Vanna White Case

Vanna White Case (relevant portion)

[summary on p. 116 of text]

White v. Samsung, 971 F.2d 1395 (9th Cir. 1992)

II. Right of Publicity

White next argues that the district court erred in granting
summary judgment to defendants on White's common law right of
publicity claim. In Eastwood v. Superior Court, 149 Cal. App. 3d
409 , 198 Cal. Rptr. 342 (1983), the California court of appeal
stated that the common law right of publicity cause of action "may
be pleaded by alleging (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 417 (citing Prosser, Law of
Torts (4th ed. 1971) 117, pp. 804-807). The district court
dismissed White's claim for failure to satisfy Eastwood's second
prong, reasoning that defendants had not appropriated White's
"name or likeness" with their robot ad. We agree that the robot ad
did not make use of White's name or likeness. However, the common
law right of publicity is not so confined.

The Eastwood court did not hold that the right of publicity cause of
action could be pleaded only by alleging an appropriation of name or
likeness. Eastwood involved an unauthorized use of photographs of
Clint Eastwood and of his name. Accordingly, the Eastwood court
had no occasion to consider the extent beyond the use of name or
likeness to which the right of publicity reaches. That court held
only that the right of publicity cause of action "may be" pleaded by
alleging, inter alia, appropriation of name or likeness, not that the
action may be pleaded only in those terms.

The "name or likeness" formulation referred to in Eastwood
originated not as an element of the right of publicity cause of
action, but as a description of the types of cases in which the cause
of action had been recognized. The source of this formulation is
Prosser, Privacy, 48 Cal.L.Rev. 383, 401-07 (1960), one of the
earliest and most enduring articulations of the common law right of
publicity cause of action. In looking at the case law to that point,
Prosser recognized that right of publicity cases involved one of two
basic factual scenarios: name appropriation, and picture or other
likeness appropriation. Id. at 401-02, nn.156-57.

Even though Prosser focused on appropriations of name or likeness
in discussing the right of publicity, he noted that "it is not
impossible that there might be appropriation of the plaintiff's
identity, as by impersonation, without the use of either his name or
his likeness, and that this would be an invasion of his right of
privacy." Id. at 401, n.155. n1 At the time Prosser wrote, he noted
however, that "no such case appears to have arisen." Id.

- - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - -

n1 Under Professor Prosser's scheme, the right of publicity is the
last of the four categories of the right to privacy. Prosser, 48
Cal.L.Rev. at 389.

- - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - -

Since Prosser's early formulation, the case law has borne out his
insight that the right of publicity is not limited to the appropriation
of name or likeness. In Motschenbacher v. R.J. Reynolds Tobacco
Co., 498 F.2d 821 (9th Cir. 1974), the defendant had used a
photograph of the plaintiff's race car in a television commercial.
Although the plaintiff appeared driving the car in the photograph,
his features were not visible. Even though the defendant had not
appropriated the plaintiff's name or likeness, this court held that
plaintiff's California right of publicity claim should reach the jury.

In Midler, this court held that, even though the defendants had not
used Midler's name or likeness, Midler had stated a claim for
violation of her California common law right of publicity because
"the defendants . . . for their own profit in selling their product did
appropriate part of her identity" by using a Midler sound-alike. Id.
at 463-64.

In Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831
(6th Cir. 1983), the defendant had marketed portable toilets
under the brand name "Here's Johnny" - Johnny Carson's signature
"Tonight Show" introduction - without Carson's permission. The
district court had dismissed Carson's Michigan common law right of
publicity claim because the defendants had not used Carson's "name
or likeness." Id. at 835. In reversing the district court, the sixth
circuit found "the district court's conception of the right of
publicity . . . too narrow" and held that the right was implicated
because the defendant had appropriated Carson's identity by using,
inter alia, the phrase "Here's Johnny." Id. at 835-37.

These cases teach not only that the common law right of publicity
reaches means of appropriation other than name or likeness, but
that the specific means of appropriation are relevant only for
determining whether the defendant has in fact appropriated the
plaintiff's identity. The right of publicity does not require that
appropriations of identity be accomplished through particular means
to be actionable. It is noteworthy that the Midler and Carson
defendants not only avoided using the plaintiff's name or likeness,
but they also avoided appropriating the celebrity's voice, signature,
and photograph. The photograph in Motschenbacher did include the
plaintiff, but because the plaintiff was not visible the driver could
have been an actor or dummy and the analysis in the case would
have been the same.

Although the defendants in these cases avoided the most obvious
means of appropriating the plaintiffs' identities, each of their
actions directly implicated the commercial interests which the right
of publicity is designed to protect. As the Carson court explained:

the right of publicity has developed to protect the commercial
interest of celebrities in their identities. The theory of the right is
that a celebrity's identity can be valuable in the promotion of
products, and the celebrity has an interest that may be protected
from the unauthorized commercial exploitation of that identity. . . .
If the celebrity's identity is commercially exploited, there has
been an invasion of his right whether or not his "name or likeness" is
used.

Carson, 698 F.2d at 835. It is not important how the defendant
has appropriated the plaintiff's identity, but whether the
defendant has done so. Motschenbacher, Midler, and Carson teach
the impossibility of treating the right of publicity as guarding only
against a laundry list of specific means of appropriating identity. A
rule which says that the right of publicity can be infringed only
through the use of nine different methods of appropriating identity
merely challenges the clever advertising strategist to come up with
the tenth.

Indeed, if we treated the means of appropriation as dispositive in
our analysis of the right of publicity, we would not only weaken the
right but effectively eviscerate it. The right would fail to protect
those plaintiffs most in need of its protection. Advertisers use
celebrities to promote their products. The more popular the
celebrity, the greater the number of people who recognize her, and
the greater the visibility for the product. The identities of the
most popular celebrities are not only the most attractive for
advertisers, but also the easiest to evoke without resorting to
obvious means such as name, likeness, or voice.

Consider a hypothetical advertisement which depicts a mechanical
robot with male features, an African-American complexion, and a
bald head. The robot is wearing black hightop Air Jordan basketball
sneakers, and a red basketball uniform with black trim, baggy
shorts, and the number 23 (though not revealing "Bulls" or "Jordan"
lettering). The ad depicts the robot dunking a basketball one-
handed, stiff-armed, legs extended like open scissors, and tongue
hanging out. Now envision that this ad is run on television during
professional basketball games. Considered individually, the robot's
physical attributes, its dress, and its stance tell us little. Taken
together, they lead to the only conclusion that any sports viewer
who has registered a discernible pulse in the past five years would
reach: the ad is about Michael Jordan.

Viewed separately, the individual aspects of the advertisement in
the present case say little. Viewed together, they leave little doubt
about the celebrity the ad is meant to depict. The female-shaped
robot is wearing a long gown, blond wig, and large jewelry. Vanna
White dresses exactly like this at times, but so do many other
women. The robot is in the process of turning a block letter on a
game-board. Vanna White dresses like this while turning letters on a
game-board but perhaps similarly attired Scrabble-playing women
do this as well. The robot is standing on what looks to be the Wheel
of Fortune game show set. Vanna White dresses like this, turns
letters, and does this on the Wheel of Fortune game show. She is
the only one. Indeed, defendants themselves referred to their ad
as the "Vanna White" ad. We are not surprised.

Television and other media create marketable celebrity identity
value. Considerable energy and ingenuity are expended by those who
have achieved celebrity value to exploit it for profit. The law
protects the celebrity's sole right to exploit this value whether the
celebrity has achieved her fame out of rare ability, dumb luck, or a
combination thereof. We decline Samsung and Deutch's invitation to
permit the evisceration of the common law right of publicity
through means as facile as those in this case. Because White has
alleged facts showing that Samsung and Deutsch had appropriated
her identity, the district court erred by rejecting, on summary
judgment, White's common law right of publicity claim.


	Vanna White Case (relevant portion) [summary on p. 116 of text] White v. Samsung, 971 F.2d 1395 (9th Cir. 1992) II. Right of Publicity White next argues that the district court erred in granting summary judgment to defendants on White's common law right of publicity claim. In Eastwood v. Superior Court, 149 Cal. App. 3d 409 , 198 Cal. Rptr. 342 (1983), the California court of appeal stated that the common law right of publicity cause of action "may be pleaded by alleging (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 417 (citing Prosser, Law of Torts (4th ed. 1971) 117, pp. 804-807). The district court dismissed White's claim for failure to satisfy Eastwood's second prong, reasoning that defendants had not appropriated White's "name or likeness" with their robot ad. We agree that the robot ad did not make use of White's name or likeness. However, the common law right of publicity is not so confined. The Eastwood court did not hold that the right of publicity cause of action could be pleaded only by alleging an appropriation of name or likeness. Eastwood involved an unauthorized use of photographs of Clint Eastwood and of his name. Accordingly, the Eastwood court had no occasion to consider the extent beyond the use of name or likeness to which the right of publicity reaches. That court held only that the right of publicity cause of action "may be" pleaded by alleging, inter alia, appropriation of name or likeness, not that the action may be pleaded only in those terms. The "name or likeness" formulation referred to in Eastwood originated not as an element of the right of publicity cause of action, but as a description of the types of cases in which the cause of action had been recognized. The source of this formulation is Prosser, Privacy, 48 Cal.L.Rev. 383, 401-07 (1960), one of the earliest and most enduring articulations of the common law right of publicity cause of action. In looking at the case law to that point, Prosser recognized that right of publicity cases involved one of two basic factual scenarios: name appropriation, and picture or other likeness appropriation. Id. at 401-02, nn.156-57. Even though Prosser focused on appropriations of name or likeness in discussing the right of publicity, he noted that "it is not impossible that there might be appropriation of the plaintiff's identity, as by impersonation, without the use of either his name or his likeness, and that this would be an invasion of his right of privacy." Id. at 401, n.155. n1 At the time Prosser wrote, he noted however, that "no such case appears to have arisen." Id. - - - - - - - - - - - - - - - - - -Footnotes- - - - - - - - - - - - - - - - - - n1 Under Professor Prosser's scheme, the right of publicity is the last of the four categories of the right to privacy. Prosser, 48 Cal.L.Rev. at 389. - - - - - - - - - - - - - - - - -End Footnotes- - - - - - - - - - - - - - - - - Since Prosser's early formulation, the case law has borne out his insight that the right of publicity is not limited to the appropriation of name or likeness. In Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974), the defendant had used a photograph of the plaintiff's race car in a television commercial. Although the plaintiff appeared driving the car in the photograph, his features were not visible. Even though the defendant had not appropriated the plaintiff's name or likeness, this court held that plaintiff's California right of publicity claim should reach the jury. In Midler, this court held that, even though the defendants had not used Midler's name or likeness, Midler had stated a claim for violation of her California common law right of publicity because "the defendants . . . for their own profit in selling their product did appropriate part of her identity" by using a Midler sound-alike. Id. at 463-64. In Carson v. Here's Johnny Portable Toilets, Inc., 698 F.2d 831 (6th Cir. 1983), the defendant had marketed portable toilets under the brand name "Here's Johnny" - Johnny Carson's signature "Tonight Show" introduction - without Carson's permission. The district court had dismissed Carson's Michigan common law right of publicity claim because the defendants had not used Carson's "name or likeness." Id. at 835. In reversing the district court, the sixth circuit found "the district court's conception of the right of publicity . . . too narrow" and held that the right was implicated because the defendant had appropriated Carson's identity by using, inter alia, the phrase "Here's Johnny." Id. at 835-37. These cases teach not only that the common law right of publicity reaches means of appropriation other than name or likeness, but that the specific means of appropriation are relevant only for determining whether the defendant has in fact appropriated the plaintiff's identity. The right of publicity does not require that appropriations of identity be accomplished through particular means to be actionable. It is noteworthy that the Midler and Carson defendants not only avoided using the plaintiff's name or likeness, but they also avoided appropriating the celebrity's voice, signature, and photograph. The photograph in Motschenbacher did include the plaintiff, but because the plaintiff was not visible the driver could have been an actor or dummy and the analysis in the case would have been the same. Although the defendants in these cases avoided the most obvious means of appropriating the plaintiffs' identities, each of their actions directly implicated the commercial interests which the right of publicity is designed to protect. As the Carson court explained: the right of publicity has developed to protect the commercial interest of celebrities in their identities. The theory of the right is that a celebrity's identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity. . . . If the celebrity's identity is commercially exploited, there has been an invasion of his right whether or not his "name or likeness" is used. Carson, 698 F.2d at 835. It is not important how the defendant has appropriated the plaintiff's identity, but whether the defendant has done so. Motschenbacher, Midler, and Carson teach the impossibility of treating the right of publicity as guarding only against a laundry list of specific means of appropriating identity. A rule which says that the right of publicity can be infringed only through the use of nine different methods of appropriating identity merely challenges the clever advertising strategist to come up with the tenth. Indeed, if we treated the means of appropriation as dispositive in our analysis of the right of publicity, we would not only weaken the right but effectively eviscerate it. The right would fail to protect those plaintiffs most in need of its protection. Advertisers use celebrities to promote their products. The more popular the celebrity, the greater the number of people who recognize her, and the greater the visibility for the product. The identities of the most popular celebrities are not only the most attractive for advertisers, but also the easiest to evoke without resorting to obvious means such as name, likeness, or voice. Consider a hypothetical advertisement which depicts a mechanical robot with male features, an African-American complexion, and a bald head. The robot is wearing black hightop Air Jordan basketball sneakers, and a red basketball uniform with black trim, baggy shorts, and the number 23 (though not revealing "Bulls" or "Jordan" lettering). The ad depicts the robot dunking a basketball one- handed, stiff-armed, legs extended like open scissors, and tongue hanging out. Now envision that this ad is run on television during professional basketball games. Considered individually, the robot's physical attributes, its dress, and its stance tell us little. Taken together, they lead to the only conclusion that any sports viewer who has registered a discernible pulse in the past five years would reach: the ad is about Michael Jordan. Viewed separately, the individual aspects of the advertisement in the present case say little. Viewed together, they leave little doubt about the celebrity the ad is meant to depict. The female-shaped robot is wearing a long gown, blond wig, and large jewelry. Vanna White dresses exactly like this at times, but so do many other women. The robot is in the process of turning a block letter on a game-board. Vanna White dresses like this while turning letters on a game-board but perhaps similarly attired Scrabble-playing women do this as well. The robot is standing on what looks to be the Wheel of Fortune game show set. Vanna White dresses like this, turns letters, and does this on the Wheel of Fortune game show. She is the only one. Indeed, defendants themselves referred to their ad as the "Vanna White" ad. We are not surprised. Television and other media create marketable celebrity identity value. Considerable energy and ingenuity are expended by those who have achieved celebrity value to exploit it for profit. The law protects the celebrity's sole right to exploit this value whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof. We decline Samsung and Deutch's invitation to permit the evisceration of the common law right of publicity through means as facile as those in this case. Because White has alleged facts showing that Samsung and Deutsch had appropriated her identity, the district court erred by rejecting, on summary judgment, White's common law right of publicity claim.