White v. Samsung Electronics America, Inc. (9^thCir.).

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Facts.  Vanna White is the hostess of "The Wheel of Fortune," one of the most popular game shows in television history. An estimated 40 million people watch the program daily. Capitalizing on her fame, White markets her identity to various advertisers. Samsung Electronics America, Inc. (Samsung), distributes various electronics products in the United States. Samsung and its advertising agency, David Deutsch Associates, Inc. (Deutsch), devised a series of advertisements that followed the same theme. Each depicted a current item of popular culture and a Samsung electronics product. The advertisements were set in the twenty-first century in order to convey the message that the Samsung product would still be in use at that time. The advertisement that prompted the current dispute was for Samsung videocassette recorders (VCRs). The ad depicted a robot that was outfitted to resemble White. The set in which the robot was posed was instantly recognizable as "The Wheel of Fortune" game show set, and the robot's stance was one for which White is famous. The caption of the ad read: "Longest-running game show. 2012 a.d." Defendants referred to the ad as the "Vanna White" ad. White did not consent to the ads and was not paid. White sued Samsung and Deutsch to recover damages for alleged misappropriation of her right to publicity. The district court granted defendants' motions for summary judgment. White appealed.

Issue. Did White properly plead the claim of misappropriation of the right to publicity?

Opinion. Goodwin, Senior Circuit Judge.  In Eastwood v. Superior Court, 149 CAL.App.3d 409, 198 Cal. Rptr. 342 (1983), the California court of appeals stated that the common law right of publicity cause of action may be pleaded by alleging (1) the defendant's use of the plaintiff's identity; (2) the appropriation of plaintiff's name or likeness to defendant's advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury. The district court dismissed White's claim for failure to satisfy Eastwood's second prong, reasoning that defendants had not appropriated White's "name or likeness" with their robot ad. The Eastwood court did not hold that the right of publicity cause of action could be pleaded only by alleging an appropriation of name or likeness. Eastwood involved an unauthorized use of photographs of Clint Eastwood and of his name. Accordingly, the Eastwood court had no occasion to consider the extent beyond the use of name or likeness to which the right of publicity reaches. That court held only that the right of publicity cause of action "may be" pleaded by alleging appropriation of name or likeness, not that the action may be pleaded only in those terms. Viewed separately, the individual aspects of the advertisement in the present case say little. Viewed together, they leave little doubt about the celebrity the ad is meant to depict. The female-shaped robot is wearing a long gown, blond wig, and large jewelry. Vanna White dresses exactly like this at times, but so do many other women. The robot is in the process of turning a block letter on a game-board. Vanna White dresses like this while turning letters on a game-board but perhaps similarly attired Scrabble-playing women do this as well. The robot is standing on what looks to be the Wheel of Fortune game show set. Vanna White dresses like this, turns letters, and does this on the Wheel of Fortune game show. She is the only one. Indeed, defendants themselves referred to their ad as the "Vanna White" ad. 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 rare ability, dumb luck, or a combination thereof.

Holding.  The court of appeals held that the law of misappropriation of the right of publicity had been properly pleaded by White under the facts of this case. The court reversed and remanded the case.

Case Questions Ethics.  Did Samsung act ethically in using Vanna White's celebrity status without getting her permission or paying her?

Policy.  Should the right to publicity be a protected right? Why or why not?

Business Implication.  Sometimes the worth of a celebrity's publicity goes up in value after his or her death. Can you think of any examples?