What are the style (the abbreviated party names) and the legal citation for your case?
White v. Samsung Inc., 989 F.2d 1512, 1993 U.S. App (9th Cir. 1992) (White).
What is the system and level of the “instant court?”
Federal appeals.
Who wrote the opinion in your case?
Goodwin, Senior Circuit Judge.
Summarize in your own words the facts that led to the legal conflict in your case.
David Deutsch Associate, Inc. created a series of advertisements on behalf of Samsung Electronics America, Inc., that depicted Samsung products as still in use and popular in caricature versions of the futuristic 21st century. One of these ads depicted a humanoid robot dressed and attired in a way that resembled the plaintiff Vanna White, who operated a game show also similar to the game show “Wheel of Fortune,” which Vanna White is famous for. White was not contacted about this ad, and no permission was asked to use her likeness. She responded by suing the companies for using her likeness without her permission.
What is the legal history of this case?
The cause of the action was the unauthorized use of the nationwide-known American television personality and film actress Vanna White’s likeness for advertising purposes, without the plaintiff’s consent and without her being paid like the other celebrities who participated in the campaign.
The case originated in the federal district court, where Vanna White sued the defendants according to the California Civil Code Section 3344, which demands financial compensation for the knowing usage of a different person’s likeness or recognizable traits for commercial purposes without their consent, the California common law right of publicity, which protects a person’s name, voice, signature, photograph or likeness from being used for exploitative purposes, and finally the Lanham Act, which deals with trademark infringement. However, the lower court passed summary judgment against all of the plaintiff’s claims and postulated that the image Samsung and Deutsch used was not the plaintiff’s likeness according to the law and that publicity law required the appearance or name to be used for the accusation to be valid. The lower court used the Eastwood v. Superior Court case, where usage of the plaintiff’s name and the photograph was part of the offense, as an example of what constitutes “likeness.” Samsung and Deutsch also stated that the likeness that was present was used as a parody and constituted protected speech.
However, Vanna White believed that the lower court had made a mistake in their judgment, as viewers were expected to connect the image of the robot with that of White, and that this could not be regarded as a spoof (providing a reprieve from the Right of Publicity Claim), since most viewers would be under the impression that White was promoting the product, similar to the other celebrities who were involved with the advertisement. For this reason, she filed an appeal to the United States Court of Appeals.
What are the media law issues presented in the case?
Is the usage of a person’s likeness without consent a violation of their right of publicity?
When can the use of a “likeness” be defined as parody and fall under protected speech?
What can be defined as the “likeness” of a person?
What was the legal outcome of the media law issues?
Under the Civil Code Section 3344, Samsung and Deutsch would have to compensate damages that are the result of the use of the plaintiff’s “name, voice, signature, photograph, or likeness in any manner,” for commercial purposes and without the plaintiff’s prior consent. To win this part of the charges, Vann White would need to prove that her likeness was used.
Over the course of the trial, the court referred to the Midler v. Ford case, in which the court declined charges of the use of Better Midler “sound-alike” to sing a song the latter made famous. It was concluded that “likeness” refers to a visual image and not an imitation, vocal or otherwise.
As a result, it was decided that the image of a robot does not constitute the “likeness” of the plaintiff within the definition of the discussed section of the Civil Code.
A much more complicated issue was the matter of White’s right of publicity. The decision of the original trial was contested on the basis that the common law right of publicity is not limited in its definition by the name or likeness of the plaintiff.
It was argued that in the Eastwood case, which was used as a retort to the original claim, the case did not take into account that, according to Prosser, it is possible to appropriate a persons’ identity without using their name or appearance, and that such actions would constitute an invitation of their privacy. The idea discussed by Prosser was further reinforced by the Motschenbacher v. Reynolds Tobacco and Carson v. Here’s Johnny Portable Toilet, Inc., which showed that the identities of the plaintiffs could be exploited without directly showing their likeness or mentioning their names and that the focus of the court case should be not on whether specific means of identity appropriation were used, but on whether the act itself can be proven to have happened.
Under these conditions, the court has agreed that the image Samsung and Deutsch have created for their ad may not have been a likeness of Vanna White but was designed to exploit her public image for commercial benefit without her permission, which was further reinforced by the companies referring to the add as the “Vanna White” ad. This implied understanding of the issue and further supported the court’s decision that the district court was mistaken in its original evaluation of White’s claim.
White’s last argument hinged on the Lanham Act, which positioned that any person or company using false description or representation of a person to support goods or services was liable to civil action and could be forced to refund damages caused by their actions.
While the companies defended their position by claiming the image used in the ad to be a parody and thus protected under the First Amendment, White needed to prove that the ad could, on purpose or accidentally, create confusion among the audience that she was endorsing Samsung products.
To determine the likelihood of such a confusion, the 9th circuit conducted an investigation, which studied how recognizable and “strong” was White’s own image, how similar it was to that used by Samsung, whether White could be associated with Samsung’s goods, whether there was evidence or the possibility of such confusion by the audience to the nature of the character, what marketing channels are used, whether there was an intention by the defendant to use the plaintiff’s image, and whether the use of the image benefited the defendants commercially.
By studying these factors, the court determined that there had indeed in this situation the use of White’s image was intentional and carried a commercial nature, which meant that it couldn’t be classified as a parody and cause damage to White. Again, this meant that the decision of the lower court was overturned in favor of the plaintiff.
On the basis of these facts, the court satisfied the appeal.
Were there any dissents? Who wrote them, and what did they say?
The case was concluded with the dissent by Alarcon, the Circuit Judge.
He agreed with the general decision with the appeal court that the robot used in the ad was not a likeness of Vanna White but disagreed with the majority’s opinion on White’s right to publicity claim.
He said that he did not agree that Vanna White’s “identity” was appropriated. To support his opinion, he referred to the same Eastwood v. Superior Court case that was used by the district court and again reaffirmed the opinion that the name of the likeness needed to be appropriated to validate the publicity claim. He supported this assertion with a number of prior cases that discussed the appropriation of these traits for commercial profit by the defendant and with the fact that at the time that Prosser made the claim that was used in the court, no cases of the discussed nature existed.
Alarcon’s principle argument postulates that while the California Common Law was permissive of new interpretations of identity appropriation, no such cases had been reported prior. He asserted that the traits which Samsung and Deutsch used were not unique to Vanna White but were rather part of the role she played on television, which does not constitute Vanna White’s identity. And the decorations of the game show, which might have been associated with Vanna White due to her being its hostess, are also not a part of her identity. He also declined the fact that Samsung recognizes Vanna White’s value as a product endorser as a possible motive for them using her identity.
In the end, he agreed the image used by Samsung was reminiscent of Vanna White but stated that this was because her image as a hostess has become so integrated into the pop-culture.
He also disagreed with the court’s decision on the Lanham Act and stated that since the plaintiff and the robot used in the ad couldn’t be reasonably mistaken for one another, and that is was clear that Vanna White was not endorsing the discussed product, and that Samsung had no intention to induce such confusion.
Finally, he disagreed with the majority’s opinion that the addition could not be classified as parody due to its commercial use and noted how, if this approach was enforced in other cases, many advertisements created as a response to their completion would seize to exist, and the companies creating them could be brought to court for damages simply for creating a facsimile of a different product.
What kind of law (statutory, administrative, case, and constitutional) is at issue in this case?
This case referred to a number of different laws to support the plaintiff’s claim and to protect the defendant’s interests.
The defendants attempted to use constitutional law by referring to the First Amendment and claiming their work to have been a parody.
In turn, the plaintiff relied on statutory laws Section 3344 of the Civil Code, the Californian common law right of publicity, and the Lanham (Trademark) Act, which she claimed Samsung and Deutsch violated by suing to create their add and using her image as a popular hostess of a game show to achieve commercial profit.
Express your opinion of the court’s opinion. Do you agree or disagree with the court’s opinion? Why?
I fully agree with the court’s decision on the appeal. While it is clear that Vanna White possesses certain marketable features that can be used to attract additional customers, this aspect of the case is not covered under Section 3344, which is quite specific in terms of what constitutes using somebody’s likeness for the benefit, and the case made by White does not conform to these terms. To successfully win the argument about the use of her likeness, she would need to show the court that the robot that Samsung and Deutsch used in the ad had the identical appearance to White, in the same what a photograph does.
Therefore, the district court was correct in dismissing this claim.
However, the lower courts were erroneous in their decisions on the Right of Publicity and the Lanham Act.
The image that Vanna White created for the game show is a large part of her appeal to the customer base and is what differentiates her from other game show hosts, whom Circuit Judge Alarcon in his dissent. What is important here is not that the style is imitated by other hosts but that its commercial value lies in its association with the plaintiff, and that, despite the presence of other hosts, the robot would be associated with Vanna White. This is the result of her craft as a celebrity and needs to be recognized as such, something that Judge Alarcon did not agree with as well, based on his remarks about the role of the host being unrelated to White’s skills as an individual. The defendants themselves used the name “Vanna White ad,” which shows that they associated the image they created with a specific person, recognized the possibility that the customers might do the same, and use her perceived authority and appeal as a television host to market TV-related goods. Again, Judge Alarcon did not address these defendants’ words.
While it is true that overprotection of intellectual property can have severe drawbacks and put limitations on the creativity of the media, it is also true that a company should not be able to benefit at the expense of a personal image constructed by a celebrity without their agreement.
It is my opinion that resolving a case solely on precedents is limiting to the US legislative system, and the opinions expressed by Judge Alarcon is his dissent on how it skews the perception of the case. It is a positive development that the appeal looked at the claims raised by the plaintiff in their own context, as well as by comparing them to previous cases.