Vanna White v. Samsung Electronics America, Inc. David Deutsch Associates

deny unanimously to has voted adequately not addition, retraction Judge rehearing. Circuit for petition reprimanded only the toldWall publicized. sugges- reject to voted has Pregerson in his check open he could that employee banc, Circuit rehearing en for in- tion directly never Wall the warehouse. Circuit so recommends. Judge Goodwin they that employees any other formed sug- accept the to has voted Judge warehouse, Alarcon in the checks open their could rehearing en banc. for gestion employees many knew though he even do permitted not they were believed been advised has court full retrac- his announced could so. Wall An ac- rehearing en banc. for suggestion meeting or employee a warehouse tion whether on a vote requested judge tive to read. employees for all notice posted The matter en banc. matter rehear to assure failed repudiation Finally, Wall’s the votes majority of to receive failed Wilson involved employees en in favor judges active nonrecused future. a ban such reimplement not 35. Fed.R.App.P. consideration. banc denied. review for petition Wilson’s DENIED rehearing is for petition enforced. order The Board’s banc rehearing en suggestion

REJECTED. whom with Judge, .

KOZINSKI, Circuit Judges O’SCANNLAIN Circuit dissenting from join, KLEINFELD suggestion rejecting order rehearing en banc. Plaintiff-Appellant, WHITE, Vanna v. AMERICA, ELECTRONICS keep advertis- SAMSUNG Hussein wants Saddam Associates, INC.; Deutsch unflattering David picture his using ers Defendants-Appellees. want doesn’t Eastwood Clint contexts.1 Va- Rudolf him.2 to write tabloids 90-55840. No. biog- his film control heirs want lentino’s Appeals, Court United States want don’t Scouts The Girl raphy.3 Circuit. Ninth certain with by association image soiled keep wants George Lucas activities.4 18, 1993. March call- fans from Initiative Strategic Defense want doesn’t Pepsico Wars.” ing it “Star in their “Pepsi” the word to use singers GOODWIN, PREGERSON Before an exclusive wants Guy Lombardo songs.6 Judges.

ALARCON, Circuit thought of the ending. tragic "She story Using with Rising Caution Shapiro, Eben 1. See VR_SKY. foolish How met day had she Times, first Nov. Images, Celebrity N.Y. a man who love she How could been. she objects on (Iraqi diplomat D20 in his letters all the tell her even wouldn’t containing picture and Hussein's grounds to ad name?’’). happens when "History what has shown caption information"). controls source one Mfg., 304 Personality Posters v. Scouts Girl 4. preg (poster aof (S.D.N.Y.1969) Court, Cal.App.3d F.Supp. 1228 Superior v. Eastwood 2. cap uniform Scout girl a Girl nant Cal.Rptr. 342 Prepared"). tion "Be Prods., 25 Speiling-Goldberg v. Guglielmi 3. Frontier, F.Supp. High P.2d Ltd. Cal.Rptr. 5. Cal .3d Lucasfilm (D.D.C.1985). Valentino); Maheu see also (Rudolph (1979) Cal.Rptr. CBS, Cal.App.3d packaging lyrics and claimed Pepsico Inc. Hughes). Frank (aide (1988) to Howard 304 Gannon, Cf. song Pepsi” Doyle’s "Jack grunge Tad rocker Karenina, Karenina Vanna likely to offend [ ...] [it] (A were "offensive short humorous and Other Reflections

1513 land, property right big instance, to ads that vate show bands for is far more useful if , playing separated private on New Year’s Eve.7 Uri Geller from by other land streets, paid showing thinks he should be for ads highways. roads and parks, Public psychics bending through metal utility rights-of-way telekine- and sewers reduce the Prudhomme, sis.8 Paul that household private hands, amount of land in vastly name, featuring thinks same about ads the value of the property that re- enhance (cid:127) corpulent bearded chefs.9 And scads of mains. purple holders see when their So too it is with intellectual property. creations are made fun of.10 Overprotecting is as

Something very dangerous going is on harmful as underprotecting it. Creativity property, including impossible here. Private intellec- is without a rich domain. property, way tual Nothing today, essential to our likely nothing since we provides fire, life. an incentive for invest- tamed genuinely Culture, new: like innovation; ment and it stimulates technology, grows by accretion, science and flourishing culture; protects of our it building each new creator on the works of n moral entitlements of to the fruits those who came Overprotection before. reducing labors. But too much to very stifles sup- creative forces it’s private property posed bad medicine. Pri- to nurture.11 customers,” part they (MCA 1979); nts] [Pepsico] because "associate Roy Clark’s Greatest Hits Volume I Pepsi Tillis, and its marks with intoxication Mel on Cowboy, Very Coca-Cola Best Russell, driving.” (MCA drunk Deborah Doyle 1981) (“You’re just a Coca-Cola cow- Pepsi Thirsty Bill- Compensation, Leaves boy got You’ve an Eastwood smile and / Robert for board, 15, 1991, Conversely, June at 43. ...”). Redford hair Angels recently Hell’s keep sued Marvel Comics to Heads, Talking Popular Dance to Favorites publishing it from book called comic (Sire 1992); Talk- 1976-92: Sand in the Vaseline Angel,” starring "Hell’s a character of the same Heads, Warhol, ing Andy on id. Admire Popsicle, $35,000 by paying name. Marvel settled charity Speedwagon, Campbell's Soup REO 38 Can. Cf. promising never to use the name Special, Kennedys. and Jello Biafra of the Dead Angel” again any "Hell’s in connection with The creators of some of these works publications. Marvel, its Angels Hell’s Settle gotten permission trademark J., II, Suit, Daily L.A. § Feb. Trademark owners, though unlikely it’s Kool-Aid relished at 1. LSD, being Hershey connected with with homi- Trademarks are often reflected in the mirror maniacs, robbers, Disney cidal with armed popular Capote, of our culture. See Truman imperialism. Certainly Coca-Cola with cultural (1958); Vonnegut, Tiffany's Kurt Breakfast society get no free can demand that artists such Jr., Wolfe, (1973); Champions Tom Breakfast of permission. (1968) (which, The Electric Kool-Aid Acid Test incidentally, chapter includes a on the Hell's Bernbach, Inc., 7. Lombardo v. Doyle, 58 Dane & Niven, Steel, Angels); Larry Man Woman (1977). A.D.2d 396 N.Y.S.2d 661 (1971); Kleenex, in All the Myriad Ways Looking (1977); Mr. Goodbar The Coca-Cola Kid

for No. 90-CIV-2839 McElligott, 8. Geller v. Fallon (1985) (using metaphor Coca-Cola as a (S.D.N.Y. ad). July (involving a Timex 1991) commercialism); American Kentucky Fried (1977); Harley Movie Davidson and the Marl- (1991); (ABC boro Man The Wonder Years 9. Prudhomme v. Procter & Gamble (“Wonder 1988-present) slogan Years” was a (E.D.La.1992). F.Supp. 390 Bread); Lloyd Wonder Tim Rice & Andrew Webber, Joseph Amazing and the Technicolor Music, E.g., Campbell, Inc. v. Acuff-Rose [musical). Dream Coat (6th Cir.1992); F.2d or name, voice her use didn’t Samsung tort a it’s now opinion, the her use certainly didn’t it and signature, aof celeb- the to remind advertisers have been just wouldn’t ad The likeness. voice, name, celebrity’s a use rity. Not or someone White depicted it had funny imply the likeness; not or signature was joke whole her—the resembled who simply but product; a celebrity endorses robot, host(ess) was show game the that public’s image celebrity’s evoke ad seeing the No one person. real not far withdraws notion Orwellian This mind. be supposed to was thought this could pru- than domain from the more 2012. inWhite con- It allow. sense and common dence Copy- Act and the Copyright flicts with reasonably held quite judge district The First serious raises right Clause. White’s Samsung didn’t that, because law, it and It’s bad problems. Amendment it didn’t signature, likeness, or voice name, look. second long, hard deserves publicity. her' violate majority: panel so, says Not 1396-97. possi- can’t publicity II California The If likeness. to name limited bly be promoting campaign ad Samsung ran adver- reasons, “clever majority were, the depicted ad Each electronics. its consumer White’s using avoid could strategist” tising predic- a humorous Samsung product remind nevertheless but likeness name with steak a raw showed One tion: “effectively impunity, her people food. health to be “Revealed caption this prevent To rights. her eviscerat[ing]” Downey, Morton showed Another A.D.” holds “evisceration,” flag with American anof in front Jr. extend must right of that candidate. “Presidential caption “appro- likeness, any beyond name convey— meant ads were The A.D.” “identity” anything White’s priation” — products Samsung humorously—that Id. personality. her “evoke[s]” that twenty years in use be still 1398-99. now. litigation this spawned that ad The Ill wig, gown in a dressed robot starred hair White’s of Vanna reminiscent jewelry mean “evisceration” does what But ato next posed dress; robot was Intellectual law? property intellectual game board. Wheel-of-Fortune-like constitu- like some rights aren’t property “Longest-run- read caption Appendix. protect- guarantees absolute rights, tional gag A.D.” ning game interference, show. subtle kinds against ed Samsung would it, here, I take penum- no They cast as blatant.13 well as re- been when White around very still point bras, emanations: emit robot. by a they placed laws kinds specific certain against only protect humor, White to see failing Perhaps unautho- publish I can’t appropriation. her infringed Samsung sued, alleging Innocent; I of, say, Presumed copies rized “identi- by “appropriating” I’m it. out movie make a can’t law, has White California ty.” Under States, United Cf., e.g., Guinn Property, 13. Intellectual Law Natural L.Ed. 364-65, 35 S.Ct. 1533, 1556-57 L.J. Yale awas grandfather clause (striking down Jr., Downey, Morton heard of never I had Amend- Fifteenth attempt to evade clear ' n Limbaugh, Rush of like he’s sort told I’m not but ment). shy. perfectly free to write a about an all Samsung book did: It used an inanimate ob- pf young prosecutor ject White, trial people idealistic on for a to remind to “evoke got he if I identity].” crime didn’t commit.14 So what 971 F.2d at 1399.17 [her the idea from Presumed Innocent? So sweeping Consider how this new is. original? if it reminds readers of the what What is it the ad that makes Have “eviscerated” Scott Turow’s intel- think of White? It’s not the wig, robot’s rights? Certainly lectual not. jewelry; clothes or there must be ten mil- part All creators draw in on the work of lion blond (many quasi- women of them before, it, referring those who came famous) who wear dresses and jewelry like it, building poking it; fun at we call this White’s. It’s that posed robot near creativity, piracy.15 not the “Wheel of game Fortune” board. Re- isn’t, fact, in preventing game ad, The the the move board from the and no existing Vanna White. “evisceration” of White’s one would think of Ap- rights; creating a pendix. you it’s new and much broad- game But once the include property right, board, right er unknown in Cali- anybody standing beside it —a bru- replacing existing woman, fornia law.16 It’s the nette wearing man women’s clothes, balance between the interests of the celeb- a monkey wig gown— in a rity public by and those of the a different would evoke White’s image, precisely the balance, substantially one way more favorable the robot did. It’s the “Wheel of celebrity. the having set, to Instead of an ex- Fortune” not the robot’s face or dress name, likeness, right signa- clusive in her jewelry or image. evokes White’s The voice, every person ture or panel giving famous now has is right White an exclusive not anything that re- right is, an exclusive in what she looks like or who she but in minds the viewer her. all, living.18 After that’s what she does for a of Co., Going 14. It Reynolds would be called "Burden of Forward Motschenbacher v. R.J. Tobacco Evidence,” (9th that, Cir.1974), with the and the hero would ulti- 498 F.2d 821 stressed mately by lawyer’s adept though be saved his use plaintiffs of directly the likeness wasn’t itself, Fed.R.Evid. 301. recognizable by surrounding the circum- stances would have made viewers think the like- Newton, 15. In the words Sir Isaac of I have ”[i]f 827; plaintiff’s. ness was the Id. at see also by standing seen further it is on [the shoulders] Cal., Regents Moore v. the Univ. 51 Cal.3d of of Hooke, 5, of Giants.” Letter to Robert Feb. 120, 138, 146, 157, 479, Cal.Rptr. 271 P.2d 793 1675/1676. (1990) (construing 490 Motschenbacher as may Newton himself have borrowed this every person proprietary ”hold[ing] that has a Chartres, phrase from Bernard of who said likeness”). interest in his own something early century. similar in the twelfth may Bernard in turn have snatched it from 17. Some viewers have inferred White was Priscian, century grammarian. a sixth See Lo endorsing product, the that’s different Int'l, Corp. Paperback tus Dev. 740 story. right Software publicity of isn’t aimed at or 37, (D.Mass.1990). F.Supp. 77 n. 3 endorsements, limited to false Eastwood v. Su- Court, 409, 419-20, perior Cal.App.3d 149 198 fact, raising 16. In in the one California case the Cal.Rptr. (1983); 348 that’s what the Lan- issue, Supreme the three state Court Justices ham Act is for. theory expressed who discussed this serious Guglielmi Spelling-Goldberg applies doubts about it. Note also that the rule even Prods., Cal.Rptr. 25 unintentionally Cal.3d 864 n. to advertisements that remind 355 n. 603 P.2d n. people crystal of someone. California law is C.J., (Bird, concurring) (expressing skepticism right clear that the common-law of finding property right celebrity’s ato may by appropri- be violated even unintentional “personality” because it is to discern "difficult 6; Cal.Rptr. ations. Id. at 417 n. at n. any. easily applied term”). amorphous definition for this Photocopy Equipment v. American Fairfield Cal.App.2d P.2d 194 previously interpreted Neither have we Cali right pure "identity.” 18. Once the of is extended be- fornia law to cover Midler v. characteristics, Co,, (9th Cir.1988), yond specific physical Ford Motor this will name, (9th recurring problem: Frito-Lay, become a Waits v. Cir. Outside voice, 1992), appropriation celebrity's things reliably dealt with likeness and the that most (imitation singing public voice. See id. at 1100-01 remind the of celebrities are the actions voice, style, right they’re rather than doesn’t violate the or roles famous for. A commercial with publicity). setting an astronaut foot on the would moon make law; the in trademark strike place to wrong the entirely This di- these ofAll recordings.20 soundalike property Intellectual balance. the owner’s property intellectual an ex- at the minish imposed They’re free: aren’t something, public use the public . let All rights. and of creators future pense are nec- else. if Charles someone by bewe created would Where large. environment a free maintain essary to exclusive had Lindbergh Arthur If flourish. genius aviator? solo creative a heroic which concept gotten Doyle had by Conan right created Ein- Albert story, or detective idea essential of these has none here relativity? theory of patented stein no exception; fair No limitations: been celebrity had author every If dichotomy. idea-expression parody; mock- people keep given domain, impoverishes Surely this work? or ing them creators of future detriment richer, not poorer, world made have well-defined, limited Instead large. economically.19 as well culturally as name, likeness such characteristics law why intellectual This cope now will- voice, advertisers set what’s between careful balances full “appropriation claims vague with left and what’s owner aside by made often identity,” claims rela- of us: rest domain own their of sense exaggerated wholly but longer, patents; of life tively short & 1512-13 pp. See significance. and fame idea- copyright’s copyrights; finite, life of Whites Vanna Future supra. 1-10 others, to control the conduct of unlimited Copyright specifically gives law the by idea-expression dichotomy byor large right world at to make “fair use” fair use doctrine? parodies, parodies that don’t borrow too original. Dees, much of the paraphrase Fisher v. only slightly To Feist Publi cations, (9th Cir.1986). copy- Inc. v. Federal Telephone Rural Service — right -,-, gives law also the copyright U.S. owner S.Ct. 1282, 1289-90; right (or the exclusive (1991), 113 L.Ed.2d to create license the may of) works, seem unfair creation that much of the fruit of derivative which include may parodies a creator’s by qualify labor be used that borrow too much others to compensation. Music, without as “fair use.” this is not Inc. Acuff-Rose byproduct some unforeseen Campbell, (6th of our intellec 972 F.2d 1434-35 property system; Cir.1992).24 tual system’s Brooks, it is the When Mel for in- very stance, essence. Wars, Intellectual law as- parody decided to Star he N.Y.L.J., 30, 1992, ("To New Kith Rights, on the Block v. News speak America Oct. at 3 Cf. Publishing, (9th questionable the ‘evisceration’ of such a 307 n. 6 com- Cir.1992) ("Where right probably gone mon law in a case that infringement has is small in any any created, the farthest of case in court in the relation to the new work the fair user is United States of America is more than difficult profiting largely from his own creative efforts ("A comprehend”); Shapiro, supra to note 1 fat free-riding work.”). rather than on another’s evening gown? chef? A blond robot in an How Wood, go?” (citing Douglas far will this J. majority opinion already 23. The has earned advertising lawyer)). See also Mark Alan Sta- some well-deserved criticisms on this score. Post, 5, 1993, maty, Washingtoon, Apr. Wash. at Barnett, Stephen Hollywood's R. In Wheel of A21. Fortune, Turn, J., Speech Free Loses a Wall St. 28, 1992, A14; Barnett, Sept. Stephen at R. hotly 24.How much is too much is a contested Wheel Advertisers: Ninth Cir- question, thing right but one is clear: The to of Misfortune for cuit Misreah the Law to Protect Vanna White’s parodies belongs make either to the at J., Image, 6; Daily holder, L.A. large Oct. at copyright Felix H. or to the not to someone Kent, Expanh happens appear Court copyrighted Celebrities' who work. California from a or large from either stuck have could He options:

had two sure make must We owner. 107, copyright 17 U.S.C. § under use his fair Whites give the doesn’t law a state to make license a gotten he could have over veto a world of the 106(b) Wests Adam U.S.C. § under work derivative which the shows parodies copy- fair Wars the Star the holder-of from ex- holders’ copyright or over appear, they did probably he safe, To be right.- works derivative license right to clusive did, guaranteed he he latter, once copy- where a case In shows. movie.25 those his make perfect a party even isn’t right owner —where this decimates decision majority’s owners copyright interests has the one parody impossible It’s scheme. federal a rule creates at heart —the same at the without TV show or a movie. copyright rights of diminishes greatly “identities]” “evok[ing]” the time this circuit. holders Star a mock have can’t You actors.26 Skywalker, Luke mock without Wars V turn Leia, which Princess Han Solo conflicts also decision Ford Hamill, Harrison Mark a mock means anoth system in federal mock with can’t You Fisher. Carrie dor Under way. er, insidious Bat- more mock without a commercial Batman Clause, state Copyright emulating the mant someone man, means which long as only so stand Kea- laws or Michael West of Adam mannerisms other interests “prejudice Lozano, they Loses don’t West V. Carlos ton. See California, Commercial, Goldstein States.” TV Batman over Lawsuit 37 L.Ed.2d (describing 546, 1990, B3 Times, .S.Ct. Jan. L.A. criminalizing rec law A state lawsuit right of West’s Adam be instance, permissible piracy, license under produced ord commercial over a would “re states other Batman Comics, of the citizens cause owner DC borders within copy to make free public’s main copyright).27 else protected bemay copyright owner’s which those works parody fair use' right of use- are But the work Id. derivative where.” to license every A by hostage limited. geographically is held parodist isn’t if the less applies need state by one “identity” he publicity created whose actor it involves -long as everywhere, so conduct “appropriate.” >aIf state. celebrity domiciled here. position unique in a is court Our fea ad that an creates resident Wyoming particularly unlikely to be are courts State or domiciliary’s name a California tures which, af- preemption, federal sensitive right to California subject likeness, be he’ll concern to of first all, matter is a ter keep he’s if careful law even publicity of un- Supreme Court The courts. federal See in California. shown being from the ad because the issue consider likely to Kuper v. Co. Operating Circus Acme a matter much so seems right publicity of Cir.1983); (11th 1538, 1540 F.2d stock, 711 It’s our us. leaves That of law. state Night Day and Prods. Marx Groucho publicity right of keep the responsibility Cir.1982); (2d see 317, 320 Co., 689 F.2d rights, federally granted away taking from Ass'n, F.2d Players League Major Baseball Compare Madonna: (1987). Spacebalts 25. See Cir.1986). (7th Be n. 22 675 & Dare (1991) Medusa: with or Dare Truth (1993) with Weapon I (1991); Loaded Truthful Young (1987); Frankenstein Pictures, Weapon Cal.3d Lethal v. Universal Lugosi 27. Cf. (1974) Frankenstein 331-32, Bride with 603 P.2d 827-28, Cal.Rptr. of J., (point (Mosk, concurring) 433-34 Copyright 301(b)(1) limits the § U.S.C. 26. 17 be should in characters ing out “fixed subject matter sweep to preemptive Act’s holder, not actor by the owned but expression,” of any tangible medium Orioles, them); play Baltimore happens to who of hostess as the identity look White’s —her right (baseball of players’ at 674-79 definitely con- fixed: It of Fortune —is Wheel to tele by copyright law as fixed, preempted publicity appearances in entirely of her sists games). casts Orioles Baltimore copyrighted TV show. Arts, image public’s squared also Factors Etc. v. Pro .mind (2d Cir.1981). with the First Amendment. Where does get right White this to control our The and more ill-defined one broader thoughts? majority’s goes creation publicity, state’s the more it inter- legitimate way beyond protection given feres with the interests of other' a trade- applies A limited to un- states. work, copyrighted person’s mark or a or a proba- of name and authorized use likeness things name or likeness. All those control bly Copyright does not run afoul of the particular one way expressing idea, an Clause, majority’s protection but way referring one object to an or a “identity” quite story. another Under person. allowing But,not any means of majority’s approach, any anybody time reminding people of someone? That’s a somebody in the United States —even who speech unparalleled restriction in First very lives in a state awith narrow Amendment law.28 ad, publicity he takes the risk —creates more, segment What’s that it remind some of the doubt even a name-and- somebody, perhaps somebody likeness-only right of publicity can stand only reputation, somebody a local parody without a exception. The First advertiser has heard of. never See note just religion Amendment isn’t poli- or supra (right infringed by protecting tics—it’s also about the free de- appropriations). you unintentional So velopment of Parody, our national'culture. made a commercial Florida and one of humor, components irreverence are all vital the characters reminds Reno residents of marketplace of the thing of ideas. The last (a their favorite local TV anchor California need, thing we the last the First Amend- domiciliary)? Pay up. tolerate, will is a ment law that lets result, gives This is an intolerable figures them, keep people mocking from each state far too much control over artists “evok[ingj” images in the mind statute, in other No states. California public. of the 971 F.2d at 1399.29 actually California court has tried to reach dismisses the First Amend- plant this far. It is ironic that it is we who Samsung’s ment issue out of hand because this kudzu in the fertile soil of our federal speech. commercial ad was Id. at 1401 & system. speech may

n. 3. So what? Commercial VI protected by be less the First Amendment speech, pro- than noncommercial less Finally, giving I can’t see how White power keep evoking others from protected tected means nonetheless. Cen- compare majority’s holding recognize Just parody to the 29. failure to upheld by exception apply laws to the the Su- preme equally parodies politicians Copyright as of actresses. Court. The isAct constitution- Fast, Angeles Consider the Wok precisely al case of a Los because of the fair use doctrine and service, delivery put up Chinese food which a idea-expression dichotomy, Harper the & Row v. picture 539, 560, billboard with' a of then-L.A. Police Enterprises, Nation 2218, 2230, 471 U.S. 105 S.Ct. Daryl you Chief Gates and the text “When can’t (1985), 85 L.Ed.2d 588 two features (This leave the office. Or won’t.” was an allu- conspicuously absent from the doc- despite sion to Chief Gates’s refusal to retire pressure trine. The at issue in Zacchini Mayor Bradley.) from Tom Gates Scripps-Howard Broadcasting v. 562, 576, 433 U.S. forced the restaurant to take billboard down the 2849, 2857-58, S.Ct. 97 53 L.Ed.2d 965 by threatening a lawsuit. Les- (1977), only peti- the to "broadcast of Berger, lie He Did Leave the Now Office—And performance,” entire tioner’s not “the unautho- Too, Times, 31, 1992, Go, Sign July Will L.A. at purposes rized use of another's name for B2. upheld trade.” Id. Even the statute in San Athletics, Francisco Arts & Inc. v. United States Samsung See also Has Seen the Future: Brace Comm., 522, 530, Olympic Adweek, 3, 1988, (ER U.S. Yourself, 72) 483 107 S.Ct. Oct. at 26 (1987), gave (Samsung 97 L.Ed.2d 427 which planned another ad that would show sweeping fights “Olym- the USOC to the word a dollar bill with Richard Nixon’s face on it and A.D.,” pic," purport protect expression caption didn’t all the "Dollar bill. but Nixon 2025 Madow, people Olympics. likeness); permission reminded of the refused to use his

1520 valu- significant, ais speech Commercial v. Public Corp. Elec. &Gas Hudson tral The discourse. national of our part able 557, S.Ct. 100 U.S. Comm’n, 447 Serv. much, as recognized has Court Supreme are there And 2343, 65 L.Ed.2d carefully courts lower has insisted and this. Commercial for reasons very good restrictions, speech' commercial scrutinize culture on our effect profound ahas speech The this. to do totally fails panel the in- Neutral-seeming ads our attitudes. ap- purport even doesn’t majority atti- political social people’s fluence the test, which Hudson the Central ply con- political arouse tudes, themselves de- for specifically devised Court Supreme turned Beef?” the “Where’s troversy.30 re- speech commercial a termining whether the into catchphrase advertising an from majority doesn’t valid.33 striction the thing about memorable really only whether requires, Hudson ask, as Central later, years Four campaign.31 presidential by sub- justified speech restriction the “the George Bush called Dukakis Michael ask It doesn’t interest. state stantial politics.” of American Isuzu Joe directly advances restriction the whether salesmanship culture, where pop ask our whether In It doesn’t interest. entertainment inter- entertaining and narrowly tailored must restriction 2351.34 commercial at 566, S.Ct. between sell, line id. at must See est. blurred; merely Court Supreme things the not has are noncommercial These must parody Samsung terms —we uncertain Is disappeared. us—in told it has even Saturday doesn’t opinion consider; parody any different are Both them.35 Magazine? mention Spy or in Live Night a celeb- Both Supreme Court profit-motivated. equally matters. Process sell things test sell identity to Hudson rity’s Central out the —one set didn’t Both advertising. test because to sell VCRs, other It devised health. its make First try giving Both were subjects. courts lower mock saw something, per- confronted when shrift add short Both laugh. Amendment people Central See speech. memora- commercial worthwhile something haps 567-68, 100 561-62, are at Hudson, Both 447 U.S. not, culture. to our ble, perhaps Hud- 2348-49, The Central 2352. at portrayed being S.Ct. things that lower attempt to constrain was an test See protection. 1989, ("There’s 18, lots Amendment strip at ID it of First May Today, Counsel, 471 stereo- Disciplinary ad reinforces this kind Zauderer evidence Office 2278, University)). 2265, 644, 85 L.Ed.2d 626, of Duke 105 S.Ct. Julie Edell types" (quoting U.S. (1985). Commercial; “Where’s Wendy's Kind See 31. Broadcasting, Craze, National Becomes speech Beef" whether it discuss does Neither 35. 1984, at 57. Mar. unconstitutionally vague. Posadas restriction v. Tourism P.R. de Assocs. Gordon, Look Candidates Gregory 32. L.Ed.2d S.Ct. UPI, Sept. Today, Feedback important on the strong issues—how lions of toil the shadow of the law is, state interest how regulation broad the make, we and much of their livelihood is is, whether regulation a narrower possible made by the existence of intellec- just work as well. If the Court wanted to property rights. tual But much of their leave these judges’ gut matters to feelings, livelihood—and much of the vibrancy of nifty lines about “the difference between our depends culture —also on the existence profit,” fun 971 F.2d at it could of intangible other rights: have done so with much less effort. draw ideas from rich and varied Maybe applying test would have con- domain, and right mock, profit mind; vinced the to change its fun, well as the cultural icons of our time. maybe going through the factors would In the name of avoiding the “eviscer- broad, shown that its rule was too ation” of celebrity’s rights in image, protecting reasons for White’s “identi- the majority diminishes the copy- ty” too Maybe tenuous. not. But we right holders and the public large. shouldn’t our In Supreme thumb nose at the by just refusing Court the name of apply fostering creativity, its test. major- ity suppresses it. Vanna White and those

VII like her have given been something they worse, For before, better or never we they’ve the Court of given are been Appeals for Hollywood Circuit. Mil- at our expense. agree. cannot

Appendix Notes v. Bantam Cliffs Benz, Joplin, Hear Janis on Pearl Mercedes Doubleday Publishing Group, 886 F.2d Dell Simon, (CBS 1971); Kodachrome, Paul on There (2d Cir.1989); Dees, F.2d 432 Fisher v. (Warner 1973); Rhymin’ Goes Leonard Simon (9th Cir.1986); MCA, Wilson, Inc. v. Cohen, Hotel, on The Best Chelsea Leonard (2d Cir.1981); Music, NBC, Elsmere v. Inc. (CBS 1975); Springsteen, Bruce Cohen Cadillac (2d Cir.1980); 623 F.2d 252 Disney Walt Prods. Prince, (CBS 1980); Ranch, on The River Little (9th Cir.1978); Pirates, 581 F.2d 751 v. The Air dada, (Warner 1982); Corvette, Red on 1999 (2d Publications, Inc., Berlin v. E.C. (IRS 1992) ("I just Land, on Knee Dizz Puzzle Cir.1964); Nathan, F.Supp. Lowenfels grocery going Disney- robbed a store—I’m (S.D.N.Y.1932). just flipped George land off President / —I’m going Disneyland”); Monty Python, Spam, on 1988); Clark, Gordon, [virgin Roy Wendy Rip 11. J. The Final Property Right A Off Gone], Greyhound Thank Expression: God and Equality [You're Individualism Self likeness, name, right to exclusive case a classic opinion panel’s pur- commercial voice signature what Coileerned overprotection. 3344(a); Eastwood § Cal.Civ.Code poses. White, the wrong done as a sees Cal.App.3d Court, 149 Superior erects 342, 347 Cal.Rptr. 417, 198 Under breadth: dangerous remarkable

Notes

notes use doc- the fair dichotomy; expression their to create chance get might not facts; copyrighting on trine; prohibition may employers because personae, broad- television of license compulsory persona claim celebrity will some fear federal compositions; musical and casts public will own.21 similar is too intellectual state of overbroad preemption celebrities, and parodies robbed use doctrine laws; nominative dichotomy); 17 (idea-expression 102(b) § Any U.S.C. Armstrong. image Neil evoke Pubs., v. Rural use); Inc. (fair Feist 107 § U.S.C. peo- remind would horseback on man masked ple 1282, U.S.-, --, —Co., 111 S.Ct. Serv. Tel. 1288, And Clayton Moore. age) of (over certain (no (1991) copyrighting 358 L.Ed.2d 113 Way,” Sub- "Yellow songs "My any marine,” number — (compulsory 115, 119(b) facts); §§ "Michael, It,” 17.U.S.C. Virgin," “Beat "Like Boats, Thunder v. licenses); Inc. Craft Bonito only Ashore,” a few— to name Boat Row 971, 103 141, S.Ct. Inc., 109 Boats, 489 group person image instantly evoke New preemption); (federal (1989) 118 L.Ed.2d famous, who regardless of them made who Publishing, America News Block on the Kids singing. Cir.1992) (nomi- (9th 302, Inc., 306-308 F.2d 971 Lozano, Lawsuit Loses West V. also Carlos See 114(b) (soundalikes); use); § U.S.C. 17 native Times, Commercial, Jan. L.A. TV Batman over Fly- v. Kalitta & Assocs. Rasmussen G.S. accord Batman- over (Adam sues 1990, 18, West B3 at (9th 896, 7 n. 900 Serv., F.2d 958 ing Cir.1992); commercial); v. Peter- Nurmi like character son, Comment, Saunders, Copy- A. Daniel 1775, 407484 WL 1989 U.S.P.Q.2d Window, Rear Broken right Law’s "Vampi- (1950s movie hostess TV (C.D.Cal.1989) Midler 179, see 204-05 Cal.L.Rev. "Elvira”); accom- text hostess 1980sTV ra” sues Cir.1988). (9th Motor Ford Guy by brought (lawsuits 7-8 panying notes at New playing big Lombardo, claiming "Heathers," "Pump bands Slater, star Christian 21.If him, by and people of “Kuffs,” parties remind Volume,” "Untamed Eve Year's and up the bend can Geller, claiming psychics ap- who Nicholson alleged Uri Jack clone— Heart” —and him). Motschen- people of Of commercial, she? metal remind Cf. Nicholson in a pears viewers that bacher, was the claim Christian where about talk LEXIS stories 54 Slater, commercial, actually in the alleged plaintiff similarities Slater’s think talk ' reminded merely the commercial wise- it’s his nasal Apparently' and not to Nicholson. Times, Petersburg smiles, him. St. killer and cracks Citi- 13, Ottawa 1992, eyebrows, 10, his at Jan. 11; Gordon, see also supra note generally 19. See sneers, E2, Boston 1992, 10, his zen, at Jan. Ownership Public Madow, Private Michael menacing pres- 37, 1991, his Globe, at July Rights, Publicity Popular Culture Image: ID, his at ence, Today, June USA (an dis- excellent 201-03 Cal.L.Rev. cussion). Service, Aug. voice, News Gannett sing-song drawl, insinuating L.A. say, (or, his some lot 1990, F5). a whole That’s Times, Aug. of-patent); (duration § U.S.C. 154 20. common. the robot White than more copyright); (duration of 302-305 §§ U.S.C. deprived our culture will be of the sures valuable authors the original to their safety parody mockery expression, valve that cre- encourages but others to build ate. freely on the ideas that underlie it. This result is neither unfair nor unfortunate: It Moreover, dimension, consider the moral by is the means which panel majority about which the seems to law advances progress of science and gotten Saying Samsung so exercised. give art. We authors certain exclusive “appropriated” something begs of White’s rights, in exchange but get we a richer question: Should White have the ex- public domain. The majority ignores this something clusive as broad and teaching, wise and all poorer of us are the amorphous “identity”? Samsung’s as her for it.23 simply copy ad didn’t White’s schtick—like parody, something it created new.22 True, Samsung money, did it to make IV White does whatever she does to make panel, however, does more than mis- too; money, talks of “the dif- interpret By California refusing law: profit,” ference between fun and recognize parody exception to the but in the industry entertainment publicity, directly contradicts the profit. fun Why is Vanna White’s Copyright federal Act. Samsung didn’t for-profit persona— to exclusive use of her merely parody parodied Vanna White. persona not even be her own White appearing in “Wheel of For- creation, writer, but that of a director or tune,” copyrighted show, television producer superior Samsung’s right — parodies copyrighted gov- works are profit by creating its own inventions? by erned federal law. Why should she have such absolute

notes son See suppress. dearly want to might thinking judges' discretion, to focus courts’ supra. 1 & seem- is a Hudson only to Central citation Its politi- 33. (discussing 19, other 142-46 at supra note footnote, and afterthought, buried ing parodies). charged culturally cally and that commer- proposition only standing Horovitz, Again; Does Nike See, e.g., Bruce 30. First under protected speech is less cial “Family Spin on with a Targets Blacks Firm n. 3. at 1401 Amendment. ("The 1992, Times, at D1 Aug. Values", L.A. fathers" black stereotype about reinforces ad Fox, Trustees Board Uni- See also of Howard Johnson A. Lawrence (quoting 3032-35, 476-81, Fields, Advertising 109 S.Ct. Awards- Gaylord versity)); "narrowly tai- (1989) (reaffirming Black-Ori- Honors L.Ed.2d Awards CEBA Mania: Show making it’s not a clear Stage, Nov. requirement, but Advertising, Back lored" ented test). emphasiz- Jackson means” the Rev. Jesse (quoting restrictive "least images in positive black importance of ing the regulat- freer hand government has Kaufman, Quality His- advertising); Debra speech, but misleading commercial ing false De- Clients’ Rising Meet Production panic "appropria- regulation. Some such isn’t (Hispanic this July mands, Stage, Back misleading- might "identity” person's of a importance of tions” stresses advertising professional possi- endorsement, mere but the Suggest advertising); Mari- ly images in Hispanic positive enough to Sexist, isn't speech USA mislead bility Are Elias, Ads lyn Medical Often

Case Details

Case Name: Vanna White v. Samsung Electronics America, Inc. David Deutsch Associates

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Mar 18, 1993

Citation: 989 F.2d 1512

Docket Number: 90-55840

Court Abbreviation: 9th Cir.