Digging through my archives I came across this.
Slightly different in that the driver was in the car but the principals apply.
Also note this is a 9th Circuit case. The 9th Circuit that has been the most overruled circuit by SCOTUS in the history of American Jurisprudence.
Motschenbacher v. R.J. Reynolds Tobacco Co., 498 F.2d 821 (9th Cir. 1974).
In Motschenbacher, the Ninth Circuit held that a photograph depicting distinctive aspects of a race car driver's car was an actionable misappropriation of the driver's identity under California law.
Lothar Motschenbacher, a professional race car driver, sued R.J. Reynolds Tobacco Co. and the William Esty Company for injunctive relief and damages, alleging misappropriation of his name, likeness, and personality in a television commercial. The commercial "utilized a 'stock' color photograph depicting several racing cars on a racetrack. Plaintiff's car appear[ed] in the foreground, and although Plaintiff is the driver, his facial features [were] not visible." Motschenbacher, 498 F.2d at 822.
The United States District Court for the Central District of California, Judge Manuel L. Real, granted summary judgment in favor of the Defendants who had altered the photograph by changing the numbers on all racing cars depicted, transforming Motschenbacher's number '11' into '71' . . . attaching a "wire-like device known as a 'spoiler' to plaintiff's car, . . . [and] add[ing] the word 'Winston', the name of their product, to that spoiler . . ." Id.
The Ninth Circuit (Circuit Judges Koelsch, Hufstedler, and Trask) reversed, holding that California courts would afford legal protection to an individual's proprietary interest in his own identity. According to the Court, the fact that Motschenbacher's "likeness" was unrecognizable in the commercial and that R.J. Reynolds had changed the number of Motschenbacher's racing car from "11" to "71" and added a "spoiler" to the car did not preclude a finding that Motschenbacher was identifiable as the plaintiff in view of automobile's distinctive markings: white pinstriping, oval medallion, and red color.
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The pivotal thing is that the Winston folks used an "action" photo AND driver was in the car which, because he was in the car, no matter that he was not readily indentifiable, allowed the case to be heard. IMHO (and I do not have a law degree) taking your own photo of a car on exhibit and using that as a base and erasing the decals and reapplying your own would put you in fairly safe territory.
Another case (1995) involved such an action (Montana v. San Jose Mercury News, Inc.) a newspaper reproduced posters of its Super Bowl cover story. Joe Montana claimed it violated his common law rights of publicity as well as Section 3344 of the CA civil code (toughest law in the nation on personal publicity rights) and the California Court of Appeal said that:
1) the posters represented newsworthy events, and
2) a newspaper has a constitutional right to promote itself by reproducing its new stories.
So, it also matters who you are and the precise nature of the use even though in the end it is all for a profit motive. Go figure!!!
