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CASE 7-3
FRANK B. HALL & CO., INC. v. BUCK
Court of Appeals of Texas, Fourteenth District, 1984
678 S.W.2d 612, cert. denied, 472 U.S. 1009, 105 S.Ct. 2704, 86 L.Ed.2d 720 (1985)
http://scholar.google.com/scholar_case?
q=678+S.W.2d+612&hl=en&as_sdt=2,34&case=17495651340574040653&scilh=0
Junell, J.
[On June 1, 1976, Larry W. Buck, an established salesman in the insurance business, began
working for Frank B. Hall & Co. In the course of the ensuing months, Buck brought several
major accounts to Hall and produced substantial commission income for the firm. In
October 1976, Mendel Kaliff, then president of Frank B. Hall & Co. of Texas, informed
Buck that his salary and benefits were being reduced because of his failure to generate
sufficient income for the firm. On March 31, 1977, Kaliff and Lester Eckert, Hall’s office
manager, fired Buck. Buck was unable to procure subsequent employment with another
insurance firm. He hired an investigator, Lloyd Barber, to discover the true reasons for his
dismissal and for his inability to find other employment.
Barber contacted Kaliff, Eckert, and Virginia Hilley, a Hall employee, and told them
he was an investigator and was seeking information about Buck’s employment with the firm.
Barber conducted tape-recorded interviews with the three in September and October of
1977. Kaliff accused Buck of being disruptive, untrustworthy, paranoid, hostile, untruthful,
and of padding his expense account. Eckert referred to Buck as “a zero” and a “classical
Any act wherein the defamatory matter is intentionally or negligently communicated to a
third person is a publication. In the case of slander, the act is usually the speaking of the
words. Restatement (Second) Torts §577 comment a (1977). There is ample support in the
record to show that these individuals intentionally communicated disparaging remarks to a
third person. The jury was instructed that “Publication means to communicate defamatory
recover for a publication to which he has consented, or which he has authorized, procured or
invited, [citation]; and it may be true that Buck could assume that Hall’s employees would
give their opinion when asked they do so. However, there is nothing in the record to indicate
that Buck knew Hall’s employees would defame him when Barber made the inquiries. The
accusations made by Kaliff, Eckert and Hilley were not mere expressions of opinion but
were false and derogatory statements of fact.
* * *
A defamer cannot escape liability by showing that, although he desired to defame the
plaintiff, he did not desire to defame him to the person to whom he in fact intentionally
published the defamatory communication. The publication is complete although the
publisher is mistaken as to the identity of the person to whom the publication is made.
Restatement (Second) of Torts §577 comment 1 (1977). Likewise, communication to an
agent of the person defamed is a publication, unless the communication is invited by the
* * *
When an ambiguity exists, a fact issue is presented. The court, by submission of proper
fact issues, should let the jury render its verdict on whether the statements were fairly
susceptible to the construction placed thereon by the plaintiff. [Citation.] Here, the jury
found (1) Eckert made a statement calculated to convey that Buck had been terminated
because of serious misconduct; (2) the statement was slanderous or libelous; (3) the
statement was made with malice; (4) the statement was published; and (5) damage directly
resulted from the statement. The jury also found the statements were not substantially true.
The jury thus determined that these statements, which were capable of a defamatory
meaning, were understood as such by Burton.
* * *
We hold that the evidence supports the award of actual damages and the amount awarded
is not manifestly unjust. Furthermore, in responding to the issue on exemplary damages, the
jury was instructed that exemplary damages must be based on a finding that Hall “acted with
ill will, bad intent, malice or gross disregard to the rights of Buck.” Although there is no
*** Chapter Outcome ***
Explain the application of the various privileges to defamation suits and how they are
affected
by whether the plaintiff is a (a) public figure, (b) public offcial, or (c) private person.
Defenses to Defamation — A privilege is a legal defense to what would
otherwise be defamation; it provides immunity from liability when the
defamation furthers a societal interest of greater importance than the injury
caused by it. Three kinds of privilege apply to defamation:
Absolute privilege protects the defendant regardless of motive or intent.
It has been confined to those few situations where public policy clearly
favors complete freedom of speech and includes: (1) statements made by
participants regarding a judicial proceeding; (2) statements made by
members of Congress on the +oor of Congress; (3) statements made by
certain executive offcers while performing their governmental duty; and (4)
statements made between spouses when they are alone.
*** Chapter Outcome ***
Describe and distinguish the four torts comprising invasion of privacy.
Invasion of Privacy
Consists of four separate torts: (a) appropriation of a person’s name or
likeness; (b) unreasonable intrusion on the seclusion of another; (c)
unreasonable public disclosure of private facts; and (d) unreasonable
publicity that places another in false light in the public eye.
Appropriation — of someone’s name or likeness for personal benefit is not
permitted. Individuals have a right to exclusive use of their own name and
identity for gain. Also called right of publicity.
CASE 7-4
WHITE v. SAMSUNG ELECTRONICS AMERICA, INC.
United States Court of Appeals, Ninth Circuit, 1992
971 F.2d 1395, cert. denied, 508 U.S. 951, 113 S.Ct. 2443, 124 L.Ed.2d 660 (1993)
http://scholar.google.com/scholar_case?case=15763501998860364615&q=971+F.2d+1395&hl=en&as_sdt=2,34
Goodwin, J.
This case involves a promotional “fame and fortune” dispute. In running a particular
advertisement without Vanna White’s permission, defendants Samsung Electronics America,
Inc. (Samsung) and David Deutsch Associates, Inc. (Deutsch) attempted to capitalize on
White’s fame to enhance their fortune. White sued, alleging infringement of various
intellectual property rights, but the district court granted summary judgment in favor of the
defendants. We affirm in part, reverse in part, and remand.
Plaintiff Vanna White is the hostess of “Wheel of Fortune,” one of the most popular
game shows in television history. An estimated forty million people watch the program
daily. Capitalizing on the fame which her participation in the show has bestowed on her,
White markets her identity to various advertisers.
The dispute in this case arose out of a series of advertisements prepared for Samsung by
Deutsch. The series ran in at least half a dozen publications with widespread, and in some
cases national, circulation. Each of the advertisements in the series followed the same
The advertisement which prompted the current dispute was for Samsung videocassette
recorders (VCRs). The ad depicted a robot, dressed in a wig, gown, and jewelry which
Deutsch consciously selected to resemble White’s hair and dress. The robot was posed next
to a game ‘board which is instantly recognizable as the Wheel of Fortune game show set, in
a stance for which White is famous. The caption of the ad read: “Longest running game
* * *
White * * * argues that the district court erred in granting summary judgment to
defendants on White’s common law right of publicity claim. In Eastwood v. Superior Court,
[citation], the California court of appeal stated that the common law right of publicity cause
of action “may be pleaded by alleging (1) the defendant’s use of the plaintiff’s identity; (2)
the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or
The Eastwood court did not hold that the right of publicity cause of action could be
pleaded only by alleging an appropriation of name or likeness. Eastwood involved an
unauthorized use of photographs of Clint Eastwood and of his name. Accordingly, the
Eastwood court had no occasion to consider the extent beyond the use of name or likeness to
which the right of publicity reaches. That court held only that the right of publicity cause of
action “may be” pleaded by alleging, inter alia, appropriation of name or likeness, not that
the action may be pleaded only in those terms.
The “name or likeness” formulation referred to in Eastwood originated not as an element
of the right of publicity cause of action, but as a description of the types of cases in which
the cause of action had been recognized. The source of this formulation is Prosser, Privacy,
48 Cal.L.Rev. 383, 401–07 (1960), one of the earliest and most enduring articulations of the
common law right of publicity cause of action. In looking at the case law to that point,
Prosser recognized that right of publicity cases involved one of two basic factual scenarios:
name appropriation, and picture or other likeness appropriation. [Citation.]
Even though Prosser focused on appropriations of name or likeness in discussing the
right of publicity, he noted that “[i]t is not impossible that there might be appropriation of
publicity because “the defendants * * * for their own profit in selling their product did
appropriate part of her identity” by using a Midler sound-alike. [Citation.]
In Carson v. Here’s Johnny Portable Toilets, Inc., [citation], the defendant had marketed
portable toilets under the brand name “Here’s Johnny”—Johnny Carson’s signature “Tonight
Show” introduction—without Carson’s permission. The district court had dismissed
Carson’s Michigan common law right of publicity claim because the defendants had not
used Carson’s “name or likeness.” [Citation.] In reversing the district court, the sixth circuit
found “the district court’s conception of the right of publicity * * * too narrow” and held that
the right was implicated because the defendant had appropriated Carson’s identity by using,
inter alia, the phrase “Here’s Johnny.” [Citation.]
These cases teach not only that the common law right of publicity reaches means of
appropriation other than name or likeness, but that the specific means of appropriation are
relevant only for determining whether the defendant has in fact appropriated the plaintiff’s
identity. The right of publicity does not require that appropriations of identity be
Although the defendants in these cases avoided the most obvious means of appropriating
the plaintiffs’ identities, each of their actions directly implicated the commercial interests
which the right of publicity is designed to protect. As the Carson court explained,
[t]he right of publicity has developed to protect the commercial interest of celebrities in
their identities. The theory of the right is that a celebrity’s identity can be valuable in the
promotion of products, and the celebrity has an interest that may be protected from the
[Citation.] It is not important how the defendant has appropriated the plaintiff’s identity,
but whether the defendant has done so. Motschenbacher, Midler, and Carson teach the
impossibility of treating the right of publicity as guarding only against a laundry list of
specific means of appropriating identity. A rule which says that the right of publicity can be
infringed only through the use of nine different methods of appropriating identity merely
challenges the clever advertising strategist to come up with the tenth.
Indeed, if we treated the means of appropriation as dispositive in our analysis of the right
of publicity, we would not only weaken the right but effectively eviscerate it. The right
the most popular celebrities are not only the most attractive for advertisers, but also the
easiest to evoke without resorting to obvious means such as name, likeness, or voice.
Consider a hypothetical advertisement which depicts a mechanical robot with male
features, an African-American complexion, and a bald head. The robot is wearing black
hightop Air Jordan basketball sneakers, and a red basketball uniform with black trim, baggy
shorts, and the number 23 (though not revealing “Bulls” or “Jordan” lettering). The ad
depicts the robot dunking a basketball one-handed, stiffarmed, legs extended like open
Viewed separately, the individual aspects of the advertisement in the present case say
little. Viewed together, they leave little doubt about the celebrity the ad is meant to depict.
The female-shaped robot is wearing a long gown, blond wig, and large jewelry. Vanna White
dresses exactly like this at times, but so do many other women. The robot is in the process of
turning a block letter on a game-board.
Vanna White dresses like this while turning letters on a game-board but perhaps
similarly attired Scrabble-playing women do this as well. The robot is standing on what
looks to be the Wheel of Fortune game show set. Vanna White dresses like this, turns letters,
and does this on the Wheel of Fortune game show. She is the only one. Indeed, defendants
themselves referred to their ad as the “Vanna White” ad. We are not surprised.
Television and other media create marketable celebrity identity value. Considerable
energy and ingenuity are expended by those who have achieved celebrity value to exploit it
Intrusion — concerns the unreasonable and highly offensive interference
with a person’s solitude or seclusion. It applies to places and events or
occurrences where the individual has a heightened right of privacy on which
the wrongdoer intrudes, such as unauthorized entry into home or
eavesdropping on a private conversation. Information contained in public
records is not covered.
Public Disclosure of Private Facts — applies where private, though true,
facts about another are publicized. Distinguish “publicized” from the
“publication” required in defamation cases. “Publicized” means the private
Misuse of Legal Procedure
Comprised of three torts, each protects an individual from being subjected to
unjustifiable litigation:
Malicious Prosecution — bringing a criminal proceeding without probable
cause, for an improper purpose, resulting in a finding of not guilty.
Wrongful Civil Proceedings — like malicious prosecution, except in a civil
suit.
Abuse of Process — use of legal proceedings for purposes other than their
intended purposes, even if there is probable cause.
*** Chapter Outcome ***
Identify and describe the torts that protect against harm to property.
D. HARM TO PROPERTY
Real Property
Real property is land and anything attached to it, such as buildings, trees,
and minerals. The possessor of land has the right to its exclusive use and
quiet enjoyment.
Trespass — A person is liable for trespass to real property if he intentionally
(1) enters or remains on land in the possession of another; (2) causes a thing
or a third person to do so; or (3) fails to remove from the land a thing that he
is under a duty to remove. Liability exists even though no actual damage
occurs. Mistake is no defense. A trespass may be committed on, beneath,
or above the surface of the land.
Personal Property
Personal property is any type of property other than an interest in land;
protected interests include the retention of possession of the property, the
physical condition and usability at the present time, and the property’s
availability for use in the future.
Trespass — Trespass to personal property consists of the intentional
dispossession or unauthorized use of the personal property of another. For
trespass, the owner recovers damages for the actual harm to the property or
for loss of possession.
E. HARM TO ECONOMIC INTERESTS
Economic interests include a person’s existing and prospective contractual
relations, business reputation, name and likeness, and freedom from
deception.
*** Chapter Outcome ***
Distinguish among interference with contractual relations,
disparagement, and fraudulent misrepresentation.
Interference With Contractual Relations
An improper interference aimed at inducing a party to a contract not to
perform. Liability requires that a person act with the purpose of interfering
with another’s contract and with the knowledge that interference is
substantially certain to occur as a result of her actions.
Disparagement
Involves intentional or reckless publication of false facts which injure a
person’s economic or monetary interests. Absolute, conditional, and
constitutional privilege apply to the same extent to disparagement as they
do to defamation.
Fraudulent Misrepresentation
The intentional misrepresentation of a material fact; imposes liability for the
monetary loss caused by a justifiable reliance on the misrepresentation.
NOTE: Fig. 7-3: Intentional Torts lists the interests protected by each tort.
F. DEFENSES TO INTENTIONAL TORTS
Consent
Privilege
Conduct of a defendant is privileged, and therefore immune from liability if it
furthers a social interest such as in the case of self-defense, defense of
property and defense of others.
