into a Cheers mood, Host populated the barswith animatronic figures4 resembling Norm and Cliff: One isfat; the other is dressed as a mailman.5 _________________________________________________________________1 Sam: "Hey, what's happening, Norm?" Norm: "Well, it's a dog-eat-dog world, and I'm wearing Milk Bone underwear."2 "There's no rule against postal workers not dating women. It justworks out that way."3 "It's a little known fact that the tan became popular in what is knownas the Bronze Age."4 As best the record discloses, these are life-size stuffed dolls that movesomewhat and play pre-recorded quips.5 In a half-hearted attempt to avoid litigation, Host changed the robots'names to "Hank" and "Bob." 14903Plaintiffs George Wendt and John Ratzenberger, the onlyactors who ever portrayed Norm and Cliff, sued Host forunfair competition and violation of their right of publicity.Paramount intervened, claiming that its copyright preemptedany claim Wendt and Ratzenberger might have under statelaw. The district court granted summary judgment for thedefendants because it found that the robots didn't look like theplaintiffs: "[T]here is [no] similarity at all . . . except that oneof the robots, like one of the plaintiffs, is heavier than theother . . . . The facial features are totally different." 125 F.3dat 809. Relying on White, the panel here reverses but offerslittle explanation beyond the curt assertion that "material factsexist that might cause a reasonable jury to find[the robots]sufficiently `like' [Wendt and Ratzenberger ] to violate" theirright of publicity. Id. at 810.IIThis case, unlike White, pits actor against copyright holder.The parties are fighting over the same bundle of intellectualproperty rights--the right to make dramatic representations ofthe characters Norm and Cliff. Host and Paramount as serttheir right under the Copyright Act to present the Cheers char-acters in airport bars; Wen...
