CACI 1804A Use of Name or Likeness (Civ. Code, § 3344)

California Civil Jury Instructions CACI

1804A Use of Name or Likeness (Civ. Code, § 3344)

[Name of plaintiff] claims that [name of defendant] violated [his/her/nonbinary pronoun] right to privacy. To establish this claim, [name of plaintiff] must prove all of the following:

1.That [name of defendant] knowingly used [name of plaintiff]’s [name/voice/signature/photograph/likeness] [on merchandise/ [or] to advertise or sell [describe what is being advertised or sold]];

2.That the use did not occur in connection with a news, public affairs, or sports broadcast or account, or with a political campaign;

3.That [name of defendant] did not have [name of plaintiff]’s consent;

4.That [name of defendant]’s use of [name of plaintiff]’s [name/voice/signature/photograph/likeness] was directly connected to [name of defendant]’s commercial purpose;

5.That [name of plaintiff] was harmed; and

6.That [name of defendant]’s conduct was a substantial factor in causing [name of plaintiff]’s harm.

Directions for Use

If the plaintiff is asserting more than one privacy right, give an introductory instruction stating that a person’s right to privacy can be violated in more than one way and listing the legal theories under which the plaintiff is suing. One’s name and likeness are protected under both the common law and under Civil Code section 3344. As the statutory remedy is cumulative (Civ. Code, § 3344(g)), both this instruction and CACI No. 1803, Appropriation of Name or Likeness, which sets forth the common-law cause of action, will normally be given.

Different standards apply if the use is in connection with a news, public affairs, or sports broadcast or account, or with a political campaign. (See Civ. Code, § 3344(d); Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 421–426 [198 Cal.Rptr. 342].) The plaintiff bears the burden of proving the nonapplicability of these exceptions. (Gionfriddo v. Major League Baseball (2001) 94 Cal.App.4th 400, 416–417 [114 Cal.Rptr.2d 307].) Element 2 may be omitted if there is no question of fact with regard to this issue. See CACI No. 1804B, Use of Name or Likeness—Use in Connection With News, Public Affairs, or Sports Broadcast or Account, or Political Campaign, for an instruction to use if one of the exceptions of Civil Code section 3344(d) applies.

If plaintiff alleges that the use was not covered by Civil Code section 3344(d) (e.g., not a “news” account) but that even if it were covered it is not protected under the standards of Eastwood, then both this instruction and CACI No. 1804B should be given in the alternative. In that case, it should be made clear to the jury that if the plaintiff fails to prove the inapplicability of Civil Code section 3344(d) as set forth in element 2, the claim is still viable if the plaintiff proves all the elements of CACI No. 1804B.

Note that a plaintiff is entitled to the sum of $750 under Civil Code section 3344(a) even if actual damages are not proven. (See Miller v. Collectors Universe, Inc. (2008) 159 Cal.App.4th 988, 1008 [72 Cal.Rptr.3d 194] [claim for 14,060 misappropriations of plaintiff’s name under section 3344(a) constitutes single cause of action for which statutory damages are $750].)

Sources and Authority

Liability for Use of Name or Likeness. Civil Code section 3344.

“Civil Code section 3344 provides a statutory cause of action for commercial misappropriation that complements, rather than codifies, the common law misappropriation cause of action.” (Local TV, LLC v. Superior Court (2016) 3 Cal.App.5th 1, 13 [206 Cal.Rptr.3d 884].)

“[C]alifornia’s appropriation statute is not limited to celebrity plaintiffs.” (KNB Enters v. Matthews (2000)78 Cal.App.4th 362, 367 [92 Cal.Rptr.2d 713].)

“There are two vehicles a plaintiff can use to protect this right: a common law cause of action for commercial misappropriation and a section 3344 claim. To prove the common law cause of action, the plaintiff must establish: ‘ “(1) the defendant’s use of the plaintiff’s identity; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.” [Citation.]’ To prove the statutory remedy, a plaintiff must present evidence of ‘all the elements of the common law cause of action’ and must also prove ‘a knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose.’ ” (Orthopedic Systems, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 [135 Cal.Rptr.3d 200], internal citations omitted.)

“The differences between the common law and statutory actions are: (1) Section 3344, subdivision (a) requires a knowing use whereas under case law, mistake and inadvertence are not a defense against commercial appropriation; and (2) Section 3344, subdivision (g) expressly provides that its remedies are cumulative and in addition to any provided for by law.” (Eastwood, supra, 149 Cal.App.3d at p. 417, fn. 6, internal citation omitted.)

“[B]oth the statutory and common law versions of a right of publicity claim require that the defendant actually use the plaintiff’s likeness … .” (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 210 [222 Cal.Rptr.3d 250].)

“Plaintiffs assert that Civil Code section 3344’s ‘commercial use’ requirement does not need to ‘involve some form of advertising or endorsement.’ This is simply incorrect, as Civil Code section 3344, subdivision (a) explicitly provides for possible liability on ‘[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner … for purposes of advertising … without such person’s prior consent.’ The statute requires some ‘use’ by the advertiser aimed at obtaining a commercial advantage for the advertiser.” (Crosssupra, 14 Cal.App.5th at p. 210.)

“[T]he single-publication rule as codified in [Civil Code] section 3425.3 applies, in general, to a cause of action for unauthorized commercial use of likeness.” (Christoff v. Nestle USA, Inc. (2009) 47 Cal.4th 468, 476 [97 Cal.Rptr.3d 798, 213 P.3d 132].)

“Any facts which tend to disprove one of the allegations raised in a complaint may be offered in the defendant’s answer based upon a general denial and need not be raised by affirmative defense. … Throughout this litigation plaintiffs have borne the burden of establishing that their names and likenesses were used in violation of section 3344, and this burden has always required proof that the disputed uses fell outside the exemptions granted by subdivision (d).” (Gionfriddo, supra, 94 Cal.App.4th at pp. 416–417, internal citation omitted.)

Secondary Sources

5 Witkin, Summary of California Law (11th ed. 2017) Torts, §§ 789–791
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, § 46.05 (Matthew Bender)
37 California Forms of Pleading and Practice, Ch. 429, Privacy, §§ 429.35–429.36 (Matthew Bender)
18 California Points and Authorities, Ch. 184, Privacy: Invasion of Privacy, §§ 184.22–184.24 (Matthew Bender)
California Civil Practice: Torts § 20:17 (Thomson Reuters)