August 17, 2009
Horvitz & Levy LLP represented Nestlé USA, Inc. in this California Supreme Court case, in which the Court held that the “single publication rule” applies to claims for unauthorized commercial use of likeness 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 an appropriation of likeness claim such as that asserted by Christoff, limiting his claims to any “republications” of his image by Nestlé that occurred within the two-year limitations period preceding the filing of his complaint.
The Supreme Court affirmed the Court of Appeal’s holding that the single-publication rule applies to “to causes of action for unauthorized commercial use of likeness.” The Supreme Court also held that the “delayed discovery rule” does not apply to toll the statute of limitations on Christoff’s claims because “a product label such as the one in the present case . . . is ‘not published in an inherently secretive manner’ [citation], but is distributed widely to the public.” Finally, the court affirmed the Court of Appeal’s reversal of the entire judgment for a new trial, in which Christoff must show that there was a use of his likeness by Nestle within the 2-year limitations period and which was not part of “a single integrated publication” that first appeared outside the limitations period.
The Supreme Court’s decision has been eagerly anticipated by the media and entertainment industries, as evidenced by the significant amici participation in the case from the Motion Picture Association of America, Inc., Los Angeles Times Communications LLC, The Hearst Corporation, Viacom, Inc., The Associated Press, The California Newspaper Publishers Association, The California First Amendment Coalition, The Reporters Committee for Freedom of the Press, the Screen Actors Guild, Inc., and the American Federation of Television and Radio Artists, AFL-CIO.