Olive v. Gen. Nutrition Ctrs., Inc., B279490

• Court: California Court of Appeals
• Citation: 239 Cal.Rptr.3d 617
• Decision Date: 02 November 2018
• Docket Number: B279490
• Parties: Jason OLIVE, Plaintiff, Appellant and Cross-Respondent, v. GENERAL NUTRITION CENTERS, INC., Defendant, Respondent and Cross-Appellant.

239 Cal.Rptr.3d 617

Jason OLIVE, Plaintiff, Appellant and Cross-Respondent,
v.
GENERAL NUTRITION CENTERS, INC., Defendant, Respondent and Cross-Appellant.

B279490

Court of Appeal, Second District, Division 4, California.

Filed November 2, 2018

Johnson & Johnson, Neville L. Johnson, Douglas L. Johnson and Ronald P. Funnell ; Hamideh Firm and Bassil A. Hamideh, Los Angeles, for Plaintiff, Appellant and Cross-Respondent.

McGuire Woods, Leslie M. Werlin, Los Angeles, James F. Neale, Charlottesville, and Molly M. White, Los Angeles, for Defendant, Respondent and Cross-Appellant.

MICON, J.^*

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Jason Olive is a model and actor who contracted with General Nutrition Centers, Inc. (GNC) to use his likeness in its advertising campaign. GNC continued using Olive’s likeness in its advertising after its right to do so expired. GNC admitted liability for the unauthorized use of Olive’s likeness in violation of Civil Code section 3344¹ but contested the amount of damages. A jury found Olive suffered $213,000 in actual damages and $910,000 in emotional distress damages. The trial court denied both parties’ motions for prevailing party attorney fees and costs.

Both Olive and GNC separately appeal from the judgment and the order denying prevailing party attorney fees. Olive contends the court erred by (1) failing to provide his proposed special jury instruction concerning the burden of proof under section 3344, (2) excluding his expert witnesses who would have testified about the amount of GNC’s profits from the unauthorized use of his likeness, and (3) determining he was not the prevailing party for purposes of awarding statutory attorney fees. In its cross-appeal, GNC contends it should have been deemed to be the prevailing party.² We conclude the trial court abused its discretion in its determination that Olive was not the prevailing party; accordingly, we reverse the order denying Olive’s motion for attorney fees. The judgment is affirmed.

FACTUAL AND PROCEDURAL SUMMARY

Olive’s Background

Olive is a model, former professional volleyball player, and actor. His previous modeling engagements included campaigns for Ralph Lauren, Levi’s, Versace, Armani, Calvin Klein, Elle Magazine, and GQ Magazine. Olive reached the peak of his modeling career in the mid-1990’s, when he was in his twenties. He earned up to $25,000 per day for modeling work during the height of his career.

Olive’s modeling career has waned since that time, and he turned to acting around 2010. He was featured in Tyler Perry’s hit television show "For Better or Worse" in 2011.

GNC’s New Marketing Campaign

GNC is an international retailer and manufacturer of vitamins and other nutritional supplements, with approximately 8,000 retail locations. GNC has used the "Live Well" marketing tagline in its advertising and marketing materials since approximately 1998. The slogan is meant to encourage customers "to live a better life."

In 2010, GNC hired photographer Peter Arnell to carry out a photo shoot for its new "Live Well" advertising campaign. GNC was looking for models who were athletic, healthy, ethnically diverse, and

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"everyday relatable people." GNC gave Arnell a budget but otherwise had no direct role in the photo shoot, including casting and securing proper release agreements.

Olive is Cast as a Model for GNC’s "Live Well" Campaign

Olive’s agent, Richard Ferrari, submitted him as a candidate for GNC’s "Live Well" campaign. Compensation for the photo shoot was posted at $6,000 but Ferrari sought a higher rate. Arnell had a limited budget and refused to negotiate for a higher fee. Olive and approximately 15 other models were cast for the photo shoot.

Olive executed a "Photograph and Likeness Release" on September 24, 2010. The agreement irrevocably granted GNC the "absolute right, permission, authorization and consent to use, reuse, produce, reproduce, exploit, publish, republish, display and otherwise use and reuse [his] image and likeness and photograph to be taken at the photoshoot scheduled for September 24, 2010." Olive was paid $4,000 for the three-hour photoshoot, in addition to an $800 agent fee. The release lasted for one year from GNC’s first usage in print media, and GNC had the unilateral right to a one-year renewal in exchange for the same amount of compensation.

In November 2010, Olive executed a second "Photograph and Likeness Release" allowing GNC to use his image and likeness on print media displayed on any company trucks and other vehicles in North America. Olive was paid $8,000 for this agreement, which is valid through December 31, 2021.

GNC’s marketing team approved Arnell’s selections. GNC launched its new advertising campaign in January 2011. Olive’s image was used in outdoor billboards, bus shelters, kiosks, social media websites, direct mail advertising, as well as in-store posters and signage. Olive was "shocked" and "angered" when he discovered the vast scope of the advertising campaign. Olive believed he agreed to "a very small job" in light of what he perceived to be a small fee, and he felt he was doing a favor for the Arnell Agency.

In May 2011, GNC decided to pursue a new photo shoot in an effort to update its promotional graphics. GNC wanted its new approach to resonate with updates to its stores. None of the models from the September photo shoot, including Olive, were invited to the new shoot.

GNC terminated its relationship with the Arnell Agency after Arnell’s principals divorced. GNC expected the agency would continue managing the models it used and maintain any outstanding release agreements. GNC did not immediately hire a replacement advertising agency, and no one was tasked with keeping track of model release agreements.

GNC’s Right to Use Olive’s Likeness Expires

GNC declined to renew the release agreement, and Olive told Ferrari he wanted to end his relationship with GNC. On January 9, 2012, Ferrari emailed GNC to confirm it was no longer authorized to continue using Olive’s image.³ He never received a response. Olive eventually fired Ferrari.

Celina Petronzi, an employee in GNC’s marketing department, was tasked with

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responding to Ferrari’s inquiry, but she failed to do so. Petronzi emailed GNC’s Vice President of marketing, informing her that some talent from the September 2010 Arnell photo shoot was going to expire, and asking about what imagery would be used going forward. The marketing department was unaware that the releases had expired and was not familiar with Olive.

After discovering the oversight, GNC negotiated extensions for every model used in the September 2010 shoot, except Olive. The company was prepared to replace the images of any model who "was difficult" during negotiation. GNC paid between $7,500 and $32,000 to the models in exchange for five-year extensions. GNC retained a new advertising agency in April 2012.

GNC continued its efforts to negotiate a release extension with Olive, but he refused and instead filed suit. Later in 2012, GNC attempted a last ditch effort to negotiate an extension with Olive for $150,000. Olive rejected the offer. GNC removed Olive’s image from its marketing materials in either November or December of 2012, incurring approximately $350,000 in take-down expenses.

Olive’s Complaint and GNC’s Answer

Olive’s complaint alleged causes of action for common law misappropriation of likeness and statutory misappropriation of likeness ( § 3344 ). He also sought restitution for unjust enrichment. Pursuant to section 3344, subdivision (a), Olive requested disgorgement of any profits from GNC’s unauthorized use of his image. GNC initially denied Olive’s allegations, but it admitted liability for the unauthorized use of Olive’s image prior to trial.

GNC’s Motions In Limine

Olive designated three experts to offer their opinions regarding GNC’s profits attributable to its unauthorized use of his image: (1) Weston Anson; (2) Leonard Lyons; and (3) Jeff Anderson. GNC moved in limine to exclude Anson and Lyons from testifying at trial.⁴

GNC sought to exclude Anson from opining as to Olive’s damages and the apportionment of GNC’s profits to its use of his image. The company argued Anson’s opinions were speculative and unreliable. GNC also sought to exclude Lyons because his opinion was based on Anson’s speculative and flawed analysis. Following a hearing, the trial court granted GNC’s in limine motions to exclude Anson and Lyons.

Jury Verdict and Judgment

The jury ultimately awarded Olive a total of $1,123,000 in damages, consisting of $213,000 in actual damages and $910,000 in emotional distress damages. The jury found that Olive failed to prove any of GNC’s profits were attributable to the unauthorized use of his image, and that GNC had not acted with malice or fraud. The trial court separately returned a defense verdict on Olive’s equitable claim for unjust enrichment. The court...