California Civil Jury Instructions (CACI) (2017)

1803. Appropriation of Name or Likeness

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1803.Appropriation of Name or Likeness—Essential Factual
Elements
[Name of plaintiff] claims that [name of defendant] violated [his/her] right
to privacy. To establish this claim, [name of plaintiff] must prove all of
the following:
1. That [name of defendant] used [name of plaintiff]’s name, likeness,
or identity without [his/her] permission;
2. That [name of defendant] gained a commercial benefit [or some
other advantage] by using [name of plaintiff]’s name, likeness, or
identity;
3. That [name of plaintiff] was harmed; and
4. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised December 2014
Directions for Use
If the plaintiff is asserting more than one privacy right, give an introductory
instruction stating that a person’s right to privacy can be violated in more than one
way and listing the legal theories under which the plaintiff is suing.
If the alleged “benefit” is not commercial, the judge will need to determine whether
the advantage gained by the defendant qualifies as “some other advantage.”
If suing under both the common law and Civil Code section 3344, the judge may
need to explain that a person’s voice, for example, may qualify as “identity” if the
voice is sufficient to cause listeners to identify the plaintiff. The two causes of
action overlap, and the same conduct should be covered by both.
Even if the elements are established, the First Amendment may require that the
right to be protected from unauthorized publicity be balanced against the public
interest in the dissemination of news and information. (See Gionfriddo v. Major
League Baseball (2001) 94 Cal.App.4th 400, 409 [114 Cal.Rptr.2d 307].) In a
closely related right-of-publicity claim, the California Supreme Court has held that
an artist who is faced with a challenge to his or her work may raise as affirmative
defense that the work is protected by the First Amendment because it contains
significant transformative elements or that the value of the work does not derive
primarily from the celebrity’s fame. (Comedy III Productions, Inc. v. Gary Saderup,
Inc. (2001) 25 Cal.4th 387, 407 [106 Cal.Rptr.2d 126, 21 P.3d 797]; see CACI No.
1805, Affırmative Defense to Use or Appropriation of Name or Likeness—First
Amendment (Comedy III).) Therefore, if there is an issue of fact regarding a First
Amendment balancing test, it most probably should be considered to be an
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affirmative defense. (Cf. Gionfriddo, supra, 94 Cal.App.4th at p. 414 [“Given the
significant public interest in this sport, plaintiffs can only prevail if they
demonstrate a substantial competing interest.”].)
Sources and Authority
• “A common law misappropriation claim is pleaded by ‘alleging: “(1) the
defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s
name or likeness to defendant’s advantage, commercially or otherwise; (3) lack
of consent; and (4) resulting injury. [Citations.]” [Citation.]’ ” (Maxwell v.
Dolezal (2014) 231 Cal.App.4th 93, 97 [179 Cal.Rptr.3d 807].)
• “ ‘[T]he right of publicity has come to be recognized as distinct from the right
of privacy’. ‘What may have originated as a concern for the right to be left
alone has become a tool to control the commercial use and, thus, protect the
economic value of one’s name, voice, signature, photograph, or likeness.’ ‘What
the right of publicity holder possesses is . . . a right to prevent others from
misappropriating the economic value generated . . . through the merchandising
of the ‘name, voice, signature, photograph, or likeness’ of the [holder].’ ”
(Timed Out, LLC v. Youabian, Inc. (2014) 229 Cal.App.4th 1001, 1006 [177
Cal.Rptr.3d 773], internal citations omitted.)
• “The common law cause of action may be stated by pleading the defendant’s
unauthorized use of the plaintiff’s identity; the appropriation of the plaintiff’s
name, voice, likeness, signature, or photograph to the defendant’s advantage,
commercially or otherwise; and resulting injury.” (Ross v. Roberts (2013) 222
Cal.App.4th 677, 684–685 [166 Cal.Rptr.3d 359].)
• “California common law has generally followed Prosser’s classification of
privacy interests as embodied in the Restatement.” (Hill v. National Collegiate
Athletic Assn. (1994) 7 Cal.4th 1, 24 [26 Cal.Rptr.2d 834, 865 P.2d 633],
internal citation omitted.)
• “[T]he appearance of an ‘endorsement’ is not the sine qua non of a claim for
commercial appropriation.” (Eastwood v. Superior Court (1983) 149 Cal.App.3d
409, 419 [198 Cal.Rptr. 342].)
• “[N]o cause of action will lie for the ‘[p]ublication of matters in the public
interest, which rests on the right of the public to know and the freedom of the
press to tell it.’ ” (Montana v. San Jose Mercury News (1995) 34 Cal.App.4th
790, 793 [40 Cal.Rptr.2d 639], internal citation omitted.)
• “The difficulty in defining the boundaries of the right, as applied in the
publication field, is inherent in the necessity of balancing the public interest in
the dissemination of news, information and education against the individuals’
interest in peace of mind and freedom from emotional disturbances. When
words relating to or actual pictures of a person or his name are published, the
circumstances may indicate that public interest is predominant. Factors
deserving consideration may include the medium of publication, the extent of
the use, the public interest served by the publication, and the seriousness of the
RIGHT OF PRIVACY CACI No. 1803
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interference with the person’s privacy.” (Gill v. Curtis Publishing Co. (1952) 38
Cal.2d 273, 278–279 [239 P.2d 630].)
• “Even if each of these elements is established, however, the common law right
does not provide relief for every publication of a person’s name or likeness.
The First Amendment requires that the right to be protected from unauthorized
publicity ‘be balanced against the public interest in the dissemination of news
and information consistent with the democratic processes under the
constitutional guaranties of freedom of speech and of the press.’ ” (Gionfriddo,
supra, 94 Cal.App.4th at pp. 409–410, internal citations and footnote omitted.)
• “Public interest attaches to people who by their accomplishments or mode of
living create a bona fide attention to their activities.” (Dora v. Frontline Video,
Inc. (1993) 15 Cal.App.4th 536, 542 [18 Cal.Rptr.2d 790], internal citation
omitted.)
• “[T]he fourth category of invasion of privacy, namely, appropriation, ‘has been
complemented legislatively by Civil Code section 3344, adopted in 1971.’ ”
(Eastwood, supra, 149 Cal.App.3d at pp. 416–417, original italics.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 676–678
4Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, §§ 429.35, 429.36
(Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.22 (Matthew Bender)
1 California Civil Practice: Torts § 20:16 (Thomson Reuters)
CACI No. 1803 RIGHT OF PRIVACY
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