Right of Publicity Matter—Proposed Jury Instructions 
____________________________________
UNITED STATES DISTRICT COURT 
DISTRICT OF [ district]
[names of Plaintiff],
Plaintiffs
v.
[names of Defendants],
Defendants
Case No.: [number]
Date: [date].
____________________________________
PROPOSED JOINT JURY 
INSTRUCTIONS—RIGHT OF PUBLICITY
Plaintiffs, [names of Plaintiffs] (collectively referred to as “Plaintiffs”), through their respective undersigned counsel, and Defendants [names of Defendants] (collectively referred to as “Defendants”), through their respective undersigned counsel, hereby submit their joint proposed jury instructions for trial.
SECTION I—NINTH CIRCUIT MODEL 
CIVIL JURY INSTRUCTIONS
§ 1.1 DUTY OF JURY
Ladies and gentlemen: You are now the jury in this case, and I want to take a few minutes to tell you something about your duties as jurors and to give you some instructions. At the end of the trial, I will give you more detailed instructions. Those instructions will control your deliberations.
You should not take anything I may say or do during the trial as indicating what I think of the evidence or what your verdict should be.
§ 1.2 CLAIMS AND DEFENSES
To help you follow the evidence, I will give you a brief summary of the positions of the parties: The Plaintiffs claim that Plaintiffs’ right of publicity was violated by Defendants’ unauthorized use of Plaintiffs’ name and/or likeness and other identifying characteristics on clothing developed, manufactured and sold by Defendants.
The Defendants deny those claims and also contend that they had the right to use Plaintiffs’ names and likenesses, and that Plaintiffs’ claims are too late because the Defendants have been using Plaintiffs’ names and likenesses for promotion and merchandise for years.
Plaintiffs deny Defendants’ claims.
§ 1.3 WHAT IS EVIDENCE
The evidence you are to consider in deciding what the facts are consists of:
(1)	the sworn testimony of any witness;
(2)	the exhibits which are received into evidence; and
(3)	any facts to which the lawyers stipulate.
§ 1.4 WHAT IS NOT EVIDENCE
The following things are not evidence, and you must not consider them as evidence in deciding the facts of this case:
(1)	statements and arguments of the attorneys;
(2)	questions and objections of the attorneys;
(3)	testimony that I instruct you to disregard; and
(4)	anything you may see or hear when the court is not in session even if what you see or hear is done or said by one of the parties or by one of the witnesses.
§ 1.5 EVIDENCE FOR LIMITED PURPOSE
Some evidence may be admitted for a limited purpose only. When I instruct you that an item of evidence has been admitted for a limited purpose, you must consider it only for that limited purpose and for no other.
§ 1.6 DIRECT AND CIRCUMSTANTIAL EVIDENCE
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what that witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.
§ 1.7 RULING ON OBJECTIONS
There are rules of evidence that control what can be received into evidence. When a lawyer asks a question or offers an exhibit into evidence, and a lawyer on the other side thinks that it is not permitted by the rules of evidence, that lawyer may object. If I overrule the objection, the question may be answered or the exhibit received. If I sustain the objection, the question cannot be answered, and the exhibit cannot be received.
Whenever I sustain an objection to a question, you must ignore the question and must not guess what the answer might have been. Sometimes I may order that evidence to be stricken from the record and that you disregard or ignore the evidence. That means that when you are deciding the case, you must not consider the evidence that I told you to disregard.
§ 1.8 CREDIBILITY OF WITNESSES
In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.
In considering the testimony of any witness, you may take into account:
(1)	the opportunity and ability of the witness to see or hear or know the things testified to;
(2)	the witness’ memory;
(3)	the witness’ manner while testifying;
(4)	the witness’ interest in the outcome of the case and any bias or prejudice;
(5)	whether other evidence contradicted the witness’ testimony;
(6)	the reasonableness of the witness’ testimony in light of all the evidence; and
(7)	any other factors that bear on believability.
The weight of the evidence as to a fact does not necessarily depend on the number of the witnesses who testify.
§ 1.9 CONDUCT OF THE JURY
I will now say a few words about your conduct as jurors. First, you are not to discuss this case with anyone, including your fellow jurors, members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case please let me know about it immediately;
Second, do not read any news stories or articles or listen to any radio or television reports about the case or about anyone who has anything to do with it;
Third, do not do any research, such as consulting dictionaries, searching the Internet or using other reference materials, and do not make any investigations about the case on your own;
Fourth, if you need to communicate with me simply give a signed note to the bailiff to give to me; and
Fifth, do not make up your mind about what the verdict should be until after you have gone to the jury room to decide that case and you and your fellow jurors have discussed the evidence. Keep an open mind until then.
§ 1.10 NO TRANSCRIPT AVAILABLE TO JURY
At the end of the trial, you will have to make your decision based on what you recall of the evidence. You will not have a transcript of the trial. I urge you to pay close attention to the testimony as it is given.
§ 1.11 TAKING NOTES
If you wish, you may take notes to help you remember what witnesses said. If you do take notes, please keep them to yourself until you and your fellow jurors go to the jury room to decide the case. Do not let note taking distract you so that you do not hear other answers by witnesses. When you leave, your notes should be left in the jury room.
Whether or not you take notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.
§ 1.12 OUTLINE OF TRIAL
The next phase of the trial will now begin. First, each side may make an opening statement. An opening statement is not evidence. It is simply an outline to help you understand what that party expects the evidence will show. A party is not required to make an opening statement.
The Plaintiffs will then present evidence, and counsel for the Defendants may cross-examine. Then the Defendants may present evidence, and counsel for the Plaintiffs may cross-examine.
After the evidence has been presented, the attorneys will make closing arguments and I will instruct you on the law that applies to the case.
After that, you will go to the jury room to deliberate on your verdict.
§ 1.13 BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE
When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim or affirmative defense is more probably true than not true.
You should base your decision on all of the evidence, regardless of which party presented it.
§ 1.14 BURDEN OF PROOF—CLEAR AND CONVINCING EVIDENCE
When a party has the burden of proving a claim or defense by clear and convincing evidence, it means you must be persuaded by the evidence that it is highly probable that the claim or defense is true. The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard.
You should base your decision on all of the evidence, regardless of which party presented it.
§ 2.1 CAUTIONARY INSTRUCTION—FIRST RECESS
We are about to take our first break during the trial, and I want to remind you of the instructions I gave you earlier. Until the trial is over, you are not to discuss this case with anyone, including your fellow jurors; members of your family, people involved in the trial, or anyone else, nor are you allowed to permit others to discuss the case with you. If anyone approaches you and tries to talk to you about the case, please let me know about it immediately.
Do not read or listen to any news reports of the trial. Finally, you are reminded to keep an open mind until all the evidence has been received and you have heard the arguments of counsel, the instructions of the court, and the views of your fellow jurors.
If you need to speak with me about anything, simply give a signed note to the bailiff to give to me.
I will not repeat these admonitions each time we recess or adjourn, but you will be reminded of them on such occasions.
§ 2.2 BENCH CONFERENCES AND RECESSES
From time to time during the trial, it may become necessary for me to talk with the attorneys out of the hearing of the jury, either by having a conference at the bench when the jury is present in the courtroom, or by calling a recess. Please understand that while you are waiting, we are working. The purpose of these conferences is not to keep relevant information from you, but to decide how certain evidence is to be treated under the rules of evidence and to avoid confusion and error.
We will, of course, do what we can to keep the number and length of theses conferences to a minimum. I may not always grant an attorney’s request for a conference. Do not consider my granting or denying a request for a conference as any indication of my opinion of the case or of what your verdict should be.
§ 2.3 STIPULATED TESTIMONY
The parties have agreed what certain witnesses’ testimony would be if called as a witness. You should consider that testimony in the same way as if it had been given here in court.
§ 2.4 STIPULATIONS OF FACT
The parties have agreed to certain facts that have been stated to you. You should therefore treat these facts as having been proved.
§ 2.5 JUDICIAL NOTICE
The court has decided to accept as proved certain facts that [e.g., the city of San Francisco is north of the city of Los Angeles], even though no evidence has been introduced on the subject. You must accept this fact as true.
§ 2.6 DEPOSITION AS SUBSTANTIVE EVIDENCE
When a person is unavailable to testify at trial, the deposition of that person may be used at trial. A deposition is the sworn testimony of a witness taken before trial. The witness is placed under oath to tell the truth and lawyers for each party may ask questions. The questions and answers are recorded.
The deposition of [name of Witness], which was taken on [Date], is about to be presented to you. Deposition testimony is entitled to the same consideration and is to be judged, insofar as possible, in the same way as if the witness had been present to testify.
Do not place any significance on the behavior or tone of voice of any person reading the questions or answers.
§ 2.7 USE OF INTERROGATORIES OF A PARTY
Evidence is now to be presented to you in the form of answers of one of the parties to written interrogatories submitted by the other side. These answers have been given in writing and under oath, before the actual trial, in response to questions which were submitted in writing under established court procedures. The answers are entitled to the same consideration and are to be judged as to credibility and weight, and otherwise considered by you insofar as possible, as if the answers were from the witness stand.
§ 3.0 COVER SHEET
_________________________________________
UNITED STATES DISTRICT COURT 
DISTRICT OF [district]
[names of Plaintiffs],
Plaintiff,
v.
[ names of Defendants],
Defendants
Case No.: [number]
Date: [date].
_________________________________________
JURY INSTRUCTIONS
§ 3.1 DUTIES OF JURY TO FIND FACTS 
AND FOLLOW LAW
Members of the jury, now that you have heard all the evidence and the arguments of the attorneys, it is my duty to instruct you on the law which applies to this case. A copy of these instructions will be available in the jury room for you to consult if you find it necessary.
It is your duty to find the facts from all the evidence in the case. To those facts you will apply the law as I give it to you. You must follow the law as I give it to you whether you agree with it or not. You must not be influenced by any personal likes or dislikes, opinions, prejudices, or sympathy. That means that you must decide the case solely on the evidence before you. You will recall that you took an oath promising to do so at the beginning of the case.
In following my instructions, you must follow all of them and not single out some and ignore others; they are all equally important. You must not read into these instructions or into anything the court may have said or done any suggestion as to what verdict you should return—that is a matter entirely up to you.
§ 3.2 WHAT IS EVIDENCE
The evidence from which you are to decide what the facts are consists of:
(1)	the sworn testimony of any witness;
(2)	the exhibits which have been received into evidence; and
(3)	any facts to which the lawyers have agreed or stipulated.
§ 3.3 WHAT IS NOT EVIDENCE
In reaching your verdict, you may consider only the testimony and exhibits received into evidence. Certain things are not evidence, and you may not consider them in deciding what the facts are. I will list them for you:
(1)	Arguments and statements by lawyers are not evidence. The lawyers are not witnesses. What they have said in their opening statements, have said in their closing arguments, and at other times is intended to help you interpret the evidence, but it is not evidence. If the facts as you remember them differ from the way the lawyers have stated them, your memory of them controls.
(2)	Questions and objections by lawyers are not evidence. Attorneys have a duty to their clients to object when they believe a question is improper under the rules of evidence. You should not be influenced by the objection or by the court’s ruling on it.
(3)	Testimony that has been excluded or stricken, or that you have been instructed to disregard, is not evidence and must not be considered. (In addition some testimony and exhibits have been received only for limited purpose; where I have given a limiting instruction, you must follow it.)
(4)	Anything you may have seen or heard when the court was not in session is not evidence. You are to decide the case solely on the evidence received at the trial.
§ 3.4 DIRECT AND CIRCUMSTANTIAL EVIDENCE
Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact, such as testimony by a witness about what the witness personally saw or heard or did. Circumstantial evidence is proof of one or more facts from which you could find another fact. You should consider both kinds of evidence. The law makes no distinction between the weight to be given to either direct or circumstantial evidence. It is for you to decide how much weight to give to any evidence.
§ 3.5 CREDIBILITY OF WITNESSES
In deciding the facts in this case, you may have to decide which testimony to believe and which testimony not to believe. You may believe everything a witness says, or part of it, or none of it.
In considering the testimony of any witness, you may take into account:
(1)	the opportunity and ability of the witness to see or hear or know the things testified to;
(2)	the witness’ memory;
(3)	the witness’ manner while testifying;
(4)	the witness’ interest in the outcome of the case and any bias or prejudice;
(5)	whether other evidence contradicted the witness’ testimony;
(6)	the reasonableness of the witness’ testimony in light of all the evidence; and
(7)	any other factors that bear on believability.
The weight of the evidence as to a fact does not necessarily depend on the number of the witnesses who testify.
§ 3.6 OPINION EVIDENCE, EXPERT WITNESS
You have heard testimony from [a] person[s] who, because of education or experience, [is] [are] permitted to state opinions and the reasons for those opinions.
Opinion testimony should be judged just like any other testimony. You may accept it or reject it, and give it as much weight as you think it deserves, considering the witness’ education and experience, the reasons given for the opinion, and all the other evidence in the case.
§ 3.7 CHARTS AND SUMMARIES NOT RECEIVED IN EVIDENCE
Certain charts and summaries that have not been received in evidence have been shown to you in order to help explain the contents of books, records, documents, or other evidence in the case. They are not themselves evidence or proof of any facts. If they do not correctly reflect the facts or figures shown by the evidence in the case, you should disregard these charts and summaries and determine the facts from the underlying evidence.
§ 3.8 CHARTS AND SUMMARIES IN EVIDENCE
Certain charts and summaries have been received into evidence to illustrate information brought out in the trial. Charts and summaries are only as good as the underlying evidence that supports them. You should, therefore, give them only such weight as you think the underlying evidence deserves.
§ 3.9 TWO OR MORE PARTIES—DIFFERENT LEGAL RIGHTS
You should decide the case as to each Plaintiff and each Defendant separately. Unless otherwise stated, the instructions apply to all parties.
§ 3.10 IMPEACHMENT EVIDENCE—WITNESS
You have heard evidence that certain witnesses have lied under oath on a prior occasion. You may consider this evidence, along with other pertinent evidence, in deciding whether or not to believe this witness and how much weight to give to the testimony of that witness.
§ 4.1 DUTY TO DELIBERATE
When you begin your deliberations, you should elect one member of the jury as your presiding juror. That person will preside over the deliberations and speak for you here in court. You will then discuss the case with your fellow jurors to reach agreement if you can do so. Your verdict must be unanimous. Each of you must decide the case for yourself, but you should do so only after you have considered all of the evidence, discussed it fully with the other jurors, and listened to the views of your fellow jurors.
Do not be afraid to change your opinion if the discussion persuades you that you should. Do not come to a decision simply because other jurors think it is right. It is important that you attempt to reach a unanimous verdict but, of course, only if each of you can do so after having made your own conscientious decision. Do not change an honest belief about the weight and effect of the evidence simply to reach a verdict.
§ 4.2 USE OF NOTES
Some of you have taken notes during the trial. Whether or not you took notes, you should rely on your own memory of what was said. Notes are only to assist your memory. You should not be overly influenced by the notes.
§ 4.3 COMMUNICATION WITH COURT
If it becomes necessary during your deliberations to communicate with me, you may send a note through the bailiff, signed by your presiding juror or by one or more members of the jury. No member of the jury should ever attempt to communicate with me except by a signed writing; and I will communicate with any member of the jury on anything concerning the case in writing, or here in open court. If you send out a question, I will consult with the parties before answering it, which may take some time. You may continue your deliberations while waiting for the answer to any question. Remember that you are not to tell anyone—including me—how the jury stands, numerically or otherwise, until after you have reached a unanimous verdict or have been discharged. Do not disclose any vote count in any note to the court.
§ 4.4 (MODIFIED) RETURN OF VERDICT
A verdict form has been prepared for you. The form is divided into several sections, one for each Plaintiff, followed by sections for certain defenses and other issues. You must reach a unanimous verdict on each question before answering it. After you have reached unanimous agreement on all of the questions, your presiding juror will fill in the verdict form that has been given to you, sign and date it, and advise the court that you are ready to return to the courtroom.
§ 4.5 DEADLOCKED JURY
Members of the jury, you have advised that you have been unable to agree upon a verdict in this case. I have decided to suggest a few thoughts to you. As jurors, you have a duty to discuss that case with one another and to deliberate in an effort to reach a unanimous verdict if each of you can do so without violating your individual judgment and conscience. Each of you must decide the case for yourself, but only after you consider the evidence impartially with your fellow jurors. During your deliberations, you should not hesitate to reexamine your own views and change your opinion if you become persuaded that it is wrong. However, you should not change an honest belief as to the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict.
All of you are equally honest and conscientious jurors who have heard the same evidence. All of you share an equal desire to arrive at a verdict. Each of you should ask yourself whether you should question the correctness of your present position.
I remind you that in your deliberations you are to consider the instructions, I have given you as a whole. You should not single out any part of any instruction, including this one, and ignore others. They are all equally important.
You may retire and continue your deliberations.
§ 5.1 BURDEN OF PROOF—PREPONDERANCE OF THE EVIDENCE
When a party has the burden of proof on any claim or affirmative defense by a preponderance of the evidence, it means you must be persuaded by the evidence that the claim is more probably true than not true.
You should base your decision on all of the evidence, regardless of which party presented it.
§ 5.2 BURDEN OF PROOF—CLEAR AND CONVINCING EVIDENCE
When a party has the burden of proof on any claim by clear and convincing evidence, it means you must be persuaded by the evidence that it is highly probable that the claim is true. The clear and convincing evidence standard is a heavier burden than the preponderance of the evidence standard.
You should base your decision on all of the evidence, regardless of which party presented it.
§ 6.1 CORPORATIONS AND PARTNERSHIPS—FAIR TREATMENT
All parties are equal before the law and a corporation is entitled to the same fair and conscientious consideration by you as any party.
§ 7.5 PUNITIVE DAMAGES
OBJECTION: Defendants object to this instruction. Plaintiffs have significantly modified the model instructions; thus, it is not properly part of the standard instructions. It is also improperly cumulative, since Plaintiffs have included a punitive instruction in Section II of this document and have not objected to Defendants’ punitive instruction in Section IV. Moreover, it misstates the law of punitive damages. See Defendants’ proposed Instruction 6. Revised Arizona Jury Instructions, Personal Injury Damages 4 (4th ed.); Ninth Circuit Model Jury Instruction § 7.5; Thompson v. Better-Bilt Aluminum Products Co., Inc., 171 Ariz. 550, 557, 832 P.2d 203, 210 (1992); Agilysys, Inc. v. Vipond, No. CV-04-2023-PHX-DGC (D. Ariz. Sept. 13 2006); Farr v. Transamerica Occidental Life Ins. Co., 145 Ariz. 1, 8, 699 P.2d 376, 383 (Ct. App. 1985); Rawlings v. Apodaca, 151 Ariz. 149, 161, 726 P.2d 565, 577 (1986); Linthicum v. Nationwide Ins. Co., 150 Ariz. 326, 330–31, 723 P.2d 675, 679–80 (1986); State Farm Mutual Auto. Insurance Co. v. Campbell, 538 U.S. 408, 425 (2003).
If you find for the Plaintiffs you may, but are not required to, award punitive damages. The purpose of punitive damages is not to compensate the Plaintiffs, but to punish a defendant and to deter a defendant and others from committing similar acts in the future. The Plaintiffs have the burden of proving that punitive damages should be awarded, and the amount, by a preponderance of the evidence. You may award punitive damages only if you find that a defendant’s conduct was malicious, oppressive or in reckless disregard of a plaintiff’s rights. Conduct is malicious if it is accompanied by ill will, or spite, or if it is for the purpose of injuring another. Conduct is in reckless disregard of a plaintiff’s rights if, under the circumstances, it reflects complete indifference to the plaintiff’s safety and rights, or the defendant acts in the face of a perceived risk that its actions will violate the plaintiff’s right under federal law. The failure to do something, such as conduct due diligence, may constitute willful intent to infringe a Plaintiffs’ rights. “Reckless disregard means in conscious disregard of whether plaintiff had consented to the use of his name.”
OBJECTION: The failure to fully conduct due diligence is, at most, negligence, and does not support an award of punitive damages. Revised Arizona Jury Instructions, Personal Injury Damages 4 (4th ed.); Ninth Circuit Model Jury Instruction § 7.5; Thompson v. Better-Bilt Aluminum Prods. Co., Inc., 171 Ariz. 550, 557, 832 P.2d 203, 210 (1992); Agilysys, Inc. v. Vipond, No. CV-04-2023-PHX-DGC (D. Ariz. Sept. 13 2006); Farr v. Transamerica Occidental Life Ins. Co., 145 Ariz. 1, 8, 699 P.2d 376, 383 (Ct. App. 1985); Rawlings v. Apodaca, 151 Ariz. 149, 161, 726 P.2d 565, 577 (1986); Linthicum v. Nationwide Ins. Co., 150 Ariz. 326, 330–31, 723 P.2d 675, 679–80 (1986); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).
An act or omission is oppressive if the person who [performs] [fails to perform] it injures or damages or otherwise violates the rights of the plaintiff with unnecessary harshness or severity, such as by the misuse or abuse of authority or power or by the taking advantage of some weakness or disability or misfortune of the plaintiff.
If you find that punitive damages are appropriate, you must use reason in setting the amount. Punitive damages, if any, should be in an amount sufficient to fulfill their purpose but should not reflect bias, prejudice or sympathy toward any party. In considering punitive damages, you may consider the degree of reprehensibility of the defendant’s conduct and the relationship of any award of punitive damages to any actual harm inflicted on the plaintiff.
You may impose punitive damages against one or more of the defendants and not others, and may award different amounts against different defendants. Punitive damages may be awarded even if you award plaintiff only nominal, and not compensatory, damages.
Defendants’ behavior during litigation discovery may justify punitive damages. If you award only nominal damages you are not limited to the use of a multiplier to assess punitive damages of the small amount of economic damages.
OBJECTION: There was no evidence of such improper behavior during discovery.
§ 7.6 NOMINAL DAMAGES
The law which applies to this case authorizes an award of nominal damages. If you find for the Plaintiff but you find that the Plaintiff has failed to prove damages as defined in these instructions, you must award nominal damages. Nominal damages may not exceed one dollar.
SECTION II—NON-MODEL JURY INSTRUCTIONS TO WHICH THE PARTIES HAVE STIPULATED
1. AFFIRMATIVE DEFENSE OF ESTOPPEL
Defendants claim each Plaintiff must be estopped from claiming a violation of his publicity rights. To prove estoppel, Defendants must prove by a preponderance of the evidence that:
(1)	Plaintiff committed acts inconsistent with his current position that the apparel violates his publicity rights;
(2)	Reliance by Defendants on Plaintiff’s earlier acts; and
(3)	Defendants were injured by Plaintiff’s repudiation of his prior conduct.
Source: Valencia Energy Co. v. Arizona Dep’t of Revenue, 191 Ariz. 565, 576–77 (1998).

SECTION III—NON-MODEL INSTRUCTIONS 
REQUESTED BY PLAINTIFFS
DEFENDANTS’ GENERAL OBJECTION: Defendants received Plaintiffs’ final version of this document at [time] time on [date], two hours before the document was due to the court. The short timeframe has thus made it difficult to research and insert proper objections in this section.
1. APPROPRIATION OF THE COMMERCIAL VALUE OF A PERSON’S IDENTITY: THE RIGHT OF PUBLICITY
One who appropriates a person's identity by using without consent the person's name, likeness, or other indicia of identity for one’s benefit is subject to liability for invasion of the right of publicity. One who is liable for invasion of the right of publicity is liable for the pecuniary loss to the other caused by the appropriation or for the actor's own pecuniary gain resulting from the appropriation, whichever is greater.
Authority: Pooley v. National Hole-in-One Ass’n, 89 F. Supp. 2d 1108, 1111 (D. Ariz. 2000); 1 Restatement (Third) of Unfair Competition § 46, § 49 (1995). Restatement (Second) of Torts § 652(c) (1977). Judge Campbell’s Order date June 27, 2006, at 13.
OBJECTION: There was no evidence of pecuniary loss to any plaintiff. Moreover, this is an inaccurate and incomplete statement of the damages available. See Defendants’ Proposed Instructions 1, 6; SJ Order at 23 (Doc. # 425). Restatement (Third) of Unfair Competition §§ 46, 47; Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Pooley v. Nat’l Hole-In-One Ass’n, 89 F. Supp. 2d 1108, 1112 (D. Ariz. 2000); Eastwood v. Superior Ct., 198 Cal. Rptr. 342, 348–49 (Cal. App. 1983); Summary Judgment Order, June 27, 2006, Dkt. # 425; Restatement (Third) of Unfair Competition § 49, cmt. d & Rptr’s Notes to Cmt. (stating that defendant’s profits are an appropriate measure of relief in right of publicity cases under rules analogous to the recovery of profits in trademark cases); Lindy Pen v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir. 1993); McClaran v. Plastic Indus., Inc., 97 F.3d 347, 361 (9th Cir. 1996); Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Gucci Am., Inc. v. Daffy’s,Inc., 354 F.3d 228, 242 (3d Cir. 2003).
2. RIGHT OF PUBLICITY
Plaintiffs claim that Defendants violated their right of publicity. To prevail on a right of publicity claim, Plaintiffs must prove all of the following:
(1)	the Defendants’ used Plaintiffs’ names, likenesses or identities;
(2)	the appropriation of the Plaintiffs’ names or to the Defendants’ advantage;
(3)	the Plaintiffs’ did not consent to this use; and
(4)	the use caused Plaintiffs to sustain injury.
OBJECTION: This is an incomplete statement of the elements. See Defendants’ Proposed Instructions 1, 5. Restatement (Third) of Unfair Competition §§ 46, 47; Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Pooley v. Nat’l Hole-In-One Ass’n, 89 F. Supp. 2d 1108, 1112 (D. Ariz. 2000); Eastwood v. Superior Ct., 198 Cal. Rptr. 342, 348–49 (Cal. App. 1983); Summary Judgment Order, June 27, 2006, Dkt. # 425; Restatement (Third) of Unfair Competition § 49, cmt. d & Rptr’s Notes to cmt. d (stating that defendant’s profits are an appropriate measure of relief in right of publicity cases under rules analogous to the recovery of profits in trademark cases); Lindy Pen v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir. 1993); McClaran v. Plastic Indus., Inc., 97 F.3d 347, 361 (9th Cir. 1996); Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Gucci Am., Inc. v. Daffy’s, Inc., 354 F.3d 228, 242 (3d Cir. 2003).
You may consider Plaintiffs’ publicity rights to include their names, nicknames, numbers, likenesses or combinations thereof that constitute “indicia of identity.”
OBJECTION: There is no evidence that Plaintiffs’ alleged numbers or caricatures were indicia of ownership and the jury should not be charged in that regard.
A nickname can be an “indicia of identity.” You may use “common sense guided by the weight of the evidence” in determining a minimum threshold of identifiability in right of publicity actions.
OBJECTION: That is an incorrect statement of the law and unsupported by the source cited. See Defendants’ Proposed Instructions 1, 5. See sources in objections above. Restatement (3d) of Unfair Competition § 46, cmt. d (“In most cases an appropriation of identity is accomplished through the use of the person’s name or likeness.”)
If a Plaintiff is “readily identifiable” on Defendants’ product then his “likeness” has been used.
OBJECTION: Plaintiffs’ source for this instruction—Newcombe v. Adolf Coors Co., 157 F.3d 686 (9th Cir. 1998)—-interprets the standard for a right of publicity claim under Cal. Civ. Code § 3344, which is inapplicable here. See Defendants’ Proposed Instructions 1, 5. See sources in objections above.
Defendants’ “advantage” need not be pecuniary, and there is an advantage if Plaintiffs were used as “central figures” on products or the purpose of the use was to attract attention.
OBJECTION: That is an incorrect statement of the law and unsupported by the source cited; Plaintiffs also cite the inapposite Newcombe case. See Defendants’ Proposed Instructions 1, 5. See sources in objections above.
Plaintiffs need not prove that Defendants were at fault or that they intended to identify Plaintiffs.
Mistake regarding Plaintiffs’ consent is not a defense.
OBJECTION: That is an incorrect statement of the law and unsupported by the source cited. Moreover, mistake is a defense to the request for punitive damages. See Defendants’ Proposed Instructions 1, 5, 6. See sources in objections above and Revised Arizona Jury Instructions, Personal Injury Damages 4 (4th ed.); Ninth Circuit Model Jury Instruction § 7.5; Thompson v. Better-Bilt Aluminum Prods. Co., Inc., 171 Ariz. 550, 557, 832 P.2d 203, 210 (1992); Agilysys, Inc. v. Vipond, No. CV-04-2023-PHX-DGC (D.Ariz. Sept. 13, 2006); Farr v. Transamerica Occidental Life Ins. Co., 145 Ariz. 1, 8, 699 P.2d 376, 383 (Ct. App. 1985); Rawlings v. Apodaca, 151 Ariz. 149, 161, 726 P.2d 565, 577 (1986); Linthicum v. Nationwide Ins. Co., 150 Ariz. 326, 330–31, 723 P.2d 675, 679–80 (1986); State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).
“Injury” may be satisfied because Plaintiffs were not compensated for the use of his identity.
Proof of customer confusion as to why merchandise bearing Plaintiff’s identity was actually purchased is not an element of liability, and Defendants can be liable for the entire harm if it is impossible to separate the consented use from the excess use.
OBJECTION: Plaintiffs must prove that the appropriation of a Plaintiff’s name or likeness was for Defendants’ advantage, that consumers bought the Defendants’ Apparel as a result of Defendants’ use of that Plaintiff’s name or likeness on the apparel and not because of other reasons, such as quality, color, price, styling or other trademarks, and that Defendants profited as a result of the use of that Plaintiff’s name. Restatement (Third) of Unfair Competition §§ 46, 47; Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Pooley v. Nat’l Hole-In-One Ass’n, 89 F. Supp. 2d 1108, 1112 (D. Ariz. 2000); Eastwood v. Superior Ct., 198 Cal. Rptr. 342, 348–49 (Cal. App. 1983); Summary Judgment Order, June 27, 2006, Dkt. # 425.
You may consider that using a name in conjunction with a likeness on a product could be construed as an endorsement of the product by the person depicted. Using a plaintiffs’ name “to attract attention to a product” is evidence supporting a conclusion that the Defendants sought to obtain a commercial advantage.
OBJECTION: This instruction improperly supports and comments on Plaintiffs’ theory of the case. Product endorsement is not an issue in this case because Defendants did not use Plaintiffs’ name on advertising. SJ Order at 11–12 (Doc. # 425).
SEE OBJECTIONS ABOVE
DEFENDANTS’ ALTERNATIVE INSTRUCTION (Defendants’ Proposed Instructions 1)
Plaintiffs seek to recover damages from Defendants based upon a claim that Defendants appropriated Plaintiffs’ names and likenesses for their commercial advantage. Each Plaintiff has the separate burden of proving all four elements of this claim by a preponderance of the evidence in order to recover from Defendants.
The four elements of this claim which each plaintiff must prove are:
ONE: Defendants appropriated that Plaintiff’s name. To show an appropriation, that Plaintiff must prove by a preponderance of the evidence that Defendants’ use of their name or likeness was sufficient to identify the Plaintiff. Each Plaintiff must also prove by a preponderance of the evidence that Defendants’ use was more than just an incidental use compared to the rest of the product line.
TWO: The appropriation of each Plaintiff’s name was for Defendants’ commercial advantage. To prove that the appropriation of a Plaintiff’s name or likeness was for Defendants’ advantage, that Plaintiff must prove by a preponderance of the evidence that consumers bought the Defendants’ Apparel as a result of Defendants’ use of that Plaintiff’s name or likeness on the apparel and not because of other reasons, such as quality, color, price, styling or other trademarks, and that Defendants profited as a result of the use of that Plaintiff’s name.
THREE: Plaintiff did not consent to the appropriation. To prove that a Plaintiff did not consent to the appropriation, that Plaintiff must prove by a preponderance of the evidence that he did not consent by his actions or inaction, and that his player agreements did not give the Defendants the right to use and license that Plaintiff’s publicity rights.
FOUR: The appropriation caused Plaintiff to sustain injury, damage, loss or harm. To prove the appropriation caused a Plaintiff to sustain injury, damage, loss or harm, that Plaintiff must prove by a preponderance of the evidence that the use of his name or likeness on the apparel caused him to suffer a direct injury, such as financial harm or lost opportunity. That is, that Plaintiff must show that consumers actually bought Defendants’ Apparel because his name or likeness was on it. That Plaintiff must show by a preponderance of the evidence that but for the sale of the apparel, he would not have been injured.
3. CONSENT
Conduct that would otherwise infringe the personal or commercial interests protected by the rights of privacy and publicity is not actionable if the conduct is within the scope of consent given by the holder of the right. Consent can be communicated through a formal agreement such as a license or assignment. The defense of consent extends only to conduct that is within the scope of the consent. Consent to use a person's identity may be restricted, for example, to certain uses (publicity as opposed to endorsements), products, or to certain media, or to a certain duration.
OBJECTION: This improperly comments on and supports Plaintiffs’ theory of the case. Additionally, consent may be express or implied and may be present without a signed agreement. Oral consent or implied consent is sufficient. Newton v. Thomason, 22 F.3d 1455, 1461 (9th Cir. 1994); Restatement (Third) of Unfair Competition § 46, cmt. (f).
If the use is outside the scope of consent, the defendant is subject to liability for any harm resulting from conduct that exceeds the consent. If it is impossible as a practical matter to separate the harm resulting from the excess use from harm caused by the consented use, the defendant is subject to liability for the entire harm.
OBJECTION: There is no such issue on separating the harm in this case.
Consent cannot be given by an agreement that is unconscionable.
OBJECTION: There is no evidence that the consent was unconscionable in this case.
Consent may or may not be assignable depending on the language in the agreement.
OBJECTION: There is no such issue in this case.
Authority: Restatement (Third) of Unfair Competition § 46, § 49 (1995). Restatement (Second) of Torts § 652(c) (1977). Judge Campbell’s Order date June 27, 2006, at 13.
SEE OBJECTIONS ABOVE
ALTERNATIVE INSTRUCTION: Defendants do not propose an alternative instruction because this instruction is unnecessary.
4. LACK OF CONSENT
Plaintiffs must prove that Defendants did not have consent to use Plaintiffs’ names and likenesses on the Defendants’ Apparel by the following:
OBJECTION: Plaintiffs’ entire Instruction 4 improperly comments on and supports Plaintiffs’ theory of the case.
I. The Language of the Contract and the Parties’ Intent:
a. Plaintiffs must prove that they did not expressly consent to the use of their names and likenesses with Defendants. That is, if there is no signed contract between Plaintiffs and Defendants, there is no consent for Defendants to use Plaintiffs’ publicity rights;
b. You may determine whether the Plaintiffs did not consent to the use upon the credibility of or inferences to be drawn from extrinsic evidence.
OBJECTION: Plaintiffs’ proposed Instruction 4(I) is unsupported by any authority. Consent may be express or implied and may be present without a signed agreement. Oral consent or implied consent is sufficient. Newton v. Thomason, 22 F.3d 1455, 1461 (9th Cir. 1994); Restatement (Third) of Unfair Competition § 46, cmt. (f); Ervco, Inc. v. Texaco Ref. & Mktg. Inc., 422 F. Supp. 2d 1084 (D. Ariz. 2006).
II. Defendants Did Not Buy Plaintiffs’ Player Contracts:
You may determine that even if Plaintiffs consented to use of their names and likenesses in employment agreements with predecessors to Defendants, Defendants did not acquire the right to sublicense the Defendant’s clothing deal or Plaintiffs’ Player Contracts in [year].
OBJECTION: Plaintiffs’ proposed Instruction 4(II) is unsupported by any authority. Furthermore, there is no evidence that Defendants did not acquire the employment agreements and Defendants have filed a motion in limine to this effect.
III. Plaintiffs’ Contracts Were Extinguished in Bankruptcy:
You may determine that Defendant could not buy Plaintiffs’ Player Contracts because (a) the contracts were executory (required ongoing performance), and (b) the bankruptcy of the prior owner IBC extinguished Player Contracts because they were not specifically identified in the Bankruptcy proceedings. You must decide whether the Plaintiffs’ Player Contracts are “executory” in deciding whether Defendant’s bankruptcy in [year] extinguished the old Player Contracts.
A contract is executory if “the obligations of both parties are so far unperformed that the failure of either party to complete performance would constitute a material breach and thus excuse the performance of the other.
The Players’ Contracts were executory contracts under the Bankruptcy Code if performance was due to some extent on both sides. Under the Player Contracts and relevant legal authority, both the Players and Defendant had material performance obligations upon confirmation of the plan.
Plaintiffs contend that this covenant-not-to-sue obligation and the alleged ongoing publicity rights are sufficient to support a finding that their contracts are executory under the Bankruptcy Code and had to be specifically identified to survive the bankruptcy and pass through the new owner.
If you decide that Plaintiffs’ Player Contracts are executory then they are extinguished by bankruptcy if not listed in the inventory of assets during IBC’s bankruptcy.
If you decide that (1) the Player Contracts were executory contracts for purposes of Section 365 of the U.S. Bankruptcy Code on May 26, 1993, and (2) Defendant rejected all of its Player Contracts pursuant to Article X, Section A of its plan effective [date], you may find that:
1.Defendant’s rejection committed a material breach of the Player Contracts such that IBC had no legal right to assign the benefits of the Player Contracts including but not limited to the right to assign the purported licenses; and
2.The purported licenses could not be transferred to Defendant pursuant to the Assignment, nor transferred to Defendant pursuant to the Asset Purchase Agreement.
Section 365(a), Chapter 11 U.S. Bankruptcy Code; In re Larson Inc., 290 B.R. 504 (D. Del. 2003); Cameron v. Pfaff Plumbing and Heating, Inc., 966 F.2d 414, 416 (8th Cir. 1992); NLRB v. Bildisco & Bildisco, 465 U.S. 513, 522 (1984).
OBJECTION: Plaintiffs’ proposed Instruction 4(III) is unsupported by any authority for the principles cited. Furthermore, Plaintiffs are barred from challenging transactions related to the bankruptcy because the bankruptcy court’s order approving the plan of reorganization is res judicata on whether assets passed through bankruptcy. 11 U.S.C. § 1141(a), (b); Katchen v. Landy, 382 U.S. 323, 334 (1966); In re Clinton St. Food Corp., 254 B.R. 523, 530–31 (S.D.N.Y. 2000). Even if the issues raised in this instruction are proper, they are matters of law for the Court—primarily, contract interpretation—and not the jury. Mendler v. Winterland Prod., Ltd., 207 F.3d 1119, 1121 (9th Cir. 2000). Plaintiffs’ instruction also improperly informs the jury that “under the player contracts and relevant legal authority, both the Players and IBC had material performance obligations upon confirmation of the plan,” rendering a finding of materiality inevitable.
SEE ADDITIONAL OBJECTIONS ABOVE
ALTERNATIVE INSTRUCTION: No alternative instruction is needed because none of the issues identified in this instruction are properly before the jury.
IV. Defendant Could Not Sublicense Plaintiffs’ Publicity Rights Without Express Written Approval:
You may determine that even if Defendant bought Plaintiffs’ Player Contracts, Defendant could not lawfully sublicense Plaintiffs’ publicity rights to Defendant without the Plaintiffs’ prior written approval under California law.
OBJECTION: The requirements of California law are inapposite to this case since Plaintiffs have availed themselves to the laws of Arizona. Furthermore, there was no requirement under any of the agreements to obtain consent to sublicensing.
V. The Publicity Provisions in Plaintiffs’ Player Contracts are Unconscionable:
OBJECTION: There is no evidence of unconscionability in this case. SJ Order at 16 (Doc. # 425). Furthermore, Plaintiffs are barred by laches from claiming unconscionability. Defs.’ Jt. In Limine Motion to Exclude Evidence Related to Alleged Unconscionability of Plaintiffs’ Player Contracts, Nov. 15, 2006.
You may determine that Plaintiffs did not consent because their Player Contracts were unconscionable. If you find that a contract or term thereof is unconscionable at the time the contract is made, you may refuse to enforce the contract, or may enforce the remainder of the contract without the unconscionable term, or may so limit the application of any unconscionable term as to avoid any unconscionable result. Some types of terms are not enforced, regardless of context (i.e., provisions for unreasonably large liquidated damages).
A contract may be treated as unconscionable when it is improvident, oppressive, or totally one-sided. Factors relevant to finding a contract unconscionable include the following:
(1)	whether the contracts were procured by taking advantage of the condition, circumstances or necessity of the Plaintiffs;
(2)	whether there was a gross disparity in the values exchanged;
(3)	whether there was a gross inequality in the bargaining positions of the parties together with terms unreasonably favorable to the stronger party;
(4)	the age and education of the contracting parties, and their commercial experience;
(5)	whether the Plaintiffs had a meaningful choice when faced with unreasonably unfavorable terms of the contract;
(6)	whether the Plaintiffs had counsel;
(7)	whether the publicity clauses constitute an unreasonable non-compete; and,
(8)	A restrictive term that tends to prevent an employee from a similar vocation after termination of employment is disfavored by the law and will be strictly construed.
If you find the circumstances existing when the contracts were entered into by Plaintiffs in this case were such that the terms of the contract were unconscionable, the contracts cannot be used by Defendants for Plaintiffs’ consent, and Defendants did not have the consent of Plaintiffs to use their names and likenesses.
You may apply the state law of the state referenced in Plaintiffs’ last executed Player Contracts, or the state of Arizona, to determine whether the contracts are unconscionable:
OBJECTION: Plaintiffs’ contention that the jury may apply the law of the State of [State] is unsupported.
1. California ([names of Plaintiffs]): Under California law, a contract is unenforceable if it is both procedurally and substantively unconscionable. The parties may present evidence as to its commercial setting, purpose, and effect to aid you in making the determination. The procedural aspect is manifested by: (1) oppression, which refers to an inequality of bargaining power resulting in no meaningful choice for the weaker party; or (2) surprise, which occurs when the supposedly agreed-upon terms are hidden in a document, while substantive unconscionability, on the other hand, refers to an overly harsh allocation of unjustifiable risks.
2. Minnesota ([name of Plaintiff]): A contract is unconscionable if “it is such as no man in his senses and not under delusion would make on the one hand, and as no honest and fair man would accept on the other.” Minnesota statutes contain a provision identical to the California statute cited above.
3. Arizona: A claim of unconscionability can be established with a showing of substantive unconscionability alone.
4. Illinois ([names of Plaintiffs]): An agreement is substantively unconscionable if it is overly harsh or one-sided.
5. Delaware ([name of Plaintiff]): The question of unconscionability involves whether the provision amounts to the taking of an unfair advantage of one party over the other.
Unconscionability is a flexible doctrine designed to allow the consideration of numerous factors in determining whether the contact is unconscionable. You may consider the “setting, purpose and effect” at the time Plaintiffs signed employment contacts.
OBJECTION: Plaintiffs do not accurately state the law requiring a showing of substantive or procedural unconscionability and misstate the standards for showing unconscionability in each of the states referenced. SJ Order, June 27, 2006 (Doc. # 425). Furthermore, merely showing unequal bargaining power or a contract of adhesion is not enough, even when “the inequality results in an allocation of risks to the weaker party.”Restatement (Second) of Contracts§ 208, cmt. (b) & Reporter’s Notes.
SEE OBJECTIONS ABOVE
ALTERNATIVE INSTRUCTION: Defendants do not propose an alternative instruction because none of the issues identified in Plaintiffs’ proposed Instruction 4(IV) are properly before the jury.
5. IF CONSENT TO USE PLAINTIFFS’ NAMES AND LIKENESSES IS FOUND IN THE PLAINTIFFS’ PLAYER CONTRACTS, THE JURY MAY FIND THAT ROYALTIES ARE DUE TO PLAINTIFFS.
If you determine that Plaintiffs’ consented to the use of their names and likenesses in employment contracts you may consider other factors to find that the Plaintiffs are still due royalties for such use:
(1)	Some Plaintiffs’ Contracts restricted Defendant’s predecessors to only uses in place during the initial term ([names of Plaintiffs]).
(2)	[Name of Plaintiff]’s last contract ([year]) provided [name of Plaintiff] with a 25% royalty on merchandise sales.
(3)	Consent in the standard Player Contract is for limited publicity only. Endorsements required Plaintiffs’ permission.
(4)	The Players’ union Collective Bargaining Agreement (CBA) required a 25% merchandise royalty.
(5)	A Collective Bargaining Agreement with respect to terms and conditions of employment prevails over individual contracts between employers and employees concerning those subjects.
(6)	As to the importance of the CBA, you may decide that its terms related to Plaintiffs’ rights are controlling.
The Collective Bargaining Agreement could not be legally rejected by the new owner (Defendant) unless the procedures in the Bankruptcy Code were followed that required adequate notice to all interested parties and hearing. If the Bankruptcy procedures were not followed the Collective Bargaining Agreement terms continue to control because it was not rejected.
The U.S. Supreme Court has held that individual contracts will not be excerpted from collective ones, nor can they subtract from, waive or limit the terms of collective ones. Under the Labor Management Relations Act to the extent that any independent agreement conflicts with the CBA, the terms of the CBA control.
OBJECTION: Plaintiffs’ entire proposed Instruction 5 improperly comments on and support Plaintiffs’ theory of the case. Furthermore, Plaintiffs are barred from seeking reasonable royalties by Court order. Summary Judgment Order (June 27, 2006, Dkt. # 425). Any issues relating to collective bargaining agreements and the players’ union are not properly before this jury. Defendant’s Jt. Motion to Exclude Evidence Relating to a Players’ Union, November 15, 2006.
ALTERNATIVE INSTRUCTION: Defendants do not propose an alternative instruction because none of the issues raised in Plaintiffs’ proposed Instruction 5 are properly before the jury.
6. PERSONAL LIABILITY OF CORPORATE OFFICER/DIRECTOR
A corporate officer or director is, in general, personally liable for all torts which he authorizes or directs or in which he participates, notwithstanding that he acted as an agent of the corporation and not on his own behalf.
Authority: Coastal Abstract Serv. Inc. v. First Am. Title Ins. Co., 173 F.3d 725, 734 (9th Cir. 1999) (quoting Transgo, Inc. v. Ajac Transmission Parts Corp., 768 F.2d 1001, 1021 (9th Cir. 1985)). See also Judge Campbell’s Order of June 27, 2006, at 28.
OBJECTION: Plaintiffs’ proposed Instruction 6 is unnecessary. The jury instructions regarding right of publicity are sufficient to charge the jury as to Mr. Jackson’s liability, if any.
7. DAMAGES—PROOF
It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered.
If you find for the Plaintiffs’ you must determine the Plaintiff’s damages. The Plaintiffs have the burden of proving damages with reasonable certainty by a preponderance of the evidence. Damages means the amount of money which will reasonably and fairly compensate the Plaintiff for any injury you find was caused by the Defendants. You should consider the following:
(1)	The nature and extent of the injuries;
(2)	The extent of Defendants’ profits;
(3)	The percent royalty Plaintiffs would have made (the value of the use). Injury may be not being compensated.
The Plaintiffs may recover the proportion of the Defendants’ net profits that are attributable to the unauthorized use. You may take all evidence presented and determine the amount of sales related to Plaintiffs.
Once the Plaintiffs establish the Defendants’ sales, the Defendants have the burden of establishing any portion of the sales that are attributable to factors other than the appropriation of the Plaintiffs’ identity and any expenses properly deducted in determining net profits.
Plaintiffs have the burden of proving damages by preponderance of the evidence, and it is for you to determine what damages, if any, have been proved.
Your award must be based upon evidence and not upon speculation, guesswork or conjecture.
Authority: Modified Standard Ninth Circuit Jury Instruction 7.1; Restatement (Third) of Unfair Competition § 49, cmt. D.
OBJECTION: This is an incorrect statement of the law of damages. See Defendants’ Proposed Instruction 5. Damages mean the amount of money which will reasonably and fairly compensate that plaintiff for any injury you find was caused by the Defendants.
Each Plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for the jury to determine what damages, if any, have been proved. In assessing damages, the jury should consider the following: First, the amount of revenue earned by the Defendants from the sale of products using that Plaintiff’s name solely as set forth in the Defendant’s Letter and Sales Chart. Each Plaintiff has the burden of proving the revenues earned by the Defendants from the sale of products using that Plaintiff’s name.
Defendants then have the burden to prove by a preponderance of the evidence that certain of such sales of products using that Plaintiff’s name were due to other factors, such as the color, price, style, other trademarks and the quality of the goods. Defendants also have the burden to prove by a preponderance of the evidence any expenses properly deducted in determining net profits. The award must be based upon evidence and not upon speculation, guesswork or conjecture. Ninth Circuit Model Jury Instruction § 7.1; Summary Judgment Order (June 27, 2006, Dkt. # 425); Restatement (Third) of Unfair Competition § 49, Comment (d).
Furthermore, “[a]s a general rule, damages which result from a tort must be established with reasonable certainty.” Lindy Pen v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir. 1993). “Many courts have denied a monetary award in infringement cases when damages are remote and speculative.” Id. at 1408. Moreover, a “plaintiff must prove both the fact and the amount of damages.”Id. at 1407.
“Damages are typically measured by any direct injury which a plaintiff can prove, as well as any lost profits which the plaintiff would have earned but for the infringement.” Lindy Pen Co., 982 F.2d at 1407 (emphasis added); McClaran v. Plastic Indus., Inc., 97 F.3d 347, 361 (9th Cir. 1996); Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Gucci Am., Inc. v. Daffy’s, Inc., 354 F.3d 228, 242 (3d Cir. 2003).
DEFENDANTS’ ALTERNATIVE INSTRUCTION (Proposed Instruction 5)
It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. If you find for the Plaintiffs, you must determine each plaintiff’s damage, if any, separately.
Each plaintiff has the burden of proving damages by a preponderance of the evidence. Damages mean the amount of money which will reasonably and fairly compensate that plaintiff for any injury you find was caused by the Defendants.
Each Plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for you to determine what damages, if any, have been proved.
In assessing damages, you should consider the following:
First, the amount of revenue earned by the Defendants from the sale of products using that Plaintiff’s name solely as set forth in the Defendant Letter and Sales Chart, as I have identified those to you. Each Plaintiff has the burden of proving the revenues earned by the Defendants from the sale of products using that Plaintiff’s name.
Defendants then have the burden to prove by a preponderance of the evidence that certain of such sales of products using that Plaintiff’s name were due to other factors, such as the color, price, style, other trademarks and the quality of the goods.
Defendants also have the burden to prove by a preponderance of the evidence any expenses properly deducted in determining net profits.
Your award must be based upon evidence and not upon speculation, guesswork or conjecture.
8. DAMAGES—MEASURES OF TYPES OF DAMAGES
OBJECTION: This charge is cumulative and incorrect.
If you decide that Plaintiffs have proved their claim against Defendants, you also must decide how much money will reasonably compensate Plaintiffs for the harm. This compensation is called “damages.”
The amount of damages must include an award for each item of harm that was caused by Defendants’ wrongful conduct, even if the particular harm could not have been anticipated.
OBJECTION: This is an incorrect statement of the law of damages. See Defendants’ Proposed Instruction 5. Ninth Circuit Model Jury Instruction § 7.1; Summary Judgment Order (June 27, 2006, Dkt. # 425); Restatement (Third) of Unfair Competition § 49, Comment (d).
Plaintiffs do not have to prove the exact amount of damages that will provide reasonable compensation for the harm. However, you must not speculate or guess in awarding damages.
The following are the specific items of damages claimed by Plaintiffs:
(1)	Defendants’ profits.
(2)	The commercial value for the use of Plaintiffs’ names and likenesses or identities measured by a reasonable royalty rate.
OBJECTION: There is no claim for or proof of such damages in this case and they are barred by Court order. Summary Judgment Order (June 27, 2006, Dkt. # 425).
(3)	Punitive damages.
You may also calculate damages yourself from the evidence without the assistance of an expert.
You are not required to specify your method of computing damages. The Defendants may bear the risk of uncertainty as to damages. There is a lower burden of proof as to the amount of damages. You do not have to prove exactness of damages by a preponderance of evidence, but an approximation may suffice. You may assess damages using probable and inferential proof, as well as direct and positive proof.
Authority: Modified Standard Ninth Circuit Jury Instruction 7.2; Restatement (Third) of Unfair Competition § 49, cmt. (d).
OBJECTION: This is an incorrect statement of the law of damages. See Defendants’ Proposed Instruction 5. Damages mean the amount of money which will reasonably and fairly compensate that plaintiff for any injury you find was caused by the Defendants. Each Plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for the jury to determine what damages, if any, have been proved. In assessing damages, the jury should consider the following: First, the amount of revenue earned by the Defendants from the sale of products using that Plaintiff’s name solely as set forth in the Defendant Letter and Sales Chart. Each Plaintiff has the burden of proving the revenues earned by the Defendants from the sale of products using that Plaintiff’s name.
Defendants then have the burden to prove by a preponderance of the evidence that certain of such sales of products using that Plaintiff’s name were due to other factors, such as the color, price, style, other trademarks and the quality of the goods. Defendants also have the burden to prove by a preponderance of the evidence any expenses properly deducted in determining net profits. The award must be based upon evidence and not upon speculation, guesswork or conjecture. Ninth Circuit Model Jury Instruction § 7.1; Summary Judgment Order (June 27, 2006, Dkt. # 425); Restatement (Third) of Unfair Competition § 49, Comment (d).
Furthermore, “[a]s a general rule, damages which result from a tort must be established with reasonable certainty.” Lindy Pen v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir. 1993). “Many courts have denied a monetary award in infringement cases when damages are remote and speculative.” Id. at 1408. Moreover, a “plaintiff must prove both the fact and the amount of damages.” Id. at 1407.
“Damages are typically measured by any direct injury which a plaintiff can prove, as well as any lost profits which the plaintiff would have earned but for the infringement.” Lindy Pen Co., 982 F.2d at 1407 (emphasis added); McClaran v. Plastic Indus., Inc., 97 F.3d 347, 361 (9th Cir. 1996); Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Gucci Am., Inc. v. Daffy’s, Inc., 354 F.3d 228, 242 (3d Cir. 2003).
DEFENDANTS’ ALTERNATIVE INSTRUCTION (Proposed Instruction 5)
It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. If you find for the Plaintiffs, you must determine each plaintiff’s damage, if any, separately.
Each plaintiff has the burden of proving damages by a preponderance of the evidence. Damages mean the amount of money which will reasonably and fairly compensate that plaintiff for any injury you find was caused by the Defendants.
Each Plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for you to determine what damages, if any, have been proved.
In assessing damages, you should consider the following:
First, the amount of revenue earned by the Defendants from the sale of products using that Plaintiff’s name solely as set forth in the Defendant Letter and Sales Chart, as I have identified those to you. Each Plaintiff has the burden of proving the revenues earned by the Defendants from the sale of products using that Plaintiff’s name. Defendants then have the burden to prove by a preponderance of the evidence that certain of such sales of products using that Plaintiff’s name were due to other factors, such as the color, price, style, other trademarks and the quality of the goods.
Defendants also have the burden to prove by a preponderance of the evidence any expenses properly deducted in determining net profits.
Your award must be based upon evidence and not upon speculation, guesswork or conjecture.
9. DAMAGES—DISGORGEMENT OF PROFITS OR ROYALTIES
If you decide that Plaintiffs have proved their claim of invasion of right of publicity against Defendants, you also must decide how much money will reasonably compensate Plaintiffs for the harm. Plaintiffs must prove their amount of damages with reasonable certainty under the circumstances, not with exactness, and you have considerable discretion in fixing appropriate compensation. However, Plaintiffs do not have to prove the exact amount of damages that will provide reasonable compensation for the harm. Where a portion of Defendants’ profits derives from sources other than the unauthorized use of Plaintiffs’ name or likeness, Defendants carry the burden of disentangling the contributions of the several factors.
1.The Plaintiffs may recover the proportion of the Defendants’ net profits that are attributable to the unauthorized use of Plaintiffs names and identities.
Plaintiffs bear the burden of establishing the Defendants’ sales. Once Plaintiffs establish the Defendants’ sales, Defendants have the burden of establishing any portion of the sales that are attributable to factors other than the appropriation of the Plaintiffs’ identities and any expenses properly deducted in determining net profits.
Defendants may be liable for use even if the use did not produce a profit. You may also utilize a reasonable royalty measure of damages for the value of Defendants’ use and consider the manner of use, the fame of Plaintiffs and the price that Plaintiffs have received for similar uses in the past.
2.Plaintiffs may recover damages for unauthorized use based on the value of the use and any injury to future value. If you decide that Plaintiffs consented to Defendants’ use, you may decide that Defendants still owe royalties to Plaintiffs in accordance with written agreements such as employment contracts, collective bargaining agreements and/or course of business dealing. Royalty rates may be also determined by evidence of what previous endorsement fees were paid to Plaintiffs in the past by Defendants or others. Plaintiffs need not have exploited the value of their names and fame in the past to have publicity rights. You may decide that at first time use of Plaintiffs identities enhances the value of Plaintiffs’ identities.
3.Illinois law permits you to award both Defendants’ lost profits as well as damages to Plaintiffs for the use of Plaintiffs’ publicity rights.
OBJECTION: This is an incorrect statement of the law of damages. See Defendants’ Proposed Instruction 5. Much of the authority Plaintiffs cite is also inapposite. Damages mean the amount of money which will reasonably and fairly compensate that plaintiff for any injury you find was caused by the Defendants. Each Plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for the jury to determine what damages, if any, have been proved. In assessing damages, the jury should consider the following: First, the amount of revenue earned by the Defendants from the sale of products using that Plaintiff’s name solely as set forth in the Defendant’s Letter and Sales Chart.
Each Plaintiff has the burden of proving the revenues earned by the Defendants from the sale of products using that Plaintiff’s name. Defendants then have the burden to prove by a preponderance of the evidence that certain of such sales of products using that Plaintiff’s name were due to other factors, such as the color, price, style, other trademarks and the quality of the goods. Defendants also have the burden to prove by a preponderance of the evidence any expenses properly deducted in determining net profits. The award must be based upon evidence and not upon speculation, guesswork or conjecture. Ninth Circuit Model Jury Instruction § 7.1; Summary Judgment Order (June 27, 2006, Dkt. # 425); Restatement (Third) of Unfair Competition § 49, Comment (d).
Furthermore, as a general rule, damages which result from a tort must be established with reasonable certainty.” Lindy Pen v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir. 1993). “Many courts have denied a monetary award in infringement cases when damages are remote and speculative.” Id. at 1408. Moreover, a “plaintiff must prove both the fact and the amount of damages.” Id. at 1407.
“Damages are typically measured by any direct injury which a plaintiff can prove, as well as any lost profits which the plaintiff would have earned but for the infringement.” Lindy Pen Co., 982 F.2d at 1407 (emphasis added); McClaran v. Plastic Indus., Inc., 97 F.3d 347, 361 (9th Cir. 1996); Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Gucci Am., Inc. v. Daffy’s, Inc., 354 F.3d 228, 242 (3d Cir. 2003).
DEFENDANTS’ ALTERNATIVE INSTRUCTION (Proposed Instruction 5)
It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered. If you find for the Plaintiffs, you must determine each plaintiff’s damage, if any, separately. Each plaintiff has the burden of proving damages by a preponderance of the evidence. Damages mean the amount of money which will reasonably and fairly compensate that plaintiff for any injury you find was caused by the Defendants.
Each Plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for you to determine what damages, if any, have been proved.
In assessing damages, you should consider the following:
First, the amount of revenue earned by the Defendants from the sale of products using that Plaintiff’s name solely as set forth in the Defendant Letter and Sales Chart, as I have identified those to you. Each Plaintiff has the burden of proving the revenues earned by the Defendants from the sale of products using that Plaintiff’s name.
Defendants then have the burden to prove by a preponderance of the evidence that certain of such sales of products using that Plaintiff’s name were due to other factors, such as the color, price, style, other trademarks and the quality of the goods.
Defendants also have the burden to prove by a preponderance of the evidence any expenses properly deducted in determining net profits. Your award must be based upon evidence and not upon speculation, guesswork or conjecture.
10. PUNITIVE DAMAGES
Punitive damages are available to the Plaintiffs for their right of publicity claims. If you find for the Plaintiffs you should consider whether, in addition to compensatory damages, punitive damages are warranted in the circumstances of this case. You may award punitive damages even if there are only nominal damages to Plaintiffs.
If you decide that any of the Defendants conduct caused Plaintiffs harm, you must decide whether that conduct justifies an award of punitive damages. The purposes of punitive damages are to punish any of the Defendants for the conduct that harmed the Plaintiffs and to discourage Defendants and others from committing similar conduct in the future.
You may award punitive damages against any of the Defendants only if Plaintiffs prove that Defendants engaged in that conduct with conscious disregard of the Plaintiffs’ rights. Conduct is in conscious disregard of the Plaintiffs’ rights if, under the circumstances, it reflects complete indifference to the Plaintiffs’ safety and rights, or the Defendants act in the face of a perceived risk that its actions will violate the Plaintiffs’ rights.
To award punitive damages Plaintiffs must prove one of the following by clear and convincing evidence:
(1)	That the conduct constituting reckless disregard of Plaintiffs’ rights was committed by one of the Defendants or by one or more officers, directors, or managing agents of Defendant, who acted on behalf of Defendants; or
(2)	That the conduct constituting reckless disregard of Plaintiffs’ rights was authorized by one or more officers, directors, or managing agents of Defendants; or
(3)	That one of the Defendants or one or more officers, directors, or managing agents of Defendants knew of the conduct constituting reckless disregard of Plaintiffs’ rights.
Clear and convincing evidence of conscious disregard of Plaintiffs’ rights means a “high probability” the Defendants had the state of mind to disregard Plaintiffs’ rights. Willful intent to infringe may be shown by a lack of due diligence.
An employee is a “managing agent” if he or she exercises substantial independent authority and judgment in his or her corporate decision making such that his or her decisions ultimately determine corporate policy.
You will now determine the amount of punitive damages, if any, to be assessed as punishment and as a deterrent to others. This amount would be in addition to the compensatory damages or nominal damages you have previously awarded.
There is no fixed standard for determining the amount of punitive damages, and you are not required to award any punitive damages. If you decide to award punitive damages, you should consider all of the following in determining the amount:
(1)	How reprehensible was Defendants’ conduct?
a.	Whether the conduct caused physical harm;
b.	Whether any of Defendants disregarded the health or safety of others;
c.	Whether Plaintiffs were financially weak or vulnerable and any of the Defendants knew Plaintiffs were financially weak or vulnerable and took advantage of them.
d.	Whether any of the Defendants’ conduct involved a pattern or practice; and
e.	Whether Defendants acted with trickery or deceit. This can include evidence of pretrial conduct during disclosure and discovery in which documents evidencing the wrongdoing were concealed, and whether there was any other evidence of Defendants’ attempt to cover up their misconduct.
(2)	Is there a reasonable relationship between the amount of punitive damages and Plaintiffs’ harm or between the amount of punitive damages and potential harm that Defendants knew was likely to occur because of its conduct?
(3)	In view of Defendants financial condition, what amount is necessary to punish and discourage future wrongful conduct? You may not increase the punitive award above an amount that is otherwise appropriate merely because Defendants have substantial financial resources.
Any award you impose may not exceed Defendants’ ability to pay. You may in your discretion decline to assess punitive damages. You may assess punitive damages against one Defendant and not the others or against more than one Defendant. Punitive damages may be assessed against different Defendants in different amounts.
Authorities: Modified Standard Ninth Circuit Jury Instruction 7.5.
OBJECTION: This is a cumulative instruction: Plaintiffs have also included a punitive instruction in Section I (the “model” instructions) and have not objected to Defendants’ objection on punitive damages in Section IV.
Furthermore, this is an incorrect statement of the law of punitive damages. See Defendants’ Proposed Instruction No. 6. To recover such damages, Plaintiffs have the burden of proving by clear and convincing evidence, either direct or circumstantial, that Defendants acted with an evil mind. This required state of mind may be shown by any of the following:
(1)	intent to cause injury; or
(2)	wrongful conduct motivated by spite or ill will; or
(3)	Defendants consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others.
To prove this required state of mind by clear and convincing evidence, Plaintiffs must prove that the punitive damage claim is highly probable. This burden of proof is more demanding than the standard of more probably true than not, which applies to all other claims in this case, but it is less demanding than the standard of proof beyond a reasonable doubt, which is used in criminal cases. The evidence needed to support an award of punitive damages must reflect something more than reckless disregard. The wrongdoer must intend to injure the Plaintiff or deliberately interfere with the rights of others, consciously disregarding the unjustifiably substantial risk of significant harm to them.
While the necessary “evil mind” may be inferred, it is still this “evil mind,” in addition to outwardly aggravated, outrageous, malicious, or fraudulent conduct, that is required for punitive damages.
The law provides no fixed standard for the amount of punitive damages the jury may assess, if any, but leaves the amount to the jury’s discretion to some degree. If the jury assesses punitive damages, it may consider the character of Defendants’ conduct or motive and the nature and extent of harm to Plaintiff. However, any punitive damages the jury awards must be in proportion to the amount of other damages it has awarded to each Plaintiff.
Punitive damages may not exceed four times the amount of compensatory damages for that particular Plaintiff. The jury may impose punitive damages against one or more of the Defendants and not others, and may award different amounts against different Defendants or for different Plaintiffs.
Revised Arizona Jury Instructions, Personal Injury Damages 4 (4th ed.); Ninth Circuit Model Jury Instruction § 7.5; Thompson v. Better-Bilt Aluminum Prods. Co., Inc., 171 Ariz. 550, 557, 832 P.2d 203, 210 (1992); Agilysys, Inc. v. Vipond, No. CV-04-2023-PHX-DGC (D. Ariz. Sept. 13, 2006); Farr v.Transamerica Occidental Life Ins. Co., 145 Ariz. 1, 8, 699 P.2d 376, 383 (Ct. App. 1985); Rawlings v. Apodaca, 151 Ariz. 149, 161, 726 P.2d 565, 577 (1986); Linthicum v. Nationwide Ins. Co., 150 Ariz. 326, 330–31, 723 P.2d 675, 679–80 (1986); State Farm Mut. Automobile Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).
Additionally, there is a limit to the amount of punitive damages that can be awarded.
“The principle that exemplary damages must bear a 'reasonable relationship' to compensatory damages has a long pedigree.”BMW of North Am., Inc. v. Gore, 517 U.S. 559, 580 (1996).
It is well settled that “few awards exceeding a single-digit ratio of compensatory to punitive damages, to a significant degree, will satisfy due process.” State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003); Southern Union Co. v. Southwest Gas Corp., 415 F.3d 1001, 1010 (9th Cir. 2005); Leavey v. UNUM/Provident Corp., 2006 WL 15159999, at *15 (D. Ariz. 2006). “Even an award more than four times the amount of compensatory damages ‘might be close to the line of constitutional impropriety.’” State Farm, 538 U.S. at 425; Southern Union, 415 F.3d at 1010; Leavey, 2006 WL 15159999, at *15.
DEFENDANTS’ ALTERNATIVE INSTRUCTION (Proposed Instruction 6)
If you find Defendants liable to Plaintiffs, you may consider assessing additional damages to punish Defendants or to deter Defendants and others from similar misconduct in the future.
Such damages are called “punitive” or “exemplary” damages.
To recover such damages, Plaintiffs have the burden of proving by clear and convincing evidence, either direct or circumstantial, that Defendants acted with an evil mind.
This required state of mind may be shown by any of the following:
(1)	intent to cause injury; or
(2)	wrongful conduct motivated by spite or ill will; or
(3)	Defendants consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others.
To prove this required state of mind by clear and convincing evidence, Plaintiffs must persuade you that the punitive damage claim is highly probable. This burden of proof is more demanding than the standard of more probably true than not, which applies to all other claims in this case, but it is less demanding than the standard of proof beyond a reasonable doubt, which is used in criminal cases.
The evidence needed to support an award of punitive damages must reflect something more than reckless disregard. The wrongdoer must intend to injure the Plaintiff or deliberately interfere with the rights of others, consciously disregarding the unjustifiably substantial risk of significant harm to them. While the necessary “evil mind” may be inferred, it is still this “evil mind,” in addition to outwardly aggravated, outrageous, malicious, or fraudulent conduct, that is required for punitive damages.
The law provides no fixed standard for the amount of punitive damages you may assess, if any, but leaves the amount to your discretion to some degree. If you assess punitive damages, you may consider the character of Defendants’ conduct or motive and the nature and extent of harm to Plaintiff. However, any punitive damages you award must be in proportion to the amount of other damages you have awarded to each Plaintiff. Punitive damages may not exceed four times the amount of compensatory damages for that particular Plaintiff.
[Punitive damages may not be awarded against [name of Plaintiff].]
You may impose punitive damages against one or more of the Defendants and not others, and may award different amounts against different Defendants or for different Plaintiffs.
11. CONTRACTS—DEFINITION OF CONTRACT
A contract is an agreement between two or more persons or entities. For a contract to exist, there must be an offer, acceptance of the offer, and consideration. Defendant asserts that it had a contract with each Plaintiff that authorized its use of Plaintiffs’ names and likenesses in the manner in which Defendants used them on the clothing apparel.
Authority: Revised Arizona Jury Instructions (hereinafter ‘RAJI’) Civil Standard Contract Instruction 3.
OBJECTION: This instruction is unnecessary, since there is no issue of whether a contract existed between any party; rather, the parties dispute the meaning and intent of the contracts.
12. CONTRACTS—OFFER
An offer is a proposal to enter into a contract on the terms contained in the offer.
Authority: RAJI Civil Standard Contract Instruction 4.
OBJECTION: This instruction is unnecessary, since there is no issue of whether a contract existed between any party; rather, the parties dispute the meaning and intent the contracts.
13. FAILURE OF CONSIDERATION
Contract law requires that consideration be paid for a benefit if the bargain fails. If nothing was paid for Plaintiffs’ publicity rights then there is no contractual consent for Defendant’s predecessor to use Plaintiffs’ names and likenesses. That is, if Defendant’s predecessors only paid Plaintiffs for their services as players and not for perpetual publicity rights then there is no consent to Defendants’ use of Plaintiffs’ names and likenesses.
OBJECTION: This instruction is unnecessary, since there is no issue of whether a contract existed between any party or whether consideration was paid; rather, the parties dispute the meaning and intent of the contracts. This instruction improperly also supports and comments on Plaintiffs’ theory of the case.
14. CONTRACTS—ACCEPTANCE
An acceptance is an expression of agreement to the terms of the offer by the person whom the offer was made.
Authority: RAJI Civil Standard Contract Instruction 6.
OBJECTION: This instruction is unnecessary, since there is no issue of whether a contract existed between any party; rather, the parties dispute the meaning and intent of the contracts.
15. CONTRACTS—CONSIDERATION
Consideration is a benefit received, or something given up or exchanged, as agreed upon between the parties. If no money was paid for Plaintiffs’ publicity rights, there was no consideration given for the rights.
OBJECTION: This instruction is unnecessary, since there is no issue of whether a contract existed between any party or whether consideration was paid; rather, the parties dispute the meaning and intent of the contracts. This instruction also improperly supports and comments on Plaintiffs’ theory of the case.
16. CONTRACTS—DETERMINING INTENT OF THE PARTIES WITH EXTRINSIC EVIDENCE
In deciding what a contract provision means, you should attempt to determine what the parties intended at the time that the contract was formed. You may consider the surrounding facts and circumstances as you find them to have been at the time that the contract was formed. It is for you to determine what those surrounding facts and circumstances were. You may not consider the testimony of any person not a party to the contract or who was not present when the contract was signed.
To determine what the parties intended the terms of a contract to mean, you may consider the language of the written agreement; the acts and statements of the parties themselves before any dispute arose; the parties’ negotiations; any prior dealings between the parties; any reasonable expectations the parties may have had as the result of the promises or conduct of the other party; and any other evidence that sheds light on the parties’ intent.
You must strictly construe all terms of Plaintiffs’ contracts against their employer who wrote the contracts (the predecessor companies to Defendant). Restrictive covenants that tend to prevent an employee from pursuing a similar vocation after termination of employment are disfavored and strictly construed against the employer.
In interpreting the terms and scope of a licensing agreement extrinsic evidence may be considered as to “the intent of the parties as it existed at the time of the contracting.” Extrinsic evidence includes testimony regarding the circumstances in which the contract was written and the subsequent conduct of the parties.
You are not limited to the four corners of the document and “may consider surrounding circumstances, including negotiation, prior understandings, and, subsequent conduct.
Authority: RAJI Civil Standard Contract Instruction 26.
OBJECTION: This instruction improperly supports and comments on Plaintiffs’ theory of the case. It also fails to inform the jury that extrinsic evidence is only relevant if the contract is ambiguous. Miller v. Glenn Miller Prods., 318 F. Supp. 2d 923, 934 (D. Cal. 2004).
17. COMMUNITY PROPERTY—[ name of Plaintiff]
Community property is liable for the intentional and negligent torts of either spouse occurring while that spouse is acting for a community purpose or on behalf of the community. Also, the community is liable for either spouse’s actions as a corporate officer where the spouse was serving a community purpose at the time of committing the tort.
As a result, if you find that [name of Defendant] is personally liable for violation of Plaintiffs’ rights of publicity, that he committed that tort during his marriage to [name of Plaintiff], and that he committed that tort as a financial benefit to him and his spouse’s personal life together, then you may find that [name of Defendant]’s spouse, [name of spouse], is also liable for the tort committed by [name of Defendant].
Authority: Depinto v. Provident Sec. Life Ins. Co., 374 S.E.2d 50 (9th Cir. 1967).
OBJECTION: This instruction is irrelevant since [name of Defendant] and [name of spouse] are residents of Nevada, not the community property state of Arizona.
18. ABANDONMENT OF PUBLICITY RIGHTS
You may consider whether Defendant and/or its predecessors abandoned any publicity rights they may have once had. Factors you may consider are:
(a)	Did Defendant or its predecessors use Plaintiffs’ names and likenesses on a clothing merchandise deal in the past;
(b)	Whether Defendant or its predecessors asserted their claimed publicity rights over Plaintiffs;
(c)	Whether Defendant or its predecessors exercised quality control over Plaintiffs’ publicity rights.
OBJECTION: Plaintiffs’ newfound abandonment or “naked licensing” theory is inapplicable to a right of publicity. 5 McCarthy on Trademarks and Unfair Competition§ 28.48 (4th ed. 2005); Miller v. Glenn Miller Prods., 318 F. Supp. 2d 923, 945 & n.13 (C.D. Cal. 2004).
SECTION IV—NON-MODEL INSTRUCTIONS REQUESTED BY DEFENDANTS
1. CLAIM OF INVASION OF RIGHT OF PUBLICITY
Plaintiffs seek to recover damages from Defendants based upon a claim that Defendants appropriated Plaintiffs’ names and likenesses for their commercial advantage. Each Plaintiff has the separate burden of proving all four elements of this claim by a preponderance of the evidence in order to recover from Defendants.
The four elements of this claim which each plaintiff must prove are:
ONE: Defendants appropriated that Plaintiff’s name. To show an appropriation, that Plaintiff must prove by a preponderance of the evidence that Defendants’ use of their name or likeness was sufficient to identify the Plaintiff. Each Plaintiff must also prove by a preponderance of the evidence that Defendants’ use was more than just an incidental use compared to the rest of the product line.
Source: Federal Jury Practice and Instructions, Invasion of Privacy § 125.19 (as modified to reflect Plaintiffs’ burden of proof); Restatement (Third) of Unfair Competition § 46, cmt. (d); Pooley v. Nat’l Hole-In-One Ass’n, 89 F. Supp. 2d 1108, 1112 (D. Ariz. 2000); Summary Judgment Order, June 27, 2006, Dkt. # 425.
OBJECTION: There is no requirement to prove use of name only, but Plaintiffs may prove other elements of Plaintiffs’ identity were used such as likeness, called “other indicia of identity.” Restatement (Third) of Unfair Competition§ 46 (1984). Incidental use is a defense that Defendants must prove. This incidental use exception does not apply where the use of Plaintiffs’ identities are significant to Defendants’ commercial purpose. Roth v. Naturally Vitamin Supplements, Inc., 2006 WL 988118 (D. Ariz. Apr. 14, 2006). If Defendants’ use “involves a true advertisement run for the purpose of selling” then the use is not a non-commercial incidental use. White v. Samsung Electronics Am., Inc., 971 F.2d 1395 (9th Cir. 1992).
TWO: The appropriation of each Plaintiff’s name was for Defendants’ commercial advantage. To prove that the appropriation of a Plaintiff’s name or likeness was for Defendants’ advantage, that Plaintiff must prove by a preponderance of the evidence that consumers bought the Defendant’s Apparel as a result of Defendants’ use of that Plaintiff’s name or likeness on the apparel and not because of other reasons, such as quality, color, price, styling or other trademarks, and that Defendants profited as a result of the use of that Plaintiff’s name.
Source: Restatement (Third) of Unfair Competition §§ 46, 47; Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Pooley v. Nat’l Hole-In-One Ass’n, 89 F. Supp. 2d 1108, 1112 (D. Ariz. 2000); Eastwood v. Superior Ct., 198 Cal. Rptr. 342, 348–49 (Cal. App. 1983); Summary Judgment Order, June 27, 2006, Dkt. # 425.
OBJECTION: There is no legal requirement that Defendants “profit.” In the Restatement of Torts § 652(c)(b) (1997) cited by this Court, the benefit derived need not be pecuniary. There is no requirement the Defendants make a profit. Otis Clapp & Son, Inc. v. Filmore Vitamin Co., 754 F.2d 738 (C.A. Ill. 1985). The advantage may be “commercial or otherwise.” Pooley.
Objection as the law does not require that use of Plaintiffs’ names be a reason consumers purchased infringing garments. Pooley v. Nat’l Hole-In-One Ass’n, 89 F. Supp. 2d 1108, 1112 (D. Ariz. 2000), where the court disagreed with Defendants’ contention that “any golfer would have been sufficient,” and stating that defendants selected plaintiff for his marketability and distinction.
THREE: Plaintiff did not consent to the appropriation. To prove that a Plaintiff did not consent to the appropriation, that Plaintiff must prove by a preponderance of the evidence that he did not consent by his actions or inaction, and that his player agreements did not give the Defendants the right to use and license that Plaintiff’s publicity rights.
Source: Restatement (Third) of Unfair Competition § 46; Pooley v. Nat’l Hole-In-One Ass’n, 89 F. Supp. 2d 1108, 1112 (D. Ariz. 2000); Summary Judgment Order, June 27, 2006, Dkt. # 425.
OBJECTION: Plaintiff may also prove that even if he consented to a Defendant predecessor, Defendants did not obtain Plaintiffs’ consent due to failure to purchase the contracts bankruptcy, unconscionability, etc.
FOUR: The appropriation caused Plaintiff to sustain injury, damage, loss or harm. To prove the appropriation caused a Plaintiff to sustain injury, damage, loss or harm, that Plaintiff must prove by a preponderance of the evidence that the use of his name or likeness on the apparel caused him to suffer a direct injury, such as financial harm or lost opportunity. That is, that Plaintiff must show that consumers actually bought Defendant’s Apparel because his name or likeness was on it. That Plaintiff must show by a preponderance of the evidence that but for the sale of the apparel, he would not have been injured.
Source: Restatement (Third) of Unfair Competition § 49, cmt. (d) & Rptr’s Notes to Cmt. D (stating that defendant’s profits are an appropriate measure of relief in right of publicity cases under rules analogous to the recovery of profits in trademark cases); Lindy Pen v. Bic Pen Corp., 982 F.2d 1400, 1407 (9th Cir. 1993); Pooley v. Nat’l Hole-In-One Ass’n, 89 F. Supp. 2d 1108, 1111 (D. Ariz. 2000); Summary Judgment Order, June 27, 2006, Dkt. # 425; McClaran v. Plastic Indus., Inc., 97 F.3d 347, 361 (9th Cir. 1996); Maier Brewing Co. v. Fleischmann Distilling Corp., 390 F.2d 117, 124 (9th Cir. 1968); Gucci Am., Inc. v. Daffy’s, Inc., 354 F.3d 228, 242 (3d Cir. 2003).
OBJECTION: The injury element is satisfied by Defendants gaining a benefit by Plaintiff not being compensated. This is not an element of a right of publicity claim. It is the appropriation that must create an advantage for Defendant, not a commercial transaction to create an injury. Pooley (citing Eastwood). Plaintiffs only need to show that Defendants used Plaintiffs’ identities to their benefit. Pooley. It is no defense that other factors contributed to consumer decisions or that consumers were confused. Restatement (Third) of Unfair Competition § 46 cmt. (b), (c).
2. AFFIRMATIVE DEFENSE OF LACHES
Defendants claim that each Plaintiff is barred from complaining about Defendants’ use of his name or likeness because of laches. To prove laches, Defendants have the burden of proving each of the following elements by a preponderance of the evidence:
(1)	Plaintiff lacked diligence in pursuing a claim that Defendants misappropriated their names and likenesses; and
(2)	Plaintiffs’ lack of diligence caused an injury or hardship to Defendants.
Source: State ex rel. Dept. of Health Services v. Cochise Cnty., 166 Ariz. 75, 81, 800 P.2d 578, 584 (1990) (“There are two elements to the defense of Laches. First, one party must lack diligence in pursuing a claim. Second, the first party’s lack of diligence must cause an injury or hardship to a second party.”).
OBJECTION: There is a presumption against laches where an action was commenced prior to the expiration of the statute of limitations.
3. AFFIRMATIVE DEFENSE OF LICENSE
A person may enter into an agreement that permits another to use his name or likeness. This type of agreement is called a license, and the person permitted to use the name or likeness is called a licensee.
Defendants contend that each Plaintiff’s contracts included a license permitting Defendant to use the name and likeness of that Plaintiff.
A license may be a written agreement, or a license may be oral or implied from conduct or inaction that manifests consent to a particular use of the name or likeness.
Source: Federal Jury and Practice Instructions, Trademark § 159.48 (as modified to reflect right of publicity action). Restatement (Third) of Unfair Competition § 46 cmt. g (1995).
OBJECTION: Plaintiffs never entered any licensing contracts with Defendants. This instruction is misleading as it suggests there was an agreement with Defendants. It should say “Defendants contend Plaintiffs entered employment contracts with Defendant’s predecessors that contain provisions regarding publicity and endorsements that were acquired by Defendant permitting Defendant to use Plaintiffs’ names and likenesses.
4. AFFIRMATIVE DEFENSE OF WAIVER
Defendants claim that each Plaintiff has waived his right of publicity claim. To prove waiver, Defendants must prove by a preponderance of the evidence that Plaintiff knew of his right of publicity and intended to relinquish it to Defendants.
Source: A&M Records v. Napster, Inc., 239 F.2d 1004, 1026 (9th Cir. 2001) (citing United States v. King Features Entm’t, Inc., 843 F.2d 394, 399 (9th Cir. 1988)).
OBJECTION: The language is misleading. Defendants need to show that Plaintiffs also waived their rights to approve and be paid for endorsements under the same employment contract provisions and, additionally, that Plaintiffs waived all rights relating to merchandise payments under the Collective Bargaining Agreement.
5. DAMAGES
It is the duty of the Court to instruct you about the measure of damages. By instructing you on damages, the Court does not mean to suggest for which party your verdict should be rendered.
If you find for the Plaintiffs, you must determine each plaintiff’s damage, if any, separately. Each plaintiff has the burden of proving damages by a preponderance of the evidence. Damages mean the amount of money which will reasonably and fairly compensate that plaintiff for any injury you find was caused by the Defendants.
Each Plaintiff has the burden of proving damages by a preponderance of the evidence, and it is for you to determine what damages, if any, have been proved.
In assessing damages, you should consider the following:
First, the amount of revenue earned by the Defendants from the sale of products using that Plaintiff’s name solely as set forth in the Defendant Letter and Sales Chart, as I have identified those to you. Each Plaintiff has the burden of proving the revenues earned by the Defendants from the sale of products using that Plaintiff’s name.
Defendants then have the burden to prove by a preponderance of the evidence that certain of such sales of products using that Plaintiff’s name were due to other factors, such as the color, price, style, other trademarks and the quality of the goods.
Defendants also have the burden to prove by a preponderance of the evidence any expenses properly deducted in determining net profits.
Your award must be based upon evidence and not upon speculation, guesswork or conjecture.
Source: Ninth Circuit Model Jury Instruction § 7.1; Summary Judgment Order (June 27, 2006, Dkt. # 425); Restatement (Third) of Unfair Competition § 49, Comment (d).
OBJECTION: Damages evidence is not limited to the Defendant letter and sales chart, A motion in limine is pending in this issue. Additionally, damages may be proved using the value of the use measured by royalty rates, as well as by all relevant admissible evidence. F.R.E. 401, 402, 403. It is no defense under the law that other factors may have contributed to sales. Customer confusion as to why they purchased the products is not an element. Restatement (Third) of Unfair Competition § 46 cmt. (b) (c).
6. PUNITIVE DAMAGES
If you find Defendants liable to Plaintiffs, you may consider assessing additional damages to punish Defendants or to deter Defendants and others from similar misconduct in the future. Such damages are called “punitive” or “exemplary” damages.
To recover such damages, Plaintiffs have the burden of proving by clear and convincing evidence, either direct or circumstantial, that Defendants acted with an evil mind.
This required state of mind may be shown by any of the following:
(1)	intent to cause injury; or
(2)	wrongful conduct motivated by spite or ill will; or
(3)	Defendants consciously pursued a course of conduct knowing that it created a substantial risk of significant harm to others.
To prove this required state of mind by clear and convincing evidence, Plaintiffs must persuade you that the punitive damage claim is highly probable. This burden of proof is more demanding than the standard of more probably true than not, which applies to all other claims in this case, but it is less demanding than the standard of proof beyond a reasonable doubt, which is used in criminal cases.
The evidence needed to support an award of punitive damages must reflect something more than reckless disregard. The wrongdoer must intend to injure the Plaintiff or deliberately interfere with the rights of others, consciously disregarding the unjustifiably substantial risk of significant harm to them. While the necessary “evil mind” may be inferred, it is still this “evil mind,” in addition to outwardly aggravated, outrageous, malicious, or fraudulent conduct, that is required for punitive damages.
The law provides no fixed standard for the amount of punitive damages you may assess, if any, but leaves the amount to your discretion to some degree. If you assess punitive damages, you may consider the character of Defendants’ conduct or motive and the nature and extent of harm to Plaintiff. However, any punitive damages you award must be in proportion to the amount of other damages you have awarded to each Plaintiff. Punitive damages may not exceed four times the amount of compensatory damages for that particular Plaintiff.
[Punitive damages may not be awarded against [name of Plaintiff].]
You may impose punitive damages against one or more of the Defendants and not others, and may award different amounts against different Defendants or for different Plaintiffs.
Source: Revised Arizona Jury Instructions, Personal Injury Damages 4 (4th ed.); Ninth Circuit Model Jury Instruction § 7.5; Thompson v. Better-Bilt Aluminum Products Co., Inc., 171 Ariz. 550, 557, 832 P.2d 203, 210 (1992); Agilysys, Inc. v. Vipond, No. CV-04-2023-PHX-DGC (D. Ariz. Sept. 13, 2006); Farr v. Transamerica Occidental Life Ins. Co., 145 Ariz. 1, 8, 699 P.2d 376, 383 (Ct. App. 1985); Rawlings v. Apodaca, 151 Ariz. 149, 161, 726 P.2d 565, 577 (1986); Linthicum v. Nationwide Ins. Co., 150 Ariz. 326, 330–31, 723 P.2d 675, 679–80 (1986); State Farm Mut. Auto. Ins. Co. v. Campbell, 538 U.S. 408, 425 (2003).
7. MITIGATION OF DAMAGES
Each plaintiff has a duty to use reasonable efforts to mitigate damages. To mitigate means to avoid or reduce damages. The defendant has the burden of proving by a preponderance of the evidence:
(1)	that the plaintiff failed to use reasonable efforts to mitigate damages; and
(2)	the amount by which damages would have been mitigated if that plaintiff acted with reasonable efforts.
Source: Ninth Circuit Model Jury Instruction 7.3
OBJECTION—Duty. There is no duty of Plaintiffs to mitigate damages where Defendants appropriated their publicity rights. Pooley.
RESPECTFULLY SUBMITTED this [date].
By:
[names and contact information for counsel for Defendants]
Attorneys for Defendants
[names and contact information for counsel for Plaintiffs]
Attorneys for Plaintiffs