ion of therobots with them was "a major drawing card" of the Cheersconcept. Ratzenberger testified that he had rejected offersfrom small breweries to appear in their advertisements inorder to be available to a large brewery.The district court made an in-court comparison of Wendtand Ratzenberger with the actual robots (now named "Hank"and "Bob"), finding that there was no similarity except thatone was heavier than the other. The court granted Host'smotion, dismissed the action, and awarded Host attorneysfees.Wendt and Ratzenberger appealed, contending that dis-missal was inappropriate because material issues of factremained as to the degree to which the robots appropriatedtheir likenesses. They asserted that the likenesses did not haveto be identical or photographic, and that the determination ofthe issue was for the jury. Wendt and Ratzenberger concededthat they retained no rights to the characters Norm and Cliff,but asserted that "Bob" and "Hank" were not related to Para-mount's copyright of the creative elements of the charactersNorm and Cliff. It was their contention that it was the physi-cal likeness to them that had commercial value to Host.Host countered that the figures appropriated only the identi-ties of the characters of Norm and Cliff, to which intervenorParamount Pictures Corp. owned the copyrights, and not theidentities of Wendt and Ratzenberger. It was Host's positionthat Wendt and Ratzenberger could not claim appropriation of 12349identity by relying on indicia like the Cheers bar set that werethe property of or licensed by a copyright owner.[1] The degree to which the robots resembled, caricatured,or bore an impressionistic resemblance to Wendt and Ratzen-berger was material to the claim of violations ofS 3344. Sum-mary judgment would have been appropriate on remand onlyif no genuine issues of material fact concerning the degree ofthat resemblance were raised by Wendt and Ratzenberger. [2]Ma...
