8155242

IN THE SUPREME COURT OF CALIFORNIA

RUSSELL CHRISTOFF

Plaintiff and Respondent,

·vs.

NESTL:¢ USA, INC.

Defendant and Appellant ..

RECEIVED

APR 18 2008

CLERK SUPREME COURT

AFTER A DECISION By THE COURT OF APPEAL SECOND APPELLATE DISTRICT, DMSION EIGHT, CASE No. B 182880

ON APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF Los ANGELES

THE HONORABLE CHARLES W. STOLL, JunGE CASE NO. Ec036163

REQUEST FOR LEAVE TO FILE AMICUS CU~ BRIEF; AMICUS CURIAE BRIEF OF THE MOTION PICT1)RE ASSOCIATION OF AMJRICA, INC. IN

SUPPORT OF DEFENDANT AND APPELLANT NESTLE USA, INC.

LA1757042.5 203351-10015

LOEB & LOEB LLP DOUGLAS E. MIRELL (SBN 94169)

W. ALLAN EDMISTON (SBN 228246)

10100 Santa Monica Boulevard, Suite 2200 Los Angeles, Califorriia 90067-4164

Telephone: (310) 282-2000 Facsimile: (310) 282-2200

ATTORNEYS FOR AMICUS CURIAE MOTION PICTURE ASSOCIATION OF AMERICA, INC.

S155242

IN THE SUPREME COURT OF CALIFORNIA

RUSSELL CHRISTOFF

Plaintiff and Respondent,

·vs.

NESTL~ USA, INC.

Defendant and Appellant ..

AFTER A DECISION By THE COURT OF APPEAL SECOND APPELLATE DISTRICT, DIVISION EIGHT, CASE No. B 182880

ON APPEAL FROM THE SUPERIOR COURT OF CALIFORNIA, COUNTY OF Los ANGELES

THE HONORABLE CHARLES W. STOLL, JUDGE CASE NO. Ec036163

REQUEST FOR LEAVE TO FILE AMICUS CUlPAE BRIEF; AMICUS CURIAE BRIEF OF THE MOTION PICTURE ASSOCIATION OF AMERICA, INC. IN

SUPPORT OF .DEFENDANT AND APPELLANT NESTL£ USA, INC.

LAI757042.5 203351·10015

LOEB & LOEB LLP DOUGLAS E. MIRELL (SBN 94169)

W. ALLAN EDMISTON (SBN 228246)

10100 Santa Monica Boulevard, Suite 2200 Los Angeles, California 90067-4164

Telephone: (310) 282-2000 Facsimile: (310) 282-2200

ATTORNEYS FORAMICUS CURIAE MOTION PICTURE ASSOCIATION OF AMERICA, INC.

REQUEST FOR LEA VE TO FILE AMICUS CURIAE BRIEF

Pursuant to California Rille of Court 8.520(f), the Motion Picture

Association of America, Inc. ("MP AA") hereby requests leave to file the

accompanying amicus curiae brief in support of defendant and appellant Nestle

USA, Inc. (''Nestle''),

The MP AA is a non-profit trade association founded in 1922 to address

issues of concern to the United States motion picture industry. Its members l and

their affiliates produce and distribute the vast majority of filmed entertainment in

the domestic theatrical, television and DVDlhome video markets. Accordingly,

the MP AA advocates for the protection of the creative works produced and

distributed by the film entertainment industry, fights copyright theft around the

world, and provides leadership in meeting new and emerging industry challenges.

Since the statutory right of publicity was first enacted in California, the

MPAA has opposed its expansion at the expense, and to the detriment, of First

Amendment freedoms. For example, in Winter v. DC Comics (2003) 30 Ca1.4th

881, the MPAA sought and obtained leave of this Court to file an amicus brief to

address the impact of the Court's ''transformative use" test for publicity rights

cases upon motion pictures and other traditionally protected expressive works.

Likewise, and more recently, the MP AA sought and obtained leave to file an

amicus brief in Tyne v. Time Warner Entm 't Co., L.P. (Fla. 2005) 901 So.2d 802, a

seminal Florida Supreme Court case which expressly held that motion pictures are

exempt from the reach of Florida's publicity rights statute.

1 The members of the MPAA are: Paramount Pictures Corporation; Sony Pictures Entertainment Inc.; Twentieth Century Fox Film Corporation; Universal City Studios LLLP; Walt Disney Studios Motion Pictures; and Warner Bros. Entertainment Inc.

LA1757042.5 203351-10015

1

Although this case does not involve a traditional expressive work, the

MP AA is nevertheless interested in' its outcome. Specifically, the MP AA is

concerned that unless California Civil Code Section 3425.3 is strictly applied to

statutory and common law pUblicity rights claims, and the discovery rule

circumscribed, its member companies may be subjected to a multitude of lawsuits

when they market or sell products, merchandise or .goods in connection with the

exhibition of their motion pictures. Because this is precisely the outcome the

Uniform Single Publication Act is intended to prevent, the MP AA respectfully

requests that this Court affirm the Second District Court of Appeal's holding and

direct judgment in favor of Nestle.

Dated: April 18, 2008

LA1757042.5 203351-10015

Respectfully submitted,

LOEB & LOEB LLP DOUGZMIRELL ::ALL"TA<Y DOUGL .MI~4.

2

Attorneys for Amicus Curiae MOTION PICTURE ASSOCIATION OF AMERICA, INC.

TABLE OF CONTENTS

I. SUMMARY OF ARGUMENT .......................................................... 1

II. THE SINGLE-PUBLICATION RULE APPLIES TO PUBLICITY RIGHTS CLAIMS ........................................................ .3

A. The Single-Publication Rule Applies To Claims For Invasion of Privacy And To Any Other "Tort Founded Upon Any Single Publication." ..................... .4

1. At The Time The USP A Was Enacted, The Right Of Publicity Was Classified As, Ana Understood To Form, Part Of The Appropriation Branch Of The Right Of Privacy .... " ................................................................. 4

2.· The Single-Publication Rule Is Not Limited To "Defamation-Like" Claims ....................... 6

3. Courts Have Broadly Interpreted The USP A To Apply To Publicity Rights Claims ......................................................................... 10

B. The Single-Publication Rule Is Not Limited In . Application To Certain Types Of Publications ..................... 14

III. THE DISCOVERY RULE SHOULD NOT BE APPLIED IN TillS CASE ............................................................... 16

IV. CONCLUSION ................................................................................. 17

LA 1757042.5 203351-10015

i

TABLE OF AUTHORITIES

CASES

Auscape Int'l v. Nat'l Geographic Soc'y. (S.D.N.Y. 2006) 461 F.Supp.2d 174 ............................................................... 16

Baugh v. CBS, Inc. (N.D. Cal. 1993) 828"F.Supp. 745 ............................................................... 7, 16

Belli v. Roberts Bros. Furs (1966) 240 Cal.App.2d 284 ............................................................................... 3

Blair v. Nev. Landing P 'ship " (2006) 369 Ill.App.3d 318 ............................................................................... 13

Brooks v. Topps Co. (S.D.N.Y. Dec. 21, 2007, No 06 Civ. 2359 DLC) 2007 U.S. Dist. LEXIS 94036 .................................................................................................... 12

California Teachers Assn. v. San Diego Comty. Coli. Dist. (1981) 28 Cal.3d 692 ....................................................................................... 15

Christoffv. Nestle USA, Inc. (2007) 152 C~.App.4th 1439 ............................................................................ 6

Dayv. City o/Fontana (2001) 25 Cal.4th 268 ................................ ; ..................................................... 14

Duke 0/ Brunswick v. Harmer (1849) 14 Q.B. 185, 117 Eng. Rep. 72 ............................................................ 10

Fairfield v. American Photocopy, Equip. Co. (1955) 138 Cal.App.2d 82 ............................................................................ , .... 6

Fouts v. Fawcett Publications, Inc. (D.Conn. 1953) 116 F.Supp. 535 ..................................................................... 12

Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. (2d Cir. 1953) 202 F.2d 868 ............................................................................. ~ 5 "

Hebrew Academy o/San Francisco v. Goldman (2007) 42 Cal.4th 883 ............................................................................... Passim

Hoechst Celanese Corp. v. Franchise Tax Bd (2001) 25 Cal.4th 508 ...................................................................................... 10

LA1757042.5 203351-10015

ii

Hustler Magazine v. Falwell (1988) 485 U.S. 46 ............................................................................................ 9

\

In re Marriage of Dupre (2005) 127 Cal.App.4th 1517 .......................................................................... 15

In re Steele (2004) 32 Ca1.4th 682 ...................................................................................... 15

Jackson v. Ideal Publishing Corp. (B.D. Pa. 1967) 274 F.Supp. 318 ..................................................................... 12

Khaury v. Playboy Publications, Inc. (S.D.N.Y. 1977) 430 F.Supp. 1342 ........................................................... 11, 14

Longv. Walt Disney Co. (2004) 116 Cal. App. 4th 868 ...................................................................... 3, 11

MG. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623 ................................................................................. 7

Miller v. Collectors Universe, Inc. (2008) 159 Cal.App.4th 988 ............................................................................. 14

Nelson v. Working Class, Inc. (S.D.N.Y. Apr. 18,2000, No. 99 Civ. 8854 HB) 2000 U.S. Dist. LEXIS 4848 ..................................................................................................... 12

Pitts v. City of Kankakee (7th Cir. 2001) 267 F .3d 592 ............................................................................. 8

Shatriya v. Gilden (N.Y. Sup.Ct. Aug. 23,2007, No. 106545) 2007 NY Slip Op 51717U .~ ........ 12

Shively v. Bozanich (2003) 31 Cal.4th 1230 ............................................................................. Passim

Spangler v. Abercrombie & Fitch (9th Cir. 2003) 79 Fed.Appx. 325 ................................................................... 15

Strick v. Superior Court (1983) 143 Cal.App.3d 916 ...................................................................... Passim

Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal. App. 4th 392 .................................................................... 11, 15

Wilson v. Safoway Stores (1997) 52 Cal.App.4th267 .............................................................................. 15

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111

Zoll v. Jordache Enters. (S.D.N.Y. Dec. 5,2001, No. 01 Civ. 1339 CSH) 2001 U.S. Dist. LEXIS 19983 ................................................................................................... 12

STATUTES

Cal. Civ. Code § 3344 ............................................................................................. 8

Cal. Civ. Code § 3425.2 ~ ....................................................................................... 10

Cal. Civ. Code § 3425.3 ................................................................................. Passim

New York Civil Rights Law §§ 50 and 51 ......................................... · .............. 11-12

Penal Code § 1054.9 ............................................................................................... 15

OTHER AUTHORITIES

J. Thomas McCarthy, The Rights of Publicity and Privacy (2d ed. 2007) ........ .4-5

Melville B. Nimmer, The Right of Publicity (1954) 19 Law & Contemp. Probs. 203 ........................................................................................................... 5

National Conference of Commissioners on Unifonn State Laws, Proceedings in the Committee of the Whole (Sept. 12, 1952) Unifonn Single Publication Act ........................................................................ 8

Restatement Second of Torts (1977) ....................................................................... 6

Restatement Third of Unfair Competition (1995) ................................................... 9

William L. Prosser, Handbook of the Law of Torts (2d ed. 1955) ....................... 5-6

William L. Prosser, Hamtbookofthe Law of Torts (1941) ..................................... 4

William 1. Prosser, Interstate Publication (1953) 51 Mich. 1. Rev. 959 ............. 14

William 1. Prosser, Privacy (1960) 48 Cal. L. Rev. 383 ........................................ 5

LA 1757042.5 203351-10015

IV

AMICUS CURIAE BRIEF

I. SUMMARY OF ARGUMENT

In this case, the Second District Court of Appeal, Division Eight,

definitively held that the Uniform Single Publication Act ("USP A"), codified at

California Civil Code Section 3425.3 (hereinafter, "Section 3425.3"), applies to

statutory and common law publicity rights claims, just as it does to claims arising

from defamation, invasion of privacy and "any other tort founded upon a single

publication." Consistent with applicable law and the important policy objectives

served by the single-publication rule, this holding should be affirmed.

The MP AA does not here reiterate the arguments capably asserted by

defendant and appellant Nestle USA, Inc. (''Nestle'') in its opposition brief.

Instead, in this brief, the MPAA affirms three principal points:

Firs!, the right of publicity emerged from, and remains rooted in, the

"appropriation" branch of the common law right of privacy. Although the

appropriation tort was initially understood to redress any injury, whether personal

or commercial, resulting from an u~authorized exploitation of personal identity,

over time right of publicity statutes emerged to provide an independent basis for

redressing appropriations of the commercial value of identity. As it evolved, the

statutory right of publicity did not give rise to a new substantive right. It simply

embodied a new cause of action for the enforcement of an already existing right.

In light of this history, there is no principled basis for excluding common law or

statutory publicity rights claims from the scope of the single-publication rule. In

any event, because the right of publicity was classified as a right of privacy at the

time the USPA was enacted, the Court of Appeal properly concluded that all

claims based thereon necessarily fall within the "ambit" of the smgle-publication

rule.

LAI757042.5 203351-10015 1

Second, by its plain terms, the single-publication rule applies to any tort

"founded upon any single publication." Thus framed, the single-publication rule

"is not aimed at the particular tort alleged, but rather at the manner in which it is

executed." (Strickv. Superior Court (1983) 143 Cal.App.3d 916,924.) Indeed, it

applies to any tort cause of action - whether for violation of the right of publicity,

fraud, infliction of emotional distress, negligence, etc. - founded upon a

publication or other communicative act. Because the USP A imposes no threshold

requirement as to the type of publications or communicative acts entitled to

protection under the USP A, it must be construed to apply to all communications -

including Nestle's product labels and attendant advertising - regardless of their

content, form or purpose.

Third, under Hebrew Academy of San Francisco v. Goldman (2007) 42

Ca1.4th 883 (hereinafter "Hebrew Academy"), the discovery rule is inapplicable to

the facts of this case. Application of the discovery rule - which permits an

equitable tolling .of ap~licable statutes of limitation in certain limited situations -

may be justified where the publication at issue is "concealed" or otherwise

"hidden from view." No such circumstances, however, are present here. In this

case, Nestle publicly published Christoffs likeness on product labels affixed t.o

coffee jars sold in this C.ountry and abr.oad, as well as related advertising, .overthe .

course of many years. Because these products and advertising were distributed to

the public, application of the discovery rule would be improper as a matter of law.

For each of these reasons, the MPAA respectfully requests that this C.ourt:

(1) Affirm that the single-publication rule applies to all claims - including

publicity rights claims - founded upon a publication; and (2) Reaffirm that, under

Hebrew Academy, a publicity rights claim accrues, for statute .of limitations and

single-publication rule purposes, on the date the subject publication is first

distributed to the public. In addition to providing defmitive guidance to lower

LA1757042.5 203351-10015

2

courts, such a holding will advance the USPA's plain purpose to prevent

unwieldy, recurring and potentially endless multi-jurisdictional litigation of Claims

founded on a single pUblication.

II. THE SINGLE-PUBLICATION RULE APPLIES TO PUBLICITY

RIGHTS CLAIMS.

The single-publication rule has broad preclusive effecL (Long v. Walt

Disney Co. (2004) 116 Cal. App. 4th 868,871.) It provides that "[n]o person shall

have more than one cause of action for damages for libel or slander or invasion of

privacy or any other tort founded upon any single publication or exhibition or

utterance . .. ," and further provides that "[r]ecovery in any action shall include all

damages for any such tort suffered by the plaintiff in all jurisdictions." Cal. Civ.

Code § 3425.3 (emphasis added).

For purposes of the single-publication rule, a publication is deemed to

occur on the "first general di~tribution of the publication to the public." (Hebrew

Academy, 42 Ca1.4th at 893; Belli v. Roberts Bros. Furs (1966) 240 Cal.App.2d

284,289.) Importantly, this event triggers the applicable limitations period,

regardless of whether the plaintiff knew of the publication at the time of that first

distribution. (Shively v. Bozanich, (2003) 31 Ca1.4th 1230, 1245-46.) As applied

in this manner, the single-publication rule "directly prevents a multiplicity of

suits" regarding; and "indirectly limitS the extension of the statute of limitations"

governing, all torts founded upon a publication. (Id. at 1244-45.)

In this litigation, Christoff seeks to arbitrarily limit the single-publication

rule by arguing that it does not apply to publicity rights claims, and further arguing

that even if it might, no publication is involved here. As set forth below, these

arguments are misguided. First, the single-publication rule plainly applies to all

torts, iricluding publicity rights claims, "founded. upon any single publication."

Cal. eiv. Code § 3425.3. Second, as used in Section 3425.3, the term

LA1757042.5 203351-10015

3

"publication" clearly encompasses any communication to a third person, including

the product labeling, advertisements and other promotional materials at issue here.

A. The Single-Publication Rule Applies To Claims For Invasion of

Privacy And To Any Other "Tort Founded Upon Any Single

Publication."

1. At The Time The USPA Was Enacted, The Right Of

Publicity Was Classified As, And Understood To Form,

Part Of The Appropriation Branch Of The Right Of

Privacy.

The right of publicity, which protects the commercial value of a person's

identity, originated within the "appropriation" branch of the right of privacy.

(1. Thomas McCarthy, The Rights o/Publicity and Privacy (2d ed. 2007) § 1:3, p.

3; § 1:4, pp. 4-5; § 1:7, p. 9 [hereinafter "McCarthy"].) Indeed, in the first edition

of his renowned treatise on torts published in 1941, the noted legal scholar,

William L. Prosser, classified "appropriation" as a distinct branch of privacy law.

(William L. Prosser, Handbook o/the Law o/Torts, 1056-1057 (1941).) He

described the appropriation tort as follows:

The greater number of privacy cases, however, have involved the appropriatIon of some element of the plaintiffs personality for commercial use. The typical case is that of the unauthorized use of his picture in the defendant's advertising. Although the protection of his personal feelings is still highly important in such a case, the right invaCled has also a commercial value.

(Id. [emphasis added].) As thus conceived, the appropriation tort fully subsumed

all harm, whether personal or commercial, caused by any unauthorized

exploitation of personal identity.

Over time, however, courts and commentators grew dissatisfied with this

conceptual framework, especially as it applied to well-known persons or

LA1757042.5 203351-10015

4

celebrities. One of the perceived limitations of the appropriation tort in this

context was its relationship to the right of privacy. Because the right of privacy is

not typically transferable, early cases frequently questioned the transferability of

the commercial right in and to personal identity as well. (See Melville B.

Nimmer, The Right of Publicity (1954) 19 Law & Contemp. Probs. 203.) This

limitation was ultimately overcome through the conception and development of a

statutory "right of publicity."

The phraSe "right ofpubJicity" was coined in 1953 by Judge Jerome Frank,

in Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc. (2d Cir. 1953) 202 F.2d

868, to denote the right to authorize and prevent the commercial use of personal

identity. Although Prosser thereafter acknowledged the use of the emergent

phrase "right of publicity," he did not immediately adopt it? Indeed, in the 1955

edition of his treatise, Prosser further developed his definition of the appropriation

branch of the privacy right. (William L. Prosser, Handbook of the Law ofTorts~

635-640 (2d ed. 1955).) He wrote:

It consists of the appropriation of some element of the plaintiffs personalIty for a commercial use. The typical case is that of the unauthorized use of his name or picture in the defendant's advertisin& .. Although the protection of his personal feelings is still an important factor in such a case, the effect of the decisions is to recognize or create something resembling a property right, which may be assigned exclusively to one publisher, and has been called the 'right of publicity. '

2 His reluctance in this regard did not signal any disapproval of Haelan. In fact, in Prosser's view, the appropriation right and the '~right of publicity" were substantively indistinguishable - both protected proprietary rights "in the exclusive use ofplaintifrs name and likeness as an aspect of his identity." (McCarthy § 1 :26, p. 52; William L. Prosser, Privacy (1960) 48 Cal. L. Rev. 383, 406; McCarthy § 1:26, p. 52.)

LA1757042.5 203351-10015

5

(Id. at 639 [emphasis added].)3.

In this case, Christoff contends that the single-publication rule has no

application to right of publicity claims. This contention is simply untenable. First,

it ignores the publicity right's genesis in, and ongoing relationship to, the right of

privacy. More importantly, however, it ignores the fact that the right now

denominated a "right ofpubIlcity" was clearly classified as a branch of the right of

privacy by courts and commentators, including Dean Prosser, at the time the

USPA was enacted in California in 1955. (See, e.g., Fairfieldv. American

Photocopy, Equip. Co. (1955) 138 Cal.App.2d 82,82 (an attorney whose name,

personality, and endorsement had been appropriated in an advertisement was

compensated "for injury to his peace of mind and to his feelings").) As the Court

of Appeal correctly observed: "even though the tort of appropriation is now more

commonly referred to as a 'right of publicity,' its initial classification as a 'right of

privacy' places it squarely within the ambit of the [single-publication rule], which

was enacted in 1955." (Christo.ffv. Nestle USA, Inc. (2007) 152 Cal.AppAth 1439

1452.)

2. The Single-Publication Rule Is Not Limited To

"Defamation-Like" Claims.

By its express terms, Section 3425.3 applies to "causes of action for

damages for libel or slander or invasion of privacy or any other tort founded upon

any single publication or exhibition or utterance .... " Thus framed, the single­

publication rule "is not aimed at the particular tort alleged, but rather at the

manner in which it is executed." (Strick, 143 Cal.App.3d at 924; see Hebrew

Academy, 42 Ca1.4th at 893 ("The single-publication rule ... as codified in Civil

Code section 3425.3 applies without limitation to all publications.").)

3 Prosser's complex of four privacy torts was subsequently adopted by, and incorporated into, the Restatement Second of Torts (1977) §§ 652A-652I.

LA1757042.5 203351-10015

6

Notwithstanding the expansive scope of the single-publication rule,

Christoff nevertheless suggests that it is somehow limited in application to

"defamation-like" claims.4 The USPA, however, sets forth no such limitation.

Under Christoffs formulation, the USPA would only apply to the false

light branch. of the right of privacy. Inexplicably, the intrusion, disclosure and

appropriation branches would be exempted. No such intention is evident from, or

even implicit in, the plain language of Section 3425.3. (M G. v. Time Warner, Inc.

(2001) 89 Cal.AppAth 623,630 (applying Section 3425.3 to a right of privacy

action founded on each of the four theories first identified by Prosser).} By its

plain terms, Section 3425.3 applies to causes of action for "invasion of privacy"

irrespective of the particular privacy theory alleged.

Moreover, Section 3425.3 sets forth an "any other tort" catch-all. As

drafted, this catch-all broadly applies to all ''torts founded upon any single

publication." This language is clear and unambiguous. (See Strick, 143

Cal.App.3d at 924· ("When the Legislature inserted the clause 'or any other tort' it

is presumed to have meant exactly what it said") (emphasis in original); Baugh v.

CBS, Inc. (N.D. Cal. 1993) 828 F.Supp. 745, 756 (same).) For this reason, courts

have applied the single-publication rule to cases involving claims for personal

injury, civil rights violations, fraud and deceit. (MG., 89 Cal.AppAth at 630;

4 Christoff ignores the fact that publicity rights claims are often founded upon a commercial use of personal identity which is in some manner defamatory or offensive. Examples would include celebrities who do not endorse any products because they find such commercial uses of their personas distasteful, or others who may become involuntary spokespersons for causes that are anathema to their social or political consciences. However, by proposing a "defamation-like" formulation. Christoff implicitly acknowledges that such claims fall within the scope of the single-pUblication rule. Christoffs formulation would thus impose an unnecessary threshold burden on courts to evaluate the impact or effect of the subject publication on the plaintiff. No such burden is warranted, much less required or even intimated, by the plain terms of the single-publication rule.

LA1757042.5 203,351-10015

7

Strick, 143 Cal.App.3d at 923-924 (holding that fraud and deceit causes of action

were time barred by application of the single-publication rule); Pitts v. City of

Kankakee (7th Cir. 2001) 267 F.3d 592,597.)

In the face of the plain language of the USP A, Christoff strains to limit the

phrase "any other tort" by reference to a colloquy between Dean Prosser and the

Committee of the Whole during a 1952 legislative hearing preceding adoption of

the USP A in California. (See National Conference of Commissioners on Uniform

State Laws, Proceedings in the Committee of the Whole (Sept. 12, 1952) Uniform

Single Publication Act, pp. 913-924 [RJN, exh. F, pp. 95-106].) Although

Christoff contends that this colloquy leads to a conclusion that the USP A only

applies to causes of action based on "wrongful" words or images, this assertion is

flawed.

First, Christoff's reading of the Prosser colloquy does not require the

conclusion that publicity rights claims fall outside the scope of the USP A. Even if

the USP A applies excll:lsively to causes of action based on ''wrongful'' words or

images, such words or images need not be false or defamatory to be wrongful.

Words and images are clearly both wrongful and injurious to the extent they

exploit the commercial value of another's identity without authorization. (See Cal.

Civ. Code § 3344.)

Second, the five'torts identified by Dean Prosser as properly subject to the"

single-publication rule - slander of title, injurious falsehood, libel, slander and

unfair competition by false advertising - reflect the expansive (rather than limited)

scope of the single-publication rule's reach.s In this regard, Dean Prosser's

S Although Prosser did not specifically affirm that an invasion of privacy cause of action is subject to the USP A, this is because the quoted colloquy was focused narrowly on establishing the parameters of the "other tort founded upon any single publication" language of the USP A. There can be no doubt that the USP A, by its, terms, expressly and explicitly applies to all invasion of privacy causes of action.

LA1757042.5 203351-10015

8

reference to the unfair competition tort is particularly noteworthy, as it dovetails

with the Restatement's view that the right of publicity forms part of the law of

unfair competition. (Rest,3d Unfair Competition (1995) § 46, p.528-546.) It also

confirms that Prosser understood the USP A to apply to commercial torts, as well

as the traditional so-called "publication torts." Indeed, Prosser testified that:

"[o]ur feeling is that as far as [these torts] arise[] out of anyone single publication

... they should be treated in exactly the same way.,,6 This explanation clarifies

that, in Prosser's view, the nature of the tort was immaterial. For purposes of the

USPA, the manner in which the tort was committed was solely controlling.

Finally, any limitation of Section 3425.3 to "defamation-like" claims would

vitiate the single-publication rule, as originally conceived, and as enacted without

modification in jurisdictions throughout the country. In addition to exempting

publicity rights claims from the scope of the single-publication rule, Christoff's

construction would exempt claims based on intrusion, disclosure, appropriation,

fraud, infliction of emotional distress,7 and unfair competition. So construed, the

exceptions to the single-publication rule would swallow the. single-publication

Nor can there by any doubt that, at the time of the colloquy in 1952, Prosser and the other Committee members well understood the right of privacy to encompass the right now typically denominated the right of publicity. (See Section II(A)(I), above.)

6 Prosser's expansive interpretation of the single-publication rule is further confrrmed by his rejection of one Committee member's suggestion that the single­publication rule be limited to torts "similar" to libel, slander or privacy, rather than more broadly to torts "founded upon any single publication."

7 For example, under Christoffs construction, the single-publication rule would have no application to claims for infliction of emotional distress like the one asserted in Hustler Magazine v. Falwell (1988) 485 U.S. 46 (claim for intentional infliction of emotional distress filed by Rev. Jerry Falwell against Hustler Magazine and its publisher for printing a parody).

LA1757042.5 203351-10015

9

rule, underminmg the USPA's purpose to provide defendants with clarity and

repose.

3. Courts Have Broadly Interpreted The USP A To Apply To

Publicity Rights Claims.

TheUSPA, codified at Section 3425.3 in 1955; was intended to adopt and

standardize the single-publication rule, developed at common law in numerous

states throughout the country. (Cal. Civ. Code § 3425.2 ("This act shall be so

interpreted as to effectuate its purpose to make uniform the law of those states or

jurisdictions which enact it."); Shively, 31 Cal.4th at 1246 ("The Uniform Single

Publication Act was intended to reflect the common law single-publication rule".)

In this manner, the USPA sought to replace the competing "multiple publication

rule,"which originated with Duke ofBrunswickv. Harmer (1849) 14 Q.B. 185,

117 Eng. Rep. 72 (adjudging each sale or delivery of a single copy of a newspaper

or magazine to be a distinct and separate publication of a libel contained therein).

The impetus for the creation and adoption of the USPA was the tremendous

increase in the number of pUblications - whether in writing or by radio or

television broadcasts - crossing state lines. Under the former mUltiple publication

rule, a person injured by, for example, a newspaper with a national circulation

would have a separate tort claim for every copy of that newspaper delivered in .

every jurisdiction throughout the country. (Shively v. Bozanich (2003) 31 Cal.4th

1230, 1245-46.) The USPA sought to preclude this multiplicity of actions by

limiting plaintiffs injured by a "tort founded upon a publication" to a single

lawsuit, with res judicata effect, for all damages sustained in all jurisdictions. (/ d.)

Where, as here, a uniform act is adopted verbatim by the California

Legislature, California courts look to its history and underpinnings for interpretive

guidance. (See Hoechst Celanese Corp. v. Franchise Tax Bd. (2001) 25 Ca1.4th

508,522-523 (noting that "[b]ecause the Legislature adopted the UDITPA

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[Unifonn Division ofIncome for Tax Purposes Act] almost verbatim [citation], we

look to the history behind the UDITPA for guidance".) For this reason, in

deciding matters related to the·USPA, this Court has frequently looked to other

jurisdictions for guidance regarding its defmition and scope. (See Hebrew

Academy,. 42 Cal.4th at 892-893 (citing Pennsylvania and Wisconsin authority);

Strick, 31 Ca1.4th at 1245-46 (citing New York, Ohio, Massachusetts and Illinois

·authority).) So too have California's Courts of Appeal. (Traditional Cat Assn.,

Inc. v. Gilbreath (2004) 118 Cal. App. 4th 392, 402 (in the absence of controlling

California law on the issue of whether web publishing is subject to the single­

publication rule, finding New York law persuasive); Long, 116 Cal.App.4th at 875

(considering Ohio law concerning the single-publication rule and concluding that

California law Was no different).)

Beyond the California authority ci!ed by Nestle (ABOM 29-33), courts in

New York and Illinois have clearly afftrmed that the single-pUblication rule

applies to publicity rights claims.8

In Khaury v. Playboy Publications, Inc. (S.D.N.Y. 1977) 430 F.Supp. 1342,

1344, entertainer Tiny Tim brought claims against the publishers of Qui magazine

for, among other things, violation of Sections 50 and 51 of the New York Civil

Rights Law.9 These claims were founded upon the publication of an article

entitled "Miss Vicki" in the magazine's October 1975 issue, nearly 2 million

copies of which were distributed to the public. (Id. at 1343.)

8 The MP AA is unaware of any case in any jurisdiction speciftcally holding that the single-publication rule is inapplicable to publicity rights claims.

9 Section 50, entitled "Right of Privacy," provides: "A person, ftrm, or corporation that uses for advertising purposes, or for the purposes of trade, the name, portrait or picture of any living person without having first obtained the written consent of such person, or if a minor of his or her parent or guardian, is guilty of a misdemeanor." Section 51 establishes the remedies for a violation of Section 50.

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In defense, the publishers of Qui invoked the common law single­

publication rule. (Id. at 1345.) Tiny Tim, however, denied that it was applicable

to publicity rights claims. (Id.) Indeed, he argued that the single-publication rule

only applied "in defamation situations." (Id.) The district court rejected this

argument. (ld. at 1345-46.) After conceding the absence of controlling New York

authority, it acknowledged two decisions - Fouts v. Fawcett Publications, Inc.

(D.Conn. 1953) 116 F.Supp. 535, 536 and Jackson v. Ideal Publishing Corp. (B.D.

Pa. 1967) 274 F.Supp. 318 - in which courts had applied the single-publication

rule to torts arising out of a publication, regardless of whether they sounded in

defamation or invasion of privacy. Based on those cases, and consistent with the

USPA's express application to invasion of privacy claims founded upon mass

communications, the district court held:

I therefore believe that were the New York courts faced with the issue, they would follow the lead of these other jurisdictions and, in recognition of the aims of the sin~le publication rule, apply the rule to a claim of violatIOn of Section 51 founded upon a mass publication.

(Id. at 1346.)10

10 This holding has beenaffinned in numerous subsequent New York decisions. (E.g., Nelson v. Working Class, Inc. (S.D.N.Y. Apr. 18,2000, No. 99 Civ. 8854 HB) 2000 U.S. Dist. LEXIS 4848 at p. *3 [nonpub. opn.] (noting that right of publicity is encompassed by Section 50 of the New York Civil Rights Law ["NYCRL"], and applying single-publication rule to Section 50 claim); Zoll v. Jordache Enters. (S.D.N.Y. Dec. 5,2001, No. 01 Civ. 1339 CSH) 2001 U.S. Dist. LEXIS 19983, at p. *6-9 [nonpub. opn.] (holding single-publication rule applicable to claims asserting violation of Sections 50 and 51 of the NYCRL); Brooks v. Topps Co. (S.D.N.Y. Dec. 21, 2007, No 06 Civ. 2359 DLC) 2007 U.S. Dist. LEXIS 94036 atp. *9-10 [nonpub. opn.] (notingthatNYCRL Section 51 is basis for right of publicity claim, and applying single-publication rule thereto); Shatriya v. Gilden (N.Y. Sup .. Ct. Aug. 23,2007, No. 106545) 2007 NY Slip Op 51717U [nonpub. opn.].)

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Likewise, in Blair v. Nev. Landing P 'ship (2006) 369 Ill.App.3d 318, an

Illinois appellate court concluded that the single-publication rule applies to

publicity rights claims. In Blair, the plaintiff filed a misappropriation of likeness

claim after his former employer, a casino, published various advertisements

bearing plaintiffs photograph. (Id. at 319-321.) Although plaintiffs image had

been continuously used since 1995, plaintiff did not file suit unti12004. (Id.)

Accordingly, defendants contended that, by operation of the single-publication

rule; plaintiffs action was time barred. (Id.) The Court of Appeal agreed. (Id. at

322-325,328.) it held:

In the present case, the plaintiff alleges one overt act with continual effects. To hold otherwise would cause an attendant problem· of an endless tolling of the statute of limitations and could produce a vast multiplicity of suits. Indeed, the purpose of a statute of limitations is to discourage the presentation of stale claims and to encourage dili~ence in the bringing of actions. Statutes of limitations represent society's recognition that predictability and fmality are desirable, indeed, indis'pensable, elements of the orderly administration of Justice that must be balanced against the right of every citizen to seek redress for a legally recognized wrong. As such, we apply in this case the general rule whereby a cause of action accrues at the time a party's interest IS invaded.

(Id. at 324.) [citations omitted.]

To advance the uniform application of the single-publication rule in

jurisdictions throughout the country, this Court should affllin that the single­

publication rule applies to all claims - including pUblicity rights claims - founded

upon a publication. First, such a ruling is consistent with the mandate of Section

3425.3. Second, as set forth above, there is no principled basis for excluding

common law or statutory publicity rights claims from the scope ofthe single­

publication rule. Third, unless this Court affirms that pUblicity rights claims fall

within the ambit of the single-publication rule, pUblicity rights plaintiffs will

LA1757042.5 203351-10015

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undoubtedly engage in the sort of forum-shopping the USP A was intended to

prevent, and businesses engaged in the marketing or sale of products, merchandise

or goods will be 'subjected to an unwieldy and relentless volume of publicity rights

litigation.

B. The Sin.gle-Publication Rule Is Not Limited In Application To

Certain Types Of Publications.

Section 3425.3 cannot be fairly construed to limit or otherwise restrict the

. kinds of communications entitled to protection under the USP A .. The word

"publication" clearly encompasses any communication to a third person. (See

Shively, 31 Ca1.4th at 1242 (construing the term "publication" to be a

communication); Khaury, 430 F.Supp. at 1345 ("If the wrong arises out ofa mass

communication, then whether it sounds in defamation or statutory invasion of

privacy, the same considerations should apply"); William L. Prosser, Interstate

Publication (1953) 51 Mich. L. Rev. 959, 963-964.)

In construing a statute, courts must "ascertain the lawmakers' intent 'so as

to effectuate the purpose of the statute.'" (Day v. City of Fontana (2001) 25

Ca1.4th 268,272.) Courts look first to the "plain meaning" <;>fa statute's words,

and only resort to extrinsic aids if the statutory language is ambiguous. (Id.) As

drafted~Section 3425.3 clearly applies to all communications, regardless of their

content, form or purpose! (Shively, 31 Ca1.4th at 1243-44; Miller v. Collectors

Universe, Inc. (2008) 159 Cal.App.4th 988,998 (noting that "the words 'founded

upon any single publication or exhibition or utterance' must continue to mean the

communication of the same words or images to more than one person, whether by

writing, displaying, or speaking").)

While various forms of communication - such as a "newspaper[s],"

"book[s]," "magazine[s]," "radio or television" broadcasts and "motion picture[s]"

- are specifically identified in the text of Section 3425.3, this list does not purport

LA1757042.5 203351-10015

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to be exhaustive. It is only illustrative. Nothing in the language of the USPA

limits its application to the specific types of publications identified therein. This

Court should reject the more restrictive interpretation proffered by Christoff. (See,

e.g., In re Steele (2004) 32 Ca1.4th 682, 694 (because "[t]he plain language [of

Penal Code section 1 054.9] "does not limit" the phrase "discovery materials" to

"materials the defense once actually possessed," the Supreme Court rejected the

Attorney General's narrower reading of the statute).)

Because product labels, packaging and associated advertising, marketing

and promotional materials are all intended to communicate to a consumer ,

audience, the Court of Appeal correctly affmned that they are fully subject to

Section 3425.3's limitation. (See California Teachers Assn. v. San Diego Comty.

Coli. Dist. (1981) 28 Cal.3d 692,698 ("If the words of the statute are clear, the

court should not add to or alter them to accomplish a purpose that does not appear

on the face") (citations omitted); In re Marriage of Dupre (2005) 127 Ca1.App.4th

1517, 1527 ("We are prohibited from inserting words into a statute under the guise

of statutory interpretation. Nor can we insert words that would, in effect, add a

provision to a statute or rewrite a statute to conform to an intent not apparent in the

statute's plain language."); Wilson v. Safeway Stores (1997) 52 Ca1.App.4th 267,

271-272 (noting that courts have a duty to refrain from rewriting a statute to

"make express an intention that did not fmd itself expressed in the language of that

provision"). )

Finally, the purpose of the USP A - to prevent a multiplicity of suits and

prohibit the perpetual tolling of the statute of limitations - is furthered by its broad

application to all types of communications. For this reason, courts have broadly

applied the single.,.publication rule to media beyond newspapers and books -

including to, among other things, the Internet, magazine advertisements, radio .

broadcasts, and CD-ROMs. (Gilbreath, 118 Cal.App.4th at 392; Spangler v.

LA1757042.5 203351-10015

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Abercrombie & Fitch (9th Cir. 2003) 79 Fed.Appx. 325, 326; Baugh v. CBS, Inc.,

828 F.Supp. at 756; Auscape Int'l v. Nat'l Geographic Soc y. (S.D.N.Y. 2006) 461

F.Supp.2d 174, 185-187.)

III. THE DISCOVERY RULE SHOULD NOT BE APPLIED IN TIDS

CASE.

Christoff argues that even if the single-publication rule applies to his right

of publicity claims, "th~ discovery rule should apply in full as well." (OB<?M 43.)

The law, however, is otherwise. As set forth above, a cause of action based "upon

any single publication or exhibition or utterance" accrues when that

communication is "distributed to the public." (Hebrew Academy, 42 Ca1.4th at

893; Shively, 31 Cid.4th at 1243.)

Hebrew Academy is dispositive here. In Hebrew Academy, plaintiffPincas

Lipner, a San Francisco rabbi, filed a defamation suit against Richard Goldman, a

Jewish community leader. (Id. at 887-888.) Essentially, plaintiff alleged that he

had been defamed by defendant during an interview taken, transcribed and

ultimately published as part of an oral history project completed more than a

decade earlier. (Id) To avoid the applicable statute of limitations, plaintiff

invoked the discovery rule. (Id. at 889-890.) He argued that because nO more

than ten copies of the oral history transcript were disseminated to libraries

nationwide, and none were otherwise disseminated to the general public, he could

not reasonably have discovered the offending statements within the limitations

period. (Id at 887-890.)

Relying on Shively, the Court of Appeal agreed, noting that ''the alleged

libel was hidden or beyond what the ordinary person could be expected to

immediately detect or ~omprehend." (Id.) This Court, however, took a different

view. It observed that, although the transcript at issue was not widely distributed,

it was in fact distributed to the public. (Id. at 894-895.) Based on this

LA 1757042.5 203351·10015

16

observation, it held that the discovery rule did not apply: "Because plaintiffs in the

present case had access to the document from the time it was published, the

discovery rule does not apply." (Id. at 985.)

On its facts, Hebrew Academy might have been a close case. This case is

not. Here, there is no conceivable justification for application of the discovery

rule. The discovery rule only applies where the subject communication is "hidden

from view," "has been kept in a place to which the plaintiff has no access or cause

to seek access," "[i]s communicated in confidence" or "in an inherently secretive

manner," or has "occurred in private or confidential publications." (Id. at 894-

895; Shively, 31 Ca1.4th at 1249.) No such circumstance is involved here. In this

case, Christoff's image appeared on millions of coffee jars, in print

advertisements, coupons, and Internet sites over the course of many years.

Because the products and advertisements at issue were clearly "distributed to the

public," Christoff's right of publicity claim cannot be salvaged by the discovery

rule. II

IV. CONCLUSION

Based on the foregoing, the MP AA respectfully requests that this Court

affirm that the single-publication rule applies to all claims - including publicity

rights claims - founded upon a publication. The MP AA further requests that the

Court reaffirm that, under Hebrew Academy, a publicity claim accrues, for

11 Nestle has ceased using Christoff's image in connection with any new advertisements, packaging, or promotional materials. (ABOM 39-40.) Accordingly, injunctive reliefis not at issue here. Nevertheless, Nestle suggests that injunctive relief may be properly granted, in pUblicity rights cases involving a continuing commercial use of personal identity, even after damages have been foreclosed by application of the single-publication rule. (Id.) However, even in tort cases involving a continuing use, injunctive relief may be unavailable or inappropriate due to, among other things, the prior restraint doctrine, more general First Amendment protections, as well as equitable principles such as estoppel and laches.

LA1757042.5 203351-10015

17

purposes of the single-publication rule, on the date the publication at issue is first

distributed to the public. In addition to providing definitive guidance to lower

courts, such a holding will advance the USP A's plain purpose to prevent

unwieldy, recurring and potentially endless litigation of claims founded upon a

single publication.

Dated: April 18, 2008

LA 1757042.5 203351-10015

Respectfully submitted,

18

CERTIFICATE OF COMPLIANCE

Pursuant to California Rules of Court Rule 8.520(c)(I), the Request for

Leave to File Amicus Brief; and Amicus Brief of the Motion Picture Association

of America, Inc. in Support of Defendant and Appellant; submitted for filing on

Apri118, 2008, contains 4,994 words and was produced on a computer, using

Times New Roman font, 13-point.

Dated: Apri118, 2008

LA1757042.5 203351-10015

Respectfully submitted,

BY:=':---:-:Ir-::--,~=.....-==~:----t-. LAN EDMISTON

19

Attorneys for AmicUs Curiae MOTION PICTURE ASSOCIATION OF AMERICA, INC.

PROOF OF SERVICE

I, Olivia Johnson, the undersigned, declare that:

I am employed in the County of Los Angeles, State of California, over the

age of 18, and not a party to this cause. My business address is 10100 Santa·

Monica Boulevard, Suite 2200, Los Angeles, California 90067-4120.

On April 18, 2008, I served a true copy of the REQUEST FOR LEAVE

TO FILE AMICUS CURIAE BRIEF; AMICUS CURIAE BRIEF OF THE

MOTION PICTURE ASSOCIATION OF AMERICA, INC. IN SUPPORT

OF DEFENDANT AND APPELLANT NESTLE USA, INC. o~ the parties in

this cause as follows:

[X] (VIA OVERNIGHT DELIVERY) by placing the above named document

in a sealed envelope addressed as set forth below, or on the attached service list

and by then causing said envelope to be deposited for collection and overnight

delivery via Federal Express, in accordance with Loeb & 'Loeb LLP's ordinary

business practices.

Colin C. Claxon Law Offices of Colin C. Claxon 79 Mission Ave. San Rafael, CA 94901

Eric G. Stockel Kibre & Horwitz LLP 9107 Wilshire Blvd., Ste 300 Beverly Hills, CA 90210-5528

Lawrence E. Heller Heller & Edwards 9454 Wilshire Blvd., #500 Beverly Hills, CA 90212-2908

Clerk of the Court California Appellate Court Second Appellate District 300 S. Spring Street Los Angeles, California 90013

LAI757042.S 203351-10015 1

Robert David Mayer May-er & Glassman Law Corp. 12400 Wilshire Blvd., Suite 400 Los Angeles, CA 90025-1030

Jeremy Brooks Rosen Horvitz & Levy, LLP 15760 Ventura Blvd., Suite 1800 Encino, CA 91436-3029

John A. Taylor Horvitz & Levy, LLP 15760 Ventura Blvd., 18th Floor Encino, CA 91436-3029

Clerk of the Court Los Angeles Superior Court North Central District Glendale Courthouse 600 East Broadway

. Glendale, California 91206

I am readily familiar with Loeb & Loeb LLP's practice for collecting and . .

processing correspondence for mailing with the United States Postal Service and

Overnight Delivery Service. That practice includes the deposit of all

correspondence with the United States Postal Service and/or Overnight Delivery

Service the same day it is collected and processed.

I certify that I am employed in the office ofa member of the bar of this

Court at whose direction the service was made.

I declare under penalty of perjury that the foregoing is true and correct.

Executed on April 18, 2008, at Los Angeles, California.

LA1757042.5 203351-10015

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