Emotional Distress Award Affirmed for Model in California
NOTE: This post has been updated to reflect the withdrawal of the original appelalte opinon and its replacement with one filed on December 27, 2018. The only difference is that the new decision affirmed rather than reversed the trial court's holding with regard to there being no prevailing party for purposes of recovering statutory attorney fees.
The California Court of Appeal affirmed a more than $1 million jury award for a model and actor in a right of publicity lawsuit against GNC (General Nutrition Centers). The actor and model Jason Olive sued when GNC used his likeness in an advertising campaign after its right to do so expired.
Olive has long had a career as a model, and more recently has been working as an actor. During his heyday as a model in the 1990s, he sometimes earned $25,000 per day for his work. He has appeared in advertisements for Calvin Klein, Ralph Lauren, and Versace. He turned to acting around 2010, as his modeling jobs declined. He is perhaps best known for his role in Tyler Perry’s television show, For Better or Worse.
In 2010, GNC, the well-known seller of nutritional supplements and vitamins, began a “Live Well” advertising campaign. Olive was one of the models used in the ad campaign. Olive was paid $4,000 for a three-hour photo shoot, and signed a “Photograph and Likeness Release” that gave GNC the right to use his image and likeness for one year from the first usage by GNC in print media, with a right to a one-year extension for the same amount of compensation. GNC also paid Olive $8,000 for the ability to display his image and likeness on company trucks and vehicles in North America. This second agreement lasted through 2021.
Olive was “shocked” and “angered” when he discovered the scope of GNC’s use of his image―on billboards, kiosks, social media sites. He thought he did a small job, and would have insisted on a larger fee for the sorts of uses GNC made of his image. Nevertheless, Olive might not have had a claim given his initial release form that he signed, except that GNC used Olive’s image after the expiration of the release for uses in print media. GNC's continued use of his image after the expiration of the term that the release form covered made the right of publicity violation a clear one.
Olive sued for violations of his common law right of publicity, and statutory right of publicity under California's Civil Code § 3344, and sought disgorgement of GNC's profits traceable to the use of his image.
The jury agreed with Olive that his right of publicity had been violated, and awarded him $1,123,000 in damages, consisting of $213,000 in actual damages, and $910,000 in emotional distress damages. No award was made for GNC's profits, as there was no proof of any profits attributable to the use.
Both parties appealed from the trial court decision and jury award. Olive objected to the failure to provide a requested jury instruction about the burden of proof under Cal. Civ. Code § 3344, the exclusion of his expert witnesses, and the denial of attorney fees. GNC challenged the denial of its motion for attorney fees.
The appellate court agreed with the trial court that Olive was not the prevailing party in the lawsuit because although he recovered a substantial amount in damages, it was less than 1% of the amount of damages he had sought. Olive had sought disgorgement and restitution exceeding $20 million on top of actual damages. Initially, the appellate court had viewed Olive as the prevailing party because he won his right of publicity claim, but upon reconsideration the appellate court pointed to various precedents that suggested that because he fell far short of his litigation goals and the defendant had already admitted liabilty, neither party prevailed.
The decision is also of particular note because of the significant award of emotional damages in the context of a model who had agreed to both the initial photo shoot, and to uses of his image in the context of the very advertising at issue in the case. This affirmance sends a strong and appropriate signal that uses of anyone’s identity in such contexts should be with permission, and that failure to do so works not only an economic injury, but also an emotional and dignitary one that should be recognized even for public figures, and even when the initial images were captured and used with consent.
The decision is also an important one because of the appellate court’s conclusions regarding the analysis of the disgorgement claim. The appellate court agreed with the trial court that the plaintiff had the burden to establish profits attributable to use of his identity. The court also affirmed the trial court's exclusion of expert testimony on the question of how much, if any, of GNC's profits were attributable to the use of Olive's image.
GNC’s 2012 revenue was approximately $2.4 billion, and Olive had hoped to get a percentage of this, as well as his damages award. He had an expert who claimed that 1 to 3% of GNC's annual revenue was attributable to the use of Olive’s image. The appellate court was skeptical of this claim, noting that Olive was far from a household name or face. The court agreed with the trial court that no data supported the expert's opinion. The celebrity royalty agreements that Olive's expert relied on were not relevant, both because Olive was not a well known celebrity, like Alex Rodriguez or Michael Jordan, and also because the agreements were more comprehensive in scope, rather than for a single photo shoot.
This case highlights the difficulty of tracing profits to the use of a particular person’s image or name, especially when a non-celebrity is used. Even in cases involving celebrities, it is difficult to determine the impact of a particular use.
Olive v. GNC (Cal. App. Nov. 2, 2018)
Complaint, Olive v. GNC (Cal. Sup. Ct., April 11, 2012)
THE RIGHT OF PUBLICITY: Privacy Reimagined for a Public World
This book from Harvard University Press by Professor Jennifer Rothman traces the history and development of the right of publicity and its current collision course with individual liberty, free speech and copyright law.