in intervention Para-mount Pictures Corporation ("Paramount"), dismissing theiraction for violations of the Lanham Act, 15 U.S.C.S 1125(a),and California's statutory and common law right of publicity.We reverse.I. OVERVIEWWendt and Ratzenberger argue that the district court erredin dismissing their action because they have raised issues ofmaterial fact as to whether Host violated their trademark andpublicity rights by creating animatronic robotic figures (the 12354"robots") based upon their likenesses without their permissionand placing these robots in airport bars modeled upon the setfrom the television show Cheers. They also appeal the districtcourt's orders excluding appellants' survey evidence, barringpresentation of expert testimony, and awarding Host and Par-amount attorney's fees. We have jurisdiction, 28 U.S.C.S 1291, and we reverse and remand for trial.II. PROCEDURAL HISTORYIn Wendt v. Host, 1995 WL 115571 (9th Cir. 1995)("Wendt I"), we reversed the first grant of summary judgmentin this action and remanded. We held that appellants' statelaw causes of action were not preempted by federal copyrightlaw and that disputed issues of material fact precluded sum-mary judgment because the district court's comparison ofphotographs of appellants Wendt and Ratzenberger with pho-tographs of the animatronic figures was not sufficient toresolve their claims under Cal. Civ. Code S 3344: The question here is whether the three dimensional animatronic figures are sufficiently similar to plain- tiffs to constitute their likenesses. Based on the lim- ited record before us, it cannot be said as a matter of law that the figures are so dissimilar from plaintiffs that no reasonable trier of fact could find them to be `likenesses.' That question must be determined by a comparison of the actual, three-dimensional entities.1995 WL 115571 at *2. We concluded that this comparisonmust be ...
