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Wendt V. Host Essay, Research Paper

US Court of Appeals for the Ninth Circuit

Case Name:WENDT V HOST INTERNATIONAL

Case Number: Date Filed:

96-55243 12/28/99

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GEORGE WENDT, an individual;

JOHN RATZENBERGER, an individual,

Plaintiffs-Appellants,

v.

No. 96-55243

HOST INTERNATIONAL, INC., a

Delaware corporation, D.C. No.

Defendant-Appellee, CV-93-00142-R

and ORDER

PARAMOUNT PICTURES,

CORPORATION, a Delaware

corporation,

Defendant-Intervenor.

Filed December 28, 1999

Before: Betty B. Fletcher and Stephen S. Trott,

Circuit Judges, and Bruce S. Jenkins,1 District Judge.

Order; Dissent by Judge Kozinski

_________________________________________________________________

ORDER

The panel has voted to deny the petition for rehearing.

Judge Trott voted to reject the petition for rehearing en banc

and Judges B. Fletcher and Jenkins so recommend.

The full court was advised of the petition for rehearing en

_________________________________________________________________

1 Honorable Bruce S. Jenkins, Senior United States District Judge for the

District of Utah, sitting by designation.

14901

banc. An active Judge requested a vote on whether to rehear

the matter en banc. The matter failed to receive a majority of

the votes in favor of en banc consideration. Fed. R. App. P.

35.

The petition for rehearing is denied and the petition for

rehearing en banc is rejected.

_________________________________________________________________

KOZINSKI, Circuit Judge, with whom Judges KLEINFELD

and TASHIMA join, dissenting from the order rejecting the

suggestion for rehearing en banc:

Robots again. In White v. Samsung Elecs. Am., Inc., 971

F.2d 1395, 1399 (9th Cir. 1992), we held that the right of pub-

licity extends not just to the name, likeness, voice and signa-

ture of a famous person, but to anything at all that evokes that

person’s identity. The plaintiff there was Vanna White, Wheel

of Fortune letter-turner extraordinaire; the offending robot

stood next to a letter board, decked out in a blonde wig,

Vanna-style gown and garish jewelry. Dissenting from our

failure to take the case en banc, I argued that our broad appli-

cation of the right of publicity put state law on a collision

course with the federal rights of the copyright holder. See 989

F.2d 1512, 1517-18 (9th Cir. 1993).

The conflict in White was hypothetical, since the defendant

(Samsung) did not have a license from the Wheel of Fortune

copyright holder. Here it is concrete: The panel holds that

licensed animatronic figures based on the copyrighted Cheers

characters Norm and Cliff infringe on the rights of the actors

who portrayed them. As I predicted, White’s voracious logic

swallows up rights conferred by Congress under the Copy-

14902

right Act.

I

Though a bit dated now, Cheers remains near and dear to

the hearts of many TV viewers. Set in a friendly neighbor-

hood bar in Boston, the show revolved around a familiar

scene. Sam, the owner and bartender, entertained the boys

with tales of his glory days pitching for the Red Sox. Coach

piped in with sincere, obtuse advice. Diane and Frasier chat-

tered self-importantly about Lord Byron. Carla terrorized

patrons with acerbic comments. And there were Norm and

Cliff, the two characters at issue here. Norm, a fat, endearing,

oft-unemployed1 accountant, parked himself at the corner of

the bar, where he was joined by Cliff, a dweebish 2 mailman

and something of a know-it-all windbag.3 After eleven years

on the air, the gang at Cheers became like family to many

fans, ensuring many more years in syndication. See Gebe

Martinez, “Cheers” Fans Cry in Their Beers as Sitcom Ends

Long Run, L.A. Times, May 21, 1993, at B1.

Defendant Host International decided to tap into this keg of

goodwill. After securing a license from Paramount, the copy-

right holder, Host opened a line of Cheers airport bars. To

help get patrons into a Cheers mood, Host populated the bars

with animatronic figures4 resembling Norm and Cliff: One is

fat; the other is dressed as a mailman.5

_________________________________________________________________

1 Sam: “Hey, what’s happening, Norm?”

Norm: “Well, it’s a dog-eat-dog world, and I’m wearing Milk

Bone underwear.”

2 “There’s no rule against postal workers not dating women. It just

works out that way.”

3 “It’s a little known fact that the tan became popular in what is known

as the Bronze Age.”

4 As best the record discloses, these are life-size stuffed dolls that move

somewhat and play pre-recorded quips.

5 In a half-hearted attempt to avoid litigation, Host changed the robots’

names to “Hank” and “Bob.”

14903

Plaintiffs George Wendt and John Ratzenberger, the only

actors who ever portrayed Norm and Cliff, sued Host for

unfair competition and violation of their right of publicity.

Paramount intervened, claiming that its copyright preempted

any claim Wendt and Ratzenberger might have under state

law. The district court granted summary judgment for the

defendants because it found that the robots didn’t look like the

plaintiffs: “[T]here is [no] similarity at all . . . except that one

of the robots, like one of the plaintiffs, is heavier than the

other . . . . The facial features are totally different.” 125 F.3d

at 809. Relying on White, the panel here reverses but offers

little explanation beyond the curt assertion that “material facts

exist that might cause a reasonable jury to find[the robots]

sufficiently `like’ [Wendt and Ratzenberger ] to violate” their

right of publicity. Id. at 810.

II

This case, unlike White, pits actor against copyright holder.

The parties are fighting over the same bundle of intellectual

property rights–the right to make dramatic representations of

the characters Norm and Cliff. Host and Paramount as sert

their right under the Copyright Act to present the Cheers char-

acters in airport bars; Wendt and Ratzenberger assert their

right under California law to control the exploitation of their

likenesses. But to millions of viewers, Wendt and Ratzenber-

ger are Norm and Cliff; it’s impossible to exploit the latter

without also evoking thoughts about the former.

So who wins? The Copyright Act makes it simple, at least

insofar as the plaintiffs interfere with Paramount’s right to ex-

ploit the Cheers characters. Section 301 of the Copyright Act

preempts any state law “legal or equitable rights that are

equivalent to any of the exclusive rights within the general

scope of copyright[.]” 17 U.S.C. S 301(a). The copyright to

Cheers carries with it the right to make derivative works

based on its characters. See generally Warner Bros., Inc. v.

American Broadcasting Cos., 720 F.2d 231, 235 (2d Cir.

14904

1983) (Superman copyright belongs to Warner Brothers). The

presentation of the robots in the Cheers bars is a derivative

work, just like a TV clip, promotion, photograph, poster,

sequel or dramatic rendering of an episode. Thus, under fed-

eral law, Host has the unconditional right to present robots

that resemble Norm and Cliff.

Instead, the panel allows the plaintiffs to pick up where

Vanna left off: Copyright or no copyright, anyone who wants

to use a figure, statue, robot, drawing or poster that reminds

the public of Wendt and Ratzenberger must first obtain (and

pay for) their consent. This cannot be squared with the right

of the copyright holder to recreate Norm and Cliff however it

sees fit. At the very least, Paramount must be able to repro-

duce the characteristics that bring Norm and Cliff to mind.

The problem lies with the sweeping standard we adopted in

White. The right of publicity, as defined by the state courts,

is limited to using a celebrity’s name, voice, face or signature.

See, e.g., Stephano v. News Group Publications, Inc., 474

N.E.2d 580, 583-84 (N.Y. 1984) (finding right of publicity

under New York law limited to statutory protection of “name,

portrait or picture”); Lugosi v. Universal Pictures, 25 Cal. 3d

813, 828 (1979) (Mosk, J., concurring) (”If Bela Lugosi were

alive today, he would be unable to claim an invasion of his

right to privacy for Universal’s exploitation . . . of products

created in the image of Count Dracula, a role Lugosi

played.”). A copyright holder can generally avoid using any

of these tangible elements in exploiting its copyright. White

exploded the right of publicity to include anything that brings

the celebrity to mind. See White, 971 F.2d at 1399. It’s inevi-

table that so broad and ill-defined a property right will trench

on the rights of the copyright holder. According to the panel,

Paramount and Host may not use Norm and Cliff in a way

that reminds people of the actors who played them and whose

identity is therefore fused in the public mind. This is a daunt-

ing burden. Can Warner Brothers exploit Rhett Butler without

also reminding people of Clark Gable? Can Paramount cast

14905

Shelley Long in The Brady Bunch Movie without creating a

triable issue of fact as to whether it is treading on Florence

Henderson’s right of publicity? How about Dracula and Bela

Lugosi? Ripley and Sigourney Weaver? Kramer and Michael

Richards?

When portraying a character who was portrayed by an

actor, it is impossible to recreate the character without evok-

ing the image of the actor in the minds of viewers. Suppose

the Seinfeld minions create a spin-off called Kramer. One of

the Seinfeld characters was Newman, a fat mailman. Suppose

Wayne Knight–the actor who played Newman–won’t do

Kramer. So Kramer brings in someone else to play Newman,

a corpulent actor who (when dressed as a mailman) reminds

people of Wayne Knight. What happens when Knight sues?

Under White and the panel decision here, Knight can go to

trial on a claim that the new Newman evokes his (Knight’s)

identity, even though Castle Rock owns the rights to make de-

rivative works based on Seinfeld. It would be no defense that

everyone knows the new actor is not Wayne Knight; no one,

after all, thinks the robots here or in White were, in fact,

Wendt, Ratzenberger or White. So long as the casting director

comes up with a new Newman who reminds the public of the

old Newman (i.e. Knight), Knight has a right-of-publicity

claim that will at least survive summary judgment. Under the

unbounded right of publicity announced in White , copyright

holders will seldom be able to avoid trial when sued for

infringement of the right to publicity. Remember Vanna:

Even though the robot looked nothing like her, a jury awarded

her $400,000. See Vanna White Wins Suit, Wall St. J., Jan.

24, 1994, at B2.6

_________________________________________________________________

6 To avoid going to trial in such a situation, producers will have to cast

new actors who look and sound very different from the old ones. A

Seinfeld spin-off thus ends up in a bizarro world where a skinny Newman

sits down to coffee with a svelte George, a stocky Kramer, a fat Jerry and

a lanky blonde Elaine. Not only is goodwill associated with the old show

lost, the artistic freedom of the screenwriters and producers is severely

cramped.

14906

III

The panel’s refusal to recognize copyright preemption puts

us in conflict with the Seventh Circuit in Baltimore Orioles,

Inc. v. Major League Baseball Players Ass’n , 805 F.2d 663

(7th Cir. 1986). Baltimore Orioles held that the baseball clubs

–not the players–own the rights to baseball telecasts under

copyright law, and the players can’t use their state law right

of publicity to veto the telecast of their performance. This was

so even though the telecast (obviously) used the players’ iden-

tities and likenesses.

The Seventh Circuit acknowledged that the state law right

of publicity gave the players a property interest in their actual



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