California Case Law on Promotional Use of Celebrities' True Likenesses
In Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal. 3d 860, 872-873 and Page v. Something Weird Video (C.D.Cal. 1996) 960 F. Supp. 1438, 1444-1445, the courts held that promotional use of celebrities' true likenesses on a video and a made for television movie were not actionable because the use was incidental to the publication of the constitutionally protected materials.
Although not asked to resolve the issue, both courts commented on the importance of distinguishing between truthful and false promotions, with constitutional protection inuring to the former, but not to the latter. (Page, supra, at pp. 1444-1445; Guglielmi, supra, at p. 865, fn. 6.)
Yet another critical factor distinguishes these two cases from the one before us. Both were right of publicity cases, a right which "has not been held to outweigh the value of free expression." (Guglielmi, supra, at p. 872.)
By contrast, the right of California consumers to be free from deceptive or misleading advertising has been held to be sufficiently important to outweigh the unfettered right to free expression. ( People v. Superior Court (Olson), supra, 96 Cal. App. 3d at p. 195.)