Facts
- Vanna White was widely known as the hostess who turned letters on the television game show Wheel of Fortune and licensed her identity for commercial uses.
- Samsung Electronics America, Inc., and its advertising agency created an advertisement for Samsung products that used pop-culture references and future-themed humor.
- The advertisement depicted a robot wearing a wig, dress, and jewelry, positioned next to a game-show set and letter-board display closely resembling Wheel of Fortune.
- The ad’s purpose was to call Vanna White to mind without using her name or an actual photograph of her, suggesting a “Vanna White”-type figure in a futuristic setting.
- White did not consent to the use and received no compensation.
- White sued Samsung and the agency in federal court, asserting claims that included: (1) California statutory right of publicity (Cal. Civ. Code § 3344), (2) California common-law misappropriation/right of publicity, and (3) Lanham Act § 43(a) false endorsement, along with related state-law theories.
- The district court granted summary judgment for defendants.
- A three-judge Ninth Circuit panel largely reversed, allowing White’s common-law right-of-publicity claim (and related federal false-endorsement theory as addressed by the panel) to proceed while rejecting statutory § 3344 liability on the “likeness” element.
- Samsung sought rehearing and rehearing en banc. The Ninth Circuit’s 1993 decision at 989 F.2d 1512 addresses that petition.
Issues
- Whether the Ninth Circuit should grant rehearing en banc to reconsider the panel’s conclusion that an advertisement may violate California common-law publicity rights (and support a false-endorsement theory) by evoking a celebrity’s identity without using the celebrity’s name or literal image.
Decision
- The Ninth Circuit denied the petition for rehearing and rehearing en banc.
- Because rehearing en banc was denied, the panel decision remained in effect, including its restoration of White’s common-law right-of-publicity claim (and its treatment of the federal false-endorsement claim) and its rejection of statutory liability under Cal. Civ. Code § 3344 based on “likeness.”
- Judges dissented from the denial of rehearing en banc, warning that the panel’s approach risked granting overly expansive control over references that remind the public of celebrities.
Legal Principles
- An order denying rehearing en banc does not replace the panel’s merits analysis; it leaves the panel’s holdings as the controlling decision in the case.
- Under the panel decision left standing, California’s statutory right of publicity in Cal. Civ. Code § 3344 is limited to unauthorized use of a person’s “name, voice, signature, photograph, or likeness,” and a styled robot may fail the statute’s “likeness” requirement even if it suggests the person.
- Under the panel decision left standing, California common-law publicity rights may reach beyond literal name or image and can be violated where an advertisement appropriates a celebrity’s identity by using recognizable elements designed to make the audience think of that person for commercial gain.
- Under the panel decision left standing, Lanham Act § 43(a) false endorsement principles focus on likely consumer confusion as to sponsorship or approval; the panel concluded that the evidence and context could support such a claim at the summary-judgment stage.
- The dissents from denial of rehearing en banc argued that extending publicity rights to “evocation” creates a broad property-like right in fame, with potential to chill expressive advertising, parody, and cultural references even when no name or image is used.
Conclusion
In White v. Samsung Electronics America, Inc., 989 F.2d 1512 (9th Cir. 1993), the Ninth Circuit denied Samsung’s request for rehearing en banc, leaving intact the earlier panel ruling that White could pursue a California common-law right-of-publicity claim (and related false-endorsement theory as addressed by the panel) based on an advertisement using a robot and set design meant to bring White to mind, even though the statutory § 3344 “likeness” claim failed.