Montana v. San Jose Mercury News, Inc., H012004

• Decision Date: 03 May 1995
• Docket Number: No. H012004,H012004
• Citation: 34 Cal.App.4th 790,40 Cal.Rptr.2d 639
• Court: California Court of Appeals Court of Appeals
• Parties: , 35 U.S.P.Q.2d 1783, 23 Media L. Rep. 1920 Joseph C. MONTANA, Jr., Plaintiff and Appellant, v. SAN JOSE MERCURY NEWS, INC., Defendant and Respondent.

Page 639

40 Cal.Rptr.2d 639

34 Cal.App.4th 790, 35 U.S.P.Q.2d 1783, 23 Media L. Rep. 1920

Joseph C. MONTANA, Jr., Plaintiff and Appellant, v. SAN JOSE MERCURY NEWS, INC., Defendant and Respondent.

No. H012004.

Court of Appeal, Sixth District, California.

May 3, 1995.

As Modified May 30, 1995.

Review Denied Aug. 17, 1995.

Mezzetti Law Firm, Robert L. Mezzetti, II, San Jose, for appellant.

Pillsbury Madison & Sutro, Edward P. Davis, Jr., Kevin M. Fong, Judy Alexander, James M. Chadwick, San Jose, for respondent.

COTTLE, Presiding Justice.

On January 22, 1989, San Francisco 49'ers quarterback Joe Montana led his team to a The 1990 Super Bowl victory gave the 49'ers an unparalleled four championships in the 1980 to 1990 decade. To celebrate this accomplishment, SJMN issued a special "Souvenir Section" in its Sunday, February 4, 1990, edition, devoted exclusively to the 49'ers, a "team of destiny." The souvenir section, entitled "Trophy Hunters," carried an artist's rendition of Montana on the front page.

20-16 come-from-behind victory against the Cincinnati Bengals in Super Bowl XXIII. The following day, the San Jose Mercury News (SJMN) ran a front page story chronicling the 49'ers' feat and depicting four players, including Montana, celebrating on the field. The next year, the 49'ers were even more impressive in Super Bowl XXIV, sweeping past the Denver Broncos to a 55-10 win. Again, SJMN featured the 49'ers' accomplishment the next day in its front page story. The accompanying front page photograph showed Joe Montana "flying high in celebration with Guy McIntyre after a third-quarter touchdown pass to John Taylor."

Each of these newspaper pages was reproduced in poster form within two weeks of its original printing in the newspaper and was made available for sale to the general public. Approximately 30 percent of the posters were sold for $5 each; SJMN gave away the remaining posters, mostly at charity events.

Almost two years after the last of these posters was produced, Montana brought an action against SJMN for common law and statutory (Civ.Code, § 3344) commercial misappropriation of his name, photograph, and likeness. SJMN moved for summary judgment, arguing that Montana's action was barred by the First Amendment and by the applicable statute of limitations. The trial court granted SJMN's motion on First Amendment grounds. From the subsequent judgment, Montana appeals. We shall affirm the judgment.

DISCUSSION

Montana argues the court erred in granting summary judgment on his common law and statutory commercial misappropriation claims. For reasons we shall explain, we disagree.

A cause of action for common law misappropriation of a plaintiff's name or likeness may be pled by alleging: "(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. [Citations.]" (Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 417, 198 Cal.Rptr. 342.)

However, no cause of action will lie for the "[p]ublication of matters in the public interest, which rests on the right of the public to know and the freedom of the press to tell it...." (Dora v. Frontline Video Inc. (1993) 15 Cal.App.4th 536, 542, 18 Cal.Rptr.2d 790; see U.S. Const., art. I.) Furthermore, a matter in the public interest is not restricted to current events but may extend to the reproduction of past events. (Ibid.; Carlisle v. Fawcett Publications, Inc. (1962) 201 Cal.App.2d 733, 746, 20 Cal.Rptr. 405; Eastwood v. Superior Court, supra, 149 Cal.App.3d at p. 421, 198 Cal.Rptr. 342.)

In addition to the common law cause of action, California also has a statutory cause of action for misappropriation. (Civ.Code, § 3344.) The statutory cause of action complements rather than codifies common law misappropriation (Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 819, 160 Cal.Rptr. 323, 603 P.2d 425) and lies where the plaintiff can show that another "knowingly" used his or her "name, ... photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without [the plaintiff's] prior consent...." (Civ.Code, § 3344, subd. (a); Eastwood v. Superior Court, supra, 149 Cal.App.3d at pp. 416-417, 198 Cal.Rptr. 342; 5 Witkin, Summary of Cal. Law (9th ed. 1988) Torts, § 589, pp. 687-688.)

Like the common law cause of action, the statutory cause of action specifically exempts from liability the use of a name or likeness in connection with the reporting of a matter in the public interest. Civil Code section 3344, subdivision (d) provides that no prior consent is required for "use of a name, ... photograph, or likeness in connection with any news, public affairs, or sports broadcast or account, or any political campaign...." (Civ.Code, § 3344, subd. (d).)

The Posters Reported on Newsworthy Events

In the instant case, there can be no question that the full page newspaper accounts of Although we have been unable to locate any cases directly on point, several cases discuss First Amendment implications of the sale of posters, videotapes or movies of recognizable individuals without their consent. Paulsen v. Personality Posters, Inc. (1968) 59 Misc.2d 444, 299 N.Y.S.2d 501, is illustrative. There, comedian Pat Paulsen sought a preliminary injunction to bar a poster marketer from selling posters of him with the words "FOR PRESIDENT" written at the bottom. Paulsen had conducted a mock campaign for the presidency in 1968. In discussing whether Paulsen's statutorily defined "right of privacy" had been abridged, the court observed "that the statute was not intended to limit activities involving the dissemination of news or information concerning matters of public interest ...[.] [S]uch activities are privileged and do not fall within 'the purposes of trade' contemplated by Section 51 [New York's equivalent of California Civil Code section 3344], notwithstanding that they are also carried on for a profit [citations]. Thus, it was early held that newspapers, magazines, and newsreels are exempt from the statutory injunction when using a name or picture in connection with an item of news or one that is newsworthy and such privileged status has also been extended to other communications media including books, comic books, radio, television and motion pictures. [Citations.] Indeed, it is clear that any format of 'the written word or picture', including posters and handbills [citation] will be similarly exempted in conjunction with the dissemination of news or public interest presentations...." (Id. 299 N.Y.S.2d at p. 506.)

Super Bowls XXIII and XXIV, and of the 49'ers' four championships in a single decade, constituted publication of matters in the public interest entitled to First Amendment protection. Montana, indeed, concedes as much. The question he raises in this appeal is whether the relatively contemporaneous reproduction of these pages, in poster form, for resale, is similarly entitled to First Amendment protection. We conclude that it is. This is because Montana's name and likeness appeared in the posters for precisely the same reason they appeared on the original newspaper front pages: because Montana was a major player in contemporaneous newsworthy sports events. Under these circumstances, Montana's claim that SJMN used his face and name solely to extract the commercial value from them fails.

Applying those principles to the poster of Paulsen, the court stated: "When a well-known entertainer enters the presidential ring, tongue in cheek or otherwise, it is clearly newsworthy and of public interest. A poster which portrays plaintiff in that role, and reflects the spirit in which he approaches said role, is a form of public interest presentation to which protection must be extended." (Paulsen v. Personality Posters, Inc., supra, 299 N.Y.S.2d at p. 507.) ¹

The same could be said here. When Joe Montana led his team to four Super Bowl championships in a single decade, it was clearly a newsworthy event. Posters portraying the 49'ers' victories are, like the poster in Paulsen, "form of public interest presentation to which protection must be extended." (299 N.Y.S.2d at p. 507.)

A similar conclusion was reached in Jackson v. MPI Home Video (N.D.Ill.1988) 694 F.Supp. 483. In that case, the Reverend Jesse Jackson sought an injunction against the unauthorized distribution of videocassettes of a copyrighted speech he gave at the 1988 Democratic National Convention. The court granted the injunction based on Jackson's copyright claims. At the same time, it noted that Jackson's "chances of success on [his] right to publicity claim appear less than negligible" as the "defendants[ ] claim[ed] that they were engaged in news reporting...." (Id. at p. 492.) The court explained that the right of publicity "is based upon the plaintiff's right to use his own name and likeness for his own benefit, and this right is violated when one, without leave, uses it for his benefit and not the plaintiff's. [Citations.] Public figures possess this right with respect to commercial use of their names and likeness. [Citation.] But public figures do not retain the right of publicity And in Dora v. Frontline Video, Inc., supra, 15 Cal.App.4th at p. 536, 18 Cal.Rptr.2d 790, a self-proclaimed surfing "legend" sued the producer of a video documentary on surfing claiming common law and statutory appropriation of his name and likeness. The trial court entered summary judgment for the film's producer, and the Court of Appeal affirmed, finding that the documentary contained matters of public interest and was therefore protected by the First Amendment. The court further held that the statutory exemption from liability for "public affairs" (Civ.Code, § 3344, subd. (d)) applied to surfing, which "is of more than passing...