Lead Opinion
This case involves a promotional “fame and fortune” dispute. In running a particular advertisement without Vanna White’s permission, defendants Samsung Electronics America, Inc. (Samsung) and David Deutsch Associates, Inc. (Deutsch) attempted to capitalize on White’s fame to enhance their fortune. White sued, alleging infringement of various intellectual property rights, but the district court granted summary judgment in favor of the defendants. We affirm in part, reverse in part, and remand.
Plaintiff Vanna White is the hostess of “Wheel of Fortune,” one of the most popular game shows in television history. An estimated forty million people watch the program daily. Capitalizing on the fame which her participation in the show has bestowed on her, White markets her identity to various advertisers.
The dispute in this case arose out of a series of advertisements prepared for Samsung by Deutsch. The series ran in at least half a dozen publications with widespread, and in some cases national, circulation. Each of the advertisements in the series followed the same theme. Each depicted a current item from popular culture and a Samsung electronic product. Each was set in the twenty-first century and conveyed the message that the Samsung product would still be in use by that time. By hypothesizing outrageous future outcomes for the cultural items, the ads created humorous effects. For example, one lampooned current popular notions of an unhealthy diet by depicting a raw steak with the caption: “Revealed to be health food. 2010 A.D.” Another depicted irreverent “news”-show host Morton Downey Jr. in front of an American flag with the caption: “Presidential candidate. 2008 A.D.”
The advertisement which prompted the current dispute was for Samsung videocassette recorders (VCRs). The ad depicted a robot, dressed in a wig, gown, and jewelry which Deutsch consciously selected to resemble White’s hair and dress. The robot was posed next to a game board which is instantly recognizable as the Wheel of Fortune game show set, in a stance for which White is famous. The caption of the ad read: “Longest-running game show. 2012 A.D.” Defendants referred to the ad as the “Vanna White” ad. Unlike the other celebrities used in the campaign, White neither consented to the ads nor was she paid.
Following the circulation of the robot ad, White sued Samsung and Deutsch in federal district court under: (1) California Civil Code § 3344; (2) the California common law right of publicity; and (3) § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The district court granted summary judgment
I. Section 3344
White first argues that the district court erred in rejecting her claim under section 3344. Section 3344(a) provides, in pertinent part, that “[a]ny person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner, ... for purposes of advertising or selling, ... without such person’s prior consent ... shall be liable for any damages sustained by the person or persons injured as a result thereof.”
White argues that the Samsung advertisement used her “likeness” in contravention of section 3344. In Midler v. Ford Motor Co.,
In this case, Samsung and Deutsch used a robot with mechanical features, and not, for example, a manikin molded to White’s precise features. Without deciding for all purposes when a caricature or impressionistic resemblance might become a “likeness,” we agree with the district court that the robot at issue here was not White’s “likeness” within the meaning of section 3344. Accordingly, we affirm the court’s dismissal of White’s section 3344 claim.
II. Right of Publicity
White next argues that the district court erred in granting summary judgment to defendants on White’s common law right of publicity claim. In Eastwood v. Superior Court,
The Eastwood court did not hold that the right of publicity cause of action could be pleaded only by alleging an appropriation of name or likeness. Eastwood involved an unauthorized use of photographs of Clint Eastwood and of his name. Accordingly, the Eastwood court had no occasion to consider the extent beyond the use of name or likeness to which the right of publicity reaches. That court held only that the right of publicity cause of action “may be” pleaded by alleging, inter alia, appropriation of name or likeness, not that the action may be pleaded only in those terms.
The “name or likeness” formulation referred to in Eastwood originated not as an element of the right of publicity cause of action, but as a description of the types of cases in which the cause of action had been recognized. The source of this formulation is Prosser, Privacy, 48 Cal.L.Rev. 383, 401-07 (1960), one of the earliest and most enduring articulations of the common law right of publicity cause of action. In looking at the case law to that point, Prosser recognized that right of publicity cases involved one of two basic factual scenarios: name appropriation, and picture or other likeness appropriation. Id. at 401-02, nn. 156-57.
Even though Prosser focused on appropriations of name or likeness in discussing the right of publicity, he noted that “[i]t is not impossible that there might be appropriation of the plaintiff’s identity, as by impersonation, without the use of either his name or his likeness, and that this would
Since Prosser’s early formulation, the case law has borne out his insight that the right of publicity is not limited to the appropriation of name or likeness. In Mot-schenbacher v. R.J. Reynolds Tobacco Co.,
In Midler, this court held that, even though the defendants had not used Mi-dler’s name or likeness, Midler had stated a claim for violation of her California common law right of publicity because “the defendants ... for their own profit in selling their product did appropriate part of her identity” by using a Midler sound-alike. Id. at 463-64.
In Carson v. Here’s Johnny Portable Toilets, Inc.,
These cases teach not only that the common law right of publicity reaches means of appropriation other than name or likeness, but that the specific means of appropriation are relevant only for determining whether the defendant has in fact appropriated the plaintiff’s identity. The right of publicity does not require that appropriations of identity be accomplished through particular means to be actionable. It is noteworthy that the Midler and Carson defendants not only avoided using the plaintiff’s name or likeness, but they also avoided aрpropriating the celebrity’s voice, signature, and photograph. The photograph in Motschenbacher did include the plaintiff, but because the plaintiff was not visible the driver could have been an actor or dummy and the analysis in the case would have been the same.
Although the defendants in these cases avoided the most obvious means of appropriating the plaintiffs’ identities, each of their actions directly implicated the commercial interests which the right of publicity is designed to protect. As the Carson court explained:
[t]he right of publicity has developed to protect the commercial interest of celebrities in their identities. The theory of the right is that a celebrity’s identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identi-ty_ If the celebrity’s identity is commercially еxploited, there has been an invasion of his right whether or not his “name or likeness” is used.
Carson,
Consider a hypothetical advertisement which depicts a mechanical robot with male features, an African-American complexion, and a bald head. The robot is wearing black hightop Air Jordan basketball sneakers, and a red basketball uniform with black trim, baggy shorts, and the number 23 (though not revealing “Bulls” or “Jordan” lettering). The ad depicts the robot dunking a basketball one-handed, stiff-armed, legs extended like open scissors, and tongue hanging out. Now envision that this ad is run on television during professional basketball games. Considered individually, the robot’s physical attributes, its dress, and its stance tell us little. Taken together, they lead to the only conclusion thаt any sports viewer who has registered a discernible pulse in the past five years would reach: the ad is about Michael Jordan.
Viewed separately, the individual aspects of the advertisement in the present case say little. Viewed together, they leave little doubt about the celebrity the ad is meant to depict. The female-shaped robot is wearing a long gown, blond wig, and large jewelry. Vanna White dresses exactly like this at times, but so do many other women. The robot is in the process of turning a block letter on a game-board. Vanna White dresses like this while turning letters on a game-board but perhaps similarly attired Scrabble-playing women do this as well. The robot is standing on what looks to be the Wheel of Fortune game show set. Vanna White dresses like this, turns letters, and does this on the Wheel of Fortune game show. She is the only one. Indeed, defendants themselves referred to their аd as the “Vanna White” ad. We are not surprised.
Television and other media create marketable celebrity identity value. Considerable energy and ingenuity are expended by those who have achieved celebrity value to exploit it for profit. The law protects the celebrity’s sole right to exploit this value whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof. We decline Samsung and Deutch’s invitation to permit the evisceration of the common law right of publicity through means as facile as those in this case. Because White has alleged facts showing that Samsung and Deutsch had appropriated her identity, the district court erred by rejecting, on summary judgment, White’s common law right of publicity claim.
III. The Lanham Act
White’s final argument is that the district court erred in denying her claim under § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). The version of section 43(a) applicable to this case
To prevail on her Lanham Act claim, White is required to show that in running the robot ad, Samsung and Deutsch created a likelihood of confusion, Academy of Motion Picture Arts v. Creative House,
This circuit recognizes several different multi-factor tests for determining whether a likelihood of confusion exists. See Academy,
(1) strength of the plaintiff’s mark;
(2) relatedness of the goods;
(3) similarity of the marks;
(4) evidence of actual confusion;
(5) marketing channels used;
(6) likely degree of purchaser care;
(7) defendant’s intent in selecting the mark;
(8) likelihood of expansion of the product lines.
In cases involving confusion over endorsement by a celebrity plaintiff, “mark” means the celebrity’s persona. See Allen,
In cases concerning confusion over celebrity endorsement, the plaintiff’s “goods” concern the reasons for or source of the plaintiff’s fame. Because White’s fame is based on her televised performances, her “goods” are closely related to Samsung’s VCRs. Indeed, the ad itself reinforced the relationship by informing its readers that they would be taping the “longest-running game show” on Samsung’s VCRs well into the future.
The third factor, “similarity of the marks,” both supports and contradicts a finding of likelihood of confusion. On the one hand, all of the aspects of the robot ad identify White; on the other, the figure is quite clearly a robot, not a human. This ambiguity means that we must look to the other factors for resolution.
The fourth factor does not favor White’s claim because she has presented no evidence, of actual confusion.
Fifth, however, White has appeared in the same stance as the robot from the ad in numerous magazines, including the covers оf some. Magazines were used as the marketing channels for the robot ad. This factor cuts toward a likelihood of confusion.
Sixth, consumers are not likely to be particularly careful in determining who endorses VCRs, making confusion as to their endorsement more likely.
Concerning the seventh factor, “defendant’s intent,” the district court found that, in running the robot ad, the defendants had intended a spoof of the “Wheel of Fortune.” The relevant question is whether the defendants “intended to profit by confusing consumers” concerning the endorsement of Samsung VCRs. Toko,
Finally, the eighth factor, “likelihood of expansion of the product lines,” does not appear apposite to a celebrity endorsement case such as this.
Application of the Sleekcraft factors to this case indicates that the district court erred in rejecting White’s Lanham Act claim at the summary judgment stage. In so concluding, we emphasizе two facts, however. First, construing the motion papers in White’s favor, as we must, we hold only that White has raised a genuine issue of material fact concerning a likelihood of confusion as to her endorsement. Cohen v. Paramount Pictures Corp.,
IV. The Parody Defense
In defense, defendants cite a number of cases for the proposition that their robot ad constituted protected speech. The only cases they cite which are even remotely relevant to this case are Hustler Magazine v. Falwell,
In remanding this case, we hold only that White has pleaded claims which can go to the jury for its decision.
AFFIRMED IN PART, REVERSED IN PART, and REMANDED.
Notes
. Under Professor Prosser's scheme, the right of publicity is the last of the four categories of the right to privacy. Prosser, 48 Cal.L.Rev. at 389.
. The statute was amended after White filed her complaint. The amendments would not have altered the analysis in this case however.
. In warning of a first amendment chill to expressive conduct, the dissent reads this decision too broadly. See Dissent at 1407. This case concerns only the market which exists in our society for the exploitation of celebrity to sell products, and an attempt to take a free ride on a celebrity’s celebrity value. Commercial advertising which relies on celebrity fame is different from other forms of expressive activity in two crucial ways.
First, for celebrity exploitation advertising to be effective, the advertisement must evoke the celebrity’s identity. The more effective the evocation, the better the advertisement. If, as Samsung claims, its ad was based on a "generic" game-show hostess and not on Vanna White, the ad would not have violated anyone’s right of publicity, but it would also not have been as humorous or as effective.
Second, even if some forms of expressive activity, such as parody, do rely on identity evocation, the first amendment hurdle will bar most right of publicity actions against those activities. Cf. Falwell,
Concurrence Opinion
concurring in part, dissenting in part:
Vanna White seeks recovery from Samsung based on three theories: the right to privacy, the right to publicity, and the Lan-ham Act. I concur in the majority’s conclusions on the right to privacy. I respectfully dissent from its holdings on the right to publicity and the Lanham Act claims.
I.
RIGHT TO PRIVACY (CAL.CIV.CODE § 3344(a))
I agree with the majority’s conclusion that no reasonable jury could find that the robot was a “likeness” of Vanna White within the meaning of California Civil Code section 3344(a).
II.
RIGHT TO PUBLICITY
I must dissent from the majority’s holding on Vanna White’s right to publicity claim. The district court found that, sinсe 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,
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,
Notwithstanding 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
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,
The majority also relies on Dean Pros-ser’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.Rev. 383, 401 n. 155 (1960). As Dean Prosser noted, however, “[n]o such case appears to have arisen.” Id.
The majority states that the case law has borne out Dean Prosser’s insight that the right to publicity is not limited to name or likeness. As noted above, however, the courts of California have never found an infringement on the right to publicity without the use of the plaintiff’s name or likeness.
The interest of the California Legislature as expressed in California Civil Code section 3344 appears to preclude the result reached by the majority. The original section 3344 protected only name or likeness. In 1984, ten years after our decision in Motschenbacher v. R.J. Reynolds Tobacco Company,
The majority has focused on federal decisions in its novel extension of California Common Law. Those decisions do not provide support for the majority’s decision.
In each of the federal cases relied upon by the majority, the advertisement affirmatively represented that the person depicted therein was the plaintiff. In this case, it is clear that a metal robot and not the plaintiff, Vanna White, is depicted in thе commercial advertisement. The record does not show an appropriation of Vanna White’s identity.
In Motschenbacher, a picture of a well-known race driver’s car, including its unique markings, was used in an advertisement. Id. at 822. Although the driver could be seen in the car, his features were not visible. Id. The distinctive markings on the car were the only information shown in the ad regarding the identity of the driver. These distinctive markings compelled the inference that Motschenbacher was the person sitting in the racing car. We concluded that “California appellate courts would ... afford legal protection to an individual’s proprietary interest in his own identity.” Id. at 825. (Emphasis added). Because the distinctive markings on the racing car were sufficient to identify Motschenbacher as the driver of the car,
In Midler v. Ford Motor Co.,
In Carson v. Here’s Johnny Portable Toilets, Inc.,
The common theme in these federal cases is that identifying characteristics unique to the plaintiffs were used in a context in which they were the only information as to the identity of the individual. The commercial advertisements in each case showed attributes of the plaintiff’s identities which made it appear that the plaintiff was the person identified in the commercial. No effort was made to dispel the impression that the plaintiffs were the source of the personal attributes at issue. The commercials affirmatively represented that the plaintiffs were involved. See, e.g., Midler at 462 (“The [Motschenbacher] ad suggested that it was he.... In the same way the defendants here used an imitation to convey the impression that Midler was singing for them.”). The proper interpretation of Motschenbacher, Midler, and Carson is that where identifying characteristics unique to a plaintiff are the only information as to the identity of the person appearing in an ad, a triable issue of fact has been raised as to whether his or her identity as been appropriated.
The case before this court is distinguishable from the factual showing made in Motschenbacher, Midler, and Carson. It is patently clear to anyone viewing the commercial advertisement that Vanna White was not being depicted. No reasonable juror could confuse a metal robot with Vanna White.
The majority contends that “the individual aspects of the advertisement ... [v]iewed together leave little doubt about the celebrity the ad is meant to depict.” Majority Opinion at p. 1399. It derives this conclusion from the fact that Vanna White is “the only one” who “dresses like this, turns letters, and does this оn the Wheel of Fortune game show.” Id. In reaching this conclusion, the majority confuses Van-na White, the person, with the role she has assumed as the current hostess on the “Wheel of Fortune” television game show. A recognition of the distinction between a performer and the part he or she plays is essential for a proper analysis of the facts of this case. As is discussed below, those things which Vanna White claims identify her are not unique to her. They are, instead, attributes of the role she plays. The representation of those attributes, therefore, does not constitute a representation of Vanna White. See Nurmi v. Peterson,
Vanna White is a one-role celebrity. She is famous solely for appearing as the hostess on the “Wheel of Fortune” television show. There is nothing unique about Van-na White or the attributes which she claims identify her. Although she appears to be an attractive woman, her face and figure are no more distinctive than that of other equally comely women. She performs her
The majority appears to argue that because Samsung created a robot with the physical proportions of an attractive woman, posed it gracefully, dressed it in a blond wig, an evening gown, and jewelry, and placed it on a set that resembles the Wheel of Fortune layout, it thereby appropriated Vanna White’s identity. But an attractive appearance, a graceful pose, blond hair, an evening gown, and jewelry are attributes shared by many women, especially in Southern California. These common attributes are particularly evident among game-show hostesses, models, actresses, singers, and other women in the entertainment field. They are not unique attributes of Vanna White’s identity. Accordingly, I cannot join in the majority’s conclusion that, even if viewed together, these attributes identify Vanna White and, therefore, raise a triable issue as to the appropriation of her identity.
The only characteristic in the commercial advertisement that is not common to many female performers or celebrities is the imitation of the “Wheel of Fortune” set. This set is the only thing which might possibly lead a viewer to think of Vanna White. The Wheel of Fortune set, however, is not an attribute of Vanna White’s identity. It is an identifying characteristic of a television game show, a prop with which Van-na White interacts in her role as the current hostess. To say that Vanna White may bring an action when another blond female performer or robot appears on such a set as a hostess will, I am sure, be a surprise to the owners of the show. Cf. Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n,
The record shows that Samsung recognized the market value of Vanna White’s identity. No doubt the advertisement would have been more effective if Vanna White had appeared in it. But the fact that Samsung recognized Vanna White’s value as a celebrity does not necessarily mean that it appropriated her identity. The record shows that Samsung dressed a robot in a costume usually worn by television game-show hostesses, including Vanna White. A blond wig, and glamorous clothing are not characteristics unique to the current hostess of Wheel of Fortune. This evidence does not support the majority’s determination that the advertisement was meant to depict Vanna White. The advertisement was intended to depict a robot, playing the role Vanna White currently plays on the Wheel of Fortune. I quite agree that anyone seeing the commercial advertisement would be reminded of Vanna White. Any performance by another female celebrity as a game-show hostess, however, will also remind the viewer of Vanna White because Vanna White’s celebrity is so closely associated with the role. But the fact that an actor or actress became famous for playing a particular role has, until now, never been sufficient to give the performer a proprietary interest in it. I cannot agree with the majority that the California courts, which have consistently taken a narrow view of the right to publicity, would extend law to these unique facts.
III.
THE LANHAM ACT
Vanna White’s Lanham Act claim is easily resolved by applying the proper legal standard. Vanna White seeks damages for violation of section 43(a) of the Lanham Act. To succeed, Vanna White must prove actual deception of the consuming public. Harper House, Inc. v. Thomas Nelson, Inc.,
The majority finds that because a majority оf factors set forth in AMF, Inc. v. Sleekcraft Boats,
The AMF test is designed to aid in determining whether two marks are so sufficiently similar that it is likely that a consumer would confuse them. Where the marks are so obviously different that no confusion could possibly occur, the test is unnecessary. That is the situation in this matter. The attempt to use the Lanham Act to prevent “misappropriations” of which a court does not approve results in the distortion of the law which makes it more difficult to apply the law in appropriate cases. See Hanson & Walls, Protecting Trademark Goodwill: Towards a Federal Standard of Misappropriation, 81 Trademark Rep. 480, 511-513 (1991). This case is an example of such distortion.
The majority assumes the conclusion that the AMF test is designed to disclose. In repeatedly stating that the robot “identifies” Vanna White, the majority has usurped the fact finding function of the district court.
The majority holds that the first factor of the AMF test, strength of the mark, weighs in Vanna White’s favor. It equates this factor with the strength of Vanna White’s fame, citing Allen v. National Video, Inc.,
It is unclear whether the “mark” for which Vanna White seeks protection is her screen image or the imitation Wheel of Fortune. Although Vanna White is certainly famous for being famous, there is no evidence in the record that consumers identify the specific characteristics at issue, i.e., blond hair and fancy dress, solely with Vanna White. The majority ignores this important distinction.
The majority has glossed over the third AMF factor — similarity of the marks — the most important factor in this case. The majority finds this factor “ambiguous” because the common characteristics “identify” Vanna White. Majority Opinion at p. 1400. We are required, however, to compare marks in their entirety. California Cooler, Inc. v. Loretto Winery,
Certain aspects of a mark may have a greater impact than other aspects. When a mark has certain salient characteristics, they are given greater weight. Country Floors, Inc. v. Gepner,
The majority’s analysis of the intent or seventh factor in AMF is similarly suspect. The question presented here is whether there is any evidence in the record that Samsung intended to confusе consumers. It did not.
Where the circumstances are sufficient to eliminate any likelihood of confusion, this court has repeatedly held that there is no claim for a violation of the Lanham Act. See Toho Co., Ltd. v. Sears, Roebuck & Co.,
Although likelihood of confusion may usually be a factual question, “courts retain an important authority to monitor the outer limits of substantial similarity within which a jury is permitted to make the factual determination whether there is a likelihood of confusion.” Warner Bros., Inc. v. American Broadcasting Cos., Inc.,
“There is no issue for trial unless there is sufficient evidence favoring the nonmov-ing party for a jury to return a verdict for that party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249,
IV.
SAMSUNG’S FIRST AMENDMENT DEFENSE
The majority gives Samsung’s First Amendment defense short shrift because “[tjhis case involves a true advertisement run for the purpose of selling Samsung VCRs.” Majority opinion at p. 1401. I respectfully disagree with the majority’s analysis of this issue as well.
The majority’s attempt to distinguish this case from Hustler Magazine v. Falwell,
Generally, a parody does not constitute an infringement оn the original work if it takes no more than is necessary to “conjure up” the original. Walt Disney Prods, v. Air Pirates,
The effect of the majority’s holding on expressive conduct is difficult to estimate. The majority’s position seems to allow any famous person or entity to bring suit based on any commercial advertisement that depicts a character or role performed by the plaintiff. Under the majority’s view of the law, Gene Autry could have brought an action for damages against all other singing cowboys. Clint Eastwood would be able to sue anyone who plays a tall, soft-spoken cowboy, unless, of course, Jimmy Stewart had not previously enjoined Clint Eastwood. Johnny Weismuller would have been able to sue each actor who played the role of Tarzan. Sylvester Stallone could sue actors who play blue-collar boxers. Chuck Norris could sue all karate experts who display their skills in motion pictures. Arnold Schwarzenegger could sue body builders who are compensated for appearing in public.
The majority’s reading of the Lanham Act would provide a basis for “commercial” enterprises to maintain an action for section 43(a) violations even in the absence of confusion or deception. May Black and Decker, maker of the “Dustbuster” portable vacuum, now sue “Bust-dusters,” the Los Angeles topless cleaning service. Can the Los Angeles Kings hockey team state a cause of action against the City of Las Vegas for its billboards reading “L.A. has the Kings, but we have the Aces.”
V.
CONCLUSION
The protection of intellectual property presents the courts with the necessity of balancing competing interests. On the one hand, we wish to protect and reward the work and investment of thоse who create intellectual property. In so doing, however, we must prevent the creation of a monopoly that would inhibit the creative expressions of others. We have traditionally balanced those interests by allowing the copying of an idea, but protecting a unique expression of it. Samsung clearly used the idea of a glamorous female game show hostess. Just as clearly, it avoided appropriating Vanna White’s expression of that role. Samsung did not use a likeness of her. The performer depicted in the commercial advertisement is unmistakably a lifeless robot. Vanna White has presented no evidence that any consumer confused the robot with her identity. Indeed, no reasonable consumer could confuse the robot with Vanna White or believe that, because the robot appeared in the advertisement, Vanna White endorsed Samsung’s product.
I would affirm the district court’s judgment in all respects.