dt and Ratzenberger assert theirright under California law to control the exploitation of theirlikenesses. But to millions of viewers, Wendt and Ratzenber-ger are Norm and Cliff; it's impossible to exploit the latterwithout also evoking thoughts about the former.So who wins? The Copyright Act makes it simple, at leastinsofar as the plaintiffs interfere with Paramount's right to ex-ploit the Cheers characters. Section 301 of the Copyright Actpreempts any state law "legal or equitable rights that areequivalent to any of the exclusive rights within the generalscope of copyright[.]" 17 U.S.C. S 301(a). The copyright toCheers carries with it the right to make derivative worksbased on its characters. See generally Warner Bros., Inc. v.American Broadcasting Cos., 720 F.2d 231, 235 (2d Cir. 149041983) (Superman copyright belongs to Warner Brothers). Thepresentation of the robots in the Cheers bars is a derivativework, just like a TV clip, promotion, photograph, poster,sequel or dramatic rendering of an episode. Thus, under fed-eral law, Host has the unconditional right to present robotsthat resemble Norm and Cliff.Instead, the panel allows the plaintiffs to pick up whereVanna left off: Copyright or no copyright, anyone who wantsto use a figure, statue, robot, drawing or poster that remindsthe public of Wendt and Ratzenberger must first obtain (andpay for) their consent. This cannot be squared with the rightof the copyright holder to recreate Norm and Cliff however itsees fit. At the very least, Paramount must be able to repro-duce the characteristics that bring Norm and Cliff to mind.The problem lies with the sweeping standard we adopted inWhite. The right of publicity, as defined by the state courts,is limited to using a celebrity's name, voice, face or signature.See, e.g., Stephano v. News Group Publications, Inc., 474N.E.2d 580, 583-84 (N.Y. 1984) (finding right of publicityunder New York law limited to statutor...
