Collectibles often derive their value from associations with celebrities from the politics, sports and entertainment fields. However, it is a sad fact that many items that purport to have been used, signed or otherwise connected with a celebrity are pure counterfeits, by which the unsuspecting public pays for its hero worship.
Many living celebrities, when not negotiating deals with collectibles manufacturers and dealers, are busy fighting lawsuits with the counterfeiters. Or, in the case of legendary test pilot Gen. Charles “Chuck” Yeager, they are fighting their own licensed collectibles sellers.
Yeager had entered into an agreement with Connie and Ed Bowlin, whereby the Bowlins would sell certain Yeager memorabilia, including artwork signed by Yeager. Eventually, the parties disagreed over the number of art prints Yeager was entitled to keep and Yeager demanded that his collection be returned and any references to him be removed from the Bowlins’ website.
When the Bowlins did not comply, Yeager and his foundation sued them for, among other things, violation of California’s statutory right of publicity and the common law right of privacy.
The Bowlins moved for summary judgment, arguing that Yeager’s claims were long past the applicable two-year statute of limitations, being based on material that had been posted on the website since 2000. Yeager argued that his claims were not barred because the Bowlins were continuously offering and selling the Yeager-related products he was suing about, and that each sale or change to the website would re-start the two-year periods.
The district judge granted summary judgment under California’s “single publication rule,” which provides that a plaintiff has only one cause of action for violation of the rights of publicity or privacy through a publication, no matter how many times that publication is reprinted or broadcast.
The court stated that Yeager’s argument concerning the Bowlins’ website would effectively eliminate the single publication rule as the statute of limitations would never run as along as the website remained operational with the items for sale. Instead, the district court held that the single publication rule applies to statements published on the Internet and defendants’ website constituted a “single integrated publication.”
Therefore, Yeager’s complaint, which was filed in 2008, was time barred.
On appeal, the Ninth Circuit Court of Appeals considered two arguments from Yeager. First, Yeager challenged the district court’s disregard of an affidavit he submitted in opposition to the Bowlins’ motion. The court ruled that the district court was correct in finding the affidavit to be a “sham,” as Yeager suddenly recalled numerous events to which he had professed a complete lack of memory at his deposition three months earlier. The court noted that Yeager had replied “I don’t recall” to 185 questions at that deposition, and offered no explanation for why his memory had improved so dramatically when opposing the Bowlins’ motion.
The court cautioned against aggressive use of the “sham affidavit” rule when new facts appear after depositions have been taken, but affirmed the district court’s application of that rule to Yeager.
The court found that although the Bowlins had never changed the portions of their website relating to Yeager, had they done so in a “substantive” way, or had the website been “directed to a new audience,” the “single publication rule” would not apply and Yeager would have had a new two-year period to bring suit.
Armen R. Vartian is an attorney and author of A Legal Guide to Buying and Selling Art and Collectibles.