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California has long recognized a common law right of privacy for the protection of a person's name and likeness against appropriation by others for their advantage. This California common law cause of action has been complemented by the enactment of Cal. Civ. Code § 3344. That section neither replaces nor codifies the common law cause of action. Section 3344(g) specifically provides that the statutory remedies of the section are cumulative and in addition to any others provided by law. To sustain a common law cause of action for commercial misappropriation, a plaintiff must prove: (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.
Plaintiff, Donald Newcombe, a former major league baseball all-star pitcher, claimed that a beer advertisement used his likeness. The ad was designed by defendant creator, Coors, Foote Cone & Belding Advertising, to advertise defendant beer company's product and appeared in a magazine published by defendant publisher, Time Inc. The advertisement showed a baseball scene focused on a pitcher in the windup position; the background included a single infielder and an old-fashioned outfield fence. The players' uniforms did not depict an actual team, and the background did not depict an actual stadium. However, plaintiff, along with family, friends and former teammates, immediately recognized the pitcher featured in the advertisement as plaintiff in his playing days. The district court granted summary judgment in favor of defendants. On appeal, plaintiff contended that defendants violated his right of privacy and used his likeness and identity to their commercial advantage in violation of his statutory rights under Cal. Civ. Code § 3344 and common law right of privacy.
Did the district court correctly grant summary judgment in favor of defendants on plaintiff’s claims of common law and statutory commercial misappropriation?
Yes, with respect to defendant publisher. No, with respect defendant beer company and defendant creator.
Summary judgment on plaintiff’s claims of common law and statutory commercial misappropriation was affirmed with respect to defendant publisher, but reversed with respect to defendant beer company and defendant creator. According to the court, whether plaintiff was readily identifiable as the pitcher in the advertisement raised a triable issue of fact. The court noted that the drawing in the advertisement and the newspaper photograph of plaintiff upon which the drawing was based were virtually identical. The pitcher's stance, proportions and shape were identical to the newspaper photograph of plaintiff; even the styling of the uniform was identical, right down to the wrinkles in the pants. However, with respect to the defendant publisher, the court noted that it had not directly benefitted from use of plaintiff's likeness or had knowledge of unauthorized use.