Woods v. Prestwick House Inc., 108,541.

Citation247 P.3d 1183,2011 OK 9
Decision Date08 February 2011
Docket NumberNo. 108,541.,108,541.
PartiesTyler WOODS, Plaintiff/Petitioner,v.PRESTWICK HOUSE, INC., Shenandoah Shakespeare Express, a/k/a American Shakespeare Center, Defendants/Respondents.
CourtSupreme Court of Oklahoma
OPINION TEXT STARTS HERE

On Writ of Certiorari of Certified Interlocutory Order to the District Court of Oklahoma County; Honorable Brian C. Dixon, Trial Judge¶ 0 In March of 2006, the defendants/respondents, Prestwick House, Inc. and Shenandoah Shakespeare Express, a/k/a American Shakespeare Center (collectively, publishers), released a book containing a picture of the plaintiff/petitioner, Tyler Woods (Woods), on the cover. Woods discovered the book in the summer of 2008 and, within a year, filed a request for injunctive relief and damages for the publishers' violation of 12 O.S.2001 § 1449, prohibiting the knowing use of a photograph without prior consent. Alleging that Woods' claim was barred by the two-year statute of limitations, the publishers filed a motion for partial summary judgment. Finding that the statute of limitations ran from the first publication of the photograph, the trial court granted the motion for partial summary adjudication certifying the issue as an interlocutory order pursuant to 12 O.S.2001 § 952(b)(3). Having granted the petition for certiorari and reviewed the cause de novo, we hold that: 1) causes of action arising under 12 O.S.2001 § 1449 for misappropriation of a person's name, voice, signature, photograph, or likeness are governed by 12 O.S. Supp.2009 § 95(A)(3), providing for a two-year limitations period for an action for injury to the rights of another; 2) the discovery rule may apply to toll the statute of limitations in a case of unauthorized use under 12 O.S.2001 § 1449 if the publication is likely to have been concealed or published in a secretive manner making it unlikely to come to the attention of the injured party; and 3) the existence of disputed facts requires that the trier of fact determine when Woods knew, or should have known, of the publication.AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.Maurice G. Woods, II, McAtee & Woods, PC, Oklahoma City, OK, for plaintiff/petitioner.Geren T. Steiner, Drew T. Palmer, Crowe & Dunlevy, Oklahoma City, OK, for defendant/respondent, American Shakespeare Express a/k/a American Shakespeare Center.Gary Peterson, Tomlinson & O'Connell, P.C., Oklahoma City, OK, for defendant/respondent, Prestwick House, Inc.WATT, J.:

¶ 1 Title 12 O.S.2001 § 1449 1 protects individuals from the unauthorized use of the person's name, voice, signature, photograph, or likeness. Two first impression questions are presented. The first involves the statute of limitations controlling the cause.

¶ 2 To be governed by the three-year statute of limitations for liabilities created by statute, the liability must be one that does not exist but for the statutory provision.2 We adopted the concept of misappropriation of another's name or likeness as the tort of invasion of privacy long before the Legislature's enactment of 12 O.S.2001 § 1449. Therefore, we determine that causes of action arising under the statute are governed by 12 O.S. Supp.2009 § 95(A)(3) 3 providing for a two-year limitations period for an action for injury to the rights of another.

¶ 3 The second is: 4 whether the discovery rule may apply to toll the statute of limitations in a case of unauthorized use under 12 O.S.2001 § 1449? The rule is designed to allow limitations in tort cases to be tolled until the injured party knows or, in the exercise of reasonable diligence, should have known of the injury. Where applicable, the discovery rule tolls the limitations period until a plaintiff learns of an injury and, through prudent investigation, can obtain sufficient facts to state a cause of action. 5

¶ 4 In making our determination on the first impression issue, Digital Design Group, Inc. v. Information Builders, Inc., 2001 OK 21, 24 P.3d 834 is instructive. In Digital, we addressed whether the discovery rule could be utilized to determine when the one-year statute of limitations would begin to run on an action for libel. As here, the Digital defendant asserted that the limitations period commenced upon publication as a matter of law. Although the Court acknowledged the general rule that a libel action accrues on the date of publication, we adopted the discovery rule for application in matters where the publication is likely to be concealed from the plaintiff or published in a secretive manner making it unlikely to come to the injured party's attention.

¶ 5 We determine that the discovery rule may apply to toll the statute of limitations in a case of unauthorized use under 12 O.S.2001 § 1449 6 if the publication is likely to have been concealed or published in a secretive manner making it unlikely to come to the attention of the injured party. Application of the discovery rule to instances of unauthorized use is supported by Digital Design and our prior jurisprudence.7

¶ 6 Having resolved that the discovery rule may apply in cases of unauthorized use, it is also necessary to determine when Woods knew, or with reasonable diligence should have known, of the unauthorized use of his photograph. Although the facts surrounding the publication and distribution and the injury's discovery are not seriously disputed, the trier of fact must still determine when Woods knew or should have known of the injury.

FACTS

¶ 7 Between November of 2001 and 2002, Woods was under contract with American Shakespeare Center for a theater tour. During his employment, he participated in a photo shoot to promote the tour, understanding that his picture would appear on posters, programs, and t-shirts sold at various performances. Woods did not anticipate that his picture would appear on the cover of the publishers' book and first became aware of the images' appropriation in the summer of 2008, approximately six years after his contractual employment ended.

¶ 8 Woods was notified by a friend via the internet site, MySpace, that a teacher was utilizing a book in class carrying his photograph on the book's cover. After purchasing a copy of the book through an educational service in August of 2008, Woods recruited counsel to contact the publishers advising them of their misappropriation of his image. The publishers did not withdraw the book from distribution. On May 29, 2009, within a year of discovering the publication, Woods filed a request for injunctive relief and damages for the publishers' violation of 12 O.S.2001 § 1449,8 prohibiting the knowing use of a photograph without prior consent.

¶ 9 Woods' photograph appeared on the cover of a series of paperbacks known as the Literary Touchstone Classics. The edition carrying Woods photograph was published and shipped to customers on March 3, 2006 and sold until December of 2008. From March 3, 2006 to May 28, 2007, eleven thousand (11,000) copies were shipped to recipients in forty-eight (48) states. Seventy-two (72) of the books were shipped to Oklahoma recipients. The paperbacks were advertised for sale on multiple web sites.9 Nevertheless, although it is apparent from the record that the publishers were aware of the identity of the model displayed on their publication,10 they gave Woods no credit. His name did not appear on the cover with his image.

¶ 10 The publishers filed a motion for summary judgment on March 26, 2010 asserting that the two-year statute of limitations 11 began to run from the first date of publication. The first publication occurred on March 3, 2006. The publishers urged the trial court to adopt the single publication rule. The trial court found the arguments persuasive and entered judgment in the publishers' favor on June 28, 2010. It also certified the cause for immediate appeal pursuant to 12 O.S.2001 § 952(b)(2). In so doing, it: applied the two year statute of limitations found in 12 O.S. Supp.2009 § 95(A)(3); adopted the single publication rule; and rejected arguments that the discovery rule should be applied to toll the statute of limitations.

¶ 11 On July 27, 2010, Woods timely filed a petition for certiorari review of the certified interlocutory order. Although the briefing cycle concluded with the filing of Woods reply brief on December 20th, the record was not received until January 12, 2011.

¶ 12 a. Causes of action arising under 12 O.S.2001 § 1449 for misappropriation of a person's name, voice, signature, photograph, or likeness are governed by 12 O.S. Supp.2009 § 95(A)(3), providing for a two-year limitations period for an action for injury to the rights of another.

¶ 13 Woods insists that his cause of action, which he describes as one of “publicity,” is governed by 12 O.S. Supp.2009 § 95 12 providing a three-year period in which to bring a cause of action enumerated by statute. The publishers agree that the applicable statute of limitations is found in § 95 but contend that the cause is one for injury to the rights of another with a two-year limitations period.

¶ 14 The trial court granted summary judgment based on a legal determination that the cause of action was governed by the single publication rule and that the filing fell outside the statute of limitations. Although limitations issues may involve mixed questions of fact and law, generally, they are reviewed in this Court as questions of law.13 Furthermore, we have previously determined that the application of the discovery rule and its effect on limitation issues present questions of law 14 subject to de novo review.15

¶ 15 Woods' assertion that the cause should be governed by a three-year statute of limitations pursuant to 12 O.S. Supp.2009 § 95(A)(2) for liabilities created by statute is unconvincing. He acknowledges that the cause of action he characterizes here as one of the “right to publicity” arose out of this Court's adoption of the concept of “invasion of privacy” in McCormack v. Oklahoma Publishing Co., 1980 OK 98, 613 P.2d 737.16

¶ 16 This Court...

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