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Old 08-17-2009, 10:10 PM   #1
WSJ Law Blog
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Default A Man, a Coffee Label, and a Lawsuit

This post starts with a little vignette that made us laugh.

A fellow named Russell Christoff was at a hardware store one day in 2002, when someone told him he looked like the “guy on my coffee jar.” A month or so later Christoff saw a jar of Taster’s Choice instant coffee on a store shelf and lo and behold, recognized his photograph on the label. So Christoff, a model and actor, purchased the coffee and called his agent.

And that touched off a lengthy court battle between Christoff, whose picture he had let Taster’s Choice use back in 1986, and Nestlé, the owner of Taster’s Choice.

On the one hand, you might think such a lawsuit would be straightforward: Did Christoff allow Nestle to use his picture? And if so, for how long? But, aha, thanks to a little legal term called “statutes of limitations,” the case turned out to be far from straightforward. The California Supreme Court on Monday reversed a lower court decision ruling that Christoff filed suit outside the statute of limitations for such a claim. The case will now go back to the trial court for further proceedings. Click here for the story, from the Central Valley Business Times.

The quick backstory: Christoff was paid $250 back in 1986 for his photo “posed gazing at a cup of coffee, as if he enjoyed the aroma,” according to today’s opinion.

The contract for the photo provided that if Nestlé Canada used the picture on a label it was designing for a brick of Taster’s Choice coffee, Christoff would be paid $2,000 plus an agency commission. But “without informing Christoff, or paying him according to the terms of the contract, Nestlé Canada used Christoff’s image on the coffee brick,” the Supreme Court says. The photo was used on eight different Taster’s Choice labels in 18 countries from 1997 to 2003.

Christoff sued. According to the Supreme Court, the following then happened:
The trial court applied a two-year statute of limitations and instructed the jury to determine under the discovery rule whether Christoff knew or should have known earlier that Nestlé had used his image. The jury found that Christoff did not know, and should not reasonably have suspected prior to seeing the jar, that his image was being used without his consent and awarded him more than $15 million in damages.

The Court of Appeal reversed, holding that under the single-publication rule, because Christoff had not filed his lawsuit within two years after Nestlé first “published” the label, his cause of action is barred by the statute of limitations unless, on remand, the trier of fact finds that Nestlé had hindered Christoff‟s discovery of the use of his photograph, or that the label had been “republished.” We granted review.

The California Supreme Court explains that the “single-publication rule” was originally meant to protect a publisher from getting sued over and over again for, say, libel each time a newspaper or book is printed. In those situations, the statute will start running from the first publication date.

The California Supreme Court ruled that the “single-publication rule” might apply, but that more information was needed to determine whether it did. So it punted the case back to the trial court for further findings. States the court:
It is not clear whether the production of a product label over a period of years is a “single integrated publication” that triggers the running of the statute of limitations when the first such label is distributed to the public. Publishing an issue of a newspaper or magazine or an edition of a book is a discrete publishing event. . . . But as we stated earlier, there is little case law or academic commentary discussing whether a manufacturer that produces a product label for a period of years is entitled to the same repose, especially while that product label is still being produced.

We decline to resolve this important issue without the benefit of a sufficient factual record that reveals the manner in which the labels were produced and distributed, including when production of the labels began and ceased.

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