Catching Smoke, Nailing JELL-O to a Wall: The Vanna White Case and the Limits of Celebrity Rights

Journal of Intellectual Property Law Volume 3 | Issue 1 Article 3 October 1995 Catching Smoke, Nailing JELL-O to a Wall: The Vanna White Case and the Limits of Celebrity Rights David S. Welkowitz Whittier Law School Follow this and additional works at: https://digitalcommons.law.uga.edu/jipl Part of the Intellectual Property Law Commons Recommended Citation David S. Welkowitz, Catching Smoke, Nailing JELL-O to a Wall: The Vanna White Case and the Limits of Celebrity Rights, 3 J. Intell. Prop. L. 67 (1995). Available at: https://digitalcommons.law.uga.edu/jipl/vol3/iss1/3 This Article is brought to you for free and open access by Digital Commons @ Georgia Law. It has been accepted for inclusion in Journal of Intellectual Property Law by an authorized editor of Digital Commons @ Georgia Law. Please share how you have benefited from this access For more information, please contact . Welkowitz: Catching Smoke, Nailing JELL-O to a Wall: The Vanna White Case an CATCHING SMOKE, NAILING JELL-O TO A WALL: THE VANNA WHITE CASE AND THE LIMITS OF CELEBRITY RIGHTS David S. Welkowitz* The suit brought by Vanna White against Samsung1 already has achieved considerable notoriety, both in legal circles 2 and in the media.3 (And, incidentally, it resulted in a not inconsiderable award of money to Vanna White.') With so much having been said already, one hesitates to add to the pile. Yet, the case is a very troubling one and should be commented upon for that reason. In this essay, I propose to explore a few aspects of the case I find most troubling and difficult. By the end, I hope to convince readers not only that this case was decided incorrectly, but also that the court overlooked important differences between this case and other socalled "right of publicity" cases in which recovery was allowed. * Professor of Law, Whittier Law School. J.D., New York University School of Law, 1978; A.B., Princeton University, 1975. I would like to thank my colleague, Tyler Ochoa, for his helpful comments on an earlier draft of this article. 1 White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 23 U.S.P.Q.2d (BNA) 1583 (9th Cir. 1992), en banc reh'g denied, 989 F.2d 1512, 26 U.S.P.Q.2d (BNA) 1362 (9th Cir.), cert.denied, 113 S. Ct. 2443 (1993). 2 E.g., J. THOMAS McCARTHY, THE RIGHTS OF PUBLICITY AND PmrVACY § 4.15[D] (1994 rev.); William M. Borchard, The Common Law Right of Publicity is Going Wrong in the United States: Waits v. Frito-Lay and White v. Samsung Electronics, 6 ENT. L. REV. 208 (1992); Patricia B. Frank, White v. Samsung Electronics America, Inc.: The Right of Publicity Spins its Wheels, 55 OHIO ST. L.J. 1115 (1994); Gretchen A. Pemberton, The Parodist'sClaim to Fame: A Parody Exception to the Right of Publicity, 27 U.C. DAVIS L. REV. 97 (1993); Alexander C. Giftos, Comment, The Common Law Right of Publicity and CommercialAppropriationof CelebrityIdentity: 'A Whole New Wardrobefor Vanna", 38 ST. LOUIS U. L.J. 983 (1994); John F. Hyland and Ted C. Lindquist III, Note, White v. Samsung Electronics America, Inc.: The Wheels of Justice Take an Unfortunate Turn, 23 GOLDEN GATE U. L. REV. 299 (1993). 3 E.g., Greg Braxton, Vanna White RulingHas ImpressionistsSpinning, LA. TIMES, June 4, 1993, at F2; Aaron Epstein, Cashing in on Celebrities Courts Trouble, DETROIT FREE PRESS, September 19, 1993, at IF; Lois Romano, The Reliable Source, WASH. POST, June 2, 1993, at B3; Neal Rubin, Neal Rubin's Names and Faces,DETROIT FREE PRESS, January 21, 1994, at 10F. See also White, 989 F.2d at 1517 n.23 (Kozinski, J., dissenting from denial of rehearing en banc) (citing several articles). 4 Shauna Snow, Morning Report, L.A. TIMES, January 21, 1994, at F2 (reporting jury verdict for $403,000 in favor of Vanna White). Published by Digital Commons @ Georgia Law, 1995 1 Journal of Intellectual Property Law, Vol. 3, Iss. 1 [1995], Art. 3 J. INTELL. PROP.L. [Vol. 3:67 The dispute arose from an advertising campaign for videocassette recorders on behalf of Samsung, a manufacturer of consumer electronic products. The point of the advertising in question was to emphasize that Samsung intended to be a leader in the consumer electronics market for many years to come. Its advertisements featured whimsical (and often farcical) looks at future events, indicating that Samsung still would be around when those events took place. For example, one advertisement showed commentator Morton Downey, Jr. with the caption "Presidential candidate. 2008 A.D."5 The advertisement that induced the lawsuit featured a robot with a blond wig and gown standing next to a set of capital letters like those on the Wheel of Fortune game show. The caption read "Longest-running game show. 2012 A.D."' Vanna White, hostess of Wheel of Fortune, sued Samsung, claiming that the advertisement infringed her commercial right of publicity. Although the advertisement used a robot and did not claim that she was a Samsung product endorser, the Ninth Circuit Court of Appeals upheld White's right to sue7 and, ultimately, a jury awarded her $403,000.8 This essay will focus on the kind of use made by Samsung of the "identity" of Vanna White and how it differs from other cases. By permitting Vanna White to recover, the court overlooked necessary limits on the right of publicity. Part I of the essay will focus on a specific problem with White-what I call the "metaphoric use" of celebrity. It will be argued that White gives protection to a celebrity far beyond what ought to be the core concerns of any right of publicity. The primary problem with such protection is the chameleon-like quality of the right at issue. At various times, it looks and is treated like different types of intellectual property. But, as the right has expanded, it has taken on new shapes that transcend limits on traditional intellectual property rights. When deciding whether to grant a right to the celebrity in a particular case, one appropriately may ask whether this transcendence is 5 White, 971 F.2d at 1396. ' Id. The robot clearly was not intended to be a recognizable human being. The only human features were the blond wig, dress and jewelry. See id. at 1396-97 (holding it was not "likeness" of Vanna White). Id. at 1402. s Snow, supra note 4, at F2. https://digitalcommons.law.uga.edu/jipl/vol3/iss1/3 2 Welkowitz: Catching Smoke, Nailing JELL-O to a Wall: The Vanna White Case an 1995] THE VANNA WHITE CASE justified or whether more traditional limits on intellectual property rights should cabin this right as well. Part II will expand the discussion to the larger issue of the boundaries of the right of publicity, again focusing on the boundaries (or lack thereof) implicit in the White case. The White decision, and many others, give broad protection to celebrities against any use of their celebrity "status" or "identity," if the use is labeled "commercial." But "commerciality" is a poor proxy for a wrongful appropriation. We will begin with some background, followed by a focuse (...truncated)