White first argues that the district court erred in rejecting her claim under section 3344. v. Air Pirates, (p1407) 581 F.2d 751 (9th Cir. Property Law Keyed to Kurtz Torts Keyed to Epstein Intellectual Property Keyed to Merges Property Keyed to Sprankling 971 F.2d 1395 (1992) CASE SYNOPSIS. This case is an example of such distortion. 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…. white v samsung - Free download as Word Doc (.doc / .docx), PDF File (.pdf), Text File (.txt) or read online for free. White argues that the Samsung advertisement used her "likeness" in contravention of section 3344. The majority’s analysis of the intent or seventh factor in AMF is similarly suspect. This evidence does not support the majority’s determination that the advertisement was meant to depict Vanna White. No effort was made to dispel the impression that the plaintiffs were the source of the Mar. For the purposes of the Sleekcraft test, White’s "mark," or celebrity identity, is strong. 1985). 3d at n.6, 198 Cal. Id. The original section 3344 protected only name or likeness. Looking at the series of advertisements as a whole, a jury could reasonably conclude that beneath the surface humor of the series lay an intent to persuade consumers that celebrity Vanna White, like celebrity Downey, was endorsing Samsung products. That is the situation in this matter. The commercials affirmatively represented that the plaintiffs were involved. White sued Samsung (defendant) for an advertisement for VCRs. White v. Samsung Electronics America, Inc. study guide by bpelle5 includes 6 questions covering vocabulary, terms and more. In this case, Samsung and Deutsch used a robot with mechanical features, and not, for example, a manikin molded to White’s precise features. They are, instead, attributes of the role she plays. -- Created using Powtoon -- Free sign up at http://www.powtoon.com/youtube/ -- Create animated videos and animated presentations for free. at 463. Features 4.0″ display, 3.15 MP primary camera, 1500 mAh battery, 4 GB storage, 512 MB RAM. The advertisement, which prompted the current dispute was for Samsung video-cassette recorders The protection of intellectual property presents the courts with the necessity of balancing competing interests. Cf. Although likelihood of confusion may usually be a factual question, "courts retain an important authority to monitor the outer limits of substantial similarity within which a jury is permitted to make the factual determination whether there is a likelihood of confusion." the right to privacy, the right to publicity, and the Lanham Act. Id. She gained celebrity by marketing her image/identity to various advertisers. Same Day delivery 7 days a week £3.95, or fast store collection. App. Consumers, however, would likely believe, and would be correct in so believing, that Mr. Downey was paid for his permission and was endorsing Samsung products. Indeed, any advertisement which shows a competitor’s product, or any recognizable brand name, would appear to be liable for damages under the majority’s view of the applicable law. 1978), cert. Following the circulation of the robot ad, White sued Samsung and Deutsch in federal district court under: Yes. 1974) and 24 years after Prosser speculated about the future development of the law of the right of publicity, the California legislature amended the statute. 2012 A.D." The question presented here is whether there is any evidence in the record that Samsung intended to confuse consumers. No reasonable juror could confuse a metal robot with Vanna White. Id. Motschenbacher, Midler, and Carson teach the impossibility of treating the right of publicity as guarding only against a laundry list of specific means of appropriating identity. Chuck Norris could sue all karate experts who display their skills in motion pictures. Each depicted a current item from popular culture and a Samsung electronic product. Concerning the seventh factor, "defendant’s intent," the district court found that, in running the robot ad, the defendants had intended a spoof of the "Wheel of Fortune." Samsung’s argument is unavailing. Your Study Buddy will automatically renew until cancelled. Television and other media create marketable celebrity identity value. 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. Following the circulation of the robot ad, White sued Samsung and Deutsch in federal district court under the California common law right of publicity. 1990). Plaintiff sued Defendant for appropriation. White brought suit against Samsung for misappropriating her right of publicity of her image. At the time Prosser wrote, he noted however, that "[n]o such case appears to have arisen." The majority also relies on Dean Prosser’s statement that "[i]t is not impossible that there might be an appropriation of the plaintiff’s identity, as by impersonation, without the use of either his name or his likeness, and that this would be an invasion of his right of privacy." White v. Samsung and Deutsch Associates United States Court of Appeals, Ninth Circuit, 1992 971 F.2d 1395 Case involves a claim of misappropriation under California's state law. Central Hudson Gas & Electric Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 566, 100 S. Ct. 2343, 2351, 65 L. Ed. * Television and other media create marketable celebrity identity value. Blaine Greenberg, John Genga, Hill Wynne The source of this formulation is Prosser, Privacy, 48 Cal. Any performance by another female celebrity as a game-show hostess, however, will also remind the viewer of Vanna White because Vanna White’s celebrity is so closely associated with the role. 1987) ("to establish entitlement to damages for violation of section 43(a): [Plaintiffs] must establish actual confusion or deception resulting from the violation. 342 (citing Prosser, Law of Torts (4th ed. The dispute in this case arose out of a series of advertisements prepared for Samsung by Deutsch. 342 (1983), the California court of appeal 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." I would affirm the district court’s judgment in all respects. In Midler, this court held that, even though the defendants had not used Midler’s name or likeness, Midler had stated a claim for violation of her California common law right of publicity because "the defendants … for their own profit in selling their product did appropriate part of her identity" by using a Midler sound-alike. Universal City Studios, Inc. v. Nintendo Co., Ltd., 746 F.2d 112 (2d Cir.1984). Id. Eclipse Associates Ltd. v. Data General Corp., 894 F.2d 1114, 1118 (9th Cir. Samsung Galaxy V Android smartphone. at 837. Judgment reversed. In no event may copyright extend to the facts themselves. The court found that "[h]ere there was an appropriation of Carson’s identity," which violated the right to publicity. Under the majority’s analysis, even the depiction of an obvious facsimile of a competitor’s product may provide sufficient basis for the maintenance of an action for damages. at 462. True, Samsung did it to make money, but White does whatever she does to make money, too; the majority talks of “the difference between fun and profit,” 971 F.2d at 1401 , but in the entertainment industry fun is profit. Included there is an image of the part of the Samsung ad that features the robot that implicates Vanna White 's identity. 2233(a) (Deering 1991 Supp.). Walt Disney Prods. Kulzick, Los Angeles, Cal., for defendants-appellees. Those decisions do not provide support for the majority’s decision. The majority’s position seems to allow any famous person or entity to bring suit based on any commercial advertisement that depicts a character or role performed by the plaintiff. Each of the advertisements in the series followed the same theme. 2d 341 (1980). In each of the federal cases relied upon by the majority, the advertisement affirmatively represented that the person depicted therein was the plaintiff. FOR THE NINTH CIRCUIT. I cannot find any holding of a California court that supports this conclusion. § 1125(a). 1979). The right of publicity is not limited to the appropriation of name or likeness – the common law right of publicity is not so defined. See, e.g., Lugosi v. Universal Pictures, 25 Cal. The majority notes that the parodies in those cases were made for the purpose of poking fun at the Reverend Jerry Falwell and L.L. at 401-02, nn. ft. capacity. Samsung electronics company in the early 1990s would run a series of commercials about near future that would promote the Samsung products and make humorous predictions about the future. The series ran in at least half a dozen publications with widespread, and in some cases national, circulation. 1988). In re NCAA Student-Athlete Name and Likeness Licensing Litig. The majority relies on two factors to support its innovative extension of the California law. Samsung White was a Korean League of Legends team sponsored by Samsung Electronics. She performs her (p1405) role as hostess on "Wheel of Fortune" in a simple and straight-forward manner. Id. Get Started. On the one hand, we wish to protect and reward the work and investment of those who create intellectual property. the 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 court did not include appropriations of identity by means other than name or likeness among its list of differences between the statute and the common law. It should be clear to anyone viewing the commercial advertisement that the crude features of the robot are very dissimilar to Vanna White’s attractive and human face. UNITED STATES COURT OF APPEALS LEXIS 4928, 26 U.S.P.Q.2D (BNA) 1362, 93 Cal. App. The majority ignores this important distinction. In remanding this case, we hold only that White has pleaded claims which can go to the jury for its decision. Rptr. Troop & Meisinger, Los Angeles, Cal., for plaintiff-appellant. Can Coca Cola sue Pepsi because it depicted a bottle of Coca Cola in its televised "taste test"? L. Ed. White next argues that the district court erred in granting summary judgment to defendants on White’s common law right of publicity claim. That does not preclude, however, the possibility that defendants also (p1401) intended to confuse consumers regarding endorsement. Make everyday life easier with Samsung. The version of section 43(a) applicable to this case[2] provides, in pertinent part, that "[a]ny person who shall … use, in connection with any goods or services … any false description or representation … shall be liable to a civil action … by any person who believes that he is or is likely to be damaged by the use of any such false description or designation." at 417, 198 Cal. 352, 355 (1979) (use of name of Rudolph Valentino in fictional biography allowed); Eastwood v. Superior Court, supra (use of photo and name of actor on cover of tabloid newspaper); In re Weingand, 231 Cal. But an attractive appearance, a graceful pose, blond hair, an evening gown, and jewelry are attributes shared by many women, especially in Southern California. Defendants-Appellees. Vanna White , the hostess of TV's Wheel of Fortune , sued Samsung and its advertising agency for producing, without her permission, a print ad that featured a robot dressed in a blonde wig and evening gown, and standing in Vanna's signature pose beside the Wheel of Fortune letter board. Home Cases But the fact that Samsung recognized Vanna White’s value as a celebrity does not necessarily mean that it appropriated her identity. The "name or likeness" formulation referred to in Eastwood originated not as an element of the right of publicity cause of action, but as a description of the types of cases in which the cause of action had been recognized. Fifth, however, White has appeared in the same stance as the robot from the ad in numerous magazines, including the covers of some. Id. Carson, 698 F.2d at 835. This set is the only thing which might possibly lead a viewer to think of Vanna White. A recognition of the distinction between a performer and the part he or she plays is essential for a proper analysis of the facts of this case. A number of persons told Bette Midler that they thought that she had made the commercial. The right would fail to protect those plaintiffs most in need of its protection. at 463. White’s final argument is that the district court erred in denying her claim under § 43(a) of the Lanham Act, 15 U.S.C. Blog. We agree that the robot ad did not make use of White’s name or likeness. Then the top panel color changes to Cotta White and the bottom panel changes to Clean Black, before transitioning quickly to … Vanna White has presented no evidence that any consumer confused the robot with her identity. 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For your subscription 746 F.2d 112 ( 2d Cir fourth factor does not support the majority holds the. By a celebrity look-alike who bore a remarkable resemblance to Vanna White ad... 82, 291 P.2d 194 ( 1955 ), is unpersuasive her ( p1405 ) as. Get set for White Samsung TV at Argos 3d 813, 603 P.2d,. Law for the purpose of poking fun at Jerry Falwell and L.L MVP Ozone.. history ]... 26 U.S.P.Q.2D ( BNA ) 1362, 93 Cal recognition the celebrity, the the... Criticized for going too far in protecting the right to left L. Rep. 1330 ( Cir..., 246 ( 2d Cir.1984 ) s finding that Vanna White dresses exactly like this, turns,! In defense, defendants cite a number of people who recognize her, White markets her identity. as Prosser... 720 F.2d 231, 246 ( 2d Cir likelihood of confusion exists AMF, factors relevant a... Of use and our privacy Policy, and ALARCON, Circuit Judges celebrity does not preclude however. 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