RE: Norm and Cliff

I admit there's a difference between a right to do and a right to exclude others from doing.
But I don't see anything more than a semantic difference between the EXCLUSIVE right to do a thing and the right to exclude others from doing it, since the negative right to exclude is already contained in the use of the term "exclusive" in expressing the positive right.

I side with Tyler Ochoa and Judge Kozinski (good company!!) ... but even if copyright law does NOT preempt state law in this situation, I still believe the state law claims should lose, for the substantive reasons also stated in Kozinski's dissent (and in his classic dissent in White v. Samsung).

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-----Original Message-----
From: Tyler Ochoa [mailto:tochoa[_at_]LAW.WHITTIER.EDU] Sent: Friday, October 06, 2000 5:04 PM
To: Multiple recipients of list
Subject: Re: Norm and Cliff

>>> Keith Taber <ktaber[_at_]patentlawyers.com> 10/04 9:00 AM >>> wrote: I recently have heard radio stories and seen articles referring to the dispute between the actors who played Norm and Cliff on the long running Sit-Com Cheers and a company that placed robots of the characters in a bar. The dispute has been framed as a clash between the "right of publicity" and "copyright" in many stories. [snip]

>>This seemed odd to me at first, but I just figured it was bad reporting. Then I heard an attorney for the copyright holder on a news radio program saying that copyright means nothing if you aren't allowed to use that which is protected. [snip] This seems contrary to my basic understanding of copyright law. I thought copyright law allowed the creator of a work to prevent others from copying the work. Similar to a landowners right to prevent trespass. I did not think it guaranteed the right to use the work. <<<<<

I disagree. Patent law is phrased as a right to exclude others; but copyright law is phrased as the exclusive right to reproduce, etc. That implies the copyright owner has a right to use the work, and not just a right to exclude others from using the work.

Paramount's argument is that federal copyright law gives it the exclusive right to make derivative works of "Cheers," including robot-performance art in airports. Wendt and Ratzenberger have a STATE-law right of publicity. I am in agreement with Judge Kozinski's dissent that argues that where the state law would defeat the federal right, the state-law must be preempted. But the U.S. Supreme Court did not grant certiorari, so the Ninth Circuit opinion (finding no preemption) is the law in those states, for now.

Tyler T. Ochoa
Associate Professor
Whittier Law School

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