On June 29, 2007, the California Court of Appeal reversed a 15 million dollar jury award against Nestlé arising from the unauthorized use of a model’s image on a coffee label and in advertising. While Nestlé managed to get the large damages award reversed on what was essentially a limitations argument by invoking the “single publication rule,” the case nevertheless serves as a reminder to businesses that the use of a person’s image without authorization may result in significant exposure.
Sometime in 1986, Nestlé Canada arranged a photo shoot where Russell Christoff, a professional model, gazed into a cup of coffee and appeared to enjoy the aroma. Christoff was paid for his photo appearance and given a contract regarding the use of his image. This contract provided that if Nestlé Canada used the picture on a coffee brick label it was designing, he would be paid $2,000 plus an agency commission. The contract also stated that further negotiations would be needed for any other use. Without paying Christoff according to the terms of the contract, or even notifying him, Nestlé Canada used his image on the coffee brick.
Eleven years later, Nestlé redesigned their label for Taster’s Choice instant coffee and decided to use Christoff's image to replace the original Nestlé “taster” that graced the old label. A designer for Nestlé did not inquire into the terms of the contract with Christoff, nor did she attempt to contact him because she was under the mistaken belief that Nestlé owned the rights to his image. Nestlé began printing Christoff’s image on several different mediums of advertisement for Taster’s Choice, including the coffee products themselves. His image was even altered and used in Mexico. Despite all of this, Christoff claims he did not become aware of the use of his image until 2002. Christoff sued Nestlé in 2003 alleging causes of action for violation of California Civil Code section 3344 (which prohibits, inter alia, the unauthorized use of a person’s likeness or photograph), common law appropriation of likeness, quantum meruit, and unjust enrichment. At trial, the jury awarded more than $15 million in damages.
On appeal, Nestlé argued that the jury award must be reversed because the action was time-barred from the start. The SPR (“Single Publication Rule”) restricts all damages found upon a “single publication” to one cause of action only. A “single publication,” however, is distinguished from “republication,” which brings about a new cause of action. A republication occurs when its use is intended to reach a new audience, or if there is a modification to the presentation of the person’s likeness. The court also examined the possible application of republication when the same marketing pitch is applied to different states at different times, in contrast to when the same marketing plan is pitched to all states at the same time. The fact that Christoff’s image was used in different mediums apparently was of no interest to the court, so long as Christoff’s image was part of a mass marketing pitch. The court, however, made it clear that it could not tell from the record what marketing intentions Nestlé had. Surely Christoff’s image alteration and “Latinization” for the Nestle Mexico label could be considered a republication.
In the end, the court agreed with Nestlé, holding that the single publication rule applied to Christoff’s claim under section 3344 and his common law claim for misappropriation of his likeness. As a result, Christoff should have brought this suit within 2 years from the date Nestlé first published his image, or within 2 years of when a reasonable person in Christoff’s position had a meaningful ability to discover the use of his likeness. The court indicated that on remand, the jury would need to consider whether a reasonable person in Christoff’s position had a meaningful ability to discover that his likeness was being used and whether any republications occurred within the limitations period. In reading the court’s decision, it appears that to establish a republication theory, Christoff would have to request that Nestlé disclose all of their past marketing plans, including agendas, specified target markets, various mediums, and product and advertisement launch dates.
The appellate court further held that the jury’s damages determination was erroneous because Christoff’s expert testimony failed to establish that Christoff’s specific characteristics rose to icon status, or created value in the icon (the Taster’s Choice label illustration). This is mainly because “the icon with the image of a handsome man existed before and after Christoff’s likeness was used.” In other words – he was just another pretty face. The court further held that while the Copyright Act protected the photograph taken of Christoff, section 3344 protected his identity and persona. These protections applied even though Christoff was not a celebrity. Section 3344 provided a remedy beyond that afforded by the Copyright Act because, although embodied in a photograph, Christoff’s likeness itself was entitled to protection. On retrial, Christoff will have to demonstrate that some portion of Nestlé’s profits was attributable to the use of his likeness, and not just that of another handsome man being used as part of the “Taster’s Choice” imagery.
Full opinion: http://www.courtinfo.ca.gov/opinions/documents/B182880.PDF