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Vanna White v. Samsung Electronics America, Inc. (1992)
United States Court of Appeals, 9th Circuit

Background:
The Plaintiff is Vanna White, a popular game hostess of the famous TV show “Wheel of Fortune” and has gained popularity by marketing her image to various advertisers. White brings suit against Samsung for an advertisement for Samsung VCRs (videocassette recorders) where the ad depicted a robot, dressed in a wig, gown, and jewelry that resembled her hair and dress. The robot posed next to a game board that closely resembled the Wheel of Fortune game show set, in a stance that imitates her signature pose on the game show. Samsung has also acknowledged that the ad is known as the “Vanna White” ad. White claims infringement of several individual property rights (right to privacy, under Section 3344 of the California Civil Code*, right of publicity, and trademark infringement), claiming she did not consent to the ads and was not paid for it. But the district court granted summary judgment against White. White appeals. (*Any person who knowingly uses another's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for purposes of advertising or selling, or soliciting purchases of, products, merchandise, goods or services, without such person's prior consent, or, in the case of a minor, the prior consent of his parent or legal guardian, shall be liable for any damages sustained by the person or persons injured as a result thereof.)

Legal Question:
Is the Samsung ad without using White’s name or likeness an infringement of her common law right of publicity? (Is the appropriation of a person’s identity without consent an invasion of the right to privacy?)

Yes. In Eastwood v. Superior Court, 1983 (a newspaper published a false article about a love triangle involving a well-known actor and made telecast advertisements in which it featured his name, photograph, and mentioned prominently the subject of the article), the California court of appeals stated that the common law right of publicity cause of action may be pleaded by alleging: (1) Defendant’s use of 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. The district court dismissed White’s claim for failure to satisfy Eastwood’s second part, reasoning that defendants had not appropriated White’s “name or likeness”. The court said that the right of publicity is not limited to the appropriation of name or likeness – the common law right of publicity is not so confined.

Reasons:
1. The right of publicity is not limited to the appropriation of name or likeness.
The court looked at three other precedents.
1. Motschenbacher v. R.J. Reynolds Tobacco Co. (1974)
Fact: The defendant had used a photograph of the plaintiff’s racecar in a television commercial. Although the plaintiff appeared driving the car in the photograph, his features were not visible.
Conclusion: 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.

2. Midler v. Ford Motor Co. (1988)
Fact: The famous singer Bette Midler was asked to sing a famous song of hers for Ford’s commercial and refused. Ford hired a voice-impersonator of Midler and carried on with using the song for the commercial.
Conclusion: Even though the defendants had not used Midler’s name or likeness, this court held that the defendants for their own profit in selling their product did appropriate part of her identity by using a Midler sound-alike.

3. Carson v. Here’s Johnny Portable Toilets, Inc. (1983)
Fact: The defendant had marketed portable toilets under the brand name “Here’s Johnny”, which is Johnny Carson’s signature “Tonight Show” introduction, without Carson’s permission.
Conclusion: The court of appeals also reversed the district court’s ruling reasoning that the district court’s conception of the right of publicity is too narrow. Even though the defendants had not used Carson’s name or likeness, they did appropriate his identity by using the phrase “Here’s Johnny”.

2. It is not important how the defendant has appropriated the plaintiff’s identity, but whether the defendant has done so.
The right of publicity does not require that appropriations of identity be accomplished through particular means to be actionable. The precedents show that it’s impossible to protect the right of publicity only against a list of specific means of appropriating identity. For example, 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. Although they 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*. If a rule says that the right of publicity can be infringed only through the use of nine different methods of appropriating identity, then the clever advertising strategist can definitely come up with the tenth.

(*The Carson court explained that 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.)

Decision:
The court affirmed in part, reversed in part, and held only that White has pleaded claims which can go to the jury for its decision.…...

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