In 1986, model Russell Christoff was photographed for the label of Nestlé Canada’s Taster’s Choice coffee bricks.  Christoff received $250 for the day’s photo shoot, and his contract provided that he would receive a commission if his image was used on the coffee bricks sold in Canada.  Any other use of his image would require further negotiations.  In 1997, Nestlé USA redesigned the Taster’s Choice product label for use in the United States and other countries.  Nestlé USA used Christoff’s photo on its new label without first investigating whether the company had the right to use the photo outside of Canada.  Over six years, Christoff’s image appeared on Taster’s Choice jar labels, on billboards, in print publications, and in Internet advertising campaigns. Christoff first learned of the use in 2002, and he brought a claim against the company for violation of his publicity rights shortly thereafter. At trial, a jury awarded Christoff over $15 million, the percentage of Taster’s Choice profits that the jury attributed to the use of his likeness.  Nestlé USA appealed.

The case now making its way through the California courts will have serious implications for companies that do not use global licensing agreements when contracting with the models and actors they employ.  In Christoff v. Nestlé USA, Inc., the California Supreme Court recently held that California’s “single publication rule” applies when advertisers are charged with violating someone’s publicity rights.  That rule limits liability for publishers – and now advertisers – who are accused of committing slander, libel, or other related torts.  The question the California court did not decide, and the question that is critical to advertisers, is whether continuous use of a single product label qualifies as a “single publication” under the rule.

This latest ruling orders the trial court to determine whether Nestlé’s use of Christoff’s image constituted a single publication.  It is well-settled in California that a plaintiff has just one cause of action for each tortious publishing occurrence.  For example, a man who sues a newspaper for a slanderous comment in one edition has a single cause of action for that single edition, not 50,000 causes of action for the 50,000 papers distributed that day.  On remand, the trial court must determine whether continuous printing of the same product label, and use of that label in related promotions, constitutes a single publication of Russell Christoff’s image.  The answer to that question will determine what, if any, damages Nestlé owes.  If Nestlé’s use of the photo constituted a single publication under the California rule, then it is likely that Christoff’s claims are time-barred.  If Nestlé’s use was more than one publication of the model’s image, then the company may be on the hook for millions of dollars.

This decision will have serious implications for corporations that license the right to use people’s images.  The desire to use a particular image for an advertising campaign or product label must be weighed against the legal risks.  Arent Fox attorneys are monitoring the matter closely.  To find out more about this issue, please contact:

Anthony V. Lupo
lupo.anthony@arentfox.com
202.857.6353

Matthew R. Mills
mills.matthew@arentfox.com
202.715.8582

Grace L. Applefeld
applefeld.grace@arentfox.com
202.857.6498