California Civil Jury Instructions (CACI) (2017)

1821. Damages Under Civil Code Section 3344

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1821.Damages for Use of Name or Likeness (Civ. Code
§ 3344(a))
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. [Name of
plaintiff] does not have to prove the exact amount of damages that will
provide reasonable compensation for the harm. However, 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, including any
physical symptons;]
2. [Harm to [name of plaintiff]’s reputation;] [and]
3. [Insert other item(s) of claimed harm].
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 with regard to the above damages]. To establish the
amount of these profits you must:
1. Determine the gross, or total, revenue that [name of defendant]
received from the 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.
New September 2003; Revised June 2012, December 2012
Directions for Use
Under Civil Code section 3344(a), an injured party may recover either actual
damages or $750, whichever is greater, as well as profits from the unauthorized use
that were not taken into account in calculating actual damages. (Orthopedic
Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 547 [135 Cal.Rptr.3d 200].) If
no actual damages are sought, the first part of the instruction may be deleted or
modified to simply instruct the jury to award $750 if it finds liability.
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The plaintiff might claim that he or she would have earned the same profits that
the defendant wrongfully earned. In such a case, to avoid a double recovery, the
advisory committee recommends computing damages to recover the defendant’s
wrongful profits separately from actual damages, that is, under the second part of
the instruction and not under actual damages item 3 (“other item(s) of claimed
harm”). See also CACI No. VF-1804, Privacy—Use of Name or Likeness. Give the
bracketed phrase in the paragraph that introduces the second part of the instruction
if the plaintiff alleges lost profits that are different from the defendant’s wrongful
profits and that are claimed under actual damages item 3.
Sources and Authority
• Liability for Use of Name or Likeness. Civil Code section 3344.
“[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.)
• “We can conceive no rational basis for the Legislature to limit the $750 as an
alternative to all other damages, including profits. If someone profits from the
unauthorized use of another’s name, it makes little sense to preclude the injured
party from recouping those profits because he or she is entitled to statutory
damages as opposed to actual damages. Similar reasoning appears to be
reflected in the civil jury instructions for damages under section 3344, which
provides: ‘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 . . . ] [that
have not already been taken into account in computing the above damages].’
(CACI No. 1821, italics omitted.).” (Orthopedic Systems, Inc., supra, 202
Cal.App.4th at p. 546.)
Secondary Sources
6 Witkin, Summary of California Law (10th ed. 2005) Torts, §§ 1548–1556
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, § 46.13 (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,
RIGHT OF PRIVACY CACI No. 1821
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§ 184.35 (Matthew Bender)
California Civil Practice, Torts § 20:17 (Thomson Reuters)
1822–1899. Reserved for Future Use
CACI No. 1821 RIGHT OF PRIVACY
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