Spring 2021 Chapter 2 Case: White v. Samsung Electronics America, Inc. White v. Samsung Electronics America, Inc. Rule: The common-law right of publicity can protect a celebrity's identity from unauthorized commercial exploitation. Facts: Samsung Electronics America, Inc. (defendant) ran an advertising campaign in which the company displayed its predictions of the future. One of the predictions included an image of a robot wearing a dress and pearls on a game show, turning tiles that displayed different letters of the alphabet. The image immediately called to mind Vanna White (plaintiff) on ÒWheel of Fortune,Ó although White was never mentioned by name. Samsung did not obtain permission from White before airing this advertisement. White subsequently brought an action against Samsung for violation of the California commonlaw right of publicity. The district court granted summary judgment for Samsung, finding that Samsung had not appropriated White's name or likeness in the robot advertisement. White appealed to the United States Court of Appeals for the Ninth Circuit. Issue: Does the common-law right of publicity protect a celebrity's identity from unauthorized commercial exploitation? Holding: Yes. The common-law right of publicity can protect a celebrity's identity from unauthorized commercial exploitation. Celebrities have a commercial interest in their identities, which the law must protect. To succeed on a claim for violation of California's common-law right of publicity, a plaintiff may allege that (1) the defendant used the plaintiff's identity, (2) the defendant appropriated the plaintiff's name or likeness to the defendant's advantage, (3) the plaintiff did not consent, and (4) the plaintiff was injured. Although pleading appropriation of a name or likeness is one way to allege a violation, it is not the only way. What constitutes a celebrity's identity will depend on the nature of the celebrity involved. For instance, a racecar driver's identity may be appropriated by the unauthorized depiction of the driver's racecar, even if the driver himself is not visible. Similarly, Bette Midler had an actionable claim for violation of the right of publicity when the defendant used a sound-alike to mimic her voice, and Johnny Carson had an actionable claim based on the use of the phrase, "Here's Johnny." A court may consider the surrounding circumstances in determining whether a celebrityÕs identity has been used. In this case, it is true that White is neither pictured nor mentioned by name in Samsung's advertisement. However, the robot with a dress and pearls, combined with the turning of the tiles on a game show, calls to mind White on ÒWheel of Fortune.Ó Thus, enough evidence exists to reinstate WhiteÕs claim that SamsungÕs unauthorized use of her identity violated her common-law right of publicity. The judgment of the court below is reversed. Dissent: The case law presented by the majority does not indicate that the exploitation of an ÒidentityÓ is sufficient to support a right-of-publicity claim. Even if that were the case, there is no evidence here that WhiteÕs identity was used. The majority fails to distinguish between White and the role that she plays on television. Her role on television does not include any creativity on her part and could easily be completed by another person. The advertisement in question does not show White; it shows a robot wearing a dress and pearls on a game show. This robot is a generic depiction of a game show hostess and not necessarily a depiction of White. Thus, the judgment of the court below should be affirmed.