Case Summary

4509 REVIEW GRANTED The single publication rule applies to an action for invasion of the right of publicity based on defendant’s use of plaintiff’s likeness on labels for coffee; the statute begins to run on the first publication of plaintiff’s likeness without consent; if plaintiff lacked the meaningful ability to discover the use of his likeness, the discovery rule delays accrual of the action and the running of the statute; plaintiff in such an action need not be a celebrity; uses of the same likeness on labels for other flavors of coffee, other size packages, in foreign countries, and in magazine, newspaper, rapid transit, and television advertising are republications giving rise to new actions if there was some modification in the presentation of the likeness or its use was intended to reach different audiences; the Civil Code’s requirement that an action of this kind be based on defendant’s knowing use requires only that defendant knew plaintiff’s likeness was being used; plaintiff may recover profits defendant derived specifically from the use of plaintiff’s image. [Note: For more information on invasion of the right of publicity, phone or email to order Finz’s audio CD titled “Dracula Meets The Three Stooges.”]

CHRISTOFF v NESTLÉ (Taster’s Choice) 152 CA4 1439 [See: CivC 3344, 3425.3; CCP 339; Kanarek v Bugliosi 108 CA3 327; Shively v Bozanich, 31 C4 1230, T/AT 1/04]