White v. Samsung Electronics America, Inc.
989 F.2d 1512 (1993)
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Rule of Law:
The common law right of publicity extends beyond a celebrity's name, likeness, voice, or signature to protect against the commercial appropriation of a celebrity's 'identity,' which occurs when an advertisement's content is intended to evoke the celebrity in the public's mind.
Facts:
- Samsung Electronics America, Inc. (Samsung) initiated a print advertising campaign for its consumer electronics, featuring humorous predictions of the future.
- One advertisement in the series depicted a robot dressed in a blonde wig, an evening gown, and jewelry, styled in a manner reminiscent of Vanna White.
- The robot was posed next to a game board that resembled the set of the television game show 'Wheel of Fortune,' on which White was the hostess.
- The caption for the advertisement read, 'Longest-running game show. 2012 A.D.'
- The advertisement's joke was that the game show would still be on air in the future, but its human hostess would have been replaced by a robot.
- The advertisement did not use Vanna White's name, photograph, voice, or signature.
Procedural Posture:
- Vanna White sued Samsung Electronics America, Inc. in the U.S. District Court (a federal trial court), alleging infringement of her right of publicity.
- The district court granted summary judgment for Samsung, ruling that the ad did not violate White's right of publicity because it did not use her name, likeness, voice, or signature.
- White, as appellant, appealed the decision to the U.S. Court of Appeals for the Ninth Circuit.
- A three-judge panel of the Ninth Circuit reversed the district court, holding that the right of publicity protects against the appropriation of a celebrity's 'identity.'
- Samsung, as appellee, subsequently filed a petition for rehearing and a suggestion for rehearing en banc with the Ninth Circuit.
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Issue:
Does a celebrity's common law right of publicity protect against the appropriation of their 'identity' when an advertisement uses a robot designed to evoke the celebrity's persona, without using their actual name, likeness, voice, or signature?
Opinions:
Majority - Per Curiam
This is a procedural order, not an opinion on the merits. The court denies the petition for rehearing and rejects the suggestion for rehearing en banc, leaving the original panel's decision in place without further legal reasoning.
Dissenting - Judge Kozinski
No. Extending the right of publicity to protect anything that 'evokes' a celebrity's 'identity' is a dangerous and overbroad expansion of intellectual property law that harms the public domain, conflicts with federal copyright law, and violates the First Amendment. The court should have reheard the case to correct the panel's error. The dissent argues that creativity is impossible without a rich public domain, and the panel's decision withdraws too much from it by granting a celebrity a property right in anything that reminds the public of them. This effectively gives White a right not in her likeness, but in her role as hostess of 'Wheel of Fortune.' Furthermore, this state-law right undermines federal copyright law by impeding the ability to create parodies of copyrighted works (like the TV show), as it's impossible to parody a show without evoking its actors. Finally, the decision curtails First Amendment rights by allowing public figures to suppress mockery and parody in commercial speech, without the panel even applying the required 'Central Hudson' test for such restrictions.
Analysis:
Judge Kozinski's dissent from the denial of rehearing en banc is one of the most influential modern judicial opinions on the right of publicity. It crystallizes the fundamental tension between protecting celebrity personas as a form of intellectual property and upholding First Amendment principles and a vibrant public domain. Although it did not alter the outcome of the case, the dissent's powerful arguments regarding overprotection, federal preemption, and free speech have profoundly shaped subsequent academic debate and judicial reasoning concerning the appropriate limits of intellectual property rights in the context of popular culture and parody.
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