Filed 9/2/ 16

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

LOCAL TV, LLC et. al,
Petitioners,

v.

SUPERIOR COURT OF LOS ANGELES COUNTY,
Respondent;
KURT KNUTSSON et. al,

Real Parties in Interest. B271883
(Los Angeles County Super. Ct. No. BC500792)

ORIGINAL PROCEEDINGS; petition for writ of mandate. Gregory W. Alarcon, Judge. Petition granted. Leopold, Petrich & Smith, Vincent Cox and Elizabe th L. Schilken, for Petitioners. Judith Salkow Shapiro, and Allred Maroko Goldberg, Nathan Goldberg and John Steven West, for Real Parties in Interest.2 INTRODUCTION Kurt Knutsson, a technology reporter who created “Kurt the CyberGuy” video segments for use on television news programs and station websites, brought t he lawsuit that underlies this p etition for w rit of m andate (petition)

. Pursuant to a written agreement that Knutsson and his company
, Woojivas, Inc. (plaintiffs) entered into with Los Ang eles
television station KTLA , Inc. (KTLA) , website material Knutsson created was distributed

to the web sites of certain television stations in other cit i es , including those of stations
owned and operated by Local TV, LLC, and Local TV Finance, LLC ( LTV ). We address here the question of whether, for purposes of the common law tort of misappropriation of name and likeness, plaintiffs consented to LTV’s use of th e CyberGuy material, including placing links to it on webpage s along with links to material

crea ted by a reporter who was hired following the termination of Knutsson’s contract

. We hold that based on the broad consent in the agreement, plaintiffs cannot prove lack of consent to the manner in which LTV used the CyberGuy material. This determination requires that plaintiffs also cannot prevail on the two other causes of action at issue. We therefore conclude the trial court’s ruling denying summary judgment to LTV was in error and grant the petition.

FACTS AND PROCEDURE
I. The Agreement B etween Pl aintiffs and KTLA Knutsson was a technology reporter at KTLA for 15 years, between 1996 and
2011. In 2008, he and his company entered into a f ive

- year contract with KTLA (the
A greement) that KTLA could terminate at the end of three years

. 1 In the A greem ent , Knutsson contracted to work , using his “CyberGuy ” brand, as an on

- air reporter on

1 We treat the Agreement as between KTLA and both plaintiffs. The Agreement itself was between Woojivas, Inc. and KTLA, but Knutsson simultaneously provided a letter approving of the A greement and agreeing to offer his services under it and be bound by it

.3

consumer technology and computers, as well as a creator of content on those subjects for
KTLA’s website
, such as video seg ments and product reviews. Under the Agreeme nt, f

or Knutsson’s work, KTLA was to pay an annual salary that began at $325,000 and increased by $25,000 each year, an d provide other benefits. In return, the A greement gave KTLA complete ownership over, and the virtually unfettered right to use
, Knutsso n’s work. That is, the A greement made KTLA the “exclusive, perpetual, and unencumbered owner forever” of all the material that Knutsson produced for the station, with “all rights with respect thereto for any and all pu rposes whatsover.” It further gave K TLA “the unlimited right . . . perpetually throughout the world in any manner and by any method or means and in any and all media . . . to exploit the programs, recordings, an d material or any portions thereof.” The A greement explaine d the breadth of KTLA ’s ability to use the material : “Exploitation may include
unlimited uses in all form s of reproduction, transmission, exhibition, display, and presentation, including television, theaters, rental libraries, devices marketed for the home . . . books, period icals, wireless, internet uses and all other types of exploitation now existing or her eafter devised.”
T he A greement also allowed KTLA to present Knutsson’s work in virtually any way it wished, including combining it with other material. Specifically
, KTLA could “cut, edit, add to, subtract from, arrange, rearrange, or otherwise modify [Knutsson’s work] or take excerpts therefrom or combine all or any portion thereof with the material of others, and [ plaintiffs ] waive[d] all rights to approve or object thereto.”
The A greement allowed KTLA to provide CyberGuy material to other television stations. One provision stated that Knutsson would not only provide reports for KTLA newscasts, but also make “live ‘CyberGuy’ segments for other television stations designated by KTLA.” In another provision , KTLA agreed not only to “prominently feature” the material on its website, but also to “distribute the material for website use by other stations owned or managed by KTLA’s corporate parent, Tribune Broadcasting Company [ ( Tribune Broadcasting ) ]

. KTLA intend[ed] also to exploit this material through media platforms other than the Tribune Broadcasting stations’ websites.” A4

provision stated that Knutsson’s website content would “be distributed under [his

c ompany’s ] ‘CyberGuy’ brand.” KTLA additionally agreed that Knutsson could create a link on his personal website to both KTLA’s home page and “the home pages of other stations on which [Knutsson’s] materials are distributed under this Agreement.” Finally, KTLA ag reed to allow plaintiffs to continue to distribute materials to television stations in two particular cities, with the caveat that if Tribune Broadcasting acquired or managed a television station in either city, “the Tribune station will have the exclusive right thereafter to air the ‘CyberGuy’ material in the affected market.” 2 Two provisions of the A greement placed some restrictions on KTLA’s ownership and use rights. First, a provision authorized KTLA to use Knutsson’s name and likeness
in advertisin g and publi cizing KTLA and the CyberGuy material
, but not as an “endorsement.” We discuss that provision in greater detail in the D iscussion section
below

. Second, the transfer of ownership to KTLA came with the restriction that “[n]othing in this Agreem ent gives KTLA ownership rights in the CyberGuy designation used by [Knutsson]

. ” We also discuss t hat provision below.

II. LTV’s Agreement with Tribune Company LTV, which owned and operated approximately 21 television stations in various
cities and the ir associated websites, entered into a Management Services Agreement (MSA) with Tribune Company, which was the parent of Tribune Broadcasting, KTLA ’s corporate parent

. The MSA provided that Tribune Company or its subsidiaries would host the LTV stations’ websites on its “T ribune Technology Platform.” In the MSA, Tribune Company represented that it had agreements with third

- party vendors that

2 In opposing LTV’s summary judgment motion, Knutsson acknowledged that he consented to KTLA’s distribution of the CyberGuy material to other stations. In a declaration, Knutsson stated that he was “aware while the 2008 Agreement was in place that [his] CyberGuy material was being broadcast on Tribune [Broadcasting] stations and on other stations such as Superstation WGN. Since one of [his] goals was to maximize the reach of [his] CyberGuy broadcasts under the terms of the 2008 Agreement to as many markets as possible, [he] saw distribution of CyberGuy material to other stations during the life of the 2008 Agreement as pursuant to the agreement with KTLA.”5

allow ed LTV to access their products and services, “strictly limited to the rights and obligations contained within such third

- party vendor agreements. ” These included agreements for , among other content, weather information , news articles from a wire service, photos, sports scores and statistics, and advertising. Tribune Company agreed to indemnify LTV for losses ar ising out of the breach of the third party vendor agreements by Tribune Company

. Pursuant to the MSA, LTV’s websites began featuring Knutsson’s CyberGuy video segments, pr o duct reviews, and photos. This material was “pushed” onto the LTV websites by th e company that Tribune Company used to operate the Tribune Technology
Platform rather than LTV request ing or manag ing the material

.

III. KTLA’s Termination of Knutsson and Subsequent Events KTLA terminated its contract with plaint iffs as of March 31, 2 011. Afterward,
KTLA employed a new technology reporter, Rich DeMuro, and Tribune Company

“ pushed ” content he created onto the LTV websites

. Meanwhile, the CyberGuy material remained on LTV websites for several months, with its format apparently unchange d, except that material from DeMuro also was being pushed by Tribune Company onto web

pages with it

. 3 Between November 2011 and mid

- April 2012, LTV began transitioning
its 21 station websites off the Tribune Technology Platform to a different host. When a station’s website was transferred
, it no longer contained the content that Tribune Company was providing under the MSA, so it no longer had CyberGuy content. On November 30, 2011, plaintiffs’ counsel wrote KTLA a letter complaining of
violations of Kn utsson’s rights, including his right to publicity. On January 23, 2012, a
Tribun e Broadcasting v ice p resident sent an email to an LTV v ice p resident stating that
he had received a request to “purge any remnants of Kurt the CyberGuy” from LTV sites.

3 With their opposition to LTV’s summary judgmen t motion, plaintiffs submitted exhibits of web pages from four LTV websites showing his material on them along with DeMuro’s work as of August 2011, and exhibits of web pages from two LTV websites showing his material on them as of early

- a nd mid

- January 2 012.6

He as ked if LTV wanted him to remove certain index page and Uniform Resource Locator (URL) material while he was doing that. 4 The LTV v ice p resid ent responded affirmatively.
S ome of the CyberGuy content apparently was not removed from the website of
one LTV station . On March 31, 2012, LTV received a legal notice from Knutsson that he objected to the presence of his content on their websi tes. The next day, the LTV v ice

p resident determined that 19 of the 21 LTV stations had moved off of the Tribune
Technolo gy P latform, so they did not contain C yberGuy material. One of the two remaining station websit es had no CyberGuy material. The final website, KFOR.com, had “no Kurt Knutsson or Cyber[G]uy content on the KFOR.com site that could be reached by links on th e main page or any page linked to by the main page.” There were
, however, some “obsolete” pages that were not being promoted or linked to
, but which referenced Knutsson or CyberGuy, and the LTV v ice p resident deleted those.

IV. The Complaint and LTV’s Summary Judgment Motion Plaintiffs filed their complaint against KTLA, LTV, and several television stations operated by Tribune Broadcasting. Against KTLA, which is not a party to this writ proceeding, plaintiffs alleged age discrimination and breach of contract. Against all defendants, plaintiffs alleged common law misapp ropriation of name and likeness;
violation of Civil Code section 3344, which provides a similar misappropriation cause of action; and unfair business practices (Bus. & Prof. Code
, § 172 00 et seq. ).
The trial court denied LTV ’s motion for summary judgment on the claims against
it. LTV filed the instant petition seeking a determination that plaintiffs’ claims fail as a
matter of law. We issued an alternative writ, following which the trial court did not change its order.

4 To use the technical terms, the Tribune Broadcasting v ice p resident asked if he should have the “section fronts and slugs ” removed . A “ slug ” is the headline of an article used in web URL, essentially the address for a web page on the internet. A “ section front ” is a web page that contains links to a group of slugs in a list for easy accessibility.7 DISCUSSION
I. Propriety of Writ Relief and S tandard of Review We may grant writ relief for the erroneous denial of a motion for summary judgment pursuant to Code of Civil Procedure section 437c, subdivision (m)(1). While writ relief is extraordinary because a party often has an adequa te remedy through filing a post

- judgment appeal, “[t]he adequacy of an appellate remedy depends on the circumstances of the case, thereby necessarily vesting a large measure of discreti on in the appellate court to grant or deny a writ .” ( Noe v. Super ior Court (2015) 237 Cal.App.4th 316, 323. ) “Where the trial court’ s denial of a motion for summary judgmen t will result
in a trial on non actionable claims, a writ of mandate will issue.” ( Prudential Ins. Co. of
Am. v. Superio r Court (2002) 98 Cal.App.4th 585, 594. ) We independently review a trial court’s ruling on a summary judgment motion. ( Aguilar v. Atlantic Richfield Co. (2001) 25 Cal.4th 826, 860.)

II. Common Law Misappropriation of Name and Likenes s The tort of misappropriation of name or likeness originated as a branch of the common law right of privacy. ( Eastwood v. Super ior Court (1983) 149 Cal.App.3d 409,
416 ( Eastwood ) .) To prove a misappropriation , a plaintiff must show “ (1) the defendant’s use of the plaintiff’s identity ; (2) the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise ; (3) lack of consent ; and (4) resulting injury. ” ( Id. at p. 417. ) In its petition, LTV argues that plaintiffs cannot demonstrate a lack of consent,
due to their consent to the use of the CyberGuy material in the A greement

. LTV’s knowledge of the consent is immaterial to the common law inquiry. ( Fairfield v.
American Photocopy Equipment Co. (1955) 138 Cal.App.2d 82, 87; see Eastwood
, supra , 149 Cal.App.3d at p. 417 , fn. 6 ; Rest .3d Unfair Competition
, § 46, c o m

. e, p. 542 [“a mistake regarding the plaintiff’s consent is not a defense”]

. ) Thus, even though LTV
, as the licensee of Tribune Company , di d not know the terms of the Agreement between8

plaintiffs and KTLA and relied on Tribune Company to provide authorized material , the consent to LTV’s use of the CyberGuy material is determined by the extent of plaintiffs’
consent in the A greement

. Consis tent with these principles, i n their r eturn to the p etition, p laintiffs agree that Tribune Company grant ed to LTV the rights that Tribune Company’s subsidiary, KTLA,
obtained i n the Agreement

. It thus is not in dispute that the language in the Agreement
d etermines whether plaintiffs can show lack of consent. Consent to the use of a name or likeness is determined by traditional principles of contract interpretation. (See Newton v.
Thomason (9th Cir. 1994) 22 F.3d 1455, 1461 [affirming summ ary judgment bas ed on consent in letter]; Rest.3d Unfair Competition, § 46, reporter’s notes, p. 543 [“The scope of consent is determined according to the general principles of contract interpretation”].)
Plaintiffs further acknowledge that they are not challenging “KTLA ’s ownership of [Knutsson’s ] works” or “ LTV’s use thereof.” These concessions are warranted
because , under the A greement, KTLA was the “exclusive, perpetual, and unencumbered owner forever” of the work product Knutsson created while working for KTLA , and
KTLA had the right to “distribute the material for website use by other [Tribune Broadcasting] stations [and] to exploit this material through media platforms other than the Tribune Broadcasting stations’ websites.” Consequently, plaintiffs’ argument is limited to claiming that they did not consent to the particular manner in which LTV displayed the material on its stations’ website s

. Pla intiffs focus on LTV ’s use of a heading on its web page entitled “Kurt the CyberGuy” as well as his picture. These i tems remained on the website after Knutsson’s employment was terminated, and links to his CyberGuy material remained on LTV websites, along
with links on the same webpage to material from DeMuro, the reporter who succeeded
him. Plaintiffs’ central argumen t is that , through this use, LTV exceeded plaintiffs’
consent because it violated the provision of the Agreement that allowed KTLA to use his
material in “ advertising and publicizing KTLA . . . and the [CyberGuy] website material ”
but not as an “endorsemen t” (the advertising provision). Th e advertising provision states :9

“ [Knutsson’s] name, sobriquet (including ‘ CyberGuy ’ ), biography, picture, portrait, caricature, voice and likeness may be used in advertising and publicizing KTLA and the program and web site material produced under this Agreement, but

not as an endorsement or testimonial

. ” 5

Th e advertising provision reflects principle s of publicity law that typically arise
whe n a publication is advertising itself . Advertising using a publication’s co ntent does not violate the right to publicity of a person appearing in the advertising, unless the
advertisement implies that the person is endorsing the publication. ( E.g. , Cher v. Forum
Int’l , Ltd. (9th Cir. 1982) 692 F.2d 634
, 639 ( Cher ) [“ advertising to promote a news medium . . . is not actionable under an appropriation of publicity theory so long as the advertising does not falsely claim that the public figure endorses that news medium ” ] ; Mont ana v. San Jose Mercury News, Inc. (1995) 34 Cal.App.4th 7 90, 797 [newspaper’s posters reproducing its pictures of football quarterback were advertisements that did not misappropriate his image where “they did not state or imply that [the quarterback] endorsed the newspaper”]; Rest .3d Unfair Competition
, § 47 , re porter’s notes, p. 557 [ providing general rule that “advertising that is incidental” to news reporting is not actionable, but stating that a n “ exception is sometimes recognized in connection with otherwise permissible adverti sing for lawful uses of another ’ s identity if the advertisement falsely suggests an endors ement or is otherwise deceptive”]

. ) The advertising provision does not apply to the facts alleged by plaintiffs. Here,
the use of Knuts s on’s name and picture was not for “advertising and public izing” the
station s or their content , any more than a traditional newspaper headline and photo of a
columnist constitutes advertising or publicity for the newspaper

. Importantly, LTV’s use of Knutsson’s name and photo occurred only on the LTV sites , not i n a communication

5 We treat the phrase “endorsement or testimonial” as simply “endorsement” for ease of reference. Generally, an “ endorsement ” is used when the spe aker is a celebrity and “testimonial” is used when the speaker is a consumer. ( See, e.g. , 16 C.F.R. § 255.0 [“treat[ing] endorsements and testimonials identically in the context of its enforcement of the Federal Trade Commission Act . . . . The term endo rsements is therefore generally used hereinafter to cover both terms and situations”] .)10

sent or shown elsewhere . Using Knutsson’s name and picture on the LTV site serve d the purpose of identifying his material for reader s . Th at use fall s under the consent that plaintiffs gave for LTV and its licensee stations to use the Cy berGuy material. In fact, separate from the advertising provision, the A greement states that Knutsson’s material “will be distributed under [his] ‘Cyberguy’ brand” and that KTLA’s website will “prominently fea ture” his material. These provisions, rather than the advertising provision, authorize the use of Knutsson’s brand name and picture on the LTV websites. We recognize that LTV’s use of Knutsson’s brand on its internet pages could serve a secondary purpose of “advertising or publicizing” LTV ’s station s by attracting
consumers to the site s through their web searches. Even if the advertising provision applie d
, however, it would demonstrate plaintiffs ’ consent to LTV’s use of the identifying heading and picture. Through the advertising provision, plaint iffs agreed that Knutsson’s “name, sobriquet (including ‘CyberGuy’) [and] picture” may be used in
adv ertising . . . .” The use of a neutral heading and Knutsson’s picture ar e covered by this language. ( See Guglielmi v. Spelling

- Goldberg Productions (1979 ) 25 Cal.3d 860, 873 [“Since the use of [ a celebrity’s] name and likeness in the film was not an actionable infringement of [the celebrity’s] right of publicity, the use of his identity in advertisements for the film is similarly not actionable”]; Polydoro s v. Twentieth Century Fox Film Corp. (1997) 67 Cal.App.4th 318, 325 [same]; Cher
, supra , 692 F.2d at p. 639 [ advertisements not actionable where “ merely an adjunct of the protected publication and promote [] only the protected publication ” ]

. ) Consequently , the material displayed on the LTV’s sites

– the CyberGuy material, which KTLA was the owner of “forever
, ” and th e identifying heading and photo

– were themselves not a misappropriation of Knutsson’s name or likeness

. KTLA owned the CyberGuy material and had the contractual right to display
, distribute , and promote it. Although plaintiffs argue that LTV was “using the Cy berGuy brand to attract viewers and create positive associations in people[s’] mind [s] between [Knutsson] . . . and the LTV
station [s] and w ebsite [s] , ” LTV had the right to use the material in this manner due to the
A greement

. Additionally, plaintiffs argue that the material was “ posted on LTV’s11

technology web pages for an extended period after [Knutsson] ceased to broadcast on
their station s or provide material for their websites.” This is immaterial, as KTLA’s ownership and distribution rig hts did not terminate with the end of his employment

. Plaintiffs further claim that the way that Knutsson’s materials were arranged on
some LTV web pa ge s indicated that he “was endorsing their new technology report er, Rich DeMuro.” As the new DeMuro material was “pushed” onto LTV’s websites by Tribune Company, links to that material appeared on the same pages with links to Knutsson’s material

. P lainti ffs argue that they did not consent to this use

. This argument
fails for two reasons. First, plaintiffs expressly consented to allow KTLA (and therefore LTV) to present the CyberGuy material along with any other content. Under the A greement, LTV could “arrange, rearrange, or otherwise modify [Knutsson’s work] or take excerpts therefrom or combine all or any portion thereof with the material of others, and [plaintiffs] waive[d] all rights to a p prove or object thereto.” This constitutes express consent t o arranging
materials on the website , the very conduct about which plaintiffs complain here

. Second, even absent the express consent just discussed, p laintif f s have not shown

a lack of consent to combining the CyberGuy material, and its neutral heading, w ith other material on the same web page. As it is common for varied material, including links to
unrelated articles and advertising, to appear on the same webpage on a news organization’s website
, displaying material in this manner is encompassed by plain tiffs’ general consent for station s to use the material on their websites

. On this record, i t is speculat ion to suggest that a consumer w ould be confused by the proximity of the links on the webpages that Knutsson offered
, and any such confusion is not an element of the misappropriation tort. ( See Newton v. Thomason
, supra , 22 F.3d at pp. 1461

- 63 [summary judgment on misappropriation tort upheld under California law where celebrity consented to the use of his name for a character on a television show; con sumers’ “likelihood of confusion” between celebrity and television character analyzed separately as element to be proven under federal trademark infringement cause of action ] .) In this regard, we note that any consumer confusion likely would be l imited he re because the12

vast majority of the links to DeMuro material on the LTV websites had DeMuro’ s name in the description of the material accompanying the link , so a consumer would see
, even before clicking the link
, that it was created by DeMuro rather than b y Knutsson. We would agree that LTV would act outside the general consent given in the
A greement by using Knutsson’s persona to endorse other material. LTV might do so, for instance, if it falsely stated that Knutsson endorsed a product or DeMuro. The combining of materials here, however, does not involve such deception and thus was not beyond plaintiffs’ consent. (See Cher
, supra , 692 F.2d at p. 638 [no liability against publication where the words it used to publicize a celebrity interview did not co nstitute a false claim
that the celeb rity endorsed the publication]; Page v. Something Weird Video (C.D. Cal. 1996) 960 F.Supp. 1438, 1445 [company that distributed home videocassettes could use celebrity’s image from two movies “to advertise their entire line of video products so long as they did not falsely claim that [the celebrity] endorsed” the company ]

. ) Finally, plaintiffs argue that LTV violated the co ntractual provision stating that “[n]othing in this Agreement gives KTLA ownership rights in the ‘ CyberGuy ’ designation used by [Knutsson]

. ” Knutsson does not state how LTV act ed in any way to indicate that it owned that designation. It merely used headings and banners with the CyberGuy designation in order to identify Knutsson’s material , and the A g reement authorized it to distribute the material “under [his] ‘Cyberguy’ brand

. ” Indeed, plaintiffs appear to have had no issue with LTV’s doing this, so long as Knutsson was employed by KTLA. The rights of KTLA and its licensees to use the material unde r the Agreement , however, did not terminate with Knutsson’s employment. In fact, the few actions that LTV took were consistent with it not owning the CyberGuy designation. As LTV moved its websites off of the Tribune Technology
Platform between November 2011 and April 2012, it did not keep the CyberGuy material. In January 2012, w hen a Tribune Broadcasting executive first told LTV he was going to “purge any remnants of Kurt the CyberGuy” from the sites still on the Tribune Technology P latform, an LTV exe cutive confirmed that Tribune Broadcasting should
remove the URL s and index pages related to that material as well. (See fn

. 4, above .)13

Finally, when on March 31, 2012, LTV received a legal notice from Knutsson, it immediately investigated and within a d ay removed the “obsolete” CyberGuy pages from
the on e station website that still displayed them. Notably, the evidence demonstrates that LTV did not exercise the utmost rights

t hat it was permitted under the A greement. S ome of Knutsson’s complaints abo ut the use of his name and photo graph along with other content on the same page ar o se because
LTV was not exploiting his material as much as it could

. KTLA and LTV had the contractual right to continue to display the CyberGuy material “forever,” so they could have kept all the CyberGuy material posted after Knutsson’s termination. Y et Knutsson’s works w ere being phased out as new material was “pushed” onto the LTV websites by Tribune Company , and/ or because Knutsson had requested its removal

. Further, K nuts s on’s work also was being completely removed from the LTV websites as LTV moved its stations’ webpages off of the Tribune Technology Platform

. As plaintiffs
consented to LTV ’s keeping all of Knutsson’s material on its website, combined with
other mate rial, but as LTV had no obligation to do so, it cannot exceed that consent by phasing out (or actively removing) a portion of the material during a transitional period to the complete elimination of the material

. For these reasons, plaintiffs cannot demon strate lack of consent to LTV’s use of the CyberGuy material, so summary judgment in favor of LTV was warranted on the common law misappropriation of name and likeness cause of action. Because we resolv e this and the other causes of actions on this ground , we do not address LTV’s arguments that its use of the CyberGuy material was protected by the First Amendment of the
United States Constitution

.

I I I. Section 3344 Section 3344 provides a statutory cause of action for commercial misappropriation
that co mplements, rather than codifies, the common law misappropriation cause of action. ( Eastwood
, supra , 149 Cal.App.3d at pp. 416

- 417 & fn. 6.) Under section 3344, a plaintiff must prove all the elements of the common law cause of action

. ( Orthopedic14

System s, Inc. v. Schlein (2011) 202 Cal.App.4th 529, 544 ( Orthopedic Systems ).) The
section 3344 cause of action therefore fails for the same reason as the common law cause
of action

–

plaintiffs cannot prove lack of consent.
In addition to the common law ele ments, section 3344 requires “a knowing use by the defendant as well as a direct connection between the alleged use and the commercial purpose.” ( Orthopedic Systems
, supra , 202 Cal.App.4th at p. 544 ; see Eastwood
, supra , 149 Cal.App.4th at p. 417 , fn. 6.) LTV does not dispute t hese additional elements,
because it knew it was using CyberGuy material pursuant to its contract with Tribune Company , and it used the CyberGuy material for a commercial purpose. S ection 3344
, subdivision ( f

) , however, contains an additional requirement that the owners or employees of certain mediums used for advertising , including television stations, have “knowledge of the unauthorized use” in order to be liable . As LTV owns television stations, subdivision (f) applies to it. U nder the MSA, LTV relied on Tribune Company to provide it with material for LTV’s websites, and Tribune Company agreed that LTV’s access would be “strictly limited to the rights and obligations contained within [] third

party vendor agreements” such as pla intiffs ’ A g reement with KTLA. LTV then passively received Knutsson’s material as the operators of the Tribune Technology Platform pushed the content onto LTV websites. Plaintiffs thus cannot prove LTV’s liability under
section 3344 because LTV had no kno wledge of the allegedly unauthorized use
, even if it
were without consent . Summary judgment for LTV was warranted on this cause of
action for this reason as well

.

IV. Unfair Business Practices
Plaintiffs also alleged that LTV violated Business and Prof ession s Code section
17200 et. seq. , the unfair competition law

. Section 17200 provides a private cause of action for any “unlawful, unfair or fraudulent business practice and unfair, deceptive, untrue or misleading advertising.” Section 17200 , however, is not a substitute for a tort
or contract action
, and it generally is limited to providing injunctive relief and restitution to prevent ongoing or threatened acts of unfair competition. ( Zhang v. Super ior Court15

(2013) 57 Cal.4th 364, 371. ) Our Supreme C ourt has stated that “ ‘s ection 17200

“ borrows ” violations of other laws and treats th em as unlawful practices’ that the unfair competition law makes independently actionable. ( State Farm Fire & Casualty Co. v. [ Super ior Court ] (1996) 45 Cal.App.4th 1093, 1103, citing Farmers Ins. Exchange v. Superior Court [( 1992) 2 Cal.4th 377, 383 ] ) .” ( Cel

- Tech Communications , Inc. v. L.A.
Cellular Tel ephone Co. (1999) 20 Cal.4th 163 , 180.) Here, as alleged against LTV, the sole factual basis for the sectio n 17200 clai m is
the same as for the misappropriation tort discussed in section II above. P laintiffs seek the precise monetary damages that they seek in the misappr opriation cause of action. Because summary judgment in favor of LTV was proper on the cause of action that the section 17200 claim “borrows,” summary judgment is likewise warranted on the unfair business practices claim.16 DISPOSITION The alternative writ is discharged and the stay previously imposed is lifted. A peremptory writ shall issue directing resp ondent court to vacate its April 4, 2016, order denying LTV’s summary judgment motion and enter a new and different order gra nting that motion. Costs in this original proceeding are awarded to LTV

. CERTIFIED FOR PUBLICATION

RAPHAEL, J. *

We co ncur:

TURNER, P. J.

KRIEGLER, J.

* Judge of the Superior Court of Los Angeles County , assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.