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White v. Samsung Elecs. Am., Inc. - 1992 U.S. App. LEXIS 19253 (9th Cir. Aug. 19, 1992)

Rule:

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.

Facts:

In running a particular advertisement without plaintiff 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. The advertisement in question was for Samsung video-cassette recorders. The ad depicted a robot, dressed 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 was 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. Following the circulation of the robot ad, White filed a lawsuit against defendants in federal district court under: (1) California Civil Code § 3344; (2) the California common law right of publicity; and (3) § 43(a) of the Lanham Act, 15 U.S.C.S. § 1125(a). Defendants filed a motion for summary judgment, which the district court granted on each of White's claims. White appealed.

Issue:

Did the district court err by rejecting, on summary judgment, White's common law right of publicity claim?

Answer:

Yes.

Conclusion:

Th court affirmed in part and reversed in part the district court's judgment. The court agreed with White that the district court erred in granting summary judgment to defendants on White's common law right of publicity claim. The court found that the fact that the robot in defendants' ad was wearing a long gown, blond wig, and jewelry; was turning a block letter on a game board; and was standing on what appeared to be the set of Wheel of Fortune constituted sufficient facts to establish a common law right of publicity claim. Lastly, the court found that the district court erred in rejecting plaintiff's Lanham Act claim because a jury could have reasonably conclude that beneath the surface humor of the series of ads lay an intent to persuade consumers that plaintiff was endorsing defendant electronics company's products.

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