In July 2002 Russell Christoff, a California teacher and former model, was amazed he saw his picture on a jar of Taster's Choice Coffee. The photo had been taken at a 1986 photo shoot in Canada and Christoff had forgotten about it. Christoff had given permission for the use of the photos in Canada only. But apparently Nestle USA obtained his photo from Nestle Canada and featured it on Taster's Choice labels -- as well as in newspaper coupons and ads on buses, in magazines and on the Internet -- in 22 countries. Nestle USA claims it mistakenly believed the company had authority to use Christoff's image worldwide.
Christoff sued for violation of his right of publicity. At trial a jury awarded him $15.6 million plus attorneys' fees of $600,000. But the intermediate appeals court threw the suit out because of the state's single-publication rule, which provides that the publication of a defamatory statement in numerous copies constitutes a single cause of action for statute of limitations purposes (though of course damages may increase with the number of instances of the tort). In other words, subsequently distributed jars of coffee or advertisements over the years do not trigger the running of new limitations periods for each jar.
Christoff v. Nestle USA Inc. will be argued before the California Supreme Court on Wednesday, June 3. The case considers whether the single-publication rule (codified in state Civil Code §3425.3) applies to the right of publicity (created by Civil Code §3344) or (as Christoff claims) only to common law torts such as defamation. This is a huge case in California because of the entertainment industry. Nestle has amici curiae briefs from major news organizations and from the Motion Picture Association of America, while Christoff has briefs from the Screen Actors Guild and other actors' groups.
Nestle notes that had Christoff had asserted his right of publicity claim in a timely manner, it could have replaced his image immediately at a cost of about $150,000. "Instead, because of Christoff's delay in asserting his rights, Nestle unwittingly continued to use his image without authorization...."
The Intermediate Appellate Court held that when the state Legislature enacted the right of publicity it understood that the tort was was a form of invasion of privacy, thus governed by the single-publication rule. Plaintiff's brief in opposition to this decision is here. If plaintiff prevails, the right of publicity will have been distinguished from other privacy torts in a new and in my opinion unprecedented way.