ProfessorMelissa A. Hale
CaseCast™ – "What you need to know"
Brief Fact Summary. Defendant ran a television ad, which depicted Plaintiff for the purpose of selling Defendant’s VCR. Plaintiff sued Defendant for appropriation.
Synopsis of Rule of Law. 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.
Issue. Is the appropriation of a person’s identity without consent an invasion of the right to privacy?
Held. Yes. Judgment reversed.
* Defendant used a robot with mechanical features and not, for example, a manikin molded to Plaintiff’s precise features. The robot at issue was not Plaintiff’s “likeness” within the meaning of section 3344.
* 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. 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. 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.
* 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.
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. Over-protection 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 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.