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Wendt v. Host International, Inc.

United States Court of Appeals, Ninth Circuit
125 F.3d 806 (1997)
ELI5:

Rule of Law:

The use of animatronic figures that evoke the likeness of celebrity actors, without their consent, can create a triable issue of fact for violations of both statutory and common law rights of publicity, as well as for false endorsement under the Lanham Act.


Facts:

  • George Wendt and John Ratzenberger are actors well-known for their roles as Norm Peterson and Cliff Clavin, respectively, in the television show 'Cheers'.
  • Host International, Inc. (Host), under a license from Paramount Pictures Corporation (Paramount), developed a chain of airport bars themed after the 'Cheers' television set.
  • Paramount owns the copyright to the 'Cheers' series and its characters.
  • Host created two animatronic robotic figures to place in its 'Cheers' themed bars.
  • The robots were given the names 'Bob' and 'Hank' and were designed with physical characteristics reminiscent of Wendt and Ratzenberger.
  • The robots were placed at the bar in spots frequented by the characters Norm and Cliff in the show.
  • Wendt and Ratzenberger did not consent to the creation or use of these figures based on their likenesses.

Procedural Posture:

  • George Wendt and John Ratzenberger sued Host International, Inc., and Paramount Pictures Corp. in federal district court for violations of the Lanham Act and their right of publicity.
  • The district court granted summary judgment in favor of the defendants.
  • The plaintiffs (appellants) appealed to the U.S. Court of Appeals for the Ninth Circuit.
  • In a prior decision (Wendt I), the Ninth Circuit reversed the summary judgment and remanded the case to the district court.
  • On remand, the district court judge conducted an in-person inspection of the robots and again granted summary judgment for the defendants.
  • The district court also awarded attorney's fees to the defendants.
  • The plaintiffs (appellants) appealed again to the U.S. Court of Appeals for the Ninth Circuit.

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Issue:

Does the use of animatronic robots in themed airport bars create a triable issue of fact as to whether the robots appropriate the likenesses of actors George Wendt and John Ratzenberger, thereby violating their right of publicity and the Lanham Act, and thus making summary judgment for the defendants improper?


Opinions:

Majority - Fletcher, Circuit Judge

Yes. The use of the robotic figures creates genuine issues of material fact regarding the actors' right of publicity and Lanham Act claims, which must be decided by a jury. Under California's statutory right of publicity, a 'likeness' does not require a perfect photographic replica; a caricature or impressionistic resemblance can be sufficient, and whether these robots are sufficiently 'like' the appellants is a question for the jury. The broader common law right of publicity protects a person's entire identity, and an actor does not lose the right to control their likeness by portraying a fictional character. For the Lanham Act claim, the district court erred by focusing only on the similarity of the marks instead of applying the full eight-factor test for likelihood of consumer confusion, which includes factors like the strength of the actors' celebrity persona, defendant's intent, and evidence of actual confusion. Given the evidence, a reasonable jury could find that most factors favor the appellants, precluding summary judgment.



Analysis:

This decision significantly broadens the scope of what constitutes a 'likeness' under right of publicity law, extending protection beyond photographs to three-dimensional robotic figures that evoke a celebrity's identity. It clarifies the distinction between an actor's personal right of publicity in their own physical features and a studio's copyright in the fictional character they portray. The ruling reinforces that the fact-intensive 'likelihood of confusion' analysis under the Lanham Act is generally unsuited for summary judgment, requiring a full weighing of all relevant factors by a jury, particularly in celebrity endorsement cases.

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