ized use of their likenesses inpromotional figures based on an infringer's copyrighted char-acters.Appellants George Wendt and John Ratzenberger are actorswho played the characters of "Norm" and "Cliff" in theCheers television series. They sued appellee Host Interna-tional, Inc. alleging violations of their trademark and publicityrights under Cal. Civ. Code S 3344 (liability for unauthorizedcommercial use of person's likeness), California commonlaw, and unfair competition under the Lanham Act. The com-plaint alleged that Host had used their likenesses withoutauthorization in "animatronic," i.e., robot, figures in airportCheers bars.In Wendt I, the Ninth Circuit held that the state-law claimswere not preempted by federal copyright law, and that sum-mary judgment for Host was inappropriate because the districtcourt's comparison of photographs of Wendt and Ratzenber-ger with photographs of the robots was insufficient to resolvetheir claims under S 3344, and that the comparison had to bemade without reference to the context in which the imagesappeared. The court also concluded that disputed issues ofmaterial fact remained regarding the common-law claimsbecause the similarity between the actors' physical character-istics and those of the robots was disputed. Lastly, the courtruled that the Lanham Act claims required the application ofa standard test to determine whether Host's conduct createda likelihood of confusion as to whether the actors wereendorsing Host's product. 12348On remand, Host again moved for summary judgment.Wendt and Ratzenberger presented evidence of actual confu-sion among members of the public in the form of commentsby travelers in airport Cheers bars. The district court excludedtheir proffered consumer survey taken in the vicinity ofCheers bars. Wendt and Ratzenberger also submitted evi-dence that Host intentionally designed the robot figures toresemble them because the value of the associat...
