CACI No. 1804A. Use of Name or Likeness (Civ. Code, § 3344)

Judicial Council of California Civil Jury Instructions (2020 edition)

Download PDF
1804A.Use of Name or Likeness (Civ. Code, § 3344)
[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] 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.
If plaintiff alleges that the use was not covered by Civil Code section 3344(d) (e.g.,
1097
Copyright Judicial Council of California
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 provides a statutory cause of action for commercial
misappropriation that complements, rather than codifies, the common law
misappropriation cause of action.” (Local TV, LLC v. Superior Court (2016) 3
Cal.App.5th 1, 13 [206 Cal.Rptr.3d 884].)
• “[C]alifornia’s appropriation statute is not limited to celebrity plaintiffs.” (KNB
Enters v. Matthews (2000)78 Cal.App.4th 362, 367 [92 Cal.Rptr.2d 713].)
• “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.)
• “[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].)
• “Plaintiffs assert that Civil Code section 3344’s ‘commercial use’ requirement
does not need to ‘involve some form of advertising or endorsement.’ This is
simply incorrect, as Civil Code section 3344, subdivision (a) explicitly provides
CACI No. 1804A RIGHT OF PRIVACY
1098
Copyright Judicial Council of California
for possible liability on ‘[a]ny person who knowingly uses another’s name,
voice, signature, photograph, or likeness, in any manner . . . for purposes of
advertising . . . without such person’s prior consent.’ The statute requires some
‘use’ by the advertiser aimed at obtaining a commercial advantage for the
advertiser.” (Cross,supra, 14 Cal.App.5th at p. 210.)
• “[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.)
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
1099
Copyright Judicial Council of California

© Judicial Council of California.