CASE BRIEF

CITATION: Motschenbacher v. R. J. Reynolds Tobacco Co., 498 F.2d

821 (9th Cir. 1974)
FACTS:
The plaintiff Lothar Motschenbacher was a professional racecar driver.
He earns money from endorsing the production of manufacturers of
commercial products who pay him to do that. Mostchenbacher’s cars were
distinctive because they were always solid red with white stripes down the
sides and white oval bearing the number 11. The defendant, R.J. Reynolds
Tobacco Company assigned a commercial for Winston cigarettes, which he
manufactured. The video of the commercial was produced and televised
which utilized the stock color of racecars on track, with Motschenbacher's car
in the foreground. Motschenbacher's face was obscured. Several changes were
made to the appearance of the plaintiff’s car including the change of 71, a
spoiler bearing the word Winston was added to the car, speech bubble, giving
the appearance that the driver of car 71 was asking the viewer: “Did you
know that Winston tastes good, like a cigarette should?” The commercial
aired on television across the US. Motschenbacher sued Reynolds in a federal
diversity action in California for misappropriation of his name, likeness,
personality, and endorsement. The plaintiff submitted affidavits of witness
stating that after seeing the commercial, they inferred that Winston sponsored
Motschenbacher’s car. And after that, Reynolds filed a motion for summary
judgment. The district court considered the action to be an action for invasion
of privacy, and they granted summary judgment to Reynolds, assuming as a
matter of law that Motschenbacher's facial features were bizarre and for no
reason that could be Motschenbacher was the driver. For that reason,
Motschenbacher filed an appeal.
ISSUES
 The central legal issue in Motschenbacher v. R.J. Reynolds Tobacco
Co. (1974), decided by the Ninth Circuit Court of Appeals, revolved around
the intersection of publicity rights and commercial appropriation.
Publicity Rights: Well-established legal principles recognize the right
of publicly recognized individuals to control the commercial use of their
name, image, or likeness. This protects individuals from having their
identities exploited for profit without their consent.
Commercial Appropriation: In this context, commercial appropriation
refers to the unauthorized use of another's identity, or elements inextricably
linked to it, for the purpose of promoting a product or service.
The crux of the legal issue in Motschenbacher revolved around a
seemingly ordinary detail – a red car. The plaintiff, Motschenbacher, claimed
that a televised commercial by R.J. Reynolds Tobacco Co. misappropriated
his right of publicity. The commercial featured a red car, substantially similar
to one owned by Motschenbacher. He argued that the commercial
impermissibly linked him, without his consent, to the advertised cigarettes,
potentially damaging his reputation or suggesting an endorsement he had not
given. The central issue in Motschenbacher v. R.J. Reynolds Tobacco Co.,
498 F.2d 821 (9th Cir. 1974) can be broken down into three key questions:
Did the red car in the defendant cigarette advertisement look similar to
the own unique red car of the plaintiff?
Did the use of a red car, similar to the plaintiff's, in a cigarette
commercial constitute an appropriation of the plaintiff's right of publicity?
Whether a distinctive vehicle can be considered a likeness for the
purposes of right of publicity protection?
The case hinged on whether using a car visually associated with the
plaintiff, even if it wasn't his exact car, could be considered misappropriation
of his right of publicity.
RULES:
 In this case, our group believe that California courts, under Reich v.
Purcell, 67 Cal. 2d 551, 63 Cal. Rptr. 31, 432 P.2d 727 (1967), would apply
California local law such as California's Uniform Single Publication Act
(Civ.Code 3425.3). In California, as in the vast majority of jurisdictions, the
invasion of an individual's right of privacy is an actionable tort. Melvin v.
Reid, 112 Cal. App. 285, 297 P. 91 (1931). 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: intrusion upon the
plaintiff's seclusion or solitude; public disclosure of private facts; placing the
plaintiff in a false light in the public eye; and appropriation, for defendant's
advantage, of plaintiff's name or likeness. The case before us is of the fourth
variety-- commercial appropriation.
About the commercial aspect, it is true that the injury suffered from an
appropriation of the attributes of one's identity 1 may be “mental and
subjective” in the nature of humiliation, embarrassment, and outrage.
However, where the identity appropriated has a commercial value, the injury
may be largely, or even wholly, of an economic or material nature. 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

1
Dean Prosser noted in his Law of Torts (4th ed. 1971), at 805-806:
'It is the plaintiff's name as a symbol of his identity that is involved here, and not as a mere name. Unless
there is some tortious use made of it, there is no such thing as an exclusive right to the use of a name; and any
one can be given or assume any name he likes. It is only when he makes use of the name to pirate the
plaintiff's identity for some advantage of his own that he becomes liable. It is in this sense that
“appropriation' must be understood.”
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. 1973); 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).2
APPLICATION:
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. 3 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
2
Justia US Law (1974), Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974):
https://law.justia.com/cases/federal/appellate-courts/F2/498/821/325804/#fn5, truy cập ngày 10/3/2024.
3
For example, in Kerby v. Hal Roach Studios, 53 Cal. App. 2d 207, 127 P.2d 577 (1942), where an actress'
name was appropriated in an advertisement which 'cast doubt on her moral character,' the court spoke only of
the traditional compensation for injury to her feelings. 53 Cal. App. 2d at 210, 127 P.2d at 580. Similarly, in
Fairfield, supra, an attorney whose name, personality, and endorsement had been appropriated in an
advertisement was compensated only 'for injury to his peace of mind and to his feelings.' 138 Cal. App. 2d at
88, 291 P.2d at 198. And even in the recent decision in Stilson v. Reader's Digest Association, Inc., 28 Cal.
App. 3d 270, 104 Cal. Rptr. 581 (1972), the Court of Appeal reiterated that the injury in a privacy case is
'mental and subjective.' 28 Cal. App. 3d at 274, 104 Cal. Rptr. 581.
under the rubric of “privacy”; “property”, or “publicity”; we only determine
that they would recognize such an interest and protect it.
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.” Law of Torts (4th ed. 1971), at 807.
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.4 The reasons why California law may be applicable are as follows: First,
it appears that California, the state of plaintiff's residency, has a greater
interest in compensating its residents for injuries of the type here alleged than
other jurisdictions may have in compensating foreigners so injured within
their respective borders. Second, in cases of this type, the state of plaintiff's
residency is normally the state of the greatest injury. Third, California, as the
forum, has an interest in convenience and presumably can most easily
ascertain its own law. And fourth, California's Uniform Single Publication Act
(Civ.Code 3425.3) effectively advances the universal interest in avoiding a
multiplicity of suits and assisting the orderly administration of justice. 5

4
The definition of 'local law' set forth in Restatement (Second) of Conflict of Laws, 4 (1971), as follows:
“The 'local law' of a state is the body of standards, principles and rules, exclusive of its rules of Conflict of
Laws, which the courts of that state apply in the decision of controversies brought before them.”

5
Justia US Law (1974), Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974):
https://law.justia.com/cases/federal/appellate-courts/F2/498/821/325804/#fn5, truy cập ngày 10/3/2024.
 According to Prosser, Privacy, 48 Calif. L. Rev. 383 (1960); Prosser,
Law of Torts 804 (4th ed. 1971). Prosser's four categories are: intrusion upon
the plaintiff's seclusion or solitude; public disclosure of private facts; placing
the plaintiff in a false light in the public eye; and appropriation, for
defendant's advantage, of plaintiff's name or likeness. The case before us is of
the fourth variety-- commercial appropriation.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.
Our group turn now to the question of “identifiability”. Clearly, if the
district court correctly determined as a matter of law that plaintiff is not
identifiable in the commercial, then in no sense has plaintiff's identity been
misappropriated nor his interest violated. Having viewed a film of the
commercial, we agree with the district court that the “likeness” of plaintiff is
itself unrecognizable; however, the court's further conclusion of law to the
effect that the driver is not identifiable as plaintiff is erroneous in that it
wholly fails to attribute proper significance to the distinctive decorations
appearing on the car. As pointed out earlier, these markings were not only
peculiar to the plaintiff's cars but they caused some persons to think the car in
question was plaintiff's and to infer that the person driving the car was the
plaintiff.
Defendant's reliance on Branson v. Fawcett Publications, Inc., 124 F.
Supp. 429 (E.D. Ill. 1954), is misplaced. In Branson, a part-time racing driver
brought suit for invasion of privacy when a photograph of his overturned
racing car was printed in a magazine without his consent. In ruling that 'the
photograph does not identify the plaintiff to the public or any member
thereof”, 124 F. Supp. at 433, the court said: “The automobile is pointed
upward in the air and the picture shows primarily the bottom of the racer. The
backdrop of the picture is not distinguishable. No likeness, face, image, form
or silhouette of the plaintiff or of any person is shown. From all that appears
from the picture itself, there is no one in the car. Moreover, no identifying
marks or numbers on the car appear… Plaintiff does not even assert that the
car he was driving was the same color as that which appears in the colored
reproduction.”
CONCLUSION:
The Ninth Circuit Court of Appeals dismissed Lothar Motschenbacher's
lawsuit against R.J. Reynolds Tobacco Co. in Motschenbacher v. R.J.
Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974). Motschenbacher sued
R.J. Reynolds alleging that a Winston cigarette commercial misappropriated
his right of publicity, even though he wasn't explicitly featured in the ad.
The court's decision hinged on the concept of right of publicity, which
safeguards an individual's commercial interest in the use of their name, image,
or likeness. In order to succeed in his claim, Motschenbacher needed to
demonstrate that the commercial used his identity in a way that could be
recognizable by the audience. Because the commercial lacked any identifiable
elements of Motschenbacher, the court ruled in favor of R.J. Reynolds. This
case established a legal precedent that an individual cannot claim
misappropriation of their right of publicity unless they can be recognizably
linked to the commercial content.