California Civil Jury Instructions (CACI) (2017)

VF-1804. Privacy—Use of Name or Likeness (Civ. Code, § 3344)

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VF-1804.Privacy—Use of Name or Likeness (Civ. Code, § 3344)
We answer the questions submitted to us as follows:
1. Did [name of defendant] knowingly use [name of plaintiff]’s [name/
voice/signature/photograph/likeness] on merchandise or to
advertise or sell products or services?
1. Yes No
1. If your answer to question 1 is yes, then answer question 2. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
2. Did [name of defendant] have [name of plaintiff]’s consent?
2. Yes No
2. If your answer to question 2 is no, then answer question 3. If
you answered yes, stop here, answer no further questions, and
have the presiding juror sign and date this form.
3. Was [name of defendant]’s use of [name of plaintiff]’s [name/voice/
signature/photograph/likeness] directly connected to [name of
defendant]’s commercial purpose?
3. Yes No
3. If your answer to question 3 is yes, then answer question 4. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
4. Was [name of defendant]’s conduct a substantial factor in causing
harm to [name of plaintiff]?
4. Yes No
4. If your answer to question 4 is yes, then answer question 5. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
[5. Did [name of plaintiff] suffer any actual damages or is [name of
plaintiff] reasonably likely to suffer any actual damages in the
future?
[5. Yes No
[5. If your answer to question 5 is yes, then answer questions 6 and
7. If you answered no, answer question 7.]
6. What are [name of plaintiff]’s actual damages?
[a. Past economic loss
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[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other past economic loss $ ]
[a. Total Past Economic Damages: $ ]
[b. Future economic loss
[lost earnings $ ]
[lost profits $ ]
[medical expenses $ ]
[other future economic loss $ ]
[b. Total Future Economic Damages: $ ]
[c. Past noneconomic loss, including [humiliation/embarrassment/
mental distress including any physical symptoms:] $ ]
[d. Future noneconomic loss, including
[humiliation/embarrassment/mental distress including any
physical symptomns:] $ ]
[d. TOTAL ACTUAL DAMAGES $
[7. Did [name of defendant] receive any profits from the use of [name
of plaintiff]’s [name/voice/signature/photograph/likeness] that you
did not include under [name of plaintiff]’s actual damages for lost
profits in Question 6 above?
[7. Yes No
[7. If your answer to question 7 is yes, then answer question 8. If
you answered no, stop here, answer no further questions, and
have the presiding juror sign and date this form.
8. What amount of those profits did [name of defendant] receive
from the use of [name of plaintiff]’s
[name/voice/signature/photograph/likeness]?
8. TOTAL PROFITS RECEIVED BY DEFENDANT $ ]
Signed: Presiding Juror
Dated:
After [this verdict form has/all verdict forms have] been signed, notify
the [clerk/bailiff/court attendant] that you are ready to present your
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verdict in the courtroom.
New September 2003; Revised April 2007, April 2008, December 2010, June 2012,
December 2012, December 2016
Directions for Use
This verdict form is based on CACI No. 1804A, Use of Name or Likeness, and
CACI No. 1821, Damages for Use of Name or Likeness.
The special verdict forms in this section are intended only as models. They may
need to be modified depending on the facts of the case.
Under Civil Code section 3344(a), the plaintiff may recover actual damages or
$750, whichever is greater. The plaintiff may also recover any profits that the
defendant received 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].) The advisory committee recommends
calculating the defendant’s profits to be disgorged separately from actual damages.
Questions 5 through 8 take the jury through the recommended course. If no actual
damages are sought, question 5 may be omitted and the jury instructed to enter
$750 as the total actual damages in question 6. If the jury awards actual damages
of less than $750, the court should raise the amount to $750. If there is no claim to
disgorge the defendant’s wrongful profits, questions 7 and 8 may be omitted.
Additional questions may be necessary if the facts implicate Civil Code section
3344(d) (see Directions for Use under CACI No. 1804B, Use of Name or
Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or
Account, or Political Campaign).
If specificity is not required, users do not have to itemize all the actual damages
listed in question 6 and do not have to categorize “economic” and “noneconomic”
damages, especially if it is not a Proposition 51 case. The breakdown of damages is
optional depending on the circumstances.
If there are multiple causes of action, users may wish to combine the individual
forms into one form. If different damages are recoverable on different causes of
action, replace the damages tables in all of the verdict forms with CACI No. VF-
3920, Damages on Multiple Legal Theories.
If the jury is being given the discretion under Civil Code section 3288 to award
prejudgment interest (see Bullis v. Security Pac. Nat’l Bank (1978) 21 Cal.3d 801,
814 [148 Cal.Rptr. 22, 582 P.2d 109]), give CACI No. 3935, Prejudgment Interest.
This verdict form may need to be augmented for the jury to make any factual
findings that are required in order to calculate the amount of prejudgment interest.
VF-1805–VF-1806. Reserved for Future Use
RIGHT OF PRIVACY VF-1804
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