Caseflicks

Court of Appeals for the Ninth Circuit • 1992

Vanna White v. Samsung Electronics America, Inc., a New York Corporation, and David Deutsch Associates, Inc., a New York Corporation

971 F.2d 1395

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Takeaway

In short, this case holds that California’s common-law right of publicity can protect a celebrity’s commercially valuable identity even when an advertiser avoids using her name or literal likeness, especially where an ad unmistakably evokes her to sell products.

Background

Vanna White was the well-known hostess of Wheel of Fortune. Samsung and its advertising agency, David Deutsch Associates, ran a series of advertisements imagining popular cultural figures or objects in the twenty-first century. One advertisement promoted Samsung VCRs by showing a female-shaped robot in a blond wig, evening gown, and jewelry, posed beside a Wheel of Fortune-style game board as if turning a letter. The caption read, “Longest-running game show. 2012 A.D.” Samsung and Deutsch internally called it the “Vanna White” ad, although White neither consented nor was paid.

White sued under California Civil Code section 3344, California’s common-law right of publicity, and section 43(a) of the Lanham Act. The district court granted summary judgment for Samsung and Deutsch on all claims. The Ninth Circuit affirmed as to the statutory claim but reversed as to the common-law publicity and Lanham Act claims, remanding those claims for trial.

Issues

Issue #1

Whether the robot advertisement used White’s “likeness” in violation of California Civil Code section 3344.

Holding

No. The robot was not White’s likeness within the meaning of section 3344, so summary judgment for defendants on the statutory claim was proper.

Reasoning

Section 3344 prohibits the knowing commercial use of another’s name, voice, signature, photograph, or likeness without consent. White argued that the robot was her likeness because its wig, gown, jewelry, pose, and setting evoked her Wheel of Fortune appearance.

The court relied on Midler v. Ford Motor Co., which treated “likeness” under section 3344 as a visual image of the plaintiff rather than a more general evocation of the person’s identity. Samsung used a mechanical robot, not a mannequin or image molded to White’s actual facial features.

Without deciding when a caricature or impressionistic resemblance might qualify as a likeness in other circumstances, the court held that this particular robot did not. It therefore affirmed dismissal of White’s section 3344 claim.

Issue #2

Whether California’s common-law right of publicity protects a celebrity against commercial appropriation of her identity when the advertisement uses neither her name nor her literal likeness.

Holding

Yes. A right-of-publicity claim may proceed when the defendant appropriates the plaintiff’s identity, even without using the plaintiff’s name or literal likeness; White raised a triable issue that defendants did so.

Reasoning

The court rejected the district court’s view that the common-law claim required use of White’s name or likeness. Although Eastwood v. Superior Court listed appropriation of a plaintiff’s name or likeness as a way to plead the tort, the Ninth Circuit read Eastwood’s language as permissive rather than as an exclusive limitation on the right of publicity.

The right of publicity protects the commercial value of celebrity identity, not merely a fixed list of traits such as name, photograph, signature, voice, or likeness. Prior cases supported this broader principle: Motschenbacher allowed a claim based on a race car and its distinctive markings, Midler recognized a claim based on a sound-alike, and Carson recognized a claim based on Johnny Carson’s signature phrase, “Here’s Johnny.”

The relevant inquiry is therefore whether the defendant appropriated the plaintiff’s identity. Limiting liability to specified methods would let advertisers evade the right simply by inventing a new method of evoking a celebrity.

Viewed as a whole, the robot’s blond wig, glamorous dress, jewelry, letter-turning pose, and Wheel of Fortune-style set strongly identified White. The court emphasized that White was the only person associated with that combined image and that defendants themselves called the advertisement the “Vanna White” ad.

Because a reasonable jury could find that Samsung and Deutsch commercially appropriated White’s identity without consent, summary judgment was improper. The court reversed and remanded the common-law publicity claim.

Issue #3

Whether White raised a genuine issue of material fact that the advertisement was likely to confuse consumers into believing that she endorsed Samsung’s VCRs, in violation of section 43(a) of the Lanham Act.

Holding

Yes. Applying the Sleekcraft likelihood-of-confusion factors, the court held that White’s evidence was sufficient to send the false-endorsement claim to a jury.

Reasoning

For a celebrity false-endorsement claim, the plaintiff’s “mark” is her persona. White’s persona was strong because Wheel of Fortune made her widely recognizable, and her television-based fame was closely related to Samsung’s VCR product, which consumers would use to record television programming.

The similarity factor was mixed. The advertisement’s overall combination of clothing, pose, and game-show set identified White, but the depicted figure was visibly a robot rather than a human. That ambiguity required the court to consider the remaining factors.

White had no evidence of actual confusion, which weighed against her. But the advertisement appeared in magazines, a channel in which White herself had appeared in the same recognizable pose; consumers also were unlikely to exercise substantial care in determining who endorsed a VCR. Those factors favored a likelihood of confusion.

A jury could also infer an intent to create an endorsement impression. Samsung’s campaign used celebrities as part of its humor, and at least one other depicted celebrity, Morton Downey Jr., had participated and been paid. A jury could conclude that the campaign’s humor simultaneously suggested that its featured celebrities, including White, endorsed Samsung.

The court did not hold that White had proved confusion. It held only that, viewing the evidence in her favor at the summary-judgment stage, a reasonable jury could find likely confusion about whether she endorsed Samsung’s product.

Issue #4

Whether the advertisement’s humorous reference to White and Wheel of Fortune was protected parody that barred White’s claims.

Holding

No. The asserted parody did not defeat White’s claims at this stage because the ad was commercial advertising whose primary purpose was to sell Samsung VCRs.

Reasoning

Samsung relied on cases protecting parodic speech, including Hustler Magazine v. Falwell and L.L. Bean v. Drake Publishers. The court distinguished those cases because they involved works that used parody to comment on or mock their subjects, rather than conventional advertisements designed primarily to sell a product.

Samsung’s spoof of White and Wheel of Fortune was subordinate to the ad’s central sales message: consumers should buy Samsung VCRs. The court characterized the difference as one between a parody made for fun and a commercial knockoff made for profit.

The court also limited its ruling to commercial advertising that seeks to exploit celebrity value. It did not suggest that every expressive reference to a celebrity would be actionable; noncommercial parody and other expressive works receive more substantial First Amendment protection.

Dissents

Judge Alarcon

Reasoning

Judge Alarcon agreed that the robot was not White’s likeness under California Civil Code section 3344. He would, however, have affirmed summary judgment for Samsung and Deutsch on the common-law right-of-publicity and Lanham Act claims as well.

On the publicity claim, Judge Alarcon argued that California authority limited the cause of action to appropriation of a person’s name or likeness. In his view, the majority improperly created new California common law by extending the tort to a generalized appropriation of “identity,” despite the absence of a California decision applying that broader theory.

He also stressed that California’s legislature had amended section 3344 to add voice and signature to the protected attributes but had not added identity generally. That legislative choice, he argued, indicated an intent to limit protection to enumerated personal attributes rather than to create an open-ended identity right.

Judge Alarcon distinguished Motschenbacher, Midler, and Carson because those cases involved characteristics that affirmatively conveyed that the plaintiff was the person represented in the advertisement. By contrast, Samsung’s ad unmistakably depicted a robot, not White, and the blond hair, evening gown, jewelry, and poised appearance were common traits of game-show hostesses and entertainers rather than features unique to White.

He regarded the Wheel of Fortune-style set as an attribute of the game show and White’s role on it, not an attribute that White owned as her personal identity. In his view, the majority improperly gave White a proprietary interest in the role of glamorous female game-show hostess.

On the Lanham Act claim, Judge Alarcon maintained that White had produced no evidence of actual consumer deception, which he believed was required for damages. He further concluded that no reasonable consumer could infer that White endorsed Samsung when the advertisement visibly featured a crude metal robot rather than White herself.

Finally, Judge Alarcon warned that the majority’s approach threatened to expand publicity and trademark-like rights too far, potentially allowing celebrities to control depictions of roles, character types, or familiar cultural references. He viewed Samsung’s ad as a permissible use of the idea of a glamorous game-show hostess, not an appropriation of White’s protected expression or identity.