Wendt v. Host International, Inc.
99 Cal. Daily Op. Serv. 10050, 53 U.S.P.Q. 2d (BNA) 1279, 197 F.3d 1284 (1999)
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Rule of Law:
Under the Ninth Circuit's interpretation, the federal Copyright Act does not preempt an actor's state law right of publicity claim when a copyrighted character they famously portrayed is used in a derivative work, if that work is found to evoke the actor's identity.
Facts:
- George Wendt and John Ratzenberger were actors who exclusively portrayed the characters 'Norm Peterson' and 'Cliff Clavin' on the television show 'Cheers' for its entire eleven-year run.
- Paramount Pictures Corporation holds the copyright to the 'Cheers' television series and its characters.
- Host International, Inc., after securing a license from Paramount, opened a chain of 'Cheers'-themed airport bars.
- To decorate the bars, Host installed animatronic robots intended to resemble the characters Norm and Cliff.
- One robot was heavyset and seated at the bar, while the other was dressed in a U.S. Postal Service uniform.
- The robots' facial features were not made to look like Wendt or Ratzenberger, and they were given the names 'Hank' and 'Bob'.
Procedural Posture:
- George Wendt and John Ratzenberger filed suit against Host International, Inc. in U.S. District Court, alleging violations of their right of publicity.
- Paramount Pictures Corporation intervened in the suit on behalf of Host.
- The district court granted summary judgment for the defendants (Host and Paramount), finding the robots were not sufficiently similar to the actors.
- The plaintiffs (Wendt and Ratzenberger) appealed to the U.S. Court of Appeals for the Ninth Circuit.
- A three-judge panel of the Ninth Circuit reversed the district court's summary judgment, allowing the case to proceed to trial.
- The defendants-appellees petitioned the Ninth Circuit for a rehearing of the case en banc (by the full court).
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Issue:
Does the federal Copyright Act preempt a state law right of publicity claim brought by actors against the licensed use of characters they portrayed, where the use involves animatronic figures designed to evoke those characters but are not direct likenesses of the actors?
Opinions:
Majority - Per Curiam (Panel Decision)
No. The panel's decision, as described in the dissent, concludes that the Copyright Act does not preempt the actors' right of publicity claims. Relying on the precedent set in White v. Samsung, the panel held that a cause of action for violation of the right of publicity does not require the use of an actor's actual likeness. Instead, the claim can proceed if a defendant's creation evokes the celebrity's identity. The panel reasoned that material facts existed that might cause a reasonable jury to find the animatronic robots were sufficiently 'like' Wendt and Ratzenberger to violate their right of publicity, thereby reversing the district court's summary judgment for the defendant.
Dissenting - Kozinski
Yes. The dissent from the order rejecting rehearing en banc argues that the panel's decision wrongly allows state right of publicity law to interfere with exclusive federal rights granted by the Copyright Act. Paramount, as the copyright holder, has the right to create derivative works of its characters, and it is impossible to depict those characters without evoking the actors who are inextricably fused with them in the public mind. By allowing the actors' claims to proceed, the panel creates a direct conflict with federal copyright law, puts the Ninth Circuit in conflict with the Seventh Circuit's ruling in Baltimore Orioles, and raises serious First Amendment concerns by chilling creative expression and the exploitation of copyrighted works.
Analysis:
This dissent from denial of rehearing en banc is significant because it forcefully articulates the conflict between an expansive state-law right of publicity and federal copyright preemption. Judge Kozinski argues that the Ninth Circuit's doctrine, following White v. Samsung, creates an untenable legal landscape where copyright holders cannot fully exploit their creative works without risking litigation from actors associated with them. The dissent predicts that this broad interpretation will stifle creativity and the creation of derivative works, and it signals a deep jurisprudential divide on the issue that could invite Supreme Court review. It essentially frames the issue as a collision course between state tort law and federal intellectual property rights.
