California Civil Jury Instructions (CACI)
1804A. Use of Name or Likeness (Civ. Code, § 3344)
[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] knowingly used [name of plaintiff]’s [name/voice/signature/photograph/likeness] [on merchandise/ [or] to advertise or sell [describe what is being advertised or sold]];
2. That the use did not occur in connection with a news, public affairs, or sports broadcast or account, or with a political campaign;
3. That [name of defendant] did not have [name of plaintiff]’s consent;
4. That [name of defendant]’s use of [name of plaintiff]’s [name/ voice/signature/photograph/likeness] was directly connected to [name of defendant]’s commercial purpose;
5. That [name of plaintiff] was harmed; and
6. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.
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. One’s name and likeness are protected under both the common law and under Civil Code section 3344. As the statutory remedy is cumulative (Civ. Code, § 3344(g)), both this instruction and CACI No. 1803, Appropriation of Name or Likeness, which sets forth the common-law cause of action, will normally be given.
Different standards apply if the use is in connection with a news, public affairs, or sports broadcast or account, or with a political campaign. (See Civ. Code, § 3344(d); Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 421—426 [198 Cal.Rptr. 342].) The plaintiff bears the burden of proving the nonapplicability of these exceptions. (Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 416—417 [114 Cal.Rptr.2d 307].) Element 2 may be omitted if there is no question of fact with regard to this issue. See CACI No. 1804B, Use of Name or Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or Account, or Political Campaign, for an instruction to use if one of the exceptions of Civil Code section 3344(d) applies.
If plaintiff alleges that the use was not covered by Civil Code section 3344(d) (e.g., not a “news” account) but that even if it were covered it is not protected under the standards of Eastwood, then both this instruction and CACI No. 1804B should be given in the alternative. In that case, it should be made clear to the jury that if the plaintiff fails to prove the inapplicability of Civil Code section 3344(d) as set forth in element 2, the claim is still viable if the plaintiff proves all the elements of CACI No. 1804B.
Note that a plaintiff is entitled to the sum of $750 under Civil Code section 3344(a) even if actual damages are not proven. (See Miller v. Collectors Universe, Inc. (2008) 159 Cal.App.4th 988, 1008 [72 Cal.Rptr.3d 194] [claim for 14,060 misappropriations of plaintiff’s name under section 3344(a) constitutes single cause of action for which statutory damages are $750].)
Sources and Authority
- Civil Code section 3344(a) provides: “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person’s prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney’s fees and costs.”
- Civil Code section 3344(d) provides: “For purposes of this section, a use of a name, voice, signature, photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign, shall not constitute a use for which consent is required under subdivision (a).”
- Civil Code section 3344 is “a commercial appropriation statute which complements the common law tort of appropriation.” (KNB Enters. v. Matthews (2000) 78 Cal.App.4th 362, 366—367 [92 Cal.Rptr.2d 713].)
- “[C]alifornia’s appropriation statute is not limited to celebrity plaintiffs.” (KNB Enters., supra, 78 Cal.App.4th at p. 367.)
- “The differences between the common law and statutory actions are: (1) Section 3344, subdivision (a) requires a knowing use whereas under case law, mistake and inadvertence are not a defense against commercial appropriation; and (2) Section 3344, subdivision (g) expressly provides that its remedies are cumulative and in addition to any provided for by law.” (Eastwood, supra, 149 Cal.App.3d at p. 417, fn. 6, internal citation omitted.)
- In addition to the common law elements, a party seeking the statutory remedy provided in section 3344 must also allege “a knowing use of the plaintiff’s name, photograph or likeness” and “a ‘direct’ connection must be alleged between the use and the commercial purpose.” (Eastwood, supra, 149 Cal.App.3d at pp. 417—418, internal citation omitted; see Johnson v. Harcourt, Brace, Jovanovich, Inc. (1974) 43 Cal.App.3d 880, 895 [118 Cal.Rptr. 370].)
- “[T]he single-publication rule as codified in [Civil Code] section 3425.3 applies, in general, to a cause of action for unauthorized commercial use of likeness.” (Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 476 [97 Cal.Rptr.3d 798, 213 P.3d 132].)
- “Any facts which tend to disprove one of the allegations raised in a complaint may be offered in the defendant’s answer based upon a general denial and need not be raised by affirmative defense… Throughout this litigation plaintiffs have borne the burden of establishing that their names and likenesses were used in violation of section 3344, and this burden has always required proof that the disputed uses fell outside the exemptions granted by subdivision (d).” (Gionfriddo, supra, 94 Cal.App.4th at pp. 416—417, internal citation omitted.)
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 681—683
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—184.24 (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) § 20:17