*1 S155242. Aug. 2009.] [No. CHRISTOFF,
RUSSELL Plаintiff and Respondent, USA, INC., NESTLÉ Defendant Appellant.
Counsel Jr.; Rosen, Axelrad, A. Taylor, B. John M. Jeremy & David Levy, Horvitz Defendant and Edwards, R. Barash for Heller and Shula Lawrence E. Heller & Appellant. Tremaine, Wilcox, Vick;
Davis Kelli Wright L. Rochelle L. Sager, Kevin L. Goller; Donellan; Michelena; Tomlin, Jonathan Hallie David Laura Karlene Malone; Newton; Scheer; Thomas W. Peter Lucy Dalglish Leslie Gregg LLC, for Los Angeles Times Communications The Hearst Corporation, Viacom, Inc., Press, The Associated The California Publishers Newspaper Association, Coalition, The California First Amendment The Reporters Committee for Freedom of the Press and The Association of Alternative Newsweeklies as Amici Curiae on behalf of Defendant and Appellant. Loeb, Loeb & E. Douglas Mirell and W. Allan Edmiston for Motion Picture America, Inc.,
Association of as Amicus Curiae on behalf of Defendant and Appellant. Claxon, Claxon;
Law Offices of Colin C. Cohn C. & Glassman Law Mayer Horwitz, Stockel; Robert David Corporation, Mayer; Kibre & Eric G. David J. Franklyn Plaintiff and Respondent.
Duncan W. Guild, Crabtree-Ireland and Danielle S. Van Lier for Screen Actors Inc., as Amicus Curiae on behalf of Plaintiff and Respondent.
Reich, Cvitan, Adell & Laurence S. Zakson and William Y. Sheh for American Artists, AFL-CIO, Federation of Television and Radio as Amicus Curiae on behalf of Plaintiff and Respondent.
Opinion MORENO, model Russell professional $250 Christoff was J. —In paid for a pose to be used in Canada on a photograph label for bricks of coffee. later, Sixteen years Christoff saw his face on a of Taster’s Choice instant jar coffee in the United States and discovered that his had been used image without his consent on millions of labels sold for the internationally preced- ing five years. Christoff filed the action for present of his appropriation USA, likeness six аfter Nestlé (Nestlé), Inc. his began using on image the Taster’s Choice label but less than a after year his discovery.
The trial court statute of applied two-year limitations and instructed the to determine jury under the rule whether discovery Christoff knew or should have known earlier that Nestlé had used his found image. jury know, Christoff did not and should not have reasonably suspected prior seeing that his jar, image was used without being his consent and awarded $15 him more than million in damages. reversed, that under the single-publication holding
The Court of Appeal after Nestlé rule, within two years filed his lawsuit Christoff had not because label, is barred statute his cause of action first “published” remand, had hindered unless, fact finds that Nestlé the trier of limitations on had been or that the label the use of his photograph, discovery Christoff’s review. We granted “republished.” be reversed that the must judgment the Court of
We with agree rule does ruled that erroneously single-publication the trial court because not with agree But we do of likeness. to claims for appropriation not apply action necessarily that Christoff’s this means the Court of Appeal that Nestlé can on remand unless he show the statute of limitations barred by that the label had of the use of his photograph, hindered his discovery had that Nestlé’s ruling The Court of Appeal’s presupposes been “republished.” likeness, its including production uses of Christoff’s various a “single constituted necessarily publication” label for a five-year period, were Because the parties rule. meaning within a record ruling developing trial court’s erroneous legal prevented matter we remand the applied, whether concerning further proceedings. Facts1 model, Christoff, gazing posеd an actor and professional Russell In arranged shoot was coffee, aroma. The photo if he enjoyed cup *5 shoot and $250 for a two-hour photo was paid Canada.2 Christoff Nestlé the on a label Canada used picture that if Nestlé a contract received providing coffee, would be Christoff Choice a brick of Taster’s was for designing it use of other The $2,000 commission.3 price an agency plus paid informing Without further negotiations. would image require Christoff’s contract, Canada Nestlé Christoff, the terms of the him according or paying brick. the coffee on image used Christoff’s label for Taster’s later, 1997, its redesign decided in Nestlé
Eleven years a decades, featured which, had coffee, three prominently instant Choice of the Court largely opinion on the history is based procedural and of facts The statement Aрpeal. a and is not respondent separate but a affiliated with corporation Canada is Nestlé appeal. to this party acting was about 2000, modeling and average income from Christoff’s From 1987 teacher elementary school as an $50,000 time worked of trial in Christoff year. At the acting. modeling and addition to in “taster,” high that is into a of coffee. The resolution person peering cup artwork used the had been original “taster” label produce existing lost. Nestlé searched without success for resolution artwork of the high other “taster,” but found instead the of Christoff that Nestlé original photograph brick, Canada had used on the coffee which satisfied requirements. Nestlé decided to use Christoff’s because he looked image “distinguished” and resembled “taster.” original “youthened” Christoff’s photograph to make him and more to the similar “taster.” Nestlé appear younger original believed that it had to use it had Christoff’s because been authority image used in Canada. never widely Nestlé consent investigated scope and never asked Christoff if he consented use of his Christoff’s image. image redesigned was used in the Taster’s label in Choice 1998. beginning The label was used on Choice redesigned several different Taster’s jars, coffee, decaffeinated, regular including and various flavors. Labels bearing image Christoff’s also were in different on produced languages placed Mexico, jars of coffee to be sold For label in internationally. used Christoff’s to add image was altered sideburns and darken his complexion. Images of of coffee jars bearing Christoff’s in image Nestlé’s appeared Choice, ads, advertising multiple campaigns Taster’s transit including advertisements, in сoupons and Internet newspapers, magazine advertisements. In person standing line with Christoff at a hardware store he remarked that like on coffee month guy my A or so jar.” “look[ed] later, 4, 2002, on June saw Christoff a jar of Taster’s Choice instant coffee on and, time, a store shelf for the first his on the recognized label. photograph He of coffee and called purchased jar agent. his model,
In Nestlé again redesigned its label another using James Vaccaro, $150,000 “taster.” Vaccaro was for the use his paid image for 10 years. new label started but circulating May jars Taster’s Choice with Christoff’s were image still Nestlé’s inventory could have been to retailers. shipped Background
Procedural 2003, Nestlé, In Christoff sued of causes action for unauthorized alleging commercial use of another’s likeness in of violation Civil Code seсtion 3344,4 likeness, common law of meruit appropriation quantum (initially 3344, (a), states, Civil Code section pertinent “Any person subdivision part: who voice, name, likeness, manner, knowingly signature, uses another’s or photograph, any on or merchandise, in products, goods, selling, or or for purposes advertising soliciting of or or trial denied labeled enrichment. The court unjust “quasi-contract”), limitations, based on the of Nestlé’s motion statute summary judgment Act codified in Code that the Uniform Publication as Civil ruling Single (hereafter 3425.3), section which states that shall 3425.3 section person “[n]o or or have more than one cause of action for for libel slander damages or tort invasion of other founded any upon any single privacy publication utterance, or or such as one issue of a or book or any newspaper exhibition 5 did not claims because were not “based magazine,” they Christoff’s apply “was on defamation.” The trial court reasoned that rule that mass of publication in the common law to avoid the developed problems ex books and created for the tort of defamation.” The court newspapers not that Christoff’s “claim is not defamation-like because he is plained communications,” but rather that he suffered from offensive alleging damages likeness, his “claim from the unauthorized use of his which alleged arises claim this use his of Christoff “does not that by right publicity.” protected offensive, but for the use of his instead seeks defendant’s compensation advertising.” likeness in Civil
The court statute of limitations under Code of two-year applied his that because Christoff filed Procedure section 339 and instructed jury 2003, at he could “claim that took February damаges on complaint place jury time on or after 2001.” The court further instructed the any February “also that “the would and Christoff could delayed discovery” first used image” seek that took time Nestlé USA his damages place the facts did not discovery if Christoff that his he “prior proved or have that his was on photograph should previously suspect, suspected, summary label.”6 The trial court denied Nestlé’s motion for Taster’s Choice merchandise, services, of, con- goods person’s prior without such purchases products, or injured a result damages person persons . . or any sent . shall be liable sustained thereof. . . damages shall more than one cause of action for person Section 3425.3 states: “No have any single any upon or tort founded privacy for libel slander or invasion of other utterance, any any one issue of а or book or exhibition or such as any any one over or television or one presentation to an audience or broadcast radio damages Recovery all such picture. any action shall include exhibition of a motion jurisdictions.” plaintiff tort suffered in all statute of limitations for jury: “The Court has determined that the court instructed years. is two Mr. filed his claims under Civil Code section 3344 Christoff Mr. Christoffs 7, meaning damages place claim that February may that he took Complaint on addition, discovery delayed February you In if find that the rule time on or after 2001. [f] damages place took from the time Nestlé USA applies, may Christoff also seek then Mr. discovery bears burden of image. delayed his In order establish a Mr. Christoff first used (a) discovery suspect, did or should prior previously to his facts he not proving that: label; (b) he had no notice suspectеd, his was on the Taster’s Choice photograph have despite person inquiry a reasonable on put of circumstances which would have or information photograph his was on the Taster’s Choice label.” diligence the exercise reasonable *7 in which was no it adjudication, knowingly it asserted there evidence used Christoff’s without his consent. photograph trial,
At Nestlé objected testimony of Christoff’s vigorously damage Peter that the icon on the Choice label expert, Sealy, Taster’s was responsible for 5 to 15 instant percent selling Nestlé’s from Taster’s Choice profits coffee. This the basis that he was was for Christoff’s testimony argument entitled of Nestlé’s from sale of Taster’s Choice percent profits that, instant coffee. Christoff’s testified accounting expert during six-year likeness, used period Nestlé Christoff’s Nestlé’s total from Taster’s profits $531,018,000 and, Choice were based Sealy’s on Christoff was testimony, $53,101,800. entitled to Hunter, Models, a former at Ford
Joseph partner prominent modeling Hunter, also testified as an for agency, expert Christoff. a model According charges rate and a generally day shoot fee different photo usage billboards, uses such as He packaging, transit. valued use of $1,475,000. Christoff’s for a photograph six-year In addition to the period time six-year period, Hunter assumed that the was used “in all photo virtually kinds of media that He existed.” acknowledged Vaccaro received $150,000 for the use of his for a image but 10-year period explained $150,000 a very low fee. case,
At the close of Christoff’s the court Nestlé’s nonsuit motion granted on the issue The punitive damages. court found no evidence of malice. follows;
The concluded jury (1) Nestlé used Christoff’s knowingly or likeness on the photograph Taster’s Choice labels for commercial purposes consent; (2) without Christoff’s Christoff did not know and prior should not have known or that his reasonably suspected photograph $330,000 used for being commercial Christoff suffered in actual purposes; (4) the damages; attributable to profits the use Christoff’s photograph $15,305,850; likeness were (5) the common law damages appropria- $330,000 tion claim were and for the claim meruit were quantum $15,635,850. The trial court Christoff’s motion for subsequently granted fees. Nestlé attorney and the appealed judgment order awarding costs and attorney fees.
The Court reversed the remanded the case for a judgment trial, new that the ruling rule codified in section 3425.3 to the tort of applied likeness. court our decision appropriation applied Shively Cal.4th Cal.Rptr.3d Bоzanich *8 Shively), of which held the cause (hereafter 80 P.3d that defamation 676] “ the accrued the distribution of general action that case ‘first upon ” the rule and reasoned that whether discovery public,’ publication the of the of action whether Nestlé accrual cause delayed depended upon the use The court hindered Christoffs of of his discovery photograph. that, retrial, directed in a the trier of fact must consider whether Nestlé the use of and “whether discovery any hindered Christoffs of his photograph occurred within the limitations two-year period.’’7 republications
Discussion codified in The Court ruled that the of Appeal single-publication com- cause of action for unauthorized section 3425.3 Christoff’s applied thus, and, the limitations was triggered mercial use of his likeness statute of unless Nestlé the label and two latеr when first “published” expired rule or the by of action was delayed delayed discovery accrual Christoff’s label. We of anew because Nestlé began statute limitations “republished” that, in codified in 3425.3 rule as section agree general, likeness, but action for unauthorized use of to causes of commercial applies when of limitations was triggered in order to determine the statute action, of must whether Nestlé’s unauthorized use Christoffs we decide label, “single constituted a including Christoffs its image, production rule. As within the meaning explained publication” below, this is this court to answer permit record on insufficient appeal question. rule as
The correct the single-publication Court Appeal action for to a cause of general, codified in section 3425.3 applies, 3425.3 is use likeness. section language unauthorized cоmmercial “for libel or terms to action or slander any broad and its quite applies any other tort founded upon any single invasion privacy utterance, or book such as one issue of any or exhibition or one over any to an audience or broadcast any presentation added.) (Italics one exhibition of motion picture.” radio or television or ‘or other tort’ it inserted the clause is presumed “When Legislature (Strick Court v. Superior it meant what said.” have exactly 314].) in section The rule announced Cal.Rptr. Cal.App.3d [192 “ rather the manner tort but at alleged, aimed at particular 3425.3 ‘not ” (Strick, Co. Disney v. Walt Long 924; see executed.’ in which tort is in Code two-year limitations set forth further ruled that the statute of The Court of likeness within applied, knowingly Nestlé used Christoff’s Procedure of Civil section profits $15 the award more than million meaning sеction of Civil Code evidence, and photograph supported was not substantial to the use of Christoff’s attributable must be reversed. quantum $15 than meruit that the award of more million (2004) 116 in California Cal.App.4th Cal.Rptr.3d 836] [“courts uniform act We jurisdictions and other have interpreted expansively”].) therefore, with the trial court erred ruling Court of that the agree Appeal, not that section 3425.3 did claims because were they not Christoff’s *9 on defamation.” “based Shively,
The Court of turned to our which that then decision held a cause of action that the rule accrues governed by is single-publication the “from date of the “first of the general distribution publication ’ alia, (Shively, supra, 1245.)” 31 Cal.4th at Christoff inter public.” argues, p. that rule of does not to Nestlé’s its single-publication apply printing occurrence,” label “a a because it is not one-time product single ‘publication,’ book, such as a magazine, or television broadcast. newspaper, Nestlé counters “the rule was intended of the same apply multiple printings The is more subtle than would publication.” either these question positions suggest. rule,
In order to a court first single-publication identify must (Belli Roberts Brothers what constitutes a “single integrated publication” Furs 625]) meaning within the Cal.App.2d Cal.Rptr. [49 rule, such as the and distribution of a of a issue printing particular magazine, or book. Whether the of a over a newspaper, label printing product a constitutes five-year period single integrated meaning within the is rule an issue of In impression first this state. label, addition to Nestlé also used producing Christoff’s likeness forms, ads, in other transit including magazine coupons newspapers, advertisements, and Internet advertisements. This raises whether questions these each of activities a сonstituted whether “single integrated publication,” the entire should be a advertising campaign integrated considered “single or whether Nestlé’s first publication,” use of Christoff’s image triggered running the statute of limitations for all uses in form. whatever subsequent are These and there is little to for important questions, authority turn guidance.
The rule was created to address that arose problem advent with the of mass general communication from the rule in defamation cases “each time the is third defamatory statement communicated to a ” ... the statement is said to a person have been rise to giving ‘published,’ (Shively, cause of action. at separate Cal.4th “[T]he that each communication of a remark to a principle defamatory new audience action, a constitutes a separate rise to cause of ‘publiсation,’ giving separate led to sale conclusion that each of a of a delivery copy book a also containing defamation constitutes a separate publication audience, defamation to a new rise to cause giving separate of action defamation. This conclusion had the subject potential [Citations.] hundreds, thousands, of books to lawsuits publishers newspapers stating or even millions of causes of action for a issue of single periodical (Id. . . 1243-1244.) edition of a book.” “As one commentator stated: ‘. pp. rule of whether it was an in 1849 it horrendous Regardless appropriate may many when readers and radio and TV audiences total today (Hebrew San Francisco v. Goldman Academy millions.’ [Citation.]” 883, 891, 1004].) 42 Cal.4th fn. 2 173 P.3d Cal.Rptr.3d law that each statement “publication” defamatory cоmmon created a cause of “also had the to disturb new action potential repose afford, a new publication the statute of limitations would because ordinarily *10 the if a of the or were of defamation could occur book newspaper copy then the of a new reader .... for and came into hands many years preserved forever, under The could be tolled indefinitely, statute of limitations perhaps 1230, 1244.) (Shively, supra, We cited as an this Cal.4th approach.” case a could bring “a that concluded example 19th-century English plaintiff action libel a based an seeking against upon allegedly an redress for publisher to the remark in a issued 17 years prior contained defamatory newspaper defamation, of that the sale to the theory on discovery plaintiff’s constituted a new of the long-forgotten copy newspaper of plaintiff running anew the of the of limitations. starting period publication, [Citation.]” (Ibid.) the advent of books and newspa- We observed “courts that recognized and unending circulated a mass threatened among readership were pers endless) as overwhelming (and litigation, ruinous as well potentially liability a rule each sale of a of newspaper as as courts adhered to the long copy book, new after constituted a or a how regardless long original publication, (Ibid.) and separate publication.” as the “courts what became known
To correct these fashioned problems, rule, that, a or edition of holding any single newspaper single-publication book, defamatory a action for statement there was but a single potential book, or matter how many copies contained in the no newspaper (Shively, or the book were distributed. newspaper [Citations.]” in 1245.) law rule was codified The common Cal.4th at p. Act enact- Publication Single when California Uniform adopted 3425.3, states, have than “No shall more part: section which person ing invasion of cause for libel or slander or damages privacy one of action note . . .” The prefatory other founded . any single tort upon rule “any single act that under the single-publication to the uniform states or magazine, as one edition of such integrated publication, broadcast, unit, one is treated as a rise cause of action.” giving only Act, West’s (14 469.)8 U. Laws Ann. U. Publication Single p. v. G. P. Sons Putnam’s The decision in N.Y. 119 Gregoire 45], N.E.2d we Shively, recognized which relied in that the upon purpose limitations of the was to to the statute give meаning “a statute ‘to the courts from stale litigation of repose designed spare — claims, and the after have citizen from to his defense memories being put faded, witnesses evidence have died has been lost.’ disappeared, (Id., Gregoire 81 N.E.2d The filed a suit plaintiff [Citation.]” after the defamation five book Total first was nearly years Espionage pub 6,000 lished. book had been Although sold approximately copies distribution, each first two its had been sold only copies stock in of the action. The year argued prior filing plaintiff these few sales from stock the book to be relatively “repub caused lished,” a new limitations observed that triggering period. court accepting mean that plaintiff’s view would book libelous “although containing material have may been the of but one edition or printing fifty years if, by sale from stock or ago, continues to make display, publisher unsold copies available to the such single publication public today, would conduct amount to libel the republication of book contains would thereby become actionable. Under the Statute such a rule of Limitation would never as a long so of such remained in stock and is expire copy book *11 the (Id. by made of subject the a sale or the at publisher by inspection public.” 48-49.) pp.
The court in held Gregoire thus that the was entitled to publisher repose the of following initial and the process printing releasing book to the public and from the sales stock so would not the subsequent produced begin of statute limitations anew. The court the stated “that of a libelous publication book, other a involving styling, binding and those acts which enable printing, on a to given date rеlease to the thousands of a publisher of public copies single printing or affords the a impression, one libeled basis for legal only cause of action which arises when the finished is released the for sale in accord with trade (Gregoire v. G. P. Putnam’s publisher practice.” Sons, supra, 49.) N.E.2d at p. New The York court later Gregoire high described its as holding
follows; Gregoire court of furnishes its own illustrations of the kind “[T]he (Ariz. Single Uniform adopted The Publication Act has been in six other states —Arizona 12-651), (Idaho 6-705), (740 Comp. Rev. Stat. Code § Idaho Illinois §§ 6-702 Ill. 165/1-5), (N.M. 41-7-5), (N.D. New Stat. Mexico Stat. Ann. North Dakota Cent. §§ 41-7-1 to 14-02-10), (42 8341) Pennsylvania “great Code Pa. of majority” § Cons. Stat. the § —and (Keeton remaining v. Hustler the states by judicial follow the decision. 770, 777, 790, Magazine, Inc. 1473].) 465 U.S. fn. 8 L.Ed.2d 104 S.Ct. [79 case in which the it articulated was to have its [single-publication] principle First, course, of the at hand. was case then It emanated application. primary the a sale from of a the book copy containing from stock of publisher’s this the book libelous Since transaction occurred two after language. distribution, a the issue whether had last was undergone printing general last the later from stock be the sale was to printing point departure , the statute. . . . here was Qualitatively the sale stock running of 60 had only one of a trickle to which demand the book dwindling Thus, in the 12 of suit. on its reduced such sales months initiation preceding facts, Gregoire held Limitations to be that ... Statute of is not merely a reactivated a late sale from the residue of time-barred event.” publishing (Rinaldi v. Inc. Viking Penguin, 52 N.Y.2d N.Y.S.2d 377, 381].) N.E.2d rule, Belli v. Roberts The first California case to Furs, 14, 1962, Brothers supra, held that February Cal.App.2d six issue of the Francisco Chronicle which was newspaper, San composed “a single, editions that were issued over a was two-day period integrated (Id. 289.) at The court concluded that “the Legislature publication.” p. a action based defama- right bring intended abrogate separate upon where, a magazine, matter in several editions of tory appearing newspaper (Id. here, all at of the editions issue of date.” single particular comprise p. editions therefore concluded that various Court “[t]he February single integrated
of the Chronicle for comprise publica seen, tion, date. As we namely the issue have matter in the edition and repeated first allegedly defamatory appeared It has been in each and edition followed. every generally without change that, action of a integrated held the case cause single, publication, in the acсrues upon based matter upon objectionable appearing publication the first distribution of the general public. [Citation.]” (Belli Furs, 289; Fleury v. Roberts Brothers see Cal.App.2d *12 Publishers, 1022, Row, 1983) the & Inc. (9th Cir. F.2d Harper [“In a cause action on the first of a of accrues integrated publication, case single, Viking Rinaldi v. to distribution of publication public.”]; general Inc., related reasonably 420 N.E.2d activities Penguin, supra, [“the were regarded and of a or newspaper magazine distribution production which the would run from of a transaction statute single against as part or large no matter how time that the circulation of original periodical, .”].) taken . . had widespread, place a “single integrated is intended to rule single-publication prevent causes because the publica numerous of action resulting
publication” Inc., (Rinaldi Penguin, v. Viking mass tion is received a audience. by 420 N.E.2d the time nor the circumstance which copy [“neither is, to a consumer in and of a book or other finds its way particular publication itself, to militate against unitary, integrated publication operation in Miller Collectors As the Court of recognized concept”].) Universe, 194]; “The Inc. Cal.Rptr.3d 159 Cal.App.4th [72 rule both from its is original apparent, purpose it. The and from the of the California statute history language implementing communications, directed at mass such as communica- rule was originally broadcasts, books, tions in radio and television magazines, newspapers, to an audience. Where the is read or heard offending language by speeches audience, the rule limits the to a cause of action for each large single plaintiff mass communication. A cause of actiоn for each member of the separate audience is disallowed.” public
The rule does not address issue of of the same publications repeated Bugliosi Kanarek v. (See libelous material over a substantial of time. period (1980) 108 Uniform Single Cal.App.3d Cal.Rptr. 526] [“the Publication Act.. . was not to designed unending give immunity repeated matter”].) of libelous distinction is made in the publications This clearly Torts, Restatement Second of which rule that adopts one edition of a book or one radio or television “[a]ny any newspaper, broadcast, exhibition of a motion or similar communication picture aggregate 577A, Torts, (Rest.2d 208.) is a single The comments publication.” p. § rule, rule,’ “An sometimes called the explain: exceptional ‘single publication time is in cases where the same communication is heard the same applied two or more In order to and undue avoid actions persons. multiplicity individuals, harassment of the defendant suits new as well as by repeated excessive damages have been recovered in numerous might separate suits, the communication to the entire treated as one group publication, (Id., b, rise to giving 209.) one cause of action.” com. “The only single p. also the issue of one edition of a applies any newspaper, book; television; one magazine broadcast over radio or any any exhibition of a motion one theatrical or other picture; performance audience; to an and to similar communication that presentation aggregate c, (Id., reaches a number of at the . . .” large same time. com. persons It is not clear whether the of a labеl over a production period is a “single integrated publication” triggers running statute of limitations when the first such label is distributed to the public. an issue of a or an edition of a book is a Publishing magazine discrete event. A an distributes issue publishing publisher prints or an edition of a book is entitled to from the threat that a repose *13 of that or book will surface later and a lawsuit. copy magazine years trigger earlier, academic But as we there stated is little case law or commentary whether a manufacturer a discussing label for produces product period is entitled to the same while that label is repose, especially product still Christoff that Nestlé’s conduct being produced. argues qualified in which “a cause of action accrues each time a continuing wrong, wrongful Dulce v. period.” (Hogar Hogar occurs, аct a new limitations triggering Commission CommunityDevelopment Cal.App.4th [2 Nestlé, contrast, 497].) that its use of Christoff’s Cal.Rptr.3d argues image on its label was a overt act” with “a continual effect that is “single product to relevant but does not denote course of conduct for damages, continuing (Blair v. Nevada Landing which the limitations can be tolled.” period Partnership Ill.Dec. N.E.2d Ill.App.3d Hyde Cuccioli v. & Neue Bremen Theater Jekyll Metropol 1193]; accord, 2001) (S.D.N.Y. 150 F.Supp.2d decline
We this the benefit of a resolve issue without important sufficient factual record that reveals the manner in which the labels were distributed, when of the labels and produced including production began (Lahr Adell Chemical Co. (1st 1962) ceased. Cir. 300 F.2d rule should be circumstances single publication applied [“Whether were.”].) of this case had best be decided when we know what they did not have a reason or an such evidence parties opportunity present of the trial court’s erroneous that the rule did light ruling claims not of likeness. The will have apply misappropriation parties on remand to the court. If on remand it is estab opportunity superior that all some of the label constituted a lished of the portion production then the court should further consider single integrated publication, superior whether the statute of limitations anew because the label was began “repub rule. lished” within the of the meaning a “single integrated Whether labels was producing publication” the trial will face on remand. Evidence was is not issue that court only without his consent in introduced at trial that Christoff’s also was used image ads, various forms of transit advertising, including coupons newspapers, advertisements, and Internеt Nestlé be able to may advertisements. integrated show that the of some or all of these items were single production and that the statute of limitations was as to that item triggered publications when it first was distributed to the public. held that the trial court erred in
The Court of further rule if it found delayed discovery “prior instructing jury or should to his of the facts did not previously suspect, discovery [Christoff] the Taster’s Choice label.” We have that his was on suspected, photograph rejected discovery have agree. uniformly application “[C]ourts books, out that to libels magazines, newspapers, pointing published undermine the rule would discovery protection provided application
483 The same (Shively, supra, rule.” 31 Cal.4th the single-publication case that is “not such as the one in the present to a label logic applies San (Hebrew Aсademy manner” in an secretive inherently published Goldman, 883, 894), Francisco v. but is distributed widely supra, Cal.4th to the public.
Disposition the Court of is reversed to the extent that it holds judgment Appeal that, limitations, cause of action of the statute of Christoffs purposes accrued when Nestlé first the label under the rule we necessarily “published” Bozanich, announced Shively v. Cal.4th 1230. In all other of the Court of is affirmed and matter respects, judgment for further consistent with our remanded the Court of Appeal proceedings opinion. J., Kennard, Baxter, Chin, J., J., J., J., J., C.
George, Werdegar, Corrigan, concurred. WERDEGAR, J., In Concurring. concur fully majority opinion. —I I that without a better factual record we cannot determine agree
particular, Code, (Civ. (hereafter how California’s mle 3425.3 single publication § whether, extent, 3425.3)) section should here and hence or to what Nonethеless, of limitations. action is barred the statute I believe plaintiff’s some general relevant to that be discerned from the principles question may of section 3425.3.1 language aside
Leaving Taster’s Choice labels on which any image plaintiffs altered, significantly and further advertisements disregarding employed label,2 here is whether all of a the broadest photographs question posed distribution of labels when employing original image, misappropriated occurred, ever should be deemed to they single constitute publication of section 3425.3. Phrased more should a series of purposes generally, distinct be treated as a because temporally single publications publication each consisted of the same text or substantially images? damages person Section 3425.3 states: “No shall have more than one cause of action for any any single
for libel or slander or invasion of founded privacy upon other tort utterance, any any or exhibition or such as one issue of a or book or presentation any any to an audience or one radio or one broadcast over television damages picture. Recovery exhibition of motion action shall include all such jurisdictions.” tort in all plaintiff suffered categories separate original That both these constituted from the labels publications clear, they original apparently themselves seems differed in content from the labels and were Viking Penguin, Rinaldi (See 1979) v. Inc. aimed at different (N.Y.Sup.Ct. audiences. Bugliosi 556]; Kanarek Cal.App.3d Misc.2d N.Y.S.2d 928 [422 526].) Cal.Rptr. 332-333 [166 On this California courts have not and courts from other question, spoken,3 *15 have reached jurisdictions diverse results. Sоme have held that multiple broadcasts, distributions or of identical material constitute a single displays limitations, of the statute of and not a series of purposes (See, Blair e.g., v. Nevada 369 republications. Landing Partnership 511, 1188, 318 Ill.Dec. 859 N.E.2d Ill.App.3d 1193-1194] [use in various advertisements within a casino and on the plaintiff’s image casino’s Web site over a treated as a nine-year single period publication]; Soc., Intern National Auscape v. 461 Geographic supra, F.Supp.2d defendant, 185-187 which each distributed pp. year digital compilation [the issues, in each all the past magazine including year’s compilation prior contents, issues]; did not years’ Zoll v. thereby republish prior years’ 31873461, (S.D.N.Y. 2002) Jordache Inc. 2002 WL Enterprises *9—*11 pp. of 1978 television commercial in 2000 was not a republication [rebroadcast broadcast].) of the original 1978
Other courts have looked on each broadcast or as a separate display which, it each of if violates publication, republication, plaintiff’s rights, Network-FM, (See, a new limitations Talk Radio begins e.g., Wells v. period. 4888992, (N.D.Ill. 2008) Inc. 2008 WL *l-*3 unauthorized use of pp. [each in voice radio advertisements broadcast for two plaintiff’s repeatedly was a rebroadcast a new statute of limitations triggering period]; Communications, (E.D.N.Y. 2004) Lehman v. Inc. Discovery F.Supp.2d the defendant more 535-536 broadcast 17 times over program [where than two each broadcast was a defama years, republication allegedly material]; 2001) Baucom v. 805 So.2d tory Haverty (Fla.Dist.Ct.App. [where, over several the defendant used years, repeatedly 960-961 clients, to name and plaintiff’s image marketing presentations potential each was a new suсh presentation publication].) view,
In with our statutory latter is more consistent my approach of a section 3425.3 refers to single “any As illustrative language. publication, to an one issue of a or book or one any presentation one exhibition audience or one broadcast over radio or television a motion The statute thus dictates we treat as a separate picture.” reissue, reexhibition, rebroadcast or even though publica- publication any or the manner of its distribution or has not been tion’s contents display broadcast,” “any example, Section 3425.3’s reference changed. Inc., like v. Enterprises, a result Zoll Jordache appears preclude Intern, (S.D.N.Y. 2006) Auscape Geographic Soc. National The district court text, however, post, deciding did California law in F.Supp.2d attеmpt cited in the question. one version of the advertisement, the same two broadcasts of WL where deemed to be a single publication.4 were years,
separated
Granted,
material
“issue” of
presents
what is
determining
single
printed
and distributed
numbers of a book are printed
difficulties. When large
special
time,
stock is considered
at one
the later distribution of smaller numbers from
Sons
v. G. P. Putnam’s
(Gregoire
of the original publication.
part
45, 46,
49].)
rule has been applied
N.Y.
N.E.2d
The same
119 [81
edition,
time of its
at least within a short
additional
of a
book
single
printings
*16
Publishers,
Row,
Inc.
(9th Cir.
v.
&
Fleury Harper
(See
original publication.
1978,
in November
1983)
F.2d
a book was published
[where
of the same publica-
“continued
of the book into 1979”
part
printing
but
no initial mass
tion].) Would the same rule
if there were
printing,
and sent out
or small batches of
were printed
individual copies
copies
should,
text on
each instance of access to
readers on demand?
it
for
Arguably
(Firth
v. State
(N.Y.Ct.Cl.
the Internet is not considered a separate publication
835, 841-843]), nor
would
2000)
decision that
“conscious
independent”
[and]
Winston,
omitted,
46],
Inc.
A.2d
italics
(1974)
131 N.J.
Super.
[330
1148]) or “conscious and deliberate”
affd.
which it considered settled under New
Torts,
republications.
material were deemed
subsequent
under which
broadcasts of the same
Inc.,
(Zoll
*10.)
Enterprises,
supra,
For these I doubt defendant’s entire course of five-year printing and distributing labels be deemed a may single because publication simply the labels were not altered substantially time. The trial court during should consider as well whether the and distribution of labels was production is, (that initial decision or whether predetermined by single defendant officers or of defendant made at managing agents corporation) relevant conscious, continue, time a deliberate choice to renew or the use of expand labels bearing If such decisions oc- plaintiff’s misappropriated image. limitations, curred defined during statute of should period plaintiff be able to recover caused damages to those decisions. by publication pursuant for a was denied
Respondent’s petition rehearing 2009. September