The authors are counsel for Cody Allen Easterday in the Petition for Rehearing En Banc that is the subject of this article.

On November 21, 2024, Cody Allen Easterday filed a Petition for Rehearing En Banc in Cody Allen Easterday v. Tyson Fresh Meats Inc., No. 23-3836. Easterday’s case involves a timely and important issue regarding his name, photograph, and likeness rights (commonly referred to as name, image, and likeness “NIL” rights). Specifically, the Panel (at the Ninth Circuit) erred in barring  Easterday from presenting NIL claims involving trespass on his rights as recently as six months before the action was filed, based on a misreading of the statute of limitations law that Washington state would apply.

Significantly, Washington courts have not yet opined on what statute of limitations would apply to NIL claims under RCW 63.60.010, or how the limitations period should be calculated. The Panel offered no support under Washington law for its out-of-step conclusions and, as discussed herein, the weight of authority would call for a different conclusion.

In his Petition,  Easterday urged the full court at the Ninth Circuit to grant rehearing en banc to consider the following questions:

• what statute of limitations applies to claims under RCW 63.60.010;
• what accrual rule applies under RCW 63.60.010; and
• whether Mr. Easterday is entitled to a tolling of the statute of limitations under the discovery rule.

Factual Background

Easterday alleges in his Complaint that defendant Tyson Fresh Meat, Inc. (“Tyson”) failed to uphold its promises to compensate him in exchange for the use of his name, photograph, and likeness on “Cody’s Beef” product packaging and marketing from 2014 to 2022 in exchange for his “cut” (compensation) of the profits.

The gravamen of Easterday’s complaint was that Tyson broke its promises to compensate him (give him his “cut”) in exchange for providing his consent for Tyson to use his name and likeness on the label and advertisements for “Cody’s Beef”, e.g.:

Subsequently, Tyson moved to dismiss Easterday’s complaint twice. On the order now subject to appeal, the district court dismissed Easterday’s claims with prejudice and without leave to amend. As pertinent here, the district court dismissed the contract claims on the grounds that the contract’s terms were indefinite and implausible, and there was no meetings of the minds of the parties. Easterday appealed.

Although  Easterday challenged the factual and legal basis for the district court’s conclusion, he also argued on appeal: “Taking the Order’s reasoning to its logical conclusion, if no agreement existed authorizing Tyson to use Easterday’s name and photograph on the “Cody’s Beef” product, then … the [complaint] in any event would state a claim for misappropriation under Wash. RCW 63.60.010, since Tyson would have been doing so without authority of Easterday, the only person who had authority to grant his ‘blessing’.” He then provided a listing of how each element was clearly set forth in the pleadings as filed.

After briefing and setting a date for oral argument, the Ninth Circuit Panel cancelled oral argument, and thereafter affirmed the dismissal. In doing so, among other errors, the Panel sua sponte included new and different grounds for affirming with respect to two points: (1) whether an implied-in-fact contract existed; and (2) whether leave to amend was futile with respect to Easterday’s now ripe RCW 63.60.010 claim, which only came into existence after the lower court’s decision. Rather than rely upon Tyson’s arguments regarding Easterday’s consent under the oral agreement as a bar to the RCW 63.60.010 argument, the Panel instead adopted its novel futility argument, based on the statute of limitations, to affirm the dismissal with prejudice and the denial of leave to amend.

Washington Law Would Not Bar the NIL Claims Under Its Statute of Limitations

A key element of any NIL claim, including one under RCW 63.60.010, is whether the rights owner consented to the use of his or her NIL rights by the defendant. This is a point that Tyson made in its own arguments on appeal. But, as noted above, everyone thought that Tyson had consent until the district court granted Tyson’s motion to dismiss, on the grounds that the relied-upon consent, which was conditioned on Easterday getting his share of the profits (“cut”), was void. Once the agreement disappeared, so did the consent that Tyson relied upon to defend against Easterday’s NIL claim. Thus, the issue became, under Washington law, when did Easterday’s NIL claims first accrue, and what is the relevant statute of limitations to be applied?

The Panel’s dismissal was based on an issue that was neither raised by the Tyson, briefed by the parties, or even tested at oral argument, since the Panel sua sponte cancelled oral argument before issuing its terse Memorandum. Unfortunately, the conclusion reached sua sponte by the Panel cited no authority on this complex issue of law. In the context of copyright law, resolution of this issue has so far required two U.S. Supreme Court decisions. We have found that no Washington State law addresses these issues for its NIL statute.

Other Washington authority suggests it would reach the opposite conclusion of the Panel, which is consistent with the U.S. Supreme Court’s conclusions for copyright law in Petrella and Nealy.

Washington State law confirms that misappropriation of NIL is recognized as both a common law tort and a statutory claim. See, e.g., Aronson v. Dog Eat Dog Films, Inc., 738 F. Supp. 2d 1104 (W.D. Wash. 2010); Joplin Enters. v. Allen, No. C91-1035C, 1991 U.S. Dist. LEXIS 20771 (W.D. Wash. Dec. 16, 1991). Under Washington tort law, the rigid three-year statute of limitations for oral contract claims is inapplicable here. See Woldson v. Woodhead, 159 Wash. 2d 215, 149 P.3d 361 (2006). However, Washington law has not clarified (i) what the appropriate statute of limitations is in a case of misappropriation of NIL, or (ii) when such a cause of action becomes ripe. Accordingly, it was at least imprudent for the Panel to resolve these novel and complex issues without briefing or oral argument.

In Woldson, the Washington Supreme Court was asked to review the application to a Washington statute of limitations to the tort of continuing trespass. ?Id. at 219. The court distinguished “most torts” which involve “a single isolated event”, from “[a] continuing trespass tort” which “is different; the ‘event’ happens every day the trespass continues. ?Every moment, arguably, is a new tort.” ?Id. Thus, Woldson concluded “the statute of limitations does not run from the date the tort begins; it is applied retrospectively to allow recovery for damages sustained within three years of filing.”  Id. at 223.

This rationale is particularly applicable here. Washington’s NIL statute says “[e]very individual or personality has a property right in the use of his or her name, … photograph, or likeness.” RCW 63.60.010 (emphasis added). Like the continuing trespass in Woldson, every time Tyson uses Easterday’s name, photograph, and likeness with respect to “Cody’s Beef” the trespass to his NIL property rights continues. Therefore, Washington courts would presumably treat its NIL statute under the doctrine of continuing torts as the Washington Supreme Court has done with other continuing invasions of property rights.

Where in Woldson the violation was a continuing trespass caused by falling dirt and debris from a wall in disrepair, here, the violation is repeated misappropriation of Easterday’s name, photograph, and likeness. Since Tyson’s unauthorized use of Easterday’s name, photograph, and likeness continued through at least June 2022, if this Court applied the doctrine of continuing torts, the claim for misappropriation would be within the statute of limitations.

In the context of copyright law, another similar continuing tort, like Washington’s NIL statute, the U.S. Supreme Court in Petrella has applied the same rule as the Washington Court did in Woldson. Like Woldson, Petrella offers a view of law, that if applied by Washington courts, would have led to an opposite conclusion than that contained in the Memorandum as reached by the Panel.

In Petrella v. MGM, the Supreme Court explained that the separate-accrual rule applies to the statute of limitations in copyright matters. The separate-accrual rule provides that when an infringer repeatedly violates copyright protections, each violation gives rise to its own claim which has its own statute of limitations. Petrella, 572 U.S. 663, 671 (2014).

Applying this analogous rule here, each reproduction of Easterday’s name, photograph, and likeness on “Cody’s Beef” labels and marketing would be a separate event and thus a separate violation, having its own statute of limitations such that the claim would not be barred as the Panel concluded.

Under Petrella’s rationale, given that Easterday’s name, photograph, and likeness continued to be used on “Cody’s Beef” labels and marketing materials through at least July of 2022, a few months before the December 2022 Complaint was filed, the statute of limitations does not bar his claims under Washington’s NIL law.

In Warner Chappel Music, Inc. v. Nealy, the Supreme Court further explained that the statute of limitations in copyright law is fact dependent. 601 U.S. 366, 368 (2024). There, the Supreme Court applied the discovery rule, which allowed plaintiff to sue for violations that occurred more than three years prior to filing. Id. at 369-70. This was permitted because plaintiff did not discover the violations while he was incarcerated. Id. at 370.

Though the specific circumstances here differ, Nealy provides valuable guidance. Easterday was under the impression that there was an agreement for Tyson to use his name, photograph, and likeness, which was conditioned upon a profit split. However, when the lower court determined that there was no such agreement (on different grounds than adopted by the Panel), that served as Easterday’s notice that Tyson’s use was unauthorized, and therefore a violation of RCW 63.60.010.

The Western District of Washington applying Washington law in Olson Kundig did not address when a claim for a violation of RCW 63.60.010 arises, but the case does stand for the proposition that once an agreement for use of a plaintiff’s name and likeness is terminated, continued use constitutes a violation of the NIL statute. 2023 U.S. Dist. LEXIS 79055, *16 (granting default judgment where pleadings demonstrated defendant “has no other license to use [plaintiff’s] name” outside of conditions imposed by license and thus “sufficiently states a claim for violation of the WPRA.”).

Under the combined logic of Nealy and Olson Kundig, Easterday’s cause of action did not accrue until the courts’ orders were issued and would not begin to accrue until he is granted leave to amend. Not only should he be entitled to recover for each trespass to his NIL rights over the at least three years preceding the December 5, 2022, Complaint, but potentially for all the trespasses going back to 2014, like Sherman Nealy in the Nealy case.

When Woldson, Petrella, Nealy, and Olson Kundig are considered together, a fair import is that Washington state law would not bar Easterday’s NIL claim.

Time to Rectify the Problem

The right to publicity and, more specifically, to name and likeness, is a hot button issue now with the expansion of rights for collegiate athletes, as well as constant technological advancements that continue to bring NIL to the forefront. If the Panel decision in Easterday v. Tyson Fresh Foods is allowed to stand, the risk that such athletes’ NIL rights will be unduly restricted is significant. It is time for the full court of the Ninth Circuit to rectify the misapplication of the statute of limitations to NIL rights under Washington law. If appropriate, the Ninth Circuit should let the Washington Supreme Court decide with full briefing its law on this important and complex issue.

Image: Adobe Stock photos