Metropolitan News-Enterprise


Tuesday, July 3, 2007


Page 3


C.A. Reverses Award to Ex-Taster’s Choice Model Claiming Misappropriation


By TINA BAY, Staff Writer


The “single publication rule,” historically used to determine the timeliness of defamation claims, also applies to right of publicity claims, this district’s Court of Appeal has ruled.

Clarifying the statute of limitations, Div. Eight Friday reversed a jury verdict in favor of former model Russell Christoff, who sued Nestle USA over the allegedly unauthorized use of his image on its Taster’s Choice instant coffee label. 

In instructing the jury, the panel reasoned, Los Angeles Superior Court Judge Charles W. Stoll incorrectly found the single publication rule inapplicable, a critical issue in evaluating whether Christoff’s claim was time-barred.

The rule provides that, for limitations purposes, an actionable publication occurs on its first general distribution to the public. Christoff filed suit in 2003 over an alleged act of misappropriation of his likeness by Nestle USA that started in 1998.

His complaint stated that in 1986, he was hired by Nestle Canada—affiliated with but separate from Nestle USA—to pose for a photo shoot. After being photographed gazing at a cup of coffee with an expression conveying he enjoyed the aroma, Christoff was paid for his time and given him a contract governing the use of his image.

The contract, signed by Nestle Canada, provided that if the company used his picture on a label it was designing for a brick of coffee, it would pay him $2,000 plus an agency commission.  It also stated that the price for any other use of the then-model’s image would require further negotiations.

Nestle Canada eventually used Christoff’s image on the coffee brick label, but did not inform him or pay him according to the agreement, he alleged.

While working on a new Taster’s Choice label design in 1997, Nestle USA found artwork portraying the image of Christoff that had been used by Nestle Canada. Nestle USA sought to retain continuity with its previous label featuring a “taster” peering into a cup of coffee, and selected Christoff’s image for its new design in part because of his “distinguished” look, according to the complaint. 

The Nestle USA employee who came across Christoff’s image allegedly believed the company had usage rights to it because it had been widely used in Canada, and never investigated the scope of Christoff’s consent or contacted him to ask if he consented to the use of his image in the United States.

Nestle USA began using a new label design incorporating Christoff’s image—which was cropped to show only a portion of his face—in 1998.  Variations on the labels were used on an array of Taster’s Choice jars and advertisements, including some for international use.

In 2003, Nestle USA again redesigned its label using another model, but kept the containers bearing Christoff’s image in its inventory.

In his suit, Christoff claimed he discovered the use of his picture at a Rite Aid store on June 4, 2002, when he allegedly was shopping and happened to see a can of Taster’s Choice instant coffee. He asserted Nestle misappropriated his likeness in violation of Civil Code Sec. 3344 and common law, and was further liable to him under the theories of quantum meruit and unjust enrichment.

Nestle moved for summary judgment against Christoff contending that, under the single publication rule, he should have filed suit within one year after it first published his likeness in 1998. The company relied on the one-year limitations period for actions based on the right of privacy.

In denying summary judgment, Stoll applied the two-year statute of limitations for contract claims. He further ruled that because the statute is not deemed to have accrued until a plaintiff discovered the alleged wrong, the jury must determine whether Christoff knew or should have known Nestle used his image prior to June 2002.

At trial, Christoff’s damage experts testified that he was entitled to over $1.4 million for the use of his photo during the relevant six-year time period, and more than $53 million in profits from Taster’s Choice sales during that time.

The jury awarded him $330,000 in damages and $15.6 million in profits.

That award could not stand, Div. Eight said, because Stoll failed to instruct the jury on several important issues.

The fundamental problem was Stoll’s erroneous conclusion that the single publication rule did not apply, Presiding Justice Candace Cooper wrote for the court.

Although the tort of defamation provided the catalyst for the rule, she explained,  it extended to Christoff’s case:

“Just as in a defamation case, the litigation would have become unwieldy and potentially endless with every coffee can, print, television, and electronic advertisement generating a separate cause of action,” the presiding justice wrote. 

Where the single publication rule applies, Cooper continued, the discovery rule generally does not apply absent evidence of the defendant’s bad faith.  The jury should therefore have been instructed to determine whether Nestle hindered Christoff in discovery its use of his likeness, the justice said.

Moreover, she wrote, Stoll should have instructed the jury to determine whether the different variations on Christoff’s image constituted “republication” triggering a new limitations period.

Cooper did agree with Stoll that the two-year statute of limitations applied to Chertoff’s statutory misappropriation claim. 

Justices Paul Boland and Laurence D. Rubin concurred in the opinion.

Remarking to the MetNews, Nestle spokesperson Pamela Krebs described the jury’s award as having been “in the amount of about 50 times Mr. Christoff’s actual damages.”

“We are very eager to move forward toward a fair resolution of this case,” she said.

Calls to Christoff’s counsel were not returned.

Nestlé was represented on appeal by Encino attorneys David M. Axelrad, Jeremy B. Rosen and John A. Taylor Jr. of Horvitz & Levy; and Beverly Hills lawyers Lawrence E. Heller and Shula R. Barash of Heller & Edwards.

Christoff’s appellate counsel were Los Angeles practitioners Robert David Mayer of Mayer & Glassman Law Corp.; Eric G. Stockel of Kibre & Horwitz; San Rafael practitioner Colin C. Claxon; and University of San Francisco law professor David J. Franklyn.

The case is Christoff v. Nestle, B182880.


Copyright 2007, Metropolitan News Company