Please, since you are armed with all the facts, explain why that statute would seem to indicate that the $37M you so boldly professed is now just $750. That's a very immaterial number, isn't it?
Thank you for taking the time to intelligently expand this discussion.
Before I proceed let me address your final point since it is essential to the case. The foundation of Miller's filing and allegations is that CLCT clearly and knowingly used his name on their certificates without his consent. While he was employed by them during the course of the violation it was in a capacity that had no direct relation to PSA/DNA or their authentication service (he ran a memorabilia unit and magazine that CLCT sold in early '04). With this said, the statutory claim becomes valid.
In using the Perfect 10 v. Talisman case to establish a precedent I see a lot of open interpretation that would sway in Miller's favor. Since the images of the models were not distributed or sold on an individual basis, I believe the "muliple use" theory of compensating for the violation is not established in a rational manner. It is hard to prove that each photograph is being used for "commercial purpose" by definition since Talisman is not peddling pics on an a la carte basis.
While similar, the Miller case is fundamentally different in the nature of how the violations are committed. Each Certificate of Authenticity issued bearing his name is a unique product created and sold on an individual basis--the key being that they are indeed sold individually. Thus, for each Certificate of Authenticity sold, a commercial violation under the terms of the statute can be clearly established. I believe this would further solidify a direct connection between use and commercial purpose for every certificate issued, thus validating the size of the damages being sought.
Given the above, it appears evident that CLCT is definitely vulnerable to a major judgement. Unless they produce concrete evidence that Miller did give consent--say a signed contract--then I think they are in trouble. If they clearly had consent in any form other than heresay then this case would have been tossed out in a heartbeat.
On the other hand, the lack of formal consent strengthens Miller's claim since all other authenticators employed by PSA/DNA have formal written employment/consulting contracts. This fact begs the question: If someone decided to use your name and reputation to make money and build a business, wouldn't you expect to sign a contract for your involvement and expect a clearly defined compensation for your partaking? How does a big public company not have such an agreement with a guy who literally was in their backyard the whole time?
One has got to wonder...
If the only thing at stake was $750 this lawsuit wouldn't even be a topic as CLCT would have paid the measly number and move on rather than enduring any further negative publicity.
Your oversight in the interpretation of the California statue occurs in that it explains the circumstances behind the restitution for a single offense. However, if an injured party suffers numerous vilations, the statue applies in the multiple of however many violations that have occurred.
In this case, Miller is claiming that there are 50,000 COAs floating around with his name on it. Technically, since each COA is unique and distinct, there are 50,000 violations, and Miller is entitled to the statue minimum per violation ($750) PLUS all profits from every COA in violation PLUS possible punitive damages.
If the statue were interpreted the way you and others on the board have begun to see it, there would be a major occurrence of these types of violations in CA.
Whether Miller gets punitive damages is yet to be seen. But, even if the jury only awards him a judgement based upon 1/5 of his claim (10,000 COAs), that's still $7.5mill PLUS all profits associated with EACH violation (ouch!).
CLCT has already tried to throw out this case twice, getting shot down on both ocassions. If the claim made by Miller was erroneous or grossly overstated, the judge would have either a.)thrown out the case all together or b.)revised the statutory claim to reflect the appropriate monetary damages possible, that is, if there was an error in the calculation, which there isn't.
You've just gotta use basic logic on this one. Why let such a claim linger if it is insignificant? The fact of the matter is this claim--and the damages associated with it--are real and valid. Rest assured, neither side would be dumping tens of thousands (or hundreds of thousands) of dollars in lawyer's fees if the stakes were not extraorinarily high.
The statute reads: "� 3344. Unauthorized commercial use of name, voice, signature, photograph or likeness
(a) Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof. In addition, in any action brought under this section, the person who violated the section shall be liable to the injured party or parties in an amount equal to the greater of seven hundred fifty dollars ($ 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. In establishing such profits, the injured party or parties are required to present proof only of the gross revenue attributable to such use, and the person who violated this section is required to prove his or her deductible expenses. Punitive damages may also be awarded to the injured party or parties. The prevailing party in any action under this section shall also be entitled to attorney's fees and costs."
In reading this sentence "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)" it does seem clear that the $750 minimum is per action brought by the injured party, not per action committed by the offending party.
Care to explain your point of view that it's per offense in detail? Or are your 'facts' limited to calling people names.