California Civil Jury Instructions (CACI)
1804B. Use of Name or Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or Account, or Political Campaign (Civ. Code, § 3344(d))
[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 occurred in connection with a [[news/public affairs/sports] broadcast or account/political campaign];
3. That the use contained false information;
4. [Use for public figure: That [name of defendant] knew the [broadcast or account/campaign material] was false or that [he/she/it] acted with reckless disregard of its falsity;]
[Use for private individual: That [name of defendant] was negligent in determining the truth of the [broadcast or account/campaign material];]
5. 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;
6. That [name of plaintiff] was harmed; and
7. That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.
Directions for Use
Give this instruction if the plaintiff’s name or likeness has been used in connection with a news, public affairs, or sports broadcast or account, or with a political campaign. In this situation, consent is not required. (Civ. Code, § 3344(d).) However, in Eastwood v. Superior Court, the court held that the constitutional standards under defamation law apply under section 3344(d) and that the statute as it applies to news does not provide protection for a knowing or reckless falsehood. (Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 421—426 [198 Cal.Rptr. 342].) Under defamation law, this standard applies only to public figures, and private individuals may sue for negligent publication of defamatory falsehoods. (Id. at p. 424.) Presumably, the same distinction between public figures and private individuals would apply under Civil Code section 3344(d). Element 4 provides for the standards established and suggested by Eastwood.
Give CACI No. 1804A, Use of Name or Likeness, if there is no issue whether one of the exceptions of Civil Code section 3344(d) applies. If plaintiff alleges that the use was not covered by subdivision (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. 1804A 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 element 2 of CACI No. 1804A, the claim is still viable if the plaintiff proves all the elements of this instruction.
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.
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].)
Even though consent is not required, it may be an affirmative defense. CACI No. 1721, Affırmative Defense—Consent (to defamation), may be used in this situation.
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].)
- “The spacious interest in an unfettered press is not without limitation. This privilege is subject to the qualification that it shall not be so exercised as to abuse the rights of individuals. Hence, in defamation cases, the concern is with defamatory lies masquerading as truth. Similarly, in privacy cases, the concern is with nondefamatory lies masquerading as truth. Accordingly, we do not believe that the Legislature intended to provide an exemption from liability for a knowing or reckless falsehood under the canopy of ‘news.’ We therefore hold that Civil Code section 3344, subdivision (d), as it pertains to news, does not provide an exemption for a knowing or reckless falsehood.” (Eastwood, supra, 149 Cal.App.3d at p. 426, internal citations omitted.)
- The burden of proof as to knowing or reckless falsehood under Civil Code section 3344(d) is on the plaintiff. (See Eastwood, supra, 149 Cal.App.3d at p. 426.)
- “[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 v. Major League Baseball (2001) 94 Cal.App.4th 400, 416—417 [114 Cal.Rptr.2d 307], internal citation omitted.)
- “We presume that the Legislature intended that the category of public affairs would include things that would not necessarily be considered news. Otherwise, the appearance of one of those terms in the subsection would be superfluous, a reading we are not entitled to give to the statute. We also presume that the term ‘public affairs’ was intended to mean something less important than news. Public affairs must be related to real- life occurrences.” (Dora v. Frontline Video, Inc. (1993) 15 Cal.App.4th 536, 546 [18 Cal.Rptr.2d 790], internal citations omitted.)
- “[N]o cause of action will lie for the ‘publication 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 citations 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, § 429.36 (Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy, § 184.35 (Matthew Bender)
1 California Civil Practice: Torts (Thomson West) § 20:17