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White v. Samsung Elecs. Am., Inc.

United States Court of Appeals for the Ninth Circuit

June 7, 1991, Argued and Submitted, Pasadena, California ; July 29, 1992, Filed

No. 90-55840

Opinion

 [***1583]  [*1396]   OPINION

GOODWIN, Circuit Judge:

This case involves a promotional "fame and fortune" dispute. In running a particular advertisement without Vanna White's permission, defendants Samsung Electronics America, Inc. (Samsung) and David Deutsch Associates, Inc. (Deutsch) attempted to capitalize on White's fame to enhance their fortune. White sued, alleging infringement of various intellectual property rights, but the district court granted summary judgment in favor of the defendants. We affirm in part, reverse in part, and remand.

Plaintiff Vanna White is the hostess of "Wheel of Fortune," one of the most popular game shows in television history. An estimated [**2]  forty million people watch the program daily. Capitalizing on the fame which her participation in the show has bestowed on her, White markets her identity to various advertisers.

The dispute in this case arose out of a series of advertisements prepared for Samsung by Deutsch. The series ran in at least [***1584]  half a dozen publications with widespread, and in some cases national, circulation. Each of the advertisements in the series followed the same theme. Each depicted a current item from popular culture and a Samsung electronic product. Each was set in the twenty-first century and conveyed the message that the Samsung product would still be in use by that time. By hypothesizing outrageous future outcomes for the cultural items, the ads created humorous effects. For example, one lampooned current popular notions of an unhealthy diet by depicting a raw steak with the caption: "Revealed to be health food. 2010 A.D." Another depicted irreverent "news"-show host Morton Downey Jr. in front of an American flag with the caption: "Presidential candidate. 2008 A.D."

The advertisement which prompted the current dispute was for Samsung video-cassette recorders (VCRs). The ad depicted a robot, dressed [**3]  in a wig, gown, and jewelry which Deutsch consciously selected to resemble White's hair and dress. The robot was posed next to a game board which is instantly recognizable as the Wheel of Fortune game show set, in a stance 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. Unlike the other celebrities used in the campaign, White neither consented to the ads nor was she paid.

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971 F.2d 1395 *; 1992 U.S. App. LEXIS 17205 **; 23 U.S.P.Q.2D (BNA) 1583 ***; 92 Cal. Daily Op. Service 6578; 92 Daily Journal DAR 10519; 20 Media L. Rep. 1457

VANNA WHITE, Plaintiff-Appellant, v. SAMSUNG ELECTRONICS AMERICA, INC., a New York corporation, and DAVID DEUTSCH ASSOCIATES, INC., a New York corporation, Defendants-Appellees.

Subsequent History:  Amended August 19, 1992, Reported at 1992 U.S. App. LEXIS 19253.

Prior History:  [**1]  Appeal from the United States District Court for the Central District of California. D.C. No. CV-88-06499-RSWL. Ronald S.W. Lew, District Judge, Presiding.

Disposition:  The court affirmed the grant of summary judgment on plaintiff's right of privacy claim, but reversed the judgment on the right to publicity and the Lanham Act claims because plaintiff pleaded claims sufficient to go to a jury.

CORE TERMS

robot, advertisement, celebrity, television, Fortune, depicted, endorsement, consumers, hostess, dress, famous, fame, infringement, photograph, parodies, privacy, blond, resemblance, attractive, deception, signature, exploit, jewelry, driver

Torts, Invasion of Privacy, Appropriation, General Overview, Trademark Law, Remedies, Damages, Causes of Action Involving Trademarks, Infringement Actions, Business & Corporate Compliance, Federal Unfair Competition Law, False Designation of Origin, Elements of False Designation of Origin, Entertainment Industry Falsity & Performance Misattribution, Trade Dress Protection, False Advertising, Determinations, Likelihood of Confusion, Subject Matter of Trademarks, Particular Subject Matter, Pictures, Civil Procedure, Appeals, Standards of Review, De Novo Review, Consumer Confusion, Circuit Court Factors, 9th Circuit Court, Summary Judgment Review, Similarity of Marks, Appearance, Meaning & Sound, 6th Circuit Court, Factors for Determining Confusion, Intent of Defendant to Confuse, Dilution of Famous Marks, Types of Damages, Profits, Summary Judgment, Supporting Materials