Synopsis of Rule of Law. A celebrity’s appropriation and identity has a marketable value. A
celebrity’s name, likeness, signature and voice is protected by law and cannot be exploited for
the purposes of a commercial without consent or compensation.
Facts. Vanna White the famous “Wheel of Fortune” hostess (“Plaintiff”) sues Samsung alleging
infringement of various intellectual property rights arising from an ad consciously depicting a
robot standing in front of what is instantly recognizable as the Wheel of Fortune game
board. Plaintiff neither consented to the ads nor was paid. Plaintiff sued Defendant for: (1)
California Civil Code section 3344, (2) the California common law right of publicity; and (3) the
Lanham Act. The district court granted summary judgment against Plaintiff on each of her
claims. Plaintiff appealed.
Issue. Is the “appropriation” of a person’s “identity” without consent an invasion of the right to
privacy?
Held. Yes. Judgment reversed. 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; (3) lack of consent; and (4) resulting injury. The
right of publicity is not limited to the appropriation of name or likeness – the common law right
of publicity is not so defined.
-The right of publicity had developed to protect the commercial interest of celebrities in their
identities. A celebrity’s identity can be valuable in the promotion of products. Celebrities have
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. It is not important how Defendant has
appropriated Plaintiff’s identity, but whether Defendant has done so.
– Television and other media create marketable celebrity identity value. The law protects the
celebrity’s sole right to exploit this value whether the celebrity has achieved her fame out of
rear ability, dumb luck, or a combination thereof.
Dissent. (J. Kozinski) Overprotecting intellectual property is as harmful as under protecting it.
Creativity is impossible without a rich public domain. Nothing today, likely nothing since we
tamed fire, grows by accretion, each new creator building on the works of those who came
before. Overprotection stifles the very creative forces it’s supposed to nurture.
Discussion. In this case, the Court abandoned the strict common law rules of appropriation. The
Defendant used a robot with mechanical features and did not use Plaintiff’s precise features.
The robot at issue was not Plaintiff’s “likeness” within the meaning of section
3344. Nevertheless, the viewer of the ad could clearly see that it was an attempt to convey
Plaintiff on the set of Wheel of Fortune. Defendant hoped to profit from Plaintiff’s fame
without paying her for it. Because Plaintiff did not consent to such appropriation, Defendant is
liable.
-Defendant’s claim of the parody defense is rejected. Parodies of advertisements run for the
purpose of poking fun. In this case, the ad’s primary message is: “buy Samsung VCRs.” The
difference between a parody and a knock-off is the difference between fun and profit.