Studios, guilds get split decision in Taster's Choice right-of-publicity case

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Studios, guilds get split decision in Taster's Choice right-of-publicity case

Mon Aug 17, 2009 @ 05:48PM PST

By Eriq Gardner

Mn_nestle_model2 In 2002, California school teacher Russell Christoff was standing in line at Home Depot when he noticed his face on a jar of Taster's Choice instant coffee.

Just as surprising, perhaps. was that the resulting court case, Russell Christoff v. Nestle USA, has become a big deal in the entertainment industry, pitting the MPAA against SAG and AFTRA over the issue of what rights actors and models have over the use of their image.

Today, the California Supreme Court handed down an eagerly awaited decision in the case. 

Before becoming a teacher, Christoff was a professional model. In 1986, he was paid $250 to pose for a photograph to be used only in Canada.

Fifteen years later, Nestle USA obtained his photo from Nestle Canada and featured it on Taster's Choice labels, newspaper coupons and magazine ads in 22 countries. Christoff had forgotten about the photo but when he noticed his image, he sued alleging that Nestle has violated his rights of publicity. A jury awarded him more than $15 million in damages.

The Court of Appeal later reversed the decision, holding that under the single-publication rule, because Christoff had not filed his lawsuit within two years after Nestle first "published" the label, his case was barred by the statute of limitation.

Studios and media organizations loved the ruling because it limited their liability for violating someone's publicity rights in advertising. Meanwhile, actors and actresses hated the decision, arguing that the single-publication rule only applied to allegations of defamation. Both sides filed amicus briefs.

Now, the Supreme Court of California has split the middle, ruling that the single-publication rule does apply to claims for appropriation of likeness, and thus, plaintiffs do have a time clock for bringing a lawsuit. But the Court also ruled that Nestle's various uses of Christoff's likeness don't necessarily constitute a "single publication" within the meaning of the rule. In other words,  his photograph may have been "republished" but that's a question a lower court will need to determine.

In a statement, AFTRA called the decision a "mixed bag" for the performers the organization represents. Saying the judges took a "narrow view" of what it considered to be a publication, AFTRA says, "This means that when a performer's or model's image is reused on multiple occasions or in different media, the performer or model will generally have an opportunity to show a new publication, and, thus, the start of a new statute of limitations."

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The Hollywood Reporter
The Hollywood Reporter, Esq. blog focuses on how the entertainment and media industries are impacted and influenced by the law. It is edited by Matthew Belloni with contributions from veteran legal reporter Eriq Gardner and others. Before joining The Hollywood Reporter, Belloni was a lawyer at an entertainment litigation firm in Los Angeles. He writes a column for THR devoted to entertainment law. Gardner is a New York-based writer and legal journalist. Send tips or comments to Matthew.Belloni@thr.com

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