Publicity Right

"II. RIGHT TO PUBLICITY\n\nI must dissent from the majority’s holding on Vanna White’s right to publicity claim. The district court found that, since the commercial advertisement did not show a “likeness” of Vanna White, Samsung did not improperly use the plaintiff’s identity. The majority asserts that the use of a likeness is not required under California common law. According to the majority, recovery is authorized if there is an appropriation of one’s “identity.” I cannot find any holding of a California court that supports this conclusion. Furthermore, the record does not support the majority’s finding that Vanna White’s “identity” was appropriated. The district court relied on Eastwood v. Superior Court, 149 Cal.App.3d 409, 198 Cal.Rptr. 342, (1983), in holding that there was no cause of action for infringement on the right of publicity because there had been no use of a likeness. In Eastwood, the California Court of Appeal described the elements of the tort of “commercial appropriation of the right of publicity” as “(1) the defendant’s use of 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.” Id. at 417, 198 Cal.Rptr. 342. (Emphasis added). All of the California cases that my research has disclosed hold that a cause of action for appropriation of the right to publicity requires proof of the appropriation of a name or likeness. See, e.g., Lugosi v. Universal Pictures, 25 Cal.3d 813, 603 P.2d 425, 160 Cal.Rptr. 323 (1979) (“The so-called right of publicity means in essence that the reaction of the public to name and likeness … endows the name and likeness of the person involved with commercially exploitable opportunities.”); Guglielmi v. Spelling-Goldberg Prods., 25 Cal.3d 860, 603 P.2d 454, 457, 160 Cal.Rptr. 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.App.2d 289, 41 Cal.Rptr. 778 (1964) (aspiring actor denied court approval to change name to “Peter Lorie” when famous actor Peter Lorre objected); Fairfield v. American Photocopy Equip. Co., 138 Cal.App.2d 82, 291 P.2d 194 (1955), later app. 158 Cal.App.2d 53, 322 P.2d 93 (1958) (use of attorney’s name in advertisement); Gill v. Curtis Publishing Co., 38 C.2d 273, 239 P.2d 630 (1952) (use of photograph of a couple in a magazine).\n\nNotwithstanding the fact that California case law clearly limits the test of the right to publicity to name and likeness, the majority concludes that “the common law right of publicity is not so confined.” Majority opinion at p. 1397. The majority relies on two factors to support its innovative extension of the California law. The first is that the Eastwood court’s statement of the elements was permissive rather than exclusive. The second is that Dean Prosser, in describing the common law right to publicity, stated that it might be possible that the right extended beyond name or likeness. These are slender reeds to support a federal court’s attempt to create new law for the state of California. In reaching its surprising conclusion, the majority has ignored the fact that the California Court of Appeal in Eastwood specifically addressed the differences between the common law right to publicity and the statutory cause of action codified in California Civil Code section 3344. The court explained that “[t]he differences between the common law and the statutory actions are: (1) Section 3344, subdivision (a) requires knowing use whereas under case law, mistake and inadvertence are not a defense against commercial appropriation and (2) section 3344, subdivision (g) expressly provides that its remedies are cumulative and in addition to any provided by law.” Eastwood, 149 Cal.App.3d at n. 6, 198 Cal.Rptr. 342 (emphasis in original). 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. 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.” Prosser, Privacy, 48 Cal.L.R"