30 Cal.App.5th 804
Cal. Ct. App.2018Background
- Jason Olive, a model, licensed his likeness to GNC via 2010 releases (one-year term for broad print use; separate long-term vehicle use through 2021). GNC continued using Olive’s image after the one-year print-term expired and later removed the images in late 2012.
- Olive sued for statutory misappropriation of likeness (Civ. Code § 3344), seeking actual damages, emotional distress, and disgorgement/restitution of GNC’s profits; GNC eventually admitted liability for the unauthorized use but disputed damages.
- Olive sought to prove GNC’s profits attributable to the unauthorized use through experts (Weston Anson and Leonard Lyons); the trial court excluded those experts as speculative and methodologically unsupported.
- A jury awarded Olive $213,000 in actual damages and $910,000 for emotional distress, but awarded no restitution; the trial court also ruled against Olive’s unjust enrichment claim.
- Both parties sought prevailing-party attorney fees under § 3344. The trial court found no prevailing party and denied fees; the Court of Appeal affirmed.
Issues
| Issue | Plaintiff's Argument (Olive) | Defendant's Argument (GNC) | Held |
|---|---|---|---|
| Adequacy of jury instructions on apportioning defendant profits under § 3344 | Court should give a special instruction shifting burden to GNC to prove revenue not attributable to Olive (clarify apportionment) | CACI No. 1821 correctly tracks § 3344: plaintiff must prove gross revenue attributable to use; defendant proves expenses | Court rejected Olive’s special instruction; CACI No. 1821 mirrors statute and no extrinsic guidance required |
| Exclusion of plaintiff’s damages experts (Anson, Lyons) | Experts would show profits attributable to Olive and support restitution claim | Experts’ methodology was speculative, relied on noncomparable celebrity deals and out-of-context statements; inadmissible under Sargon gatekeeping | Court properly excluded experts under gatekeeping standard; opinions were too speculative and had analytical gaps |
| Burden/standard for proving profits "attributable to" unauthorized use | Requires a causal/"nexus" showing akin to federal copyright analogies; jury needed further instruction | § 3344 plainly assigns plaintiff the burden to prove gross revenue attributable to the use; no federal analog needed | Court held statute unambiguous; "attributable to" means caused by/resulting from the use; no additional instruction required |
| Prevailing-party status for attorney fees under § 3344 | Olive contends he prevailed (won > $1.1M) and should get fees | GNC argued mixed result; trial court properly found no prevailing party | Court applied Hsu practical-level/mixed-results analysis and affirmed: neither party prevailed; no fee award |
Key Cases Cited
- Sargon Enterprises, Inc. v. University of Southern California, 55 Cal.4th 747 (2012) (trial court gatekeeping excludes expert testimony that is speculative or has an analytical gap)
- Hsu v. Abbara, 9 Cal.4th 863 (1995) (trial court compares parties’ demands and litigation objectives to determine prevailing party in mixed-result cases)
- Eng v. Brown, 21 Cal.App.5th 675 (2018) (no duty to give jury instruction that misstates law; trial court may refuse erroneous or unnecessary instructions)
- Bullock v. Philip Morris USA, Inc., 159 Cal.App.4th 655 (2008) (trial court need not modify or edit faulty proposed jury instructions)
- Gilbert v. National Enquirer, Inc., 55 Cal.App.4th 1273 (1997) (§ 3344 prevailing-party analysis considers whether a party prevailed on a practical level)