# Motschenbacher v. R.J. Reynolds: Identifiability Beyond the Face

> The Ninth Circuit held a race car's distinctive markings could identify its driver, extending misappropriation past name and face to any evocative indicia.

Topic: Right of Publicity  |  Author: Lidiia Levitska  |  Source: Intellectual Property Law (outsideipcounsel.com)
Canonical: https://outsideipcounsel.com/blog/motschenbacher-v-rj-reynolds-race-car-identifiability/


In *Motschenbacher v. R.J. Reynolds Tobacco Co.*, 498 F.2d 821 (9th Cir. 1974), decided June 6, 1974, the United States Court of Appeals for the Ninth Circuit confronted a deceptively simple question with lasting consequences for the right of publicity: can a person be identified in an advertisement when his face never appears? Lothar Motschenbacher was an internationally known professional race-car driver who individualized his vehicles with a distinctive livery. A 1970 television commercial for Winston cigarettes used a stock photograph of his car, altered so that his number was changed and a spoiler was attached, but preserved the solid red body, the narrow white pinstripe, and the oval white background for the racing number. Motschenbacher's face was not visible in the image, yet people recognized the car as his and inferred that he endorsed the product. The district court granted summary judgment for the tobacco company. Writing for the panel, Circuit Judge Koelsch vacated that judgment and remanded, holding that California law would protect a person's proprietary interest in his own identity and that the distinctive markings raised a jury question on whether the plaintiff was identifiable.

The decision is the foundational identifiability case in American right-of-publicity law. It established that likeness is not confined to a name or a photographic face, but extends to any indicia that reliably evoke a particular person in the public mind.

## At a glance

- **Case:** *Motschenbacher v. R.J. Reynolds Tobacco Co.*, 498 F.2d 821 (9th Cir. 1974).
- **Decided:** June 6, 1974; panel of Koelsch, Hufstedler, and Trask, opinion by Circuit Judge Koelsch; summary judgment for defendants vacated and remanded.
- **Holding:** California law protects a proprietary interest in one's own identity, and distinctive markings on a race car can make the driver identifiable even where his face is not shown, presenting a jury question that forecloses summary judgment.
- **Significance:** The origin point for the identifiability principle, later extended to voice, catchphrases, and other evocative indicia.

## The doctrinal frame: from privacy to a proprietary interest

Motschenbacher arose in diversity, so under *Erie Railroad Co. v. Tompkins* and *Klaxon Co. v. Stentor Electric Manufacturing Co.* the Ninth Circuit had to predict how California courts would treat the appropriation of a person's identity in advertising. California had no case squarely on point. The court worked from William Prosser's influential taxonomy of the four privacy torts, one of which is appropriation of a plaintiff's name or likeness for the defendant's advantage, and from the lineage running through *Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.*, 202 F.2d 866 (2d Cir. 1953), which coined the "right of publicity," and Melville Nimmer's early scholarship on the subject.

The panel drew a sharp line between the dignitary privacy interests and the commercial interest at stake here. Where a person's identity carries commercial value, the court observed, the injury from its unauthorized use "may be largely, or even wholly, of an economic or material nature," unlike the "mental and subjective" harm associated with the other privacy branches. That framing matters. It reconceived the wrong as an interference with a proprietary asset rather than an affront to feelings, which in turn justified protecting the identity as something with market value that others should not exploit for free.

## The facts and the altered photograph

Motschenbacher raced cars he had deliberately made his own. Each carried a solid red body, a slender white pinstripe that appeared on no other car, and an oval, rather than circular, white field bearing his number "11." For the Winston commercial, the advertiser used a photograph of the field of cars, then modified the image: the "11" became "71," a spoiler bearing the word "Winston" was added, and other minor changes were made. What the advertiser did not alter were the features most associated with the plaintiff, namely the red color, the pinstripe, and the oval medallion. His face could not be seen. Affidavits, which the court accepted as true only for purposes of the summary judgment motion, stated that viewers who saw the commercial immediately recognized the car as Motschenbacher's and inferred that it was sponsored by Winston.

The district court thought this fatal to the claim, reasoning that because the driver himself was not visible, no one could be said to have used his likeness. That is the conclusion the Ninth Circuit rejected.

## Identifiability by indicia: the core holding

The panel held that the trial court erred by failing to give "proper significance to the distinctive decorations appearing on the car." The legally operative fact was not whether the plaintiff's face appeared, but whether the totality of the image caused people to recognize the individual. Because the markings were peculiar to Motschenbacher and led viewers to infer his identity and involvement, the question of identifiability was one a reasonable jury could resolve in his favor. Summary judgment was therefore improper.

The court distinguished authority denying recovery where a depicted object carried no individualizing marks, contrasting a case involving an overturned car with no identifying features. The difference was recognition. When indicia reliably summon a specific person to mind, the person has been identified for purposes of the appropriation claim, regardless of the medium or the absence of a literal portrait.

In its statutory footnoting the court also flagged California's then-new Civil Code section 3344, which provides a minimum recovery for the knowing use of another's name, photograph, or likeness, and the 1972 state constitutional privacy amendment. It grounded its analysis, however, in the common-law proprietary interest rather than the statute.

## What the decision did and did not resolve

The lasting contribution of *Motschenbacher* is the identifiability principle: identity can be appropriated through any signifier that evokes a particular person, not merely through a name or a face. That idea seeded the most important expansions of the doctrine. Fourteen years later the same circuit held in *Midler v. Ford Motor Co.*, 849 F.2d 460 (9th Cir. 1988), that imitating a singer's distinctive voice could appropriate her identity, and in *White v. Samsung Electronics America, Inc.*, 971 F.2d 1395 (9th Cir. 1992), it found a robot dressed to evoke Vanna White sufficient to state a claim. *Carson v. Here's Johnny Portable Toilets, Inc.* and *Waits v. Frito-Lay, Inc.* belong to the same line. All trace back to the recognition rationale first articulated here.

It is equally important to be precise about what the opinion did not decide. Contrary to occasional summaries, *Motschenbacher* did not hold the right of publicity descendible and contains no footnote announcing a survival rule. Its most-cited footnote addresses the relationship between fame and the extent of economic injury, and a separate footnote discusses the property characterization and the transferability of a proprietary interest, but neither reaches the question of what happens at death. The court expressly declined to decide whether the interest sounds in privacy, property, or publicity, holding only that California would recognize and protect it. Descendibility of the California right was contested later, most prominently in *Lugosi v. Universal Pictures*, 25 Cal. 3d 813 (1979).

## Open questions

- **How distinctive must indicia be?** The court protected a livery unique to the plaintiff, but offered no test for how singular a signifier must be before it identifies a person as a matter of law rather than a jury question.
- **Whose recognition counts?** The opinion says only that several of the plaintiff's affiants who had seen the commercial recognized the car, without describing who they were. It did not specify whether identifiability turns on the general public, a relevant audience, or some threshold share of viewers.
- **Where is the line with commentary?** Because the use was purely commercial, the panel had no occasion to weigh identifiability against expressive or newsworthy uses that also evoke a person through indicia.
- **What doctrinal label governs remedies?** By declining to choose among privacy, property, and publicity, the court left the measure of damages and the availability of assignment and survival to later cases.

## Implications for creators and businesses

- **Likeness is broader than a face.** Advertisers cannot assume that obscuring or omitting a person's features avoids a claim. Any distinctive attribute that identifies an individual, from a signature vehicle to a recognizable style, can trigger liability.
- **Alteration is not a safe harbor.** Changing a number or adding a logo did not defeat identifiability here because the features most associated with the plaintiff survived the edits. Clearance should focus on what remains recognizable, not on what was changed.
- **Identity has market value the law will protect.** By framing the interest as proprietary and economic, the decision treats unauthorized use as the taking of an asset, which supports damages measured by the commercial value appropriated.
- **Diligence should map the indicia, not just the name.** Businesses licensing imagery should ask whether the subject is identifiable through anything in the frame, and secure consent accordingly, because recognition by the relevant audience is the operative test.

## Frequently asked questions

**Did Motschenbacher win his case?**
Not outright. The Ninth Circuit vacated the district court's summary judgment for R.J. Reynolds and remanded for further proceedings. It held that whether the altered photograph identified Motschenbacher was a genuine factual question for a jury, not something the trial court could resolve against him on the papers. The decision revived his claim rather than finally deciding it.

**How can someone be identified in an ad when their face is not shown?**
Motschenbacher established that identity can be evoked by distinctive indicia associated with a person, not just a name or a recognizable face. The plaintiff's cars carried a solid red body, a narrow white pinstripe unique to him, and an oval number medallion. Because those markings led some viewers to recognize the car as his and infer he was the driver, the court held that identifiability could not be denied as a matter of law and was a question for the trier of fact, even though his features were not visible.

**Did Motschenbacher decide that the right of publicity survives death?**
No. The opinion recognized a proprietary, commercially valuable interest in one's own identity under California law, but it did not decide whether that interest is descendible or survives death. The court expressly declined to fix a single doctrinal label. Descendibility of the California right was litigated later in separate cases such as Lugosi v. Universal Pictures.

## Authorities and sources

- *Motschenbacher v. R.J. Reynolds Tobacco Co.*, 498 F.2d 821 (9th Cir. 1974), full opinion PDF: https://rightofpublicity.com/pdf/cases/motschenbacher.pdf
- *Motschenbacher v. R.J. Reynolds Tobacco Co.*, No. 72-1419, opinion text: https://law.resource.org/pub/us/case/reporter/F2/498/498.F2d.821.72-1419.html
- *Haelan Laboratories, Inc. v. Topps Chewing Gum, Inc.*, 202 F.2d 866 (2d Cir. 1953): https://law.resource.org/pub/us/case/reporter/F2/202/202.F2d.866.158.22564.html
- *Midler v. Ford Motor Co.*, 849 F.2d 460 (9th Cir. 1988): https://law.resource.org/pub/us/case/reporter/F2/849/849.F2d.460.87-6168.html
- *White v. Samsung Electronics America, Inc.*, 971 F.2d 1395 (9th Cir. 1992): https://law.resource.org/pub/us/case/reporter/F2/971/971.F2d.1395.90-55840.html
- California Civil Code section 3344 (statutory misappropriation): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=3344