California Supreme Court, August 17, 2009  

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  • In a unanimous decision, the California Supreme Court holds that the “single publication” rule applies to a claim for the unauthorized commercial use of a person’s likeness and that the “discovery rule” does not apply to a claim involving the production of product labels because it undermines the single publication rule; the court remands to the trial court the issue of whether the production of product labels over a five-year period constitutes a single integrated publication and thus triggers the two-year statute of limitations when first published

In 1986, Russell Christoff, a professional model, was paid $250 for a two-hour photo shoot and received a contract providing that if Nestlé Canada used the picture on a label it was designing for a brick of Taster’s Choice coffee, Christoff would be paid $2,000 plus an agency commission. The contract also provided that the price for any other use of Christoff’s image would require further negotiations. Without informing Christoff, or paying him according to the terms of the contract, Nestlé Canada used Christoff’s image on the coffee brick.

Eleven years later, in 1997, Nestlé USA decided to redesign its label for Taster’s Choice instant coffee. The high resolution artwork of the original “taster” used to produce the existing label had been lost. Nestlé USA searched without success for other high resolution artwork of the original “taster” (i.e., the person gazing into the coffee cup), but found instead the photograph of Christoff that Nestlé Canada had used on the coffee brick. Nestlé USA decided to use Christoff’s image because he looked “distinguished” and resembled the original “taster.” Christoff’s photograph was altered to make him look younger and more similar to the original “taster.” Nestlé USA believed that it had authority to use Christoff’s image because it had been widely used in Canada. Christoff’s image was used in the redesigned Taster’s Choice label beginning in 1998.

In 2002, Christoff saw his face on a jar of Taster’s Choice instant coffee in the United States and in 2003 filed suit against Nestle USA for statutory and common law unauthorized commercial use of his likeness. Christoff filed his suit six years after Nestle USA began using his image on the Taster’s Choice label but less than a year after his discovery.

There were three related issues before the trial court: (1) whether the two-year statute of limitations had been triggered when the product labels were first “published” six years before the suit was filed; (2) whether the “discovery rule” (which states that the statute of limitations is triggered when a plaintiff discovers, or reasonably should have discovered, the unauthorized use of his likeness rather than when the injury occurred) applied in this case; and (3) whether the “single publication” rule applies to the production of product labels.

The single publication rule (Cal. Civil Code § 3425.3) states that “[n]o person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine.”

The trial court applied the two-year statute of limitations and instructed the jury to determine under the discovery rule whether Christoff knew or should have known earlier that Nestlé USA had used his image. The jury found that Christoff did not know, and should not reasonably have suspected prior to seeing the jar, that his image was being used without his consent and awarded him more than $15 million in damages.

The Court of Appeal reversed, holding that the single publication rule applies to claims for the unauthorized commercial use of someone’s likeness and that the statute of limitations was triggered when Nestle first published the label unless the discovery rule applied or unless the defendant “republished” the label.

The California Supreme Court affirmed in part and reversed in part. The Supreme Court stated that the single publication rule applies to claims for the unauthorized commercial use of a person’s likeness, but the court said there was not enough evidence in the record to determine whether the production of product labels constitutes a “single integrated publication,” an issue of first impression in California. The court said it could not rule on this issue without more information about how the product labels were produced and distributed, including when production began and ceased. The concurring opinion provided more guidance by suggesting that the trial court should also consider whether the production and distribution of labels was predetermined by a single initial decision or whether Nestle USA made a conscious, deliberate choice to continue, renew or expand the use of labels bearing Christoff’s misappropriated image.

Regarding the application of the discovery rule, the Supreme Court held that courts have uniformly rejected applying the discovery rule to libels published in books and magazines because it undermines the single publication rule. The court said the same logic applies to the production of a product label that was not produced in a secretive manner.

The court also remanded to the trial court the question of whether the other uses of Christoff’s image on coupons and advertisements would be part of a single advertising campaign and thus be considered a “single integrated publication.”