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White v. Samsung Electronics America, Inc

Citation. White v. Samsung Elecs. Am., Inc., 989 F.2d 1512, 26 U.S.P.Q.2D (BNA) 1362, 93 Cal. Daily Op. Service 1933, 93 Daily Journal DAR 3477, 21 Media L. Rep. 1330 (9th Cir. Mar. 18, 1993)
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Brief Fact Summary.

Vanna White (Plaintiff), a well-known television personality, argued that an advertisement by Samsung Electronics America, Inc. (Defendant) had usurped her right of publicity, even though her likeness had not been incorporated in the advertisement.

Synopsis of Rule of Law.

A person’s right of publicity may be usurped even if the offending use did not incorporate that person’s likeness.


Samsung Electronics America, Inc. (Defendant) ran an advertisement that clearly indicated that Vanna White (Plaintiff) of the television game show “Wheel of Fortune†had been the basis for the images.  Plaintiff’s likeness, however, was not used in the advertisement.  Plaintiff sued, alleging violations of state statutory and common law right to publicity and the federal Lanham Act.  The district court dismissed and White (Plaintiff) appealed.


May a person’s right of publicity be usurped even if the offending use did not incorporate that person’s likeness?


(Goodwin, J.)  Yes.  A person’s right of publicity may be usurped even if the offending use did not incorporate that person’s likeness.


(Kozinski, J.)  Reducing too much intellectual property to private property is harmful.  Creativity is impossible without a rich public domain.  The majority opinion is a classic case of overprotection and erects a property right or remarkable and dangerous breadth: “Under the majority’s opinion, it’s now a tort for advertisers to remind the public of a celebrity.  Not to use a celebrity’s name, voice, signature or likeness; not to imply the celebrity endorses a product; but simply to evoke the celebrity’s image in the mind of the public.  This Orwellian notion withdraws far more from the public domain than prudence and common sense allow.  It conflicts with the Copyright Act and the Copyright Clause.  It raises serious First Amendment problems.â€Â  Samsung (Defendant) didn’t use White’s (Plaintiff) name, likeness, voice or signature—no one seeing the ad would have thought it was supposed to be Plaintiff.  Therefore, under California’s right of publicity precedent, the district court was correct in ruling that Plaintiff’s rights were not violated.  Reminding the public of someone’s copyrighted propert does not, as the majority indicates, “eviscerate†the copyright holder’s rights.  “All creators draw in part on the work of those who came before, referring to it, building on it, poking fun at it; we call this creativity, not piracy.â€Â  Instead of preventing the “evisceration†of White’s (Plaintiff) existing rights, the majority is intead crating a new and much broader property right.  Now, a celebrity has the additional, exclusive right to anything that reminds the viewer of her or him.  In this case, the majority is giving Plaintiff an exclusive right in what she does for a living.  This is not an appropriate balancing of the interest of the public with the rights of the copyright holder, because it does not contain the essential limitations of intellectual property law.  It does not leave anything in the public domain.  It robs the public of parodies of celebrities and undermines the essence of the copyright system.  Intellectual property law assures authors the right to their original expression, but encourages others to build freely on the ideas that underlie it.  This result is neither unfair nor unfortunate: It is the means by which intellectual property law advances the progress of art and science.  We give authors certain exclusive rights, but in exchange we get a richer public domain.  The majority ignores this wise teaching, and all of us are the poorer for it.  By refusing to recognize a parody exception to the right of publicity, the majority directly contradicts the federal Copyright Act’s fair use provisions.  That is because it is impossible to parody a movie or televisions show without at the same time evoking the identities of the actors, who should not ha e a veto over fair use parodies of the shows in which they appear.  The majority’s holding also conflicts with the federal copyright system, under which the dormant Copyright Clause requires that state intellectual property laws can stand only if they don’t prejudice the interest of other states.  However, the right of publicity is not limited geographically, so that one state’s right of publicity can restrict conduct everywhere, thereby interfering with other states’ legitimate interests.  Finally, the majority opinion conflicts with the First Amendment.  Not allowing any means of reminding people of someone is a speech restriction unparalleled in First Amendment law.


A similar and more well-known case was Midler v. Ford Motor Co., 849 F.2d 460 (9th Cir. 1988).  There, Ford had tried without success to hire entertainer Bette Midler to release the rights to her version of the song “Do You Want to Dance†to be used in an advertisement.  Ford then hired a “sound-alike†of Midler to record the song, which Ford used in an advertisement.  Midler argued successfully that her right of publicity had been violated.

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