Taster’s Choice – Appropriation of Likeness and the Statute of Limitations
August 21 2009
by James Kachmar
In Cristoff v. Nestle USA, Inc., the California Supreme Court issued guidance in determining when the statute of limitations runs on a claim for appropriation of likeness. Russell Cristoff, the plaintiff, was a professional model who posed in 1986 for a photo with him gazing at a cup of coffee. Cristoff was paid $250 for the photo shoot which was arranged by Nestle (Canada).
In 1997, Nestle decided to redesign its label for Taster’s Choice instant coffee but had difficulty locating the artwork that had been used for the original “taster” on its existing label. Nestle decided to use Cristoff’s image because he looked distinguished and similar to the original “taster”. Nestle believed that it could use the image because it had been widely used in Canada. Nestle did not, however, investigate the scope of Cristoff’s consent nor did it ask Cristoff if he would consent to Nestle’s use of his image.
Nestle began using its redesigned Taster’s Choice label with Cristoff’s image in 1998. The label was used on several different Taster’s Choice products. Labels bearing Cristoff’s photo were also used internationally and the image appeared in multiple advertising campaigns, including newspaper coupons, and magazine and internet advertisements.
In 2002, while standing in line at a hardware store, a person remarked to Cristoff that he “looked like the guy on my coffee jar.” Cristoff saw a jar of Taster’s Choice instant coffee on a store shelf approximately one month later and recognized his photograph on the label.
Nestle redesigned its label again in 2003 and used another model for its “taster” photo. Cristoff nevertheless sued Nestle in 2003 and alleged claims for unauthorized commercial use of another’s likeness, common law appropriation of likeness, quantum meruit and unjust enrichment.
The trial court denied Nestle’s motion for summary judgment based on the statute of limitations and ruled that the Single Publication Act (Civil Code §3425.3) did not apply to Cristoff’s claims because they were not “based on defamation.” The trial court applied a two year statute of limitations and instructed the jury that because Cristoff filed his complaint on February 7, 2003 he could “claim damages that took place at any time on or after February 7, 2001.” The trial court also instructed the jury that it should apply the “delayed discovery” rule and that Cristoff could seek damages that took place from the time Nestle first used his image on its labels if Cristoff proved that “prior to his discovery of the facts he did not previously suspect, or should have suspected, that his photograph was on the Taster’s Choice label.” After the presentation of evidence, the jury found in Cristoff’s favor and ruled that Nestle knowingly used his likeness without his consent and that, prior to 2002, Cristoff did not know nor should he have known that his photograph was being used for commercial purposes. The jury awarded Cristoff damages of more than $15 million.
The Court of Appeal reversed the judgment and remanded the case for a new trial. The Court of Appeal concluded that the single publication rule did apply to a claim of appropriation of likeness. The Court also held that the lower court should determine whether the discovery rule delayed the accrual of the cause of action based on whether Nestle hindered Cristoff’s discovery of the use of his photograph on the Nestle label.
The California Supreme Court held that the Court of Appeal properly found that the single publication rule did apply to Cristoff’s claim for appropriation of likeness. The Court held, however, that to determine when the statute of limitations was triggered for Cristoff’s action, a court must decide whether Nestle’s unauthorized use of Cristoff’s image, including its production of the label, constituted a “single publication” under the single publication rule. The California Supreme Court held that the record before it was insufficient to allow it to answer this question.
The California Supreme Court recognized that the language in section 3425.3 is quite broad and that the California Legislature intended the single publication rule to apply to “libel or slander or invasion of privacy or any other tort …,” which should include appropriation of likeness. In determining the application of the single publication rule, the California Supreme Court reasoned that a Court “first must identify what constitutes a “single integrated publication” within the meaning of the rule, such as the printing and distribution of a particular issue of a newspaper, magazine or book.” The Court held that the primary issues to be determined was whether the printing of the Nestle label over a five year period constitutes a single integrated publication and whether Nestle’s use of Cristoff’s likeness in other forms, including coupons, and magazine and internet advertisements also constituted a “single integrated publication.”
The California Supreme Court recognized that “[t]he single publication rule was created to address the problem that arose with the advent of mass communication from the general rule in defamation cases that “each time the defamatory statement is communicated to a third person … the statement is said to have been `published,’” giving rise to a separate cause of action.” Eventually, “courts recognized that the advent of books and newspapers that were circulated among a mass readership threatened unending and potentially ruinous liability as well as overwhelming (and endless) litigation…”. The California Supreme Court recognized that the single publication rule was fashioned to avoid these problems and provided that “for any single edition of a newspaper or book there was but a single potential action for a defamatory statement contained in the newspaper or book, no matter how many copies of the newspaper or book, were distributed.”
The California Supreme Court concluded, however, that it was “not clear whether the production of a product label over a period of years is a `single integrated publication’ that triggers the running of the statute of limitations when the first such label is distributed to the public.” The California Supreme Court declined to resolve that issue without the benefit of additional facts from the parties that would reveal “the manner in which the labels were produced and distributed, including when production of the labels began and ceased.” The Court also instructed the trial court to determine on remand, that if the production of the label constituted a single integrated publication, then the court “should further consider whether the statute of limitation began anew when the label was `republished’ within the meaning of the single publication rule.” Furthermore, the Supreme Court recognized that the trial court would also have to resolve the issue of whether the advertisements using Cristoff’s image were also part of a “single integrated publication”. The Court recognized that Nestle “may be able to show that the production of some or all of these items were single integrated publications and that the statute of limitations was triggered as to that item when it first was distributed to the public.”
Finally, the California Supreme Court rejected the application of the delayed discovery rule in this case. The Court reasoned that “[c]ourts uniformly have rejected the application of the discovery rule to libels published in books, magazines and newspapers, pointing out that application of the discovery rule would undermine the protection provided by the single-publication rule.” The California Supreme Court concluded that the same logic applies to a product label as in the Nestle case that is “not published in an inherently secretive manner,” but is distributed widely to the public.
In remanding the case to the trial court, the California Supreme Court established that the single publication rule is applicable in cases involving appropriation of likeness and that the delayed discovery rule will not apply in such cases where there has been mass distribution of offending image to the public.