material fact concerningthat degree of resemblance were raised by appellants. Fed. R.Civ. P. 56.[2] Despite the district court's assertions that no reasonablejury could find that the robots are "similar in any mannerwhatsoever to Plaintiffs," we respectfully disagree. Withoutmaking any judgment about the ultimate similarity of the fig-ures to the appellants, we conclude from our own inspection 12357of the robots that material facts exist that might cause a rea-sonable jury to find them sufficiently "like" the appellants toviolate Cal. Civ. Code S 3344.We reject appellees' assertion that Fleet v. CBS, 58 Cal.Rptr. 2d 645 (Cal. Ct. App. 1996) is new controlling authoritythat requires us to revisit the determination on first appeal thatappellants' S 3344 claims are not preempted by federal copy-right law. Wendt I, 1995 WL 115571, at *1. Fleet is not con-trolling new authority on the preemption issue. It holds thatan actor may not bring an action for misappropriation underCal. Civ. Code S 3344 when the only claimed exploitationoccurred through the distribution of the actor's performancein a copyrighted movie. Id. at 651 ("Appellants may chooseto call their claims misappropriation of right to publicity, butif all they are seeking is to prevent a party from exhibiting acopyrighted work they are making a claim equivalent to anexclusive right within the general scope of copyright.") (inter-nal quotations omitted).[3] Appellants here are not seeking to prevent Paramountfrom exhibiting its copyrighted work in the Cheers series. Aswe stated in Wendt I, their "claims are not preempted by thefederal copyright statute so long as they `contain elements,such as the invasion of personal rights . . . that are differentin kind from copyright infringement.' " Wendt I, 1995 WL115571 at * 1 (quoting Waits v. Frito-Lay, Inc., 978 F.2d1093, 1100 (9th Cir. 1992) (citing H.R. Rep. No. 1476, 94thCong., 2d Sess. 132 (1976)). The Flee...
