Motschenbacher v. R.J. Reynolds Tobacco Co.

Lothar Motschenbacher (plaintiff) was a professional racecar driver who earned income from endorsements. Motschenbacher’s cars were distinctive because they were always solid red with a thin white stripe down the sides and a white oval bearing the number 11. R.J. Reynolds Tobacco Co. (Reynolds) (defendant) commissioned a commercial for Winston cigarettes, which Reynolds manufactured. The commercial was a video that had been created using a stock photo of racecars on a track, with Motschenbacher’s car in the foreground. Motschenbacher’s face was obscured. Several changes were made to the appearance of Motschenbacher’s car: the number was changed to 71, a spoiler bearing the word Winston was added to the car, and a speech bubble was added, 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 United States. Motschenbacher sued Reynolds in a federal diversity action in California for misappropriation of his name, likeness, personality, and endorsement and submitted affidavits of witnesses stating that after seeing the commercial, they inferred that Winston sponsored Motschenbacher’s car. Reynolds filed a motion for summary judgment. The district court considered the action to be an action for invasion of privacy and granted summary judgment to Reynolds, concluding as a matter of law that Motschenbacher’s facial features were unrecognizable and that no reasonable inference could be drawn that Motschenbacher was the driver. Motschenbacher appealed.