Out-Law News 3 min. read

California court asks: is coffee label reprinting a re-publication?


A California court has said it needs more evidence before it can decide whether coffee labels printed over the course of years counted as re-publishing or if it counts as a 'single publication'.

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.

We are processing your request. \n Thank you for your patience. An error occurred. This could be due to inactivity on the page - please try again.