## 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

1. 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.


White v. Samsung Electronics America, Inc., 989 F.2d 1512 (1993)