Re: Norm and Cliff

Tyler Ochoa" <tochoa[_at_]LAW.WHITTIER.EDU> wrote:

>>> But, despite the dismissive opinion of the panel in Wendt, it is hard to
find any extra element (something going beyond mere reproduction) that would allow the publicity claim to escape preemption under Section 301. Using someone's name or likeness in an advertisement may be an extra element; but using a character from a copyrighted work in a non-advertisting derivative work is not different in scope or nature from a claim based on copyright.>>>

I agree, even in the advertising context. It's revealing that the subject matter of this thread is "Norm and Cliff" rather than "Wendt and Ratzenberg," implying that Paramount has exploited its characters rather than the names or likenesses of the actors. I've never seen the original Host International bar, but I've seen photographs, and it appears that the robots at issue in Wendt v. Paramount are not really likenesses of the actors Wendt and Ratzenberger at all. Because one looking at the robots thinks of those actors only by virtue their roles on "Cheers" -- and not because the robots appropriate their likeness -- their right of publicity claim should have been preempted.

For example, assume that the copyright holder of the Superman character created an advertising derivative work. If the copyright holder depicted Superman as the character looked in the comic book, the estate of George Reeves, or Christopher Reeve, or Dean Cain (all actors who portrayed Superman on film or TV) would clearly not have a right of publicity claim. This is so even if the depiction in the ad of the comic book Superman calls these actors to mind. To hold otherwise would impose liability only for the mere reproduction and adaptation of the copyrighted work, without an extra element. Wendt v. Paramount is really no different from this hypothetical.

Robert Rotstein
Adjunct Professor of Law
Loyola Law School
Los Angeles, CA Received on Sat Oct 21 2000 - 04:54:48 GMT