Tuesday, August 18, 2009
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S.C. Revives Ex-Model’s Suit Over Coffee Label
By STEVEN M. ELLIS, Staff Writer
The California Supreme Court yesterday revived a professional model’s suit alleging that Nestlé USA used his image without permission on millions of labels of Taster’s Choice instant coffee around the globe.
Ruling unanimously that appropriation of likeness claims are subject to the single-publication rule, the court remanded to determine whether use of the man’s likeness on labels, coupons and other advertisements over a five-year period was a “single integrated publication.”
Russell Christoff filed suit in 2003 less than one year after recognizing his image from a 1986 photo shoot on the label of a jar of coffee on a local store shelf. Christoff claimed Nestlé violated a contract between its Canadian affiliate and him when it began using the image in the United States in 1998 and a jury agreed, awarding Christoff over $15 million plus attorney’s fees.
Single-Publication Rule
However, this district’s Court of Appeal reversed, ruling that Los Angeles Superior Court Judge Charles W. Stoll, now deceased, erred when he held that the single-publication rule—which provides, for limitations purposes, that an actionable publication occurs on its first general distribution to the public—only applied to defamation claims.
Writing for the Court of Appeal, Presiding Justice Candace Cooper, since retired, opined that the statute of limitations was triggered when Nestlé first “published” the label and expired two years later unless Christoff could show that Nestlé had hindered his discovery or that the label had been “republished.”
On appeal to the Supreme Court, Justice Carlos R. Moreno agreed with the Court of Appeal that claims for appropriation of likeness are subject to the single-publication rule, but he wrote that the decision did not necessarily mean that the action was time-barred unless Christoff could invoke the delayed discovery rule or show republication.
He explained:
“The Court of Appeal’s ruling presupposes that Nestlé’s various uses of Christoff’s likeness, including its production of the product label for a five-year period, necessarily constituted a ‘single publication’ within the meaning of the single-publication rule….
“A publisher that prints and distributes an issue of a magazine or an edition of a book is entitled to repose from the threat that a copy of that magazine or book will surface years later and trigger a lawsuit. But…there is little case law or academic commentary discussing whether a manufacturer that produces a product label for a period of years is entitled to the same repose, especially while that product label is still being produced.”
Factual Record
Remanding to develop a factual record on which to determine whether the product labels constituted a “single integrated publication,” Moreno said a similar determination would also need to be made with respect to Nestlé’s other uses of Christoff’s image, including transit ads, coupons in newspapers, magazine advertisements and Internet advertisements.
In concurrence, Justice Kathryn Mickle Werdegar said that looking on each broadcast or display as a separate publication, or republication, beginning a new limitations period, was “more consistent with our statutory language.”
She added:
“I doubt defendant’s entire five-year course of printing and distributing labels may be deemed a single publication simply because the labels were not substantially altered during that time.”
No ‘Windfall’
Nestlé spokesperson Pamela Krebs said the company was pleased with the decision and that Christoff was “not entitled to a windfall of nearly 50 times his actual damages.” She added that the company was “eager to move forward toward an equitable resolution of this case.”
Christoff’s counsel, San Rafael attorney Colin C. Claxon, criticized the impact of the decision while pre- dicting success on the merits for his client.
“Every actor, model or talent’s control over their face or voice is at risk because it appears to be the requirement that they know every day whether there has been an encroachment,” he told the MetNews.
Calling the decision an “impossible, unfair application of the law,” Claxon said that parties whose likenesses have been appropriated will now “have to learn whether the claim is big enough and sue within two years or [the encroaching party] will have it forever for free.”
However, he commented that he was confident that each of Nestlé’s uses of Christoff’s likeness on “different jars, times and countries” would be held “a discrete publication,” and said his client was “bound and determined to see this through” on remand.
The case is Christoff v. Nestlé USA, Inc., 09 S.O.S. 4949.
Copyright 2009, Metropolitan News Company