Timed Out, LLC v. Youabian, Inc.

• Decision Date: 12 September 2014
• Docket Number: B242820
• Citation: 229 Cal.App.4th 1001,177 Cal.Rptr.3d 773
• Court: California Court of Appeals Court of Appeals
• Parties: TIMED OUT, LLC, Plaintiff and Appellant, v. YOUABIAN, INC. et al., Defendants and Respondents.

229 Cal.App.4th 1001

177 Cal.Rptr.3d 773

TIMED OUT, LLC, Plaintiff and Appellant,

v.YOUABIAN, INC. et al., Defendants and Respondents.

B242820

Court of Appeal, Second District, Division 3, California.

Filed September 12, 2014

See 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 676 et seq.

APPEAL from judgment of the Superior Court of Los Angeles County, Norman P. Tarle, Judge. Reversed. (Los Angeles County Super. Ct. No. SC114914)

Law Offices of Hall & Lim, Timothy A. Hall, Ani Aghajani, Beverly Hills; Conkle Kremer & Engel and Eric S. Engel, Santa Monica, for Plaintiff and Appellant.

Bonne, Bridge, Mueller, O'Keefe & Nichols, Raymond J. McMahon and Kevin J. Grochow, Santa Ana, for Defendants and Respondents.

KITCHING, J.

INTRODUCTION

Plaintiff Timed Out, LLC (Plaintiff), as the assignee of two models who are not parties to this action (the Models), sued defendants Youabian, Inc. and Kambiz Youabian (Defendants) for common law and statutory misappropriation of likeness based on Defendants' alleged unauthorized display of the Models' images in connection with advertising Defendants' cosmetic medical services. The trial court ruled a cause of action for misappropriation of likeness is not assignable and granted Defendants' motion for judgment on the pleadings on that basis. We conclude a misappropriation of likeness claim, which concerns only the pecuniary benefits to be derived from the commercial exploitation of a person's likeness, is assignable. Accordingly, we reverse.

FACTS ¹ AND PROCEDURAL BACKGROUND

According to the complaint's allegations, Plaintiff is a company that “specialize[s] in the protection of personal image rights.” The Models are professional models, who earn a living modeling and selling their images to companies for advertising products and services. In or about July 2011, the Models discovered Defendants had been using their images on Defendants' website, without the Models' consent, to advertise Defendants' cosmetic medical services. Following the discovery, the Models “assigned their rights to bring suit for misappropriation of their images to PLAINTIFF.”

Based on the foregoing allegations, Plaintiff sued Defendants for statutory and common law misappropriation of likeness. The complaint alleges that, as a direct and proximate result of the misappropriation, Plaintiff, through its assignment from the Models, suffered damages “with respect to [the Models'] right to control the commercial exploitation of their image and likeness [ sic ]” and through the dilution of the value of the Models' images for advertising medical services.

Defendants moved for judgment on the pleadings. In their motion, Defendants principally asserted that Plaintiff lacked standing to sue on behalf of the Models because the right of publicity, which creates liability for misappropriation of a person's name or likeness, is personal in nature and cannot be assigned. Defendants also argued Plaintiff's claims were preempted by the federal Copyright Act.

After hearing argument and taking the matter under submission, the trial court granted Defendant's motion. In its written ruling, the court observed the parties' primary dispute centered on whether a claim for misappropriation of likeness can be assigned. The court framed the issue as follows: “The parties agree that, under California law, assignment of a ‘personal’ tort is not valid.... The issue, therefore, is whether a cause of action for misappropriation of publicity is personal in nature.” Citing Lugosi v. Universal Pictures (1979) 25 Cal.3d 813, 160 Cal.Rptr. 323, 603 P.2d 425 (Lugosi ), the trial court concluded “the right to publicity [is] personal in nature and therefore non-assignable.” On this basis, the court granted the motion and entered judgment for Defendants.

STANDARD OF REVIEW

“ ‘Review of a judgment on the pleadings requires the appellate court to determine, de novo and as a matter of law, whether the complaint states a cause of action.’ ” (Third Eye Blind, Inc. v. Near North Entertainment Ins. Services, LLC (2005) 127 Cal.App.4th 1311, 1317, 26 Cal.Rptr.3d 452.) “We assume the truth of the properly pleaded factual allegations, facts that reasonably can be inferred from those expressly pleaded, and facts of which judicial notice can be taken. [Citation.] We construe the pleading in a reasonable manner and read the allegations in context.” (Zenith Ins. Co. v. O'Connor (2007) 148 Cal.App.4th 998, 1006, 55 Cal.Rptr.3d 911.) The complaint “must be liberally construed, with a view to substantial justice between the parties.” (Code Civ. Proc., § 452.)

DISCUSSION

1. The Pecuniary Interest Protected by the Right of Privacy Is Assignable

“In this state the right of publicity is both a statutory and a common law right.” (Comedy III Productions, Inc. v. Gary Saderup, Inc. (2001) 25 Cal.4th 387, 391, 106 Cal.Rptr.2d 126, 21 P.3d 797 (Comedy III ).) Although its origin can be traced to “the fourth type of privacy invasion identified by Dean Prosser in his seminal article on the subject” ² (id. at p. 391, 106 Cal.Rptr.2d 126, 21 P.3d 797, fn. 2, citing Prosser, Privacy (1960) 48 Cal. L.Rev. 383, 389), “[t]he right of publicity has come to be recognized as distinct from the right of privacy.” ( KNB Enterprises v. Matthews (2000) 78 Cal.App.4th 362, 366, 92 Cal.Rptr.2d 713 ( KNB ).) “What may have originated as a concern for the right to be left alone has become a tool to control the commercial use and, thus, protect the economic value of one's name, voice, signature, photograph, or likeness.” ( Ibid.) “What the right of publicity holder possesses is ... a right to prevent others from misappropriating the economic value generated ... through the merchandising of the ‘name, voice, signature, photograph, or likeness' of the [holder].” ( Comedy III, supra, 25 Cal.4th at p. 403, 106 Cal.Rptr.2d 126, 21 P.3d 797; Civ.Code § 3344, subd. (a).)

In 1971, California enacted Civil Code section 3344,³ a commercial statute that complements the common law tort of misappropriation of likeness. ( Lugosi, supra, 25 Cal.3d at p. 819, fn. 6, 160 Cal.Rptr. 323, 603 P.2d 425; KNB, supra, 78 Cal.App.4th at pp. 366–367, 92 Cal.Rptr.2d 713.) Section 3344, subdivision (a) provides in relevant part: “Any person who knowingly uses another's name, voice, signature, 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 such person's prior consent ... shall be liable for any damages sustained by the person or persons injured as a result thereof.” Nothing in section 3344 expressly prohibits assignment of the rights and remedies established by the statute.

In the instant case, the trial court granted Defendants' motion on the ground that the right of publicity is “personal in nature and therefore non-assignable.” In reaching this conclusion, the trial court derived a rule from our Supreme Court's opinion in Lugosi v. Universal Pictures, supra, 25 Cal.3d 813, 160 Cal.Rptr. 323, 603 P.2d 425 that cannot properly be attributed to the holding in that case.

In Lugosi, the heirs of the actor Bela Lugosi sued Universal Pictures, the motion picture company that produced the film Dracula, for common law misappropriation of Lugosi's likeness. In contracting to star in the film's title role, Lugosi assigned Universal the right to use his name and likeness to advertise the movie.⁴ After his death, Lugosi's heirs sued Universal for the profits it made licensing “ ‘the use of the Count Dracula character to commercial firms' ” for merchandising products other than the film. ( Lugosi, supra, 25 Cal.3d at pp. 816–817, 160 Cal.Rptr. 323, 603 P.2d 425.) The trial court ruled in favor of the heirs, finding “Lugosi during his lifetime had a protectable property or proprietary right in his facial characteristics and the individual manner of his likeness and appearance as Count Dracula,” and this right did not terminate with Lugosi's death but “descended to his heirs.” ( Id. at p. 817, 160 Cal.Rptr. 323, 603 P.2d 425.)

As framed by the trial court's ruling, the issue on appeal in Lugosi was whether the right of publicity survives a celebrity's death, as a descendible property interest, if never exercised or exploited by the celebrity during his or her lifetime. (See Lugosi, supra, 25 Cal.3d at pp. 817–819, 160 Cal.Rptr. 323, 603 P.2d 425.) While answering this question in the negative, our Supreme Court recognized—contrary to the trial court's ruling in the instant case—that the right of publicity can be assigned by the celebrity during his or her lifetime. (See id. at p. 823, 160 Cal.Rptr. 323, 603 P.2d 425.)

In addressing a collection of federal cases that concluded the right of publicity passes to one's heirs, the Lugosi court affirmed the premise of those cases—that “the right to exploit name and likeness can be assigned ”—but explained why assignability alone does not automatically translate into inheritability of the right. (Lugosi, supra, 25 Cal.3d at p. 823, 160 Cal.Rptr. 323, 603 P.2d 425, italics added.) The court explained, “Assignment of the right to exploit name and likeness by the ‘owner’ thereof is synonymous with its exercise. In all of the [federal] cases the owner of the right did assign it in his lifetime and, too, Lugosi did precisely this in his lifetime when he assigned his name and likeness to Universal for exploitation in connection with the picture Dracula. [Citation.] Assertion by the heirs of the right to exploit their predecessor's name and likeness to commercial situations he left unexploited simply is not the exercise of that right by the person entitled to it.” (Ibid. underscoring added.) Because “the right to exploit name and likeness is personal to the artist and must be exercised, if at all, by him during his lifetime,” the Supreme Court concluded Lugosi's heirs lacked standing to assert their claim. (Id. at p. 824, ...