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Miller v. Collectors Universe, Inc., California Court of Appeal

A jury found that the defendant had used the plaintiff’s name on 14,060 certificates of authenticity without his permission in violation of California’s right to privacy statute. The question before the court was whether the plaintiff was entitled to statutory damages for a single violation in the amount of $750, or if issuance of each of the 14,060 certificates constituted a violation so that the plaintiff would be entitled to $10,545,000. The court relied on legislative history and case law relating to other torts to conclude that there was a single cause of action and the plaintiff’s statutory damages were limited to $750.

The defendant owned a company that sold sports memorabilia, autographs, stamps, coins and other collectible items. A division of the company called PSA/DNA provided letters and certificates of authentication for a fee. The certificates were in the form of a 3x5 inch card which stated “This item has been examined by PSA/DNA and it is our unwavering opinion that the item is genuine.” Each certificate included the printed names of the plaintiff and five other people who comprised the “Expert Committee” and each certificate contained a unique serial number.

The plaintiff had sold his collectibles company to the defendant in 2000 and was employed as an authenticator of certain items. After his employment was terminated in May, 2004, the plaintiff informed the defendant that he had never been an authenticator for the PSA/DNA division. The defendant said he would make sure the plaintiff’s name was removed from letters and certificates of authentication, but the company continued to use the preprinted certificates with the plaintiff’s name until new ones arrived.

The plaintiff filed suit for violating Cal. Civ. Code §3344(a) which provides in 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. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($750) or the actual damages suffered by him or her as a result of the unauthorized use, and any profits from the unauthorized use that are attributable to the use and are not taken into account in computing the actual damages.

The court first addressed why the single publication rule did not apply in the case. The rule is codified at Cal. Civ. Code §3425.3 and provides in part:

No person shall have more than one cause of action for damages for libel or slander or invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as one issue of a newspaper or book or magazine or any one presentation to an audience or any one broadcast over radio or television or any one exhibition of a motion picture.

The court noted that the single publication rule is intended to apply to mass communications and the issuance of the certificates of authenticity in this case constituted a series of transactions, rather than a mass communication.The court then turned to how the plaintiff’s damages should be calculated. The court acknowledged that the language of the statute was ambiguous in calculating damages and that there is little case law on this issue. The court turned to legislative history which explained that the statutory damages provision was intended to provide some compensation for non-celebrity plaintiffs who would probably not be able to show actual damages. The court also noted that the injury resulting from a violation of the right to privacy is not injury to character or reputation, but injury to the plaintiff’s feelings and peace of mind. The court reasoned that the plaintiff’s injury occurred when the first certificate bearing his name without permission was issued and that the number of subsequent certificates that were issued was irrelevant for purposes of the statutory damages amount. “The number of [certificates] issued may be relevant to his actual damages, if any, and to punitive damages. But with regard to his statutory damages, the issuance of subsequent improper [certificates] did not give rise to new causes of action.” The court concluded that the plaintiff was entitled to $750 in statutory damages and remanded the case for a new trial.