On March 4, 2020, Arnold Schwarzenegger (through his company, Oak Productions, Inc.) filed a lawsuit in a California state court against ASAP Group, LLC (doing business as Promobot).  See Oak Prods., Inc. v. ASAP Grp., LLC, No. 20SMCV00347 (Mar. 4, 2020).  According to the complaint, Promobot manufactures customizable service robots that can be made to look like real people, and it has “made Schwarzenegger the unwilling ‘face’ of Promobot” by marketing a robot made in the former governor’s likeness[1] without his permission.

Specifically, Schwarzenegger’s complaint lists four causes of action, based on (1) California Civil Code section 3344; (2) common law right of publicity; (3) unjust enrichment; and (4) unfair business practices (i.e., likelihood of confusion regarding whether Schwarzenegger has endorsed Promobot).  And although the case is still in its infancy, it is worth noting that this is not the first time a celebrity has brought right of publicity claims against the use of a robot that resembles her or him.

In 1992, Wheel of Fortune hostess Vanna White sued over an advertisement that “depicted a robot, dressed in a wig, gown, and jewelry which [the advertiser] consciously selected to resemble White’s hair and dress.  The robot was posed next to a game board which [wa]s instantly recognizable as the Wheel of Fortune game show set. . . .”  White v. Samsung Elecs. Am., Inc., 971 F.2d 1395 (9th Cir. 1992).  Since the advertisement had been created without White’s permission, she sued based on (1) California Civil Code section 3344; (2) California’s common law right of publicity; and (3) likelihood of confusion under Section 43 of the Lanham Act.  Also, importantly, the defendants in White “used a robot with mechanical features, and not, for example, a manikin molded to White’s precise features.”  971 F.2d at 1397.  Thus, reasoning that the robot did not look like White, the district court granted summary judgment for the defendants on all of White’s claims.

On appeal, the Ninth Circuit affirmed in part, reversed in part, and remanded to the district court.  In regard to White’s first cause of action, the court noted that California Civil Code section 3344(a) provides, “Any person who knowingly uses another’s name, voice, signature, photograph, or likeness, in any manner . . . for purposes of advertising or selling . . . without such person’s prior consent . . . shall be liable for any damages sustained by the person or persons injured as a result thereof.”  White, 971 F.2d at 1397.  Furthermore, the court agreed with the district court that the defendants’ robot did not actually look like White.  Accordingly, the Ninth Circuit affirmed the district court’s dismissal of White’s section 3344 claim.

As to White’s second cause of action, the court explained that California’s common law right of publicity “may be pleaded by alleging (1) the defendant’s use of the plaintiff’s identity; the appropriation of plaintiff’s name or likeness to defendant’s advantage, commercially or otherwise; (3) lack of consent; and (4) resulting injury.”  White, 971 F.2d at 1397.  Based on this formulation, the district court dismissed White’s claim because, in its view, the defendants had not appropriated White’s “name or likeness.”

However, in California, the common law “right of publicity is not limited to the appropriation of name or likeness.”  White, 971 F.2d at 1398.  Rather, “a celebrity’s identity can be valuable in the promotion of products, and the celebrity has an interest that may be protected from the unauthorized commercial exploitation of that identity . . . .  If the celebrity’s identity is commercially exploited, there has been an invasion of his right whether or not his ‘name or likeness’ is used.”  Id. (quoting Carson v. Here’s Johnny Portable Toilets, Inc., 698 F.2d 831, 835 (6th Cir. 1983)).  Thus, since White had alleged facts showing that the defendants had appropriated her identity, notwithstanding the differences in likeness between herself and the robot, the Ninth Circuit reversed the district court’s grant of summary judgment on this claim.

Last, the court explained that White’s third cause of action required showing that the defendants’ advertisement created a likelihood of confusion over whether White was endorsing the defendants’ product, based on an analysis of the Sleekcraft likelihood of confusion factors.[2]  White, 971 F.2d at 1399–00.  To that end, the Ninth Circuit determined that the district court had erred in balancing the Sleekcraft factors and that White had “raised a genuine issue of material fact concerning a likelihood of confusion as to her endorsement.”  White, 971 F.2d at 1401.  Accordingly, the court reversed summary judgment as to White’s Section 43 claim as well.

Already, Schwarzenegger’s case appears to share some similarities with White, as the claims and issues to be decided are mostly all the same.  Just like the plaintiff in White, here Schwarzenegger alleges causes of action based on California’s statutory and common law rights of publicity, as well as on a likelihood of confusion over endorsement.  Notably, it appears that the Promobot robot does share a likeness with the real Schwarzenegger—a key distinction from the facts of White that may play out in Schwarzenegger’s favor, particularly with respect to the section 3344 issue.

We will continue to monitor for developments.  If this case advances, we’ll be back…

[1] To be clear, it appears Promobot’s robot is not capable of time travel.

[2] The Sleekcraft factors for determining likelihood of confusion include (1) strength of plaintiff’s mark [or celebrity identity]; (2) relatedness of goods; (3) similarity of the marks; (4) evidence of actual confusion; (5) marketing channels used; (6) likely degree of purchaser care; (7) defendant’s intent in selecting the mark; and (8) likelihood of expansion of the product lines.  See AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341, 348–49 (9th Cir. 1979).