California Civil Jury Instructions (CACI)
1821. Damages Under Civil Code Section 3344
If you decide that [name of plaintiff] has proved [his/her] claim against [name of defendant], you also must decide how much money will reasonably compensate [name of plaintiff] for the harm. This compensation is called “damages.”
[Name of plaintiff] must prove the amount of [his/her] damages. However, [name of plaintiff] does not have to prove the exact amount of damages that will provide reasonable compensation for the harm. You must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by [name of plaintiff]:
1. Humiliation, embarrassment, and mental distress;
2. Harm to [name of plaintiff]’s reputation; [and]
3. [Insert other item(s) of claimed harm].
If [name of plaintiff] has not proved the above damages, or has proved an amount of damages less than $750, then you must award [him/her] $750.
In addition, [name of plaintiff] may recover any profits that [name of defendant] received from the use of [name of plaintiff]’s [name/ voice/signature/photograph/likeness] [that have not already been taken into account in computing the above damages]. To establish the amount of such profits you must:
1. Determine the gross, or total, revenue that [name of defendant] received from such use;
2. Determine the expenses that [name of defendant] had in obtaining the gross revenue; and
3. Deduct [name of defendant]’s expenses from the gross revenue.
[Name of plaintiff] must prove the amount of gross revenue, and [name of defendant] must prove the amount of expenses.
Directions for Use
Give the bracketed phrase in the last full paragraph only if profits have been included in the calculation of actual damages.
The advisory committee recognizes some ambiguity in Civil Code section 3344 regarding whether the minimum measure of damages is $750 plus profits or just $750. If the court decides that $750 is to be awarded as an alternative to all other damages, including profits, then the sentence regarding $750 should be moved to the end of the instruction.
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.”
- “[Plaintiff] alleges, and submits evidence to show, that he was injured economically because the ad will make it difficult for him to endorse other automobiles, and emotionally because people may be led to believe he has abandoned his current name and assume he has renounced his religion. These allegations suffice to support his action. Injury to a plaintiff’s right of publicity is not limited to present or future economic loss, but ‘may induce humiliation, embarrassment, and mental distress.’ ” (Abdul-Jabbar v. General Motors Corp. (9th Cir. 1996) 85 F.3d 407, 416, internal citation omitted.)
4 Levy et al., California Torts, Ch. 46, Invasion of Privacy, § 46.13 (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)