Christoff

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.

*472 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,…

Concurring. — I concur fully in the majority opinion. In particular, I agree that without a better factual record we cannot determine how California’s single publication mle (Civ. Code, § 3425.3 (hereafter section 3425.3)) should apply here and hence whether, or to what extent, plaintiff’s action is barred by the statute of limitations. Nonetheless, I believe some general principles relevant to that question may be discerned from the language of section 3425.3.

Leaving aside any Taster’s Choice labels on which plaintiffs image was significantly altered, and further disregarding advertisements that employed photographs of a label, 2 the broadest question posed here is whether all distribution of labels employing the original misappropriated image, whenever they occurred, should be deemed to constitute a single publication for purposes of section 3425.3. Phrased more generally, should a series of temporally distinct publications be treated as a single publication because each consisted of substantially the same text or images?

*484 On this question, California courts have not spoken, 3 and courts from other jurisdictions have reached diverse results. Some have held that multiple…

Davis Wright Tremaine, Kelli L. Sager, Rochelle L. Wilcox, Kevin L. Vick; Karlene Goller; Jonathan Donellan; Hallie Michelena; David Tomlin, Laura Malone; Thomas W. Newton; Peter Scheer; Lucy Dalglish and Gregg Leslie for Los Angeles Times Communications LLC, The Hearst Corporation, Viacom, Inc., The Associated Press, The California Newspaper Publishers Association, The California First Amendment Coalition, The Reporters Committee for Freedom of the Press and The Association of Alternative Newsweeklies as Amici Curiae on behalf of Defendant and Appellant.

Loeb & Loeb, Douglas E. Mirell and W. Allan Edmiston for Motion Picture Association of America, Inc., as Amicus Curiae on behalf of Defendant and Appellant.

Law Offices of Colin C. Claxon, Colin C. Claxon; Mayer & Glassman Law Corporation, Robert David Mayer; Kibre & Horwitz, Eric G. Stockel; and David J. Franklyn for Plaintiff and Respondent.

Duncan W. Crabtree-Ireland and Danielle S. Van Lier for Screen Actors Guild, Inc., as Amicus Curiae on behalf of Plaintiff and Respondent.

Reich, Adell & Cvitan, Laurence S. Zakson and William Y. Sheh for American Federation of Television and Radio Artists, AFL-CIO, as Amicus Curiae on…