White v. Samsung Electronics America
971 F.2d 1395 (1992)
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Rule of Law:
The common law right of publicity protects against the unauthorized commercial appropriation of a celebrity's identity, which extends beyond their name or likeness to any element or combination of elements that evokes their persona. The use of a celebrity's identity in a commercial advertisement may also violate the Lanham Act if it creates a likelihood of consumer confusion as to endorsement.
Facts:
- Vanna White is the well-known hostess of the popular television game show, “Wheel of Fortune.”
- As part of her career, White markets her famous identity to various advertisers for compensation.
- Samsung Electronics America, Inc., through its advertising agency Deutsch, created a series of futuristic print advertisements for its products.
- One advertisement for Samsung VCRs depicted a female-shaped robot wearing a blonde wig, a formal gown, and jewelry, which were consciously selected to resemble White's appearance.
- The robot was posed on a game show set instantly recognizable as that of “Wheel of Fortune” in a letter-turning stance for which White is famous.
- The advertisement's caption read: “Longest-running game show. 2012 A.D.”
- Samsung and Deutsch internally referred to this specific advertisement as the “Vanna White” ad.
- White never consented to the advertisement nor received any payment for the use of her identity.
Procedural Posture:
- Vanna White sued Samsung Electronics America, Inc. and its advertising agency, David Deutsch Associates, Inc., in federal district court.
- White asserted claims for violation of California Civil Code § 3344, the California common law right of publicity, and § 43(a) of the Lanham Act.
- The district court granted summary judgment in favor of the defendants, Samsung and Deutsch, on all claims.
- White, as the appellant, appealed the summary judgment ruling to the United States Court of Appeals for the Ninth Circuit.
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Issue:
Does a company's commercial advertisement featuring a robot designed to evoke a celebrity's identity, without using her actual name, voice, or likeness, violate the celebrity's common law right of publicity and the Lanham Act?
Opinions:
Majority - Goodwin, Senior Circuit Judge
Yes. The unauthorized commercial use of a celebrity's identity is actionable under the common law right of publicity, even without using their specific name or likeness, and may also be actionable under the Lanham Act if it creates a likelihood of confusion. While the robot was not a statutory “likeness” of White, the common law right of publicity is broader and protects her entire identity from commercial appropriation. The court reasoned that the right of publicity is not limited to a laundry list of specific means of appropriation; the key inquiry is whether the celebrity’s identity has been appropriated, not how. The combination of the gown, wig, jewelry, and the recognizable game show set was sufficient to appropriate White's identity for Samsung's commercial advantage. For the Lanham Act claim, the court found a genuine issue of material fact regarding the likelihood of consumer confusion that White endorsed Samsung's VCRs, based on the strength of her persona and the context of the ad campaign, which featured other paid celebrities.
Dissenting - Alarcon, Circuit Judge
No. The advertisement does not violate the common law right of publicity or the Lanham Act because it did not use White's name or likeness and could not cause reasonable consumer confusion. The dissent argued that California common law has consistently required the use of a name or likeness for a right of publicity claim. The majority improperly created new law by extending protection to a vague concept of “identity.” Furthermore, the dissent contended that the advertisement depicted attributes of the role of a game-show hostess, not Vanna White the person, and that the majority's holding would improperly grant a monopoly over that role. Regarding the Lanham Act, the dissent argued that no reasonable juror could confuse a metal robot with Vanna White, so there is no likelihood of confusion, and White presented no evidence of actual deception.
Analysis:
This case significantly broadened the scope of the right of publicity by shifting the legal analysis from whether a specific, enumerated attribute (like name or likeness) was used to whether the celebrity's overall persona or 'identity' was commercially appropriated. The ruling established that a combination of contextual clues that evoke a celebrity can be enough to trigger liability, preventing advertisers from using clever imitations to profit from a celebrity's fame without permission. However, the decision also created tension with First Amendment principles, as the dissent warned it could chill parody and other forms of expression by giving celebrities a proprietary interest in the roles they play.
