Motschenbacher v. RJ Reynolds Tobacco Company, 72-1419.

• Decision Date: 06 June 1974
• Docket Number: No. 72-1419.,72-1419.
• Citation: 498 F.2d 821
• Parties: Lothar MOTSCHENBACHER, Plaintiff-Appellant, v. R. J. REYNOLDS TOBACCO COMPANY, a corporation, and William Esty Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

498 F.2d 821 (1974)

Lothar MOTSCHENBACHER, Plaintiff-Appellant, v. R. J. REYNOLDS TOBACCO COMPANY, a corporation, and William Esty Company, Defendants-Appellees.

No. 72-1419.

United States Court of Appeals, Ninth Circuit.

June 6, 1974.

Robert Winckler, Los Angeles, Cal., for plaintiff-appellant.

Lillick, McHose, Wheat, Adams & Charles, Los Angeles, Cal., for defendants-appellees.

Before KOELSCH, HUFSTEDLER and TRASK, Circuit Judges.

OPINION

KOELSCH, Circuit Judge:

Lothar Motschenbacher appeals from the district court's order granting summary judgment in favor of defendants in his suit seeking injunctive relief and damages for the alleged misappropriation of his name, likeness, personality, and endorsement in nationally televised advertising for Winston cigarettes. The jurisdiction of the district court is founded on diversity of citizenship, 28 U.S.C. § 1332; appellate jurisdiction is predicated on 28 U.S.C. § 1291.

The "facts" on which the district court rendered summary judgment are substantially as follows:¹ Plaintiff Motschenbacher is a professional driver of racing cars, internationally known and recognized in racing circles and by racing fans. He derives part of his income from manufacturers of commercial products who pay him for endorsing their products.

During the relevant time span, plaintiff has consistently "individualized" his cars to set them apart from those of other drivers and to make them more readily identifiable as his own. Since 1966, each of his cars has displayed a distinctive narrow white pinstripe appearing on no other car. This decoration has adorned the leading edges of the cars' bodies, which have uniformly been solid red. In addition, the white background for his racing number "11" has always been oval, in contrast to the circular backgrounds of all other cars.

In 1970, defendants, R. J. Reynolds Tobacco Company and William Esty Company, produced and caused to be televised a commercial which utilized a "stock" color photograph depicting several racing cars on a racetrack. Plaintiff's car appears in the foregound, and although plaintiff is the driver, his facial features are not visible.

In producing the commercial, defendants altered the photograph: they changed the numbers on all racing cars depicted, transforming plaintiff's number "11" into "71"; they "attached" a wing-like device known as a "spoiler" to plaintiff's car; they added the word "Winston," the name of their product, to that spoiler and removed advertisements for other products from the spoilers of other cars. However, they made no other changes, and the white pinstriping, the oval medallion, and the red color of plaintiff's car were retained. They then made a motion picture from the altered photograph, adding a series of comic strip-type "balloons" containing written messages of an advertising nature; one such balloon message, appearing to emanate from plaintiff, was: "Did you know that Winston tastes good, like a cigarette should?" They also added a sound track consisting in part of voices coordinated with, and echoing, the written messages. The commercial was subsequently broadcast nationally on network television and in color.

Several of plaintiff's affiants who had seen the commercial on television had immediately recognized plaintiff's car and had inferred that it was sponsored by Winston cigarettes.

On these facts the district court, characterizing plaintiff's action as one "for damages for invasion of privacy," granted summary judgment for defendants, finding as a matter of law that

". . . the driver of car No. 71 in the commercial (which was plaintiff\'s car No. 11 prior to said change of number and design) is anonymous; that is, (a) the person who is driving said car is unrecognizable and unidentified, and (b) a reasonable inference could not be drawn that he is, or could reasonably be understood to be plaintiff, Lothar Motschenbacher, or any other driver or person."²

"Summary judgment of course is proper only where there is no genuine issue of any material fact or where viewing the evidence . . . in the light most favorable to the adverse party, the movant is clearly entitled to prevail as a matter of law." See Stansifer v. Chrysler Motors Corporation, 487 F.2d 59, 63 (9th Cir. 1973), and cases cited therein.

Since the Winston commercial was broadcast on television throughout the United States, our initial inquiry in determining the correct legal standards to be applied on the motion for summary judgment is directed at the proper choice of law. In a diversity case, a federal court must follow the substantive law of the state in which it sits. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). This includes the conflict of laws rules of that state. Klaxon Co. v. Stentor Electric Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Moore v. Greene, 431 F.2d 584, 589-590 (9th Cir. 1970).

In this case, we believe that California courts, under Reich v. Purcell, 67 Cal.2d 551, 63 Cal.Rptr. 31, 432 P.2d 727 (1967), would apply California local³ law.⁴ By the same token, noting the novelty of the factual situation presented and recognizing that the parties have each cited general case law in support of their respective positions, we think that California courts would not hesitate to consider relevant precedent from other jurisdictions in determining California local law.

In California, as in the vast majority of jurisdictions,⁵ the invasion of an individual's right of privacy is an actionable tort. Melvin v. Reid, 112 Cal. App. 285, 297 P. 91 (1931).⁶ In 1960 Dean Prosser, drawing on over 300 cases, observed that the tort is actually a complex of four separate and distinct torts, each of which is decided under an "invasion of privacy" label. See Prosser, Privacy, 48 Calif.L.Rev. 383 (1960); Prosser, Law of Torts 804 (4th ed. 1971). Prosser's four categories are: (1) intrusion upon the plaintiff's seclusion or solitude; (2) public disclosure of private facts; (3) placing the plaintiff in a false light in the public eye; and (4) appropriation, for defendant's advantage, of plaintiff's name or likeness.⁷ The case before us is of the fourth variety—commercial appropriation.⁸

California courts have observed that "the gist of the cause of action in a privacy case is not injury to the character or reputation, but a direct wrong of a personal character resulting in injury to the feelings without regard to any effect which the publication may have on the property, business, pecuniary interest, or the standing of the individual in the community." Fairfield v. American Photocopy Equip. Co., 138 Cal.App.2d 82, 86, 291 P.2d 194, 197 (1955). But this observation is perhaps better applied to Prosser's first three categories than it is to the appropriation cases.

It is true that the injury suffered from an appropriation of the attributes of one's identity⁹ may be "mental and subjective"—in the nature of humiliation, embarrassment, and outrage. Fairfield, supra, at 86, 291 P.2d 194. However, where the identity appropriated has a commercial value,¹⁰ the injury may be largely, or even wholly, of an economic or material nature.¹¹ Such is the nature of the injury alleged by plaintiff.

Some courts have protected this "commercial" aspect of an individual's interest in his own identity under a privacy theory. See, e. g., Palmer v. Schonhorn Enterprises, Inc., 96 N.J.Super. 72, 232 A.2d 458 (1967); see generally Treece, Commercial Exploitation of Names, Likenesses, and Personal Histories, 51 Texas L.Rev. 637 (1973); Netterville, Copyright and Tort Aspects of Parody, Mimicry and Humorous Commentary, 35 S.Cal.L.Rev. 225, 253-254, 267-275 (1962); and Annotation, Invasion of Privacy by Use of Plaintiff's Name or Likeness in Advertising, 23 A.L.R.3d 865 (1969).

Others have sought to protect it under the rubric of "property" or a so-called "right of publicity." See, e. g., Ettore v. Philco Television Broadcasting Corp., 229 F.2d 481, 485-493 (3d Cir. 1956), cert. den., 351 U.S. 926, 76 S.Ct. 783, 100 L.Ed. 1456 (1956); Haelan v. Topps Chewing Gum, 202 F.2d 866, 868 (2d Cir. 1953), cert. den., 346 U.S. 816, 74 S. Ct. 26, 98 L.Ed. 343 (1953), noted in Nimmer, The Right of Publicity, 19 Law & Contemp.Prob. 203 (1954), 62 Yale L.J. 1123 (1953), and 41 Geo.L.J. 583 (1953); Uhlaender v. Henricksen, 316 F.Supp. 1277, 1280-1283 (D.Minn.1970); Canessa v. J. I. Kislak, Inc., 97 N.J. Super. 327, 235 A.2d 62 (1967). Cf. Cepeda v. Swift & Co., 415 F.2d 1205, 1206 (8th Cir. 1969) (dictum); O'Brien v. Pabst Sales Co., 124 F.2d 167, 170-171 (5th Cir. 1941) (dissent); Sharman v. C. Schmidt & Sons, Inc., 216 F.Supp. 401, 407 (E.D.Pa., 1963) (dictum). See also Gordon, Right of Property in Name, Likeness, Personality and History, 55 Nw.U.L.Rev. 553 (1961).

Prosser synthesizes the approaches as follows:

"Although the element of protection of the plaintiff\'s personal feelings is obviously not to be ignored in such a case, the effect of the appropriation decisions is to recognize or create an exclusive right in the individual plaintiff to a species of trade name, his own, and a kind of trade mark in his likeness. It seems quite pointless to dispute over whether such a right is to be classified as `property\'; it is at least clearly proprietary in its nature. Once protected by the law, it is a right of value upon which the plaintiff can capitalize by selling licenses." (footnotes omitted)

Law of Torts (4th ed. 1971), at 807.

So far as we can determine, California has no case in point; the state's appropriation cases uniformly appear to have involved only the "injury to personal feelings" aspect of the tort.¹² Nevertheless, from our review of the relevant authorities, we conclude that the California appellate courts would, in a case such as this one, afford legal protection to an individual's proprietary interest in his own identity. We need not decide whether they would do so under the rubric of "privac...