Calif. Supreme Court orders model's lawsuit back to trial

Kathy Woods Aug. 19, 2009, 2:39am

Kathryn Werdegar

SAN FRANCISCO (Legal Newsline)-A trial court will revisit the long-running case between Nestle USA and model Russell Christoff, after the California Supreme Court found that more information is needed in order to determine whether the "single publication rule" applies to the closely watched case.

In 1986, Christoff was paid $250 by Nestle Canada for his photo gazing into a cup of coffee. The contract stated that if his image were to appear on their coffee bricks he would be paid an additional $2,000 plus agency commissions.

Sixteen years later, he was in line at a hardware store where someone commented to him that he looked like the Taster's Choice man, so he went out and purchased a jar and discovered his image was still being used. Nestle USA was using his image without his permission on millions of labels sold internationally for the past five years.

Christoff sued and the jury awarded him $15 million in damages. The trial court applied a two year statute of limitations to the case and asked the jury to determine whether Christoff knew or should have known earlier that Nestle was using his image.

In June 2002, Christoff recognized the image was his and in 2003 he filed suit in Los Angeles County against Nestle for unauthorized commercial use of another's likeness.

Nestle's lawyers argued that the Uniform Single Publication Act did not apply to Christoff's claim as they were not based on defamation. Christoff is not alleging that he was defamed he is seeking compensation for the use of his likeness in advertising.

At trial, the court instructed the jury that the rule of delayed discovery would apply and Christoff could seek damages, if prior to the discovery of the facts that his image was being used he did not suspect or should have suspected that his image was on the Taster's Choice label.

The state Court of Appeals reversed judgment and remanded the case for retrial, stating that the single publication rule applied to the tort of appropriation of likeness. The rule of delayed discovery could apply if Nestle hindered Christoff's discovery of the use of his image.

Christoff argues that single publication rules do not apply as it is not a one-time occurrence such as, a newspaper, book magazine or television broadcast. Nestle's counters that "the rule was intended to apply to multiple printings of the same publication."

In addition to the labels Nestle used Christoff's likeness in transit ads, coupons, newspapers and magazine advertisements.

The single-publication rule was originally directed at mass communications, such as newspapers, books, magazines, radio and television. The rule does not address the issue of repeated publication of the same libelous material over a substantial amount of time.

Since there is very little case law in which to make a judgment, the state high court ordered the trial court to answer how statute of limitations deadlines should be defined in lawsuits involving product labels.

The opinion given by Associate Justice Kathryn Werdegar states: "I agree without a better factual record we cannot determine how California's single publication rule should apply here and hence whether, or to what extent, plaintiff's action is barred by the statute of limitations."

Werdegar also added the trial court should consider whether the product and distribution of labels was predetermined by a single decision or whether defendant at any relevant time made a conscious, deliberate choice to continue, renew or expand the use of labels bearing plaintiff's misappropriated image.

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