## Facts

- Lothar Motschenbacher was a professional race-car driver who earned income in part through commercial endorsements.
- Since 1966, he consistently individualized his race cars with distinctive features: a solid red body with a narrow white pinstripe and an oval white background for racing number “11.”
- R. J. Reynolds Tobacco Co. and its advertising agency produced a Winston cigarette television commercial using a stock photograph of race cars; Motschenbacher’s car appeared prominently, but the driver’s face was not visible.
- Defendants altered the photograph by changing car numbers (including changing “11” to “71”), adding a “spoiler” bearing the word “Winston,” and removing other cars’ product advertisements, while retaining the red color, narrow white pinstripe, and oval number background.
- The commercial added speech balloons and audio; one balloon appearing to come from the driver of the altered car stated: “Did you know that Winston tastes good, like a cigarette should?”
- Motschenbacher sued under California misappropriation (invasion of privacy/right of publicity-type) theory, alleging unauthorized commercial use of his identity and an implied endorsement.
- He produced evidence (including affidavits) that viewers recognized the car as his and inferred he endorsed or was sponsored by Winston.
- The district court granted summary judgment for defendants, reasoning that because the driver’s face was not visible, no reasonable inference could be drawn that Motschenbacher was depicted.

## Issues

1. Whether use of distinctive features closely associated with a person—without using the person’s name or showing a recognizable face—can constitute misappropriation of identity under California law.
2. Whether the evidentiary record created a triable issue that the commercial made Motschenbacher reasonably identifiable and implied his endorsement, making summary judgment improper.

## Decision

- The Ninth Circuit reversed the grant of summary judgment and remanded.
- The court held that a reasonable jury could find defendants appropriated Motschenbacher’s identity by using distinctive, identifying characteristics of his race car in a commercial advertisement.
- The court rejected the view that misappropriation requires a visible face or literal use of a person’s name.
- Viewing the evidence in the light most favorable to Motschenbacher, the court found triable issues on recognizability and implied endorsement.

## Legal Principles

- Misappropriation under California law can extend beyond literal use of a person’s name or facial likeness to the unauthorized commercial use of identifying attributes that convey the person’s identity.
- A plaintiff may be “reasonably identifiable” from distinctive symbols or characteristics associated with the plaintiff, even if the plaintiff’s face is not shown.
- Evidence that viewers recognized the plaintiff and inferred endorsement can support a finding of commercial appropriation and defeat summary judgment.
- On summary judgment, courts must not resolve contested inferences about identifiability and implied endorsement against the nonmoving party, where a reasonable trier of fact could find for that party.

## Conclusion

The Ninth Circuit held that a commercial may misappropriate a person’s identity without showing the person’s face or using the person’s name when distinctive attributes associated with the person make the person reasonably identifiable and suggest endorsement; the case required trial because the record supported such inferences.


Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974)