Wendt V. Host Essays - Cheers Characters, Cliff Clavin,

Wendt V. Host 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