The question is vital for determining damages for transgressions
such as defamation or misuse of images. In defamation cases a
single publication can only attract a single case, but multiple
publications can attract multiple awards.
In the Californian case, which was a dispute over image rights,
the question of whether a picture of model Russell Christoff was
published once or many times is vital in determining whether or not
Christoff's legal action was taken too late and is barred by a two
year statute of limitations.
Christoff was a model in the 1980s when he was hired for a two
hour photo shoot for food giant Nestlé in Canada. His picture
graced Nescafé coffee jars in Canada for years.
In 1997 Nestlé in the US redesigned some of its coffee jars and
used Christoff's image on them without seeking his permission,
paying him or checking whether it had the rights to use the images
outside of Canada.
Christoff had no idea his picture was being used in the US until
a man in a queue at a hardware shop told him he looked like the man
on his jar of coffee at home. Christoff bought a jar, realised what
had happened and sued Nestlé.
A court awarded him $15 million in damages but an appeal court
said that he could not claim the payout because he had not sued
within two years of Nestlé first making the infringing use of his
image. It said that the labels fell under the single publication
rule, which says that you cannot sue more than once for one
publication of an offending article.
The appeal court said that Christoff's image was not republished
every time a new label was printed and that the printing was just a
function of a single publication, meaning that the two year statute
of limitations ran from when the first label was printed, not the
last.
The Supreme Court of California said that the single publication
rule certainly applied to this kind of case, but that it was not
clear whether or not there had been one publication or many.
"We agree that, in general, the single-publication rule …
applies to causes of action for unauthorized commercial use of
likeness, but in order to determine when the statute of limitations
was triggered for Christoff's action, we must decide whether
Nestlé's unauthorized use of Christoff's image, including its
production of the label, constituted a 'single publication' within
the meaning of the single-publication rule," said Justice Moreno in
the ruling. "The record on appeal is insufficient to permit this
court to answer this question."
"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," said the judgment.
"Publishing an issue of a newspaper or magazine or an edition of a
book is a discrete publishing event. A publisher that prints and
distributes an issue of a magazine or an edition of a book is
entitled to repose from the threat that a copy of that magazine or
book will surface years later and trigger a lawsuit. But … 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."
The court said that it would not make a decision on the issue
without more evidence about the actual processes involved in
producing the labels for Nestlé's coffee.
"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," said the ruling.
The Court said that the appeal court should hear evidence about
the label production and rule on the basis of that.
The single publication rule is a vital one for online
publishers, who have always been keen that, for defamation
purposes, each new web page seen or email sent containing its news
does not give rise to a fresh legal case and potential additional
payout.
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