California Civil Jury Instructions (CACI) (2017)

1804A. Use of Name or Likeness (Civ. Code, § 3344)

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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.
Derived from former CACI No. 1804 April 2008; Revised April 2009
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.
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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
• Liability for Use of Name or Likeness. Civil Code section 3344.
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.)
• “There are two vehicles a plaintiff can use to protect this right: a common law
cause of action for commercial misappropriation and a section 3344 claim. To
prove the common law cause of action, the plaintiff must establish: ‘ “(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.” [Citation.]’ To prove the statutory remedy,
a plaintiff must present evidence of ‘all the elements of the common law cause
of action’ and must also prove ‘a knowing use by the defendant as well as a
direct connection between the alleged use and the commercial purpose.’ ”
(Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 [135
Cal.Rptr.3d 200], internal citations omitted.)
• “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.)
• “[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
CACI No. 1804A RIGHT OF PRIVACY
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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.)
Secondary Sources
5 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 681–683
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-K, Invasion
Of Privacy, ¶¶ 5:710–5:891 (The Rutter Group)
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 § 20:17 (Thomson Reuters)
RIGHT OF PRIVACY CACI No. 1804A
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