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Christoff v. Nestlé USA

August 17, 2009

RUSSELL CHRISTOFF, PLAINTIFF AND RESPONDENT,
v.
NESTLÉ USA, INC., DEFENDANT AND APPELLANT.



Ct.App. 2/8 B182880 Los Angeles County Super. Ct. No. EC036163 Judge: Charles W. Stoll

The opinion of the court was delivered by: Moreno, J.

In 1986, professional model Russell Christoff was paid $250 to pose for a photograph to be used in Canada on a label for bricks of coffee. Sixteen years later, Christoff saw his face on a jar of Taster‟s Choice instant coffee in the United States and discovered that his image had been used without his consent on millions of labels sold internationally for the preceding five years. Christoff filed the present action for appropriation of his likeness six years after Nestlé USA, Inc. (Nestlé), began using his image on the Taster‟s Choice label but less than a year after his discovery.

The trial court applied a two-year statute of limitations and instructed the jury to determine under the discovery rule whether Christoff knew or should have known earlier that Nestlé had used his image. The jury found that Christoff did not know, and should not reasonably have suspected prior to seeing the jar, that his image was being used without his consent and awarded him more than $15 million in damages.

The Court of Appeal reversed, holding that under the single-publication rule, because Christoff had not filed his lawsuit within two years after Nestlé first "published" the label, his cause of action is barred by the statute of limitations unless, on remand, the trier of fact finds that Nestlé had hindered Christoff‟s discovery of the use of his photograph, or that the label had been "republished." We granted review.

We agree with the Court of Appeal that the judgment must be reversed because the trial court erroneously ruled that the single-publication rule does not apply to claims for appropriation of likeness. But we do not agree with the Court of Appeal that this means that Christoff‟s action necessarily is barred by the statute of limitations unless he can show on remand that Nestlé had hindered his discovery of the use of his photograph, or that the label had been "republished." 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. Because the parties were prevented by the trial court‟s erroneous legal ruling from developing a record concerning whether the single-publication rule applied, we remand the matter for further proceedings.

FACTS*fn1

In 1986, Russell Christoff, an actor and professional model, posed gazing at a cup of coffee, as if he enjoyed the aroma. The photo shoot was arranged by Nestlé Canada.*fn2 Christoff was paid $250 for a two-hour photo shoot and received a contract providing that if Nestlé Canada used the picture on a label it was designing for a brick of Taster‟s Choice coffee, Christoff would be paid $2,000 plus an agency commission.*fn3 The price for any other use of Christoff‟s image would require further negotiations. Without informing Christoff, or paying him according to the terms of the contract, Nestlé Canada used Christoff‟s image on the coffee brick.

Eleven years later, in 1997, Nestlé decided to redesign its label for Taster‟s Choice instant coffee, which, for three decades, had prominently featured a "taster," that is a person peering into a cup of coffee. The high resolution artwork of the original "taster" used to produce the existing label had been lost. Nestlé searched without success for other high resolution artwork of the original "taster," but found instead the photograph of Christoff that Nestlé Canada had used on the coffee brick, which satisfied the requirements.

Nestlé decided to use Christoff‟s image because he looked "distinguished" and resembled the original "taster." Christoff‟s photograph was "youthened" to make him appear younger and more similar to the original "taster." Nestlé believed that it had authority to use Christoff‟s image because it had been widely used in Canada. Nestlé never investigated the scope of the consent and never asked Christoff if he consented to the use of his image. Christoff‟s image was used in the redesigned Taster‟s Choice label beginning in 1998. The redesigned label was used on several different Taster‟s Choice jars, including regular coffee, decaffeinated, and various flavors. Labels bearing Christoff‟s image also were produced in different languages and placed on jars of coffee to be sold internationally. For the label used in Mexico, Christoff‟s image was altered to add sideburns and darken his complexion. Images of jars of coffee bearing Christoff‟s image appeared in Nestlé‟s multiple advertising campaigns for Taster‟s Choice, including transit ads, coupons in newspapers, magazine advertisements, and Internet advertisements.

In 2002, a person standing in line with Christoff at a hardware store remarked that he "look[ed] like the guy on my coffee jar." A month or so later, on June 4, 2002, Christoff saw a jar of Taster‟s Choice instant coffee on a store shelf and, for the first time, recognized his photograph on the label. He purchased the jar of coffee and called his agent.

In 2003, Nestlé again redesigned its label using another model, James Vaccaro, as the "taster." Vaccaro was paid $150,000 for the use of his image for 10 years. The new label started circulating in May 2003, but jars of Taster‟s Choice with Christoff‟s image were still in Nestlé‟s inventory and could have been shipped to retailers.

PROCEDURAL BACKGROUND

In 2003, Christoff sued Nestlé, alleging causes of action for unauthorized commercial use of another‟s likeness in violation of Civil Code section 3344,*fn4 common law appropriation of likeness, quantum meruit (initially labeled "quasi-contract"), and unjust enrichment. The trial court denied Nestlé‟s motion for summary judgment based on the statute of limitations, ruling that the Uniform Single Publication Act as codified in Civil Code section 3425.3 (hereafter section 3425.3), which states that "[n]o person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine,"*fn5 did not apply to Christoff‟s claims because they were not "based on defamation." The trial court reasoned that the single-publication rule "was developed in the common law to avoid the problems that mass publication of books and newspapers created for the tort of defamation." The court explained that Christoff‟s "claim is not defamation-like because he is not alleging that he suffered damages from offensive communications," but rather his "claim arises from the alleged unauthorized use of his likeness, which is protected by his right of publicity." Christoff "does not claim that this use was offensive, but instead seeks compensation for the defendant‟s use of his likeness in advertising."

The court applied a two-year statute of limitations under Code of Civil Procedure section 339 and instructed the jury that because Christoff filed his complaint on February 7, 2003, he could "claim damages that took place at any time on or after February 7, 2001." The court further instructed the jury that "the rule of delayed discovery" would apply and Christoff could "also seek damages that took place from the time Nestlé USA first used his image" if Christoff 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."*fn6 The trial court denied Nestlé‟s motion for summary adjudication, in which it asserted that there was no evidence it knowingly used Christoff‟s photograph without his consent.

At trial, Nestlé vigorously objected to the testimony of Christoff‟s damage expert, Peter Sealy, that the icon on the Taster‟s Choice label was responsible for 5 to 15 percent of Nestlé‟s profits from selling Taster‟s Choice instant coffee. This testimony was the basis for Christoff‟s argument that he was entitled to 10 percent of Nestlé‟s profits from the sale of Taster‟s Choice instant coffee. Christoff‟s accounting expert testified that, during the six-year period Nestlé used Christoff‟s likeness, ...


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