# Christoff v. Nestle USA, Inc.

> California Supreme Court · August 17, 2009 · 47 Cal. 4th 468

URL: https://www.frixlaw.com/law-library/cases/9788638

## Case

- **Full name:** RUSSELL CHRISTOFF, Plaintiff and Respondent, v. NESTLÉ USA, INC., Defendant and Appellant
- **Court:** California Supreme Court
- **Decided:** August 17, 2009
- **Citations:** 47 Cal. 4th 468; 213 P.3d 132
- **Precedential status:** Published
- **Opinion:** Concurrence by Werdegar
- **Judges:** Moreno, Werdegar
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9788638

## How later opinions describe it (automated extraction)

- stating that the particular factual scenario before the court presented issue of first impression in determining whether rule applied
- stating “[t]he same logic [used to analyze the 25 application of the discovery rule to a defamation claim] applies to a product label” at issue in a § 26 3344 claim
- affirming 6 appellate court’s ruling that the single-publication rule applied to plaintiff’s “cause of action for 7 unauthorized commercial use of his likeness”

## Opinion text

WERDEGAR, J.,
Concurring. — I concur fully in the majority opinion. In particular, I agree that without a better factual record we cannot determine how California’s single publication mle (Civ. Code, § 3425.3 (hereafter section 3425.3)) should apply here and hence whether, or to what extent, plaintiff’s action is barred by the statute of limitations. Nonetheless, I believe some general principles relevant to that question may be discerned from the language of section 3425.3. 1
Leaving aside any Taster’s Choice labels on which plaintiffs image was significantly altered, and further disregarding advertisements that employed photographs of a label, 2 the broadest question posed here is whether all distribution of labels employing the original misappropriated image, whenever they occurred, should be deemed to constitute a single publication for purposes of section 3425.3. Phrased more generally, should a series of temporally distinct publications be treated as a single publication because each consisted of substantially the same text or images?
*484 On this question, California courts have not spoken, 3 and courts from other jurisdictions have reached diverse results. Some have held that multiple broadcasts, distributions or displays of identical material constitute a single publication for purposes of the statute of limitations, and not a series of republications. (See, e.g., Blair v. Nevada Landing Partnership (2006) 369 Ill.App.3d 318 [ 307 Ill.Dec. 511 , 859 N.E.2d 1188, 1193-1194 ] [use of the plaintiff’s image in various advertisements within a casino and on the casino’s Web site over a nine-year period treated as a single publication]; Auscape Intern v. National Geographic Soc., supra, 461 F.Supp.2d at pp. 185-187 [the defendant, which each year distributed a digital compilation of past magazine issues, including in each year’s compilation all the prior years’ contents, did not thereby republish the prior years’ issues]; Zoll v. Jordache Enterprises Inc. (S.D.N.Y. 2002) 2002 WL 31873461 , pp. *9 — *11 [rebroadcast of 1978 television commercial in 2000 was not a republication of the original 1978 broadcast].)
Other courts have looked on each broadcast or display as a separate publication, or republication, each of which, if it violates the plaintiff’s rights, begins a new limitations period. (See, e.g., Wells v. Talk Radio Network-FM, Inc. (N.D.Ill. 2008) 2008 WL 4888992 , pp. *l-*3 [each unauthorized use of the plaintiff’s voice in radio advertisements broadcast repeatedly for two years was a rebroadcast triggering a new statute of limitations period]; Lehman v. Discovery Communications, Inc. (E.D.N.Y. 2004) 332 F.Supp.2d 534, 535-536 [where the defendant broadcast a program 17 times over more than two years, each broadcast was a republication of the allegedly defamatory material]; Baucom v. Haverty (Fla.Dist.Ct.App. 2001) 805 So.2d 959, 960-961 [where, over several years, the defendant repeatedly used the plaintiff’s name and image in marketing presentations to potential clients, each such presentation was a new publication].)
In my view, the latter approach is more consistent with our statutory language. As illustrative of a single publication, section 3425.3 refers to “any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.” The statute thus dictates we treat as a separate publication any reissue, rebroadcast or reexhibition, even though the publication’s contents or the manner of its distribution or display has not been changed. Section 3425.3’s reference to “any one broadcast,” for example, appears to preclude a result like that in Zoll v. Jordache Enterprises, Inc., *485 supra, 2002 WL 31873461 , where two broadcasts of the same advertisement, separated by 22 years, were deemed to be a single publication. 4
Granted, determining what is a single “issue” of printed material presents special difficulties. When large numbers of a book are printed and distributed at one time, the later distribution of smaller numbers from stock is considered part of the original publication. (Gregoire v. G. P. Putnam’s Sons (1948) 298 N.Y. 119 [ 81 N.E.2d 45, 46, 49 ].) The same rule has been applied to additional printings of a single book edition, at least within a short time of its original publication. (See Fleury v. Harper & Row, Publishers, Inc. (9th Cir. 1983) 698 F.2d 1022, 1028 [where a book was published in November 1978, “continued printing of the book into 1979” was part of the same publication].) Would the same rule apply if there were no initial mass printing, but individual copies or small batches of copies were printed and sent out to readers on demand? Arguably it should, for each instance of access to text on the Internet is not considered a separate publication (Firth v. State (N.Y.Ct.Cl. 2000) 184 Misc.2d 105 [ 706 N.Y.S.2d 835, 841-843 ]), nor presumably would be each download of text in digital form to an electronic reader or audio device; the use of printed paper as a distribution medium should not lead to a different result.
A useful distinction lies in earlier cases’ criterion of a republication decision that is “ ‘ “conscious [and] independent” ’ ” (Barres v. Holt, Rinehart & Winston, Inc. (1974) 131 N.J. Super. 371 [ 330 A.2d 38, 46 ], italics omitted, affd. (1977) 74 N.J. 461 [ 378 A.2d 1148 ]) or “conscious and deliberate” (Rinaldi v. Viking Penguin, Inc. (1981) 52 N.Y.2d 422 [ 438 N.Y.S.2d 496 , 420 N.E.2d 377, 382 ]). Where the publisher has set up a more or less automated system for printing and distributing an item or for downloading it in digital form and does not make a separate publishing decision as to each copy or small batch of copies, to call each such distribution a new “issue” of the material would defeat the purposes of the single publication rule. (See Firth v. State, supra, 706 N.Y.S.2d at p. 843 .) Conversely, where a publication has been out of print or unavailable in digital form for some time and the publisher makes a conscious decision to reissue it or again make it available for download, no reason appears in the text or purposes of section 3425.3 why the publisher should not be separately responsible for any tort committed in republishing.
*486 For these reasons, I doubt defendant’s entire five-year course of printing and distributing labels may be deemed a single publication simply because the labels were not substantially altered during that time. The trial court should consider as well whether the production and distribution of labels was predetermined by a single initial decision or whether defendant (that is, the officers or managing agents of defendant corporation) made at any relevant time a conscious, deliberate choice to continue, renew or expand the use of labels bearing plaintiff’s misappropriated image. If any such decisions occurred during the period defined by the statute of limitations, plaintiff should be able to recover damages caused by publication pursuant to those decisions.
Respondent’s petition for a rehearing was denied September 17, 2009.
Section 3425.3 states: “No 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, such as any one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture. Recovery in any action shall include all damages for any such tort suffered by the plaintiff in all jurisdictions.”
That both these categories constituted separate publications from the original labels themselves seems clear, as they differed in content from the original labels and were apparently aimed at different audiences. (See Rinaldi v. Viking Penguin, Inc. (N.Y.Sup.Ct. 1979) 101 Misc.2d 928 [ 422 N.Y.S.2d 552, 556 ]; Kanarek v. Bugliosi (1980) 108 Cal.App.3d 327, 332-333 [ 166 Cal.Rptr. 526 ].)
The district court in Auscape Intern, v. National Geographic Soc. (S.D.N.Y. 2006) 461 F.Supp.2d 174 , cited in the text, post, however, did attempt to apply California law in deciding one version of the question.
Indeed, the court in Zoll v. Jordache Enterprises, Inc., acknowledged that its approach, which it considered settled under New York law, diverged from that of the Restatement Second of Torts, under which subsequent broadcasts of the same material were deemed republications. (Zoll v. Jordache Enterprises, Inc., supra, 2002 WL 31873461 at p. *10.) Section 3425.3 clearly adopts the Restatement’s view on this point by making “any one broadcast” a separate publication.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9788638. Public record. Not legal advice.