Samsung Electronics (Defendant) used a robot dressed like Vanna White’s (Plaintiff) in an advertisement without her consent and she sued for intellectual property rights violations.
The common law right of publicity protects a celebrity’s property interest in his or her identity from commercial exploitation, no matter how the identity is appropriated.
Defendant printed advertisements in several publications that included a robot dressed to resemble Plaintiff, a game show hostess. Plaintiff had not consented to the ads and was not paid for them. She sued for violations of her intellectual property rights. The trial court granted Defendant’s motion for summary judgment and Plaintiff appealed, arguing that her California common law right of publicity had been violated when Defendant appropriated her identity for profit.
Does the common law right of publicity protect a celebrity’s property interest in his or her identity from commercial exploitation even when the appropriation does not include the celebrity’s “name or likeness?”
(Goodwin, J.) Yes. The common law right of publicity protects a celebrity’s property interest in his or her identity from commercial exploitation, no matter how the identity is appropriated. California’s common law right of publicity has four elements: 1) a defendant’s use of plaintiff’s identity; 2) the appropriation of plaintiff’s name or likeness to the defendant’s advantage; 3) lack of the plaintiff’s consent; and 4) resulting injury. The trial court found that Plaintiff had not established an appropriation of her name or likeness in using the robot. However, the right of publicity does not require that an identity be appropriated in a precise way in order to be actionable. Celebrities have an interest in protecting their identities from commercial exploitation. The most popular celebrities can be easily brought to mind without specifically using their names or likenesses. In this case, the robot’s look, dress, and position on the game show set made it clear that it was meant to depict Plaintiff. Plaintiff has alleged facts showing that Defendant appropriated her identity. The trial court’s ruling on Defendant’s summary judgment motion as to the claim under the common law right of publicity was in error. Affirmed in part, reversed in part, and remanded.
(Alarcon, J.) California case law holds that a cause of action for appropriation under the common law right of publicity requires a plaintiff to prove use of her name or likeness. Federal case law on this matter also focused on advertisements representing that the person depicted was the plaintiff. Here, a robot is depicted, not Plaintiff. Plaintiff’s identity was not appropriated. The majority confuses Plaintiff’s identity with the role she assumes as hostess of the game show. The advertisement depicts attributes of the role that Plaintiff plays on the game show, but not her actual identity. I would affirm the trial court’s ruling in all respects.
A three-judge panel of the Ninth Circuit decided this case. Defendant petitioned for an en banc rehearing, but this petition was denied in White v. Samsung Electronics America, Inc., 989 F.2d 1512 (9th Cir. 1993).