RE: Norm and Cliff

Yes, but--as you point out--Superman was played by several different people, so an image that calls Superman to mind could also call one or all or none of those actors to mind. Part of the theory behind the Wendt case, on the other hand, is that only one actor portrayed Cliff and only one portrayed Norm. Add to that the fact that the Host bars show two male images seated at the far end of the bar, and the fact that Norm and Cliff always sat at the end of the bar, and you get the chain of reasoning that leads to the publicity claim in Wendt. Presumably, under the plaintiffs' theory, the only way Host could avoid evoking Wendt and Ratzenberger is by altering the figures at the end of the bar so that there were not two of them, or so that at least one of them was not male. "Two guys at the end of the bar" = Cliff and Norm = Wendt and Ratzenberger ... or at least so goes the theory that the 9th Circuit held raised an arguable issue.

Robert C. Cumbow
 Graham & Dunn PC
 1420 Fifth Avenue, 33rd Floor
 Seattle, WA 98101-2390
 206.340.9619
 206.340.9599 fax
 rcumbow[_at_]grahamdunn.com
 http://www.grahamdunn.com  

        Big law firm experience
> without the big law firm experience®

-----Original Message-----
From: bob.rotstein[_at_]gte.net [mailto:bob.rotstein[_at_]gte.net] Sent: Friday, October 20, 2000 9:53 PM
To: Multiple recipients of list
Subject: 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

CONFIDENTIALITY NOTICE
This email message may be protected by the attorney/client privilege, work product doctrine or other confidentiality protection. If you believe that it has been sent to you in error, do not read it. Please reply to the sender that you have received the message in error, then delete it. Thank you. Received on Wed Oct 25 2000 - 00:50:33 GMT