CACI No. 1803. Appropriation of Name or Likeness - Essential Factual Elements

Judicial Council of California Civil Jury Instructions (2023 edition)

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1803.Appropriation of Name or Likeness - Essential Factual
[Name of plaintiff] claims that [name of defendant] violated
[his/her/nonbinary pronoun] 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;
2. That [name of plaintiff] did not consent to this use;
3. That [name of defendant] gained a commercial benefit [or some
other advantage] by using [name of plaintiff]’s name, likeness, or
4. That [name of plaintiff] was harmed; and
5. That [name of defendant]’s conduct was a substantial factor in
causing [name of plaintiff]’s harm.
New September 2003; Revised December 2014, November 2017, May 2020
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 the artist’s 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 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].)
“[B]oth the statutory and common law versions of a right of publicity claim
require that the defendant actually use the plaintiff’s likeness . . . .” (Cross v.
Facebook, Inc. (2017) 14 Cal.App.5th 190, 210 [222 Cal.Rptr.3d 250].)
“California common law has generally followed Prossers 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.)
“Consent to the use of a name or likeness is determined by traditional principles
of contract interpretation.” (Local TV, LLC v. Superior Court (2016) 3
Cal.App.5th 1, 8 [206 Cal.Rptr.3d 884].)
“[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 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
“[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.)
Secondary Sources
5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 784-786
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.05 (Matthew
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,
§ 184.21 (Matthew Bender)
California Civil Practice: Torts § 20:16 (Thomson Reuters)

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