and likeness, had no rights because at the time of her death, there were no laws in either California or New York recognizing rights of publicity. Enter California’s legislature—amending its law to retroactively enact rights of publicity (See Legal Bytes, October 2007) to “remedy” this unfortunate state of affairs. Whoops. Not so fast. A judge in the U.S. District Court for the Central District of California has just ruled Marilyn Monroe was a New York resident at the time of her death in 1962, and pulled the plug on the recently amended California Right of Publicity law.