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Intellectual Property Law

: IPKat

"Wake up and smell the damages ..."

By Johanna Gibson, David Pearce, Jeremy Phillips and Ilanah Simon.

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Some people have all the luck -- or do they? Consider professional model Russell Christoff, for example. In 1986 Christoff was paid $250 to pose for a photograph which was to be used in Canada on a label for bricks of coffee. Sixteen years later Christoff, now a good deal older, saw his earlier face smiling out at him from a jar of Nestlé's Taster's Choice instant coffee in the US. Further enquiry revealed that his image had been used -- without his consent -- on millions of labels sold internationally for the preceding five years. Christoff sued in a California court for appropriation of his likeness. This action was commenced six years after Nestlé USA began using his image on the Taster's Choice label, but less than a year after he found out.

At this point things started getting procedural. The trial court applied a two-year statute of limitations and told the jury to decide under the discovery rule whether Christoff knew, or should have known earlier, that Nestlé used his image. No problem, said the jury, awarding him more than $15 million in damages. The Court of Appeal reversed this decision. According to that court, under the single-publication rule, since Christoff had not filed his lawsuit within two years after Nestlé first ?published? the label (i.e. two years after six years ago = four years ago), his cause of action was limitation-barred unless, on remand, either (i) Nestlé was shown to have hindered Christoff?s discovery of the use of his photograph, or (ii) the label had been republished following its initial publication.

Granting review, the Supreme Court of California agreed with the Court of Appeal that the trial court was wrong to rule that the single-publication rule did not apply to claims for appropriation of likeness.

Left: grounds for appeal ...

However, the Court of Appeal was wrong to conclude that this meant that Christoff's action was necessarily statute-barred unless he could show that Nestlé had hindered his discovery of the use of his photograph, or that the label had been

republished. That ruling presupposed that Nestlé's various uses of Christoff's likeness necessarily constituted a ?single publication? within the meaning of the single-publication rule. Since the parties were prevented by the trial court's erroneous legal ruling from developing a record concerning whether the single-publication rule applied, the Supreme Court remanded the case for further proceedings.

Right: This is not the first time Nestlé has pulled a stunt like this. The IPKat rages at finding his likeness on a packet of roasted pieces ...

The IPKat wonders whether the $15 million award would pass the sort of 'proportionality' test with judicial relief in Europe is supposed to conform. Merpel says, I think the damages award consists of $250 for the infringement; the rest is for the pain of having to litigate against seasoned courtniks like Nestlé.

Full post as published by IPKat on August 27, 2009 (boomark / email).