decided without reference to the context in which theimage appears. Id. (citing White v. Samsung Elec. Am., Inc.,971 F.2d 1395, 1397 (9th Cir. 1992), cert. denied., _______ U.S._______, 113 S. Ct. 2443 (1993)). We found that there were dis-puted issues of material fact concerning the appellants' com-mon law right of publicity claims because the similaritybetween appellants' physical characteristics and those of therobots is disputed. Id. at *3. Finally, we held that the appel- 12355lants' claims for unfair competition under S 43(a) of the Lan-ham Act, 15 U.S.C. S 1125(a), require the application of a"well settled eight factor test" to determine whether Host'sconduct has created a likelihood of confusion as to whetherappellants were endorsing Host's product. Id. Upon remand, the district court granted summary judgmentfor a second time after an in-court inspection of the robots. Itheld that it could not "find, by viewing both the robotics andthe live persons of Mr. Wendt and Mr. Ratzenberger, thatthere is any similarity at all . . . except that one of the robots,like one of the plaintiffs, is heavier than the other . . . Thefacial features are totally different." The district court thenawarded attorney's fees to Host and Paramount pursuant toCal. Civ. Code S 3344.Appellants argue that despite the district court's compari-son of the animatronic figures and the appellants, dismissalwas inappropriate because material issues of fact remain as tothe degree to which the animatronic figures appropriate theappellants' likenesses. Appellants claim that the district courterred in determining that the robots were not likenesses of theappellants because the "likeness" need not be identical orphotographic. Further, they argue that the likeness determina-tion is an issue for the jury to decide in this case. We agree.III. ANALYSISWe review a grant of summary judgment de novo. Jesingerv. Nevada Federal Credit Union, 24 F.3d ...
