Re: Advertising violations

On Tue, Mar 23, 1999, Greg Ikonen <gikonen[_at_]venlaw.com> wrote:
>
> On Mon, 22 Mar 1999, Tyler Ochoa <tochoa[_at_]law.whittier.edu> wrote:
> >
> > I would not count on the fictional persona argument, however. One
> > of the principal arguments in the Vanna White case is that the robot
> > represented only the ROLE played by Vanna White (her fictional
> > persona, if you will), rather than White herself. The court rejected
> > that argument without much discussion. Similarly, the Lugosi court
> > (California) seemed to accept the argument that any likeness of Lugosi
> > as Dracula would violate his right of publicity.
>
> Prof. Ochoa's point bears repeating: The Ninth Circuit is a
> particularly grim place to find yourself as a defendant in a right
> of publicity case (at least when applying California law). In
> addition to the Vanna White robot case (in which Judge Kozinski
> wrote a scathing dissent), there is the Bette Midler "sound alike"
> case, and another robot case brought by those titans of entertainment -
> Norm and Cliff from Cheers. I believe in the plaintiff prevailed
> (though one or more of those decisions may have been in the posture
> of a motion to dismiss).

One small quibble: The Cheers robot case was brought by the actors who played Norm and Cliff, not by Norm and Cliff themselves, as Greg' synopsis implies. It seems a frivolous point, but it's actually key to the case, since the defendants had a license to use the copyrighted Cheers material--including the images of the show's characters. The plaintiffs maintained that, notwithstanding that license, the use of two robot standees at the end of the bar evoked, for consumers, not the images of Cliff and Norm but specifically the images of actors George Wendt and John Ratzenberger. Their claim survived a summary judgment dismissal motion, and the 9th Circuit affirmed.

Bob Cumbow
cumbr[_at_]perkinscoie.com
206-583-8566 Received on Wed Mar 24 1999 - 15:58:49 GMT