CALIFORNIA SUPREME COURT GRANTS REVIEW IN "TASTER'S CHOICE" CASE TO CONSIDER APPLICATION OF "SINGLE PUBLICATION RULE" TO RIGHT OF PUBLICITY CLAIMS

The California Supreme Court has granted review in Christoff v. Nestlé USA, Inc. (2007) 152 Cal.App.4th 1439, review granted Oct. 31, 2007, S1552422, involving application of the "single publication rule" to a right of publicity claim asserted under Civil Code section 3344.

The jury's $15.6 million verdict in this case in 2005 generated international media attention. Russell Christoff sued Nestlé USA, Inc. for unauthorized use of his image on the label of its Taster's Choice coffee jar, after Nestlé mistakenly believed it had permission to use the photo. The Court of Appeal reversed the entire $15.6 million judgment, holding that the "single publication rule" (codified by Civil Code section 3425.3) applies to a right of publicity claim such as that asserted by Christoff. The court explained that, under the single publication rule, one issue of a publication is deemed to be a single publication regardless whether the issue "consists of one copy, one million, or more." As a result, held the court, "unless a reasonable person in Christoff's position had no meaningful ability to discover the publication, Christoff must have filed a lawsuit within two years of when Nestlé first published his image or republished his image." Because the trial court refused to apply the single publication rule, and permitted Christoff to proceed on his claims even though he did not file suit until approximately five years after Nestlé's first use of his image, the Court of Appeal held that the entire judgment had to be reversed for a new trial limited to "republications" of Christoff's image by Nestlé, if any, that occurred within the limitations period.

Among the issues the Supreme Court will consider in reviewing the Court of Appeal's decision are the following:

1. Does the single publication rule (Civ. Code, § 3425.3) apply to a "right of publicity" claim (Civ. Code, § 3344) that is based on the unauthorized use of a person's photograph on a product label?

2. If the single publication applies to such a claim, can the "discovery rule" nonetheless also apply to toll the statute of limitations where the right of publicity claim is based on a publication that appeared (a) on millions of jars that were distributed and sold nationwide and (b) in national advertising?

Horvitz & Levy LLP is representing Nestlé on appeal in this case. If you have any questions, please contact Horvitz & Levy partners John Taylor or David Axelrad by e-mail (jtaylor@horvitzlevy.com or daxelrad@horvitzlevy.com) or by phone, (818) 995-0800.

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