California Civil Jury Instructions (CACI)

1803. Appropriation of Name or Likeness

[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; [and]

[5. That the privacy interests of [name of plaintiff] outweigh the public interest served by [name of defendant]’s use of [his/ her] name, likeness, or identity.

In deciding whether [name of plaintiff]’s privacy interest outweighs the public’s interest, you should consider where the information was used, the extent of the use, the public interest served by the use, and the seriousness of the interference with [name of plaintiff]’s privacy.]

New September 2003

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.

The last bracketed element and the last bracketed paragraph are appropriate in cases that implicate a defendant’s First Amendment right to freedom of expression and freedom of the press. (See Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 409—410 [114 Cal.Rptr.2d 307].)

Sources and Authority

  • “A common law cause of action for appropriation of name or likeness may be 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.” (Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 417 [198 Cal.Rptr. 342], internal citations omitted.)
  • Section 652C of the Restatement Second of Torts provides: “One who appropriates to his own use or benefit the name or likeness of another is subject to liability to the other for invasion of his privacy.”
  • “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, supra, 149 Cal.App.3d at p. 419.)
  • “[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 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.)
  • Civil Code section 3344 complements the common law tort of appropriation. (Eastwood, supra, 149 Cal.App.3d at pp. 416—417.)

Secondary Sources

5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 676—678

4 Levy 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 (Thomson West) § 20:16