Wendt V. Host

US Court of Appeals for the Ninth Circuit
Case Number: Date Filed:
96-55243 12/28/99
GEORGE WENDT, an individual;
JOHN RATZENBERGER, an individual,
No. 96-55243
Delaware corporation, D.C. No.
Defendant-Appellee, CV-93-00142-R
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
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.
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.
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-
right Act.
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.
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 . . .