California Civil Jury Instructions (CACI) (2017)

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))

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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;]
4. [or]
4. [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.
Derived from former CACI No. 1804 April 2008; Revised April 2009
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.
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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
• 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.’ ”
RIGHT OF PRIVACY CACI No. 1804B
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(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.)
• “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
CACI No. 1804B RIGHT OF PRIVACY
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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.)
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, § 429.36 (Matthew
Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy,
§ 184.35 (Matthew Bender)
1 California Civil Practice: Torts § 20:17 (Thomson Reuters)
RIGHT OF PRIVACY CACI No. 1804B
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