Addressing several claims stemming out of an allegedly unauthorized publication of signed memorabilia on a website, the U.S. Court of Appeals for the Ninth Circuit affirmed the district court’s summary judgment ruling in favor of the defendants with respect to numerous claims, finding Chuck Yeager’s submitted declaration to be a sham. Yeager et al. v. Bowlin et al., Case Nos. 10-15297, -16503 (9th Cir., Sept. 10, 2012) (Tashima, J.).

General Charles E. “Chuck” Yeager is a recognized figure in aviation history—most notably for his status as the first person to fly faster than the speed of sound. In 2008, after the breakdown of an agreement between Yeager and the defendants regarding various items signed by or affiliated with Yeager that were sold through the defendants’ memorabilia website, Yeager brought 11 claims against the defendants accusing them of exploitation of Yeager’s name and image.

In the district court, the defendants moved for summary judgment, arguing that the right of privacy and Lanham Act claims were barred by the statute of limitations due to California’s single publication rule. Under California law, the single publication rule provides that no person shall have more than one cause of action for damages for invasion of privacy or any other tort founded upon any single publication or exhibition or utterance, such as any one issue of a newspaper or book or magazine or any one presentation to an audience. 

In opposition to the summary judgment motion, Yeager filed a declaration containing facts that Yeager did not provide during his deposition.  During the deposition, Yeager claimed that, even after reviewing numerous exhibits to refresh his memory, he did not recall facts necessary to answer approximately 185 different deposition questions, including information regarding high-profile events such as a plane crash.

On appeal, Yeager argued that the district court improperly dismissed his declaration as a sham affidavit that contradicted his prior deposition testimony. The 9th Circuit, however, affirmed the district court’s striking of the affidavit, noting that the new facts and information recalled in the declaration were so extremely different from Yeager’s deposition answers that the two had to be viewed as contradictory. Thus, the 9th Circuit found that no juror would believe Yeager’s “weak explanation for his sudden abilities to remember the answers to important questions about the critical issues of his lawsuit.” 

With respect to the statute of limitations issue, Yeager claimed that the two-year limit on bringing claims under California’s common law right to privacy and California’s statutory right to publicity was not exceeded despite the fact that the “publication” of the statements at issue on the memorabilia website occurred five years before Yeager filed suit. Yeager argued that the defendants’ website was “republished,” thereby restarting the statute of limitations, each time the defendants added to or revised the content of the website, even if the new or revised content did not pertain to Yeager.

After reviewing numerous prior decisions regarding republication on the internet, the 9th Circuit found that, under California law, a statement on a website is not republished unless the statement itself is substantively altered or added to or the website is directed to a new audience.  Since the defendants were able to prove that they had not taken any substantive action with respect to the website content regarding Yeager since 2003, Yeager’s 2008 claims were barred by the statute of limitations, and the Court affirmed the district court’s summary judgment ruling.