Metropolitan News-Enterprise


Wednesday, March 10, 2004


Page 1


Court of Appeal Rules Limitations Period Bars Claim Childhood Likenesses Were Misused by Disney


By DAVID WATSON, Staff Writer


Claims by three plaintiffs that images of them from their decades-old sixth-grade yearbook were misused to create computerized characters lampooned on a television program were barred by a two-year limitations period under the Uniform Single Publication Act, this district’s Court of Appeal ruled yesterday.

Div. Seven affirmed a summary adjudication against Dean Long Jr., Natalie Williams, and Sandie Hatfield granted by Los Angeles Superior Court Judge Jon M. Mayeda. Justice Laurie Zelon said the three could not recover since the broadcasts, and related internet use, ended in May 1999. They filed suit in January 2002.

“We hold that the USPA governs plaintiffs’ claims and that plaintiffs may not avoid the statutes of limitations through the discovery rule or theories of fraudulent concealment and accrual,” Zelon wrote.

An attorney for the plaintiffs called the result “pretty draconian,” saying it was unrealistic to treat his adult clients as being on notice as to the content of Saturday morning children’s programming.

Brian A. Rishwain of Johnson & Rishwain in Los Angeles said a Disney art director who was a sixth-grade classmate of the plaintiffs in the early 1970s used the yearbook photos to create images which were altered by a computer and given animated mouths. The images were used to “dredge up and mock the childhood frailties” of the three, their complaint alleged.

Long, Williams and Hatfield sued for violation of the right of publicity, appropriation of likenesses, and intentional infliction of emotional distress, among other causes of action.

Zelon noted that the state Supreme Court addressed the effect of the USPA last year in Shively v. Bozanich, 31 Cal.4th 1230, holding that a woman’s defamation claim based on statements later published in a book accrued when the book was published, not when the woman purchased and read it.

Zelon rejected the plaintiffs’ argument that their complaint did not allege a reputational injury covered by the USPA, but rather a new “morph-tort” which caused them emotional distress injuries. The USPA covers “any—tort founded upon any single publication or exhibition or utterance, such as—any one broadcast over radio or television—.”

The justice declared:

“Plaintiffs do not, and cannot, dispute that each of the claims before the court sounds in tort and arises from the broadcasts and related internet activity. Nor can they evade their allegations that their injuries arose from attempts to humiliate, ridicule and defame them. As a result, plaintiffs’ claims-óhowever styledó-are governed by the USPA.”

She added:

  “The policy at issue is clear. The USPA was intended to protect defamation-like claims, implicating First Amendment values and arising from mass communications, from ungovernable piecemeal liability and potentially endless tolling of the statute of limitations. The claims asserted here fall squarely within the language and intent of the act.”

  Neither the fact that the broadcasts were aimed at a juvenile audience nor the technological alteration of the plaintiffs’ images required an exception to the general rule announced in Shively, Zelon said.

  “As Shively made clear, the discovery doctrine has been applied to defamation and related torts only where a party could not reasonably have discovered the facts giving rise to the cause of action, such as a notation in a confidential file, or where there has been active concealment by defendants,” the justice explained. “There is no confidential file here. Although plaintiffs claim that the morphing was a wrongful act of active concealment intended to frustrate their detection of the existence of their claim, the undisputed facts do not support this argument. There was no evidence that the likenesses that were broadcast, ‘morphed’ as they were, were unrecognizable to each of the plaintiffs at first viewing; in fact, their claim is that their humiliation and emotional distress arises from the manner in which they were portrayed.”

  Rishwain said the USPA was never intended to create an exception to the general rule that a limitations period does not begin to run until the plaintiff reasonably should have known of the tortious conduct, but has “morphed itself into addressing that issue.”

  Noting that some of the conduct the plaintiffs sued over involved use of their images on Web sites related to the Disney programming block, Rishwain said members of the public should not be presumed to have knowledge of defamatory material just because it appears somewhere on the Internet.

“Who the hell would be looking?” he asked.

He noted that a previous suit over the programming involving six other plaintiffs had been “resolved,” but declined to specify how.

Rishwain, Neville L. Johnson, and James T. Ryan represented the plaintiffs. John B. Quinn, James D. Webster, and J.D. Horton of Quinn Emanuel Urquhart Oliver & Hedges in Los Angeles represented Walt Disney Company.

Webster, who argued the case before the Court of Appeal, declined to comment yesterday, noting he had not yet had a chance to speak with his client about the decision.

The case is Long v. The Walt Disney Company, 04 S.O.S. 1282.


Copyright 2004, Metropolitan News Company