Russell Christoff v. Nestlé USA, Inc.
47 Cal. 4th 468 (2009)

Jim Astrachan
Astrachan Gunst Thomas Rubin, P.C.
Baltimore, Maryland

In 1986 professional model Russell Christoff posed for a photo that he was told might be used on vacuum packed bricks of coffee to be sold in Canada. He was paid $250 and promised $2,000 if the photo was used. In 2002 he discovered that his photo had been used in the United States on TASTER’S CHOICE coffee jars, and later discovered that his photo had been used for at least 5 years on coffee labels and other facets of Nestlé’s international advertising campaign. He brought his action for misappropriation of his identity under California Civil Code, §3344 within one year of learning of Nestlé’s unauthorized uses.

Misappropriation of identity, or right of publicity, is generally defined as an individual’s right to control and profit from the use of his or her identity, or persona, for commercial purposes, such as being included in advertisements or on a product. This right can be violated through the use of an individual’s identity including name, likeness, signature, photograph, drawing, nickname (Hirsch v. S.C. Johnson & Sons, 90 Wis. 2d 379 (1979); voice, look and sound alikes (Waits v. Frito-Lay, Inc., 978 F2d 1093 (9th Cir. 1992)), and even occasionally an inanimate object with which the person whose identity is taken is closely associated, such as a race car. (Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974).

The right can arise through statute, common law or both in some jurisdictions such as California. (White v. Samsung Elec. Am., Inc., 971 F2d 1395 (9th Cir. 1992)). In many jurisdictions the right of publicity is treated as a property right and is descendible or assignable. The California statute, for example, provides that the right exists for 70 years following death; under Indiana law, it survives for 100 years. But under a New York statute, this right is not descendible and the concept of a common law right has been rejected. Stephano v. News Group Publications, Inc. 64 N.Y. 2d 174 (1984). Maryland has no statute and the common law has yet to recognize that this right is descendible.

For Nestlé’s transgressions, a jury awarded Christoff damages of $15 million, representing a portion of the profits Nestlé made from the sale of coffee bearing his photograph. The verdict was rejected by the California Court of Appeals on the grounds that the “single publication” rule, California Civil Code, §3425.3, and limitations required suit to be brought within 2 years following the first publication of the label unless Christoff could prove that Nestlé hindered his discovery or that the label had been republished.

The California Supreme Court affirmed that the jury’s verdict must be reversed on three grounds: the trial court’s erroneously ruled that the single publication rule does not apply to misappropriation of identity claims; the trial court had not developed sufficient facts to determine if Nestlé’s actions constituted a single publication; and it could not be determined if limitations had run on Christoff’s claim until the court determined whether the single publication rule applied.

The Supreme Court held that the single publication rule does apply to suits for misappropriation of likeness for commercial purposes, as the language of the statute is broad and applies to invasions of privacy and “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 an audience or any one broadcast over radio or television or any one exhibition of a motion picture.” While the misappropriation of identity tort was not named in the statute, the method, by which the tort was executed, publication, was.

Once it was determined that the single publication rule applied to misappropriation of identity claims the court had to decide whether Nestlé’s extended actions, over several forms of media and numerous years, constituted a single integrated publication under the statute. If so, limitations might bar the entire claim as Christoff had not filed within two years of Nestlé’s first publication. The publication of a product label bearing Christoff’s photo and an ad campaign that run for five years raised the question of whether all of Nestlé’s activities constituted a single, integrated publication. This was an issue of first impression in California.

The purpose of the single publication rule is to control damages resulting from mass communications so that a repeated communication does not create new causes of action as the mass communication is repeatedly received by a mass audience. Belli v. Roberts Bros. Furs, 240 Cal. App. 2d 284 (1966). For example, a television announcement, or a newspaper article, can reach millions of people. It would be impracticable to allow the defamed subject of the broadcast, or article, to sue the media each time the message was received by a reader or listener. Thus, the one broadcast or the one edition of the newspaper, no matter how many people are reached, or how many copies are published, is one publication for purposes of the rule.

The above examples of single publication are rather straight forward, but Christoff’s case against Nestlé was not. The Court needed to determine whether Nestlé’s activities over the five year period constituted a single, or more than a single, publication. If it was a single publication, limitations had likely expired years earlier; if the different uses of Christoff’s photo constituted new publications, then limitations should run anew from each.

The Court confessed it did not have sufficient facts to determine whether the single publication rule should be applied, and remanded the case for fact finding as the trial court had not done so in the erroneous belief that the single publication rule did not apply to misappropriation of identity cases.

The concurring opinion of Justice Werdegar is of interest because he discussed circumstances where other state courts applied, and did not apply, the single publication rule. In particular, there was a 2006 Illinois state court ruling (Blair v. Nevada Landing Partnership, 369 Ill. App. 3d 318) and a 2008 ruling of the United States District Court for the Northern District of Illinois (Wells v. Talk Radio Network FM, Inc. N.D. Ill. 2008 WL 4888992) that reached different conclusions, the latter finding no single publication where a program was broadcast 17 times in 2 years. And a Florida decision was cited, holding that where there were multiple publications, “over several years, the defendant repeatedly used the plaintiff’s name and image in marketing presentations to potential clients, each such presentation was a new publication.” Baucom v. Haverty, 805 So. 2d 959, 960 (2001). Of this opinion Judge Werdegar wrote, “In my view, the latter approach is more consistent with our statutory language.”

If the California Supreme Court wants to decide that there were multiple publications of Mr. Christoff’s photograph, it can find support in the facts that the photo was used over five years in multiple countries and on the product and in multiple forms of advertising media. I believe it can and should.