by United States Court of Appeals for the Ninth Circuit

“ VI Finally, I can’t see how giving White the power to keep others from evoking her image in the public’s mind can be squared with the First Amendment. Where does White get this right to control our thoughts? The majority’s creation goes way beyond the protection given a trademark or a copyrighted work, or a person’s name or likeness. All those things control one particular way of expressing an idea, one way of referring to an object or a person. But not allowing any means of reminding people of someone? That’s a speech restriction unparalleled in First Amendment law. ”

“ Overprotecting intellectual property is as harmful as underprotecting it. Creativity is impossible without a rich public domain. Nothing today, likely nothing since we tamed fire, is genuinely new: Culture, like science and technology, grows by accretion, each new creator building on the works of those who came before. ”

“ A limited right that applies to unauthorized use of name and likeness probably does not run afoul of the Copyright Clause, but the majority’s protection of “identity” is quite another story. Under the majority’s approach, any time anybody in the United States—even somebody who lives in a state with a very narrow right of publicity—creates an ad, he takes the risk that it might remind some segment of the public of somebody, perhaps somebody with only a local reputation, somebody the advertiser has never heard of. ”

“ Concerned about what it sees as a wrong done to Vanna White, the panel majority erects a property right of remarkable and dangerous breadth: Under the majority’s opinion, it’s now a tort for advertisers to remind the public of a celebrity. Not to use a celebrity’s name, voice, signature or likeness; not to imply the celebrity endorses a product; but simply to evoke the celebrity’s image in the public’s mind. This Orwellian notion withdraws far more from the public domain than prudence and common sense allow. It conflicts with the Copyright Act and the Copyright Clause. ”

“ All of these diminish an intellectual property owner’s rights. All let the public use something created by someone else. But all are necessary to maintain a free environment in which creative genius can flourish. ”

“ The public will be robbed of parodies of celebrities, and our culture will be deprived of the valuable safety valve that parody and mockery create.
Moreover, consider the moral dimension, about which the panel majority seems to have gotten so exercised. Saying Samsung “appropriated” something of White’s begs the question: Should White have the exclusive right to something as broad and amorphous as her “identity”? Samsung’s ad didn’t simply copy White’s schtick—like all parody, it created something new. [22] True, Samsung did it to make money, but White does whatever she does to make money, too ”

“ A right of publicity created by one state applies to conduct everywhere, so long as it involves a celebrity domiciled in that state. If a Wyoming resident creates an ad that features a California domiciliary’s name or likeness, he’ll be subject to California right of publicity law even if he’s careful to keep the ad from being shown in California. ”

“ And scads of copyright holders see purple when their creations are made fun of. [10]
Something very dangerous is going on here. Private property, including intellectual property, is essential to our way of life. It provides an incentive for investment and innovation; it stimulates the flourishing of our culture; it protects the moral entitlements of people to the fruits of their labors. But reducing too much to private property can be bad medicine. Private land, for instance, is far more useful if separated from other private land by public streets, roads and highways. ”

“ The First Amendment isn’t just about religion or politics—it’s also about protecting the free development of our national culture. Parody, humor, irreverence are all vital components of the marketplace of ideas. The last thing we need, the last thing the First Amendment will tolerate, is a law that lets public figures keep people from mocking them, or from “evok [ing] ” their images in the mind of the public. 971 F.2d at 1399. [29]
The majority dismisses the First Amendment issue out of hand because Samsung’s ad was commercial speech. ”

“ It is the means by which intellectual property law advances the progress of science and art. We give authors certain exclusive rights, but in exchange we get a richer public domain. The majority ignores this wise teaching, and all of us are the poorer for it. [23]
IV The panel, however, does more than misinterpret California law: By refusing to recognize a parody exception to the right of publicity, the panel directly contradicts the federal Copyright Act. Samsung didn’t merely parody Vanna White. ”

“ Commercial speech is a significant, valuable part of our national discourse. The Supreme Court has recognized as much, and has insisted that lower courts carefully scrutinize commercial speech restrictions, but the panel totally fails to do this. The panel majority doesn’t even purport to apply the Central Hudson test, which the Supreme Court devised specifically for determining whether a commercial speech restriction is valid. ”

“ After all, that’s all Samsung did: It used an inanimate object to remind people of White, to “evoke [her identity] .” 971 F.2d at 1399. [17]
Consider how sweeping this new right is. What is it about the ad that makes people think of White? It’s not the robot’s wig, clothes or jewelry; there must be ten million blond women (many of them quasi-famous) who wear dresses and jewelry like White’s. It’s that the robot is posed near the “Wheel of Fortune” game board. Remove the game board from the ad, and no one would think of Vanna White. ”

“ Rudolf Valentino’s heirs want to control his film biography. [3] The Girl Scouts don’t want their image soiled by association with certain activities. [4] George Lucas wants to keep Strategic Defense Initiative fans from calling it “Star Wars.” ”