CACI No. 1821. Damages for Use of Name or Likeness (Civ. Code § 3344(a))

Judicial Council of California Civil Jury Instructions (2020 edition)

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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/nonbinary
pronoun] 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/nonbinary pronoun]
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 symptoms;]
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.
The plaintiff might claim that the plaintiff would have earned the same profits that
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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.)
• “The statutory language of section 3344 is unambiguous - the plaintiff bears the
burden of presenting proof of the gross revenue attributable to the defendant’s
unauthorized use of the plaintiff’s likeness, and the defendant must then prove its
deductible expenses. CACI No. 1821 mirrors the language of section 3344:
‘[plaintiff] must prove the amount of gross revenue, and [. . . defendant] must
prove the amount of expenses.’ (CACI No. 1821.)” (Olive v. General Nutrition
Centers, Inc. (2018) 30 Cal.App.5th 804, 814 [242 Cal.Rptr.3d 15], internal
citation omitted.)
• “CACI No. 1821 adequately explained the applicable law to the jury.” (Olive,
supra, 30 Cal.App.5th at p. 815.)
• “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.)
CACI No. 1821 RIGHT OF PRIVACY
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Secondary Sources
6 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 1715-1724
Chin et al., California Practice Guide: Employment Litigation, Ch. 5-L, Invasion Of
Privacy, ¶¶ 5:1116-5:1118 (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,
§ 184.35 (Matthew Bender)
California Civil Practice, Torts § 20:17 (Thomson Reuters)
1822-1899. Reserved for Future Use
RIGHT OF PRIVACY CACI No. 1821
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