y protection of "name,portrait or picture"); Lugosi v. Universal Pictures, 25 Cal. 3d813, 828 (1979) (Mosk, J., concurring) ("If Bela Lugosi werealive today, he would be unable to claim an invasion of hisright to privacy for Universal's exploitation . . . of productscreated in the image of Count Dracula, a role Lugosiplayed."). A copyright holder can generally avoid using anyof these tangible elements in exploiting its copyright. Whiteexploded the right of publicity to include anything that bringsthe celebrity to mind. See White, 971 F.2d at 1399. It's inevi-table that so broad and ill-defined a property right will trenchon the rights of the copyright holder. According to the panel,Paramount and Host may not use Norm and Cliff in a waythat reminds people of the actors who played them and whoseidentity is therefore fused in the public mind. This is a daunt-ing burden. Can Warner Brothers exploit Rhett Butler withoutalso reminding people of Clark Gable? Can Paramount cast 14905Shelley Long in The Brady Bunch Movie without creating atriable issue of fact as to whether it is treading on FlorenceHenderson's right of publicity? How about Dracula and BelaLugosi? Ripley and Sigourney Weaver? Kramer and MichaelRichards?When portraying a character who was portrayed by anactor, it is impossible to recreate the character without evok-ing the image of the actor in the minds of viewers. Supposethe Seinfeld minions create a spin-off called Kramer. One ofthe Seinfeld characters was Newman, a fat mailman. SupposeWayne Knight--the actor who played Newman--won't doKramer. So Kramer brings in someone else to play Newman,a corpulent actor who (when dressed as a mailman) remindspeople of Wayne Knight. What happens when Knight sues?Under White and the panel decision here, Knight can go totrial on a claim that the new Newman evokes his (Knight's)identity, even though Castle Rock owns the rights to make de-rivative works based on S...
