This post was written by Rachel Rubin and Adam Snukal.
Is there an advertiser in California (or perhaps anywhere) who has an idea of what California’s single-publication rule even provides?
Before answering that question, let’s define the rule itself.
The single-publication rule generally provides that publishers and advertisers alike that use a person’s image, either in an inappropriate and tortious manner or without authorization, with broadly circulated products that are visible to most people, can generally only be slapped with a single tort claim no matter how many times the offending image was reprinted. The rule carries a two-year statute of limitations, commencing from the first publication, unless a person whose image was used had no “meaningful ability” to be aware of that publication.
So that’s the rule. And at least one company – Nestlé USA – is now very aware of it.
In 2002, Russell Christoff, a former model, unexpectedly came face to face with his own picture on a container of Taster’s Choice coffee when a woman standing in line with him at a Home Depot store told him he looked just like the guy on her coffee jar. Several years earlier, Christoff had posed for the photograph for Nestlé Canada. He was paid $250 and given a contract guaranteeing him $2000 plus an agency commission if Nestlé Canada used the photo. Christoff never heard another word. Allegedly unbeknownst to Christoff, Nestlé Canada used his image on the product. And between 1997 and 2003, Nestlé USA placed his image on millions of Taster’s Choice labels cross the United States and abroad. Within a year of his fateful discovery in the checkout line (and six years after Nestlé USA began using his image), Christoff brought suit for appropriation of his likeness under California’s right of publicity law, where use of a person’s photo for advertising is prohibited absent his or her written consent.
In 2005, the California trial court held in favor of Christoff and the jury awarded him $15.6 million on the basis that Nestlé used Christoff’s image without permission or the requisite rights to do so. On appeal in 2007, however, the Court of Appeals reversed the $15.6 judgment, holding that the “single-publication rule” applied to a right of publicity claim such as that asserted by Christoff. Since Christoff had not filed his lawsuit within two years of Nestlé’s first “publication” of the label in question, his cause of action was barred by the statute of limitations. According to the Court of Appeals: “unless a reasonable person in Christoff's position had no meaningful ability to discover the publication, Christoff must have filed a lawsuit within two years of when Nestlé first published his image or republished his image.” Because the trial court refused to apply the single-publication rule, and permitted Christoff to proceed on his claims even though he did not file suit until approximately five years after Nestlé's first use of his image, the Court of Appeals held that the entire judgment had to be reversed for a new trial, and narrowed the scope of any new trial to just “republications” of Christoff's image by Nestlé, if any, that occurred within the limitations period.
Christoff then appealed to California’s highest court. On Aug. 17, 2009, the California Supreme Court agreed, in general, that the single-publication rule applies to causes of action for unauthorized commercial exploitations / misappropriations of a likeness. The court, however, disagreed that Christoff’s claim was barred by the two-year statute of limitations. According to the court, “The Court of Appeal’s ruling presupposes that Nestlé’s various uses of Christoff’s likeness, including its production of the product label for a five-year period, necessarily constituted a ‘single publication’ within the meaning of the single-publication rule. While Christoff’s counsel argued that the single-publication rule does not apply to Nestlé’s printing of its product label because it is not ‘a single publication’ (i.e., a one-time occurrence) such as a newspaper, book, magazine, or television broadcast, Nestlé asserted before the court that the single publication rule was intended all along to apply to multiple printings of the same publication.”
The California Supreme Court has remanded the case back to the lower court to decide whether producing the labels was a single substantiated publication or not, citing that the parties never had the opportunity to present their positions on this issue. If on remand it is established that all or some portion of the production of the label constituted a single integrated publication, then the lower court was instructed to further consider whether the statute of limitation began anew because the label was “republished” within the meaning of the single-publication rule.
The key element of the California’s Supreme Court’s ruling in this case centers around what constitutes a “single integrated publication,” as this is the primary determinative factor in applying the single-publication rule. “While it is clear that the publishing of a magazine or a newspaper is a well-defined publishing event, there is limited authority or case law on the characterization of a label or dissemination of a national advertising campaign.” The court noted that Christoff’s likeness not only appeared on coffee jars, but also on coupons, transit ads, Internet banners, newspapers and magazines. All of these various examples raise the question of whether each such use should be considered a “single integrated publication” or whether, collectively, they constitute a “single integrated publication.”
Why This Matters
Though book and magazine publishers are guaranteed some repose from defamation, libel or misappropriation suits after the first publication of their product, advertisers do not yet have this protection. Because the court declined to define “single publication” as applying to advertising materials and campaigns, and because there is, according to the court, little guidance as to whether a manufacturer that produces a product label for a period of years is entitled to the same limited liability (especially while that product label is still being produced), it remains a factual question as to whether the unauthorized use of an image on a product is a single, overt act, or a continuing wrong. The court indicates that this decision will turn on “the manner in which the labels were produced and distributed, including when production of the labels began and ceased.”
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On January 6, 2010, The Weatherproof Garment Company (a division of David Peyser Sportwear) put up a billboard (actually two, a diptych) in New York's Times Square. The advertiser used an Associated Press (AP) licensed photo of President Barack Obama during his visit to China's Great Wall back in autumn wearing a Weatherproof jacket. Legal pundits have long discussed and opined whether the First Amendment trumps the commercial product endorsement (commercial free speech being more limited than free speech per se). One thing is VERY clear--the AP's contract required that "the necessary clearance" be obtained prior to the Weatherproof Garment Company's use of the image. Weatherproof president Freddie Stollmack blandly told the media he had not bothered to obtain the clearance. The White House legal team has already been in contact with both AP and Weatherproof's parent company.