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A bodybuilder and occasional romance novel cover model must re-prove the financial damages he sustained when a San Diego fitness center used his likeness in its ads without his permission, California’s 2d District Court of Appeal said on Jan. 30. The intermediate-level appellate court tossed out a jury’s $144,000 award because the trial judge erred in admitting into evidence the settlement amounts of two similar suits brought by the bodybuilder. O’Hearn v. Hillcrest Gym and Fitness Ctr. Inc., No. B149573. Michael O’Hearn was a bodybuilder who earned money by modeling, posing for fitness magazines and romance novel covers and by doing guest appearances and product endorsements. In 1997, Hillcrest Gym and Fitness Center hired Direct Marketing to prepare an advertisement to run in a monthly coupon book insert in the San Diego Union-Tribune. Direct Marketing staffers clipped an O’Hearn photo from a magazine to use in the proof for the ad, apparently intending to use it as a basis for a drawing, something for which they would not need a model release from O’Hearn. Nonetheless, the photo from the proof, which Hillcrest had reviewed, ended up in the final ad which ran nine times. O’Hearn spotted himself in it in 1998. O’Hearn sued Hillcrest and its owner for unlawful commercial appropriation under California Civil Code � 3344 and for common law invasion of privacy. He later dropped the invasion of privacy claim and settled with Direct Marketing, but went to trial against Hillcrest on the statutory claim. Over Hillcrest’s objection, the trial court allowed O’Hearn to introduce proof of his prior settlements with a Tennessee gym and a Florida vitamin store. Each had been accused of using his likeness without permission. Based on those settlements, O’Hearn argued he was entitled to $37,500 for each month Hillcrest ran his unauthorized photo in the Union-Tribune. After the jury returned its verdict, the trial court deducted the amount of the Direct Marketing settlement, and Hillcrest appealed, arguing that the trial court had erred. Agreeing and remanding the case for retrial on the damages, the appellate court held that the settlements were irrelevant and that their admission into evidence was prejudicial. “As in any lawsuit,” the court said, “various factors may have motivated the parties to settle the Tennessee and Florida matters, including the substantive law in those jurisdictions, the role of insurers, the particular facts of those lawsuits and even the personalities of the individuals involved in those negotiations . . . .Those settlement figures would have had little bearing on O’Hearn’s damages in this case.”

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