Friday, September 28, 2007

Right of Publicity Damages Were $750, Not $10 Million

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

A jury award to a collectibles authenticator of over $10 million in statutory damages under the California right of publicity statute was reversed by a California appellate court.

A collectibles seller's use of the authenticator's name without his consent on 14,060 certificates of authenticity (COAs)—each corresponding to a different collectible item—supported only a single statutory damages award of $750 for wrongful appropriation, the court held.

Statutory, Actual Damages

Under the statute, a person who knowingly and without authorization uses another’s name on goods, or to advertise, sell, or solicit purchases of goods or services, is liable to the injured party for statutory damages of $750 or actual damages suffered “as a result of the unauthorized use,” whichever is greater, as well as profits from the unauthorized use, discretionary punitive damages, and attorney fees and costs.

Contrary to the seller's contention, the single publication rule—that a mass communication or display of identical content supports only a single right of publicity cause of action—did not apply to the COAs here, which were issued to separate individuals to authenticate separate items. Instead, the COAs were held to support only a single statutory damage award under the “primary right” theory used in California to determine whether causes of action are identical.

Common Purpose, Common Plan

Even though the 14,060 COAs were issued to authenticate 14,060 separate items, they were all issued for a common purpose pursuant to a common plan: to use the authenticator’s name as a member of a panel of experts, the court said. The COAs were printed at the same time (only the serial numbers were different), and they were issued seriatim as authentication services were purchased by the customers.

The authenticator’s injury—the worry and uncertainty regarding his reputation and his potential liability for improperly authenticated items—occurred when the seller knowingly issued its first COA without his prior consent. The number of COAs issued might be relevant to his actual damages, if any, and to punitive damages. But with regard to his statutory damages, the issuance of subsequent improper COAs did not give rise to new causes of action, according to the court.

The judgment was reversed for retrial with directions to reinstate the authenticator's common law invasion of privacy and punitive damages claims, which he had elected not to pursue after the trial court's erroneous in limine ruling allowing multiple statutory damages awards.

The opinion in Miller v. Collectors Universe, Inc., appears at CCH Advertising Law Guide ¶62,657. Further details regarding Advertising Law Guide appear at the CCH Online Store.

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