## Facts

- Host International, Inc. operated airport bars designed to resemble the television show *Cheers*.
- Host installed animatronic figures seated on bar stools in the recreated bar setting; the figures moved, spoke, and interacted with patrons.
- George Wendt and John Ratzenberger, actors known for portraying “Norm Peterson” and “Cliff Clavin” on *Cheers*, alleged the animatronic figures used their likenesses without permission.
- The actors asserted California statutory and common-law right of publicity claims and a Lanham Act § 43(a) false endorsement claim based on an alleged impression of endorsement or sponsorship.
- The district court granted summary judgment for Host and Paramount (the *Cheers* rights holder), relying on a comparison of photos and finding insufficient resemblance.
- On a prior appeal, the Ninth Circuit held the publicity claims were not copyright-preempted and that similarity of the three-dimensional figures to the actors presented a fact question; it remanded.
- On remand, the district court inspected the actors and the robots in court, again granted summary judgment, excluded plaintiffs’ survey and certain expert evidence, and awarded attorney’s fees to defendants.
- The actors appealed the renewed summary judgment, the evidentiary exclusions, and the fee award.

## Issues

1. Whether the animatronic figures could constitute the actors’ “likeness” or otherwise appropriate their identities under California Civil Code § 3344 and California common law.
2. Whether the use of the figures in *Cheers*-themed airport bars could create a likelihood of consumer confusion as to endorsement or sponsorship under Lanham Act § 43(a).
3. Whether excluding plaintiffs’ consumer survey and expert testimony was an abuse of discretion affecting summary judgment.
4. Whether attorney’s fees for defendants were proper after disposition of the merits.

## Decision

- The Ninth Circuit reversed the grant of summary judgment and remanded for trial on the California right of publicity claims and the Lanham Act § 43(a) false endorsement claim.
- The court held that genuine disputes of material fact existed as to whether the animatronic figures were sufficiently similar to the actors to constitute their likenesses or misappropriate their identities under California law.
- The court held that summary judgment on false endorsement was improper because the likelihood-of-confusion analysis required consideration of relevant factors and the evidentiary record, including survey evidence.
- The court held the exclusion of the survey evidence and certain expert testimony was an abuse of discretion in the circumstances.
- The court reversed the attorney’s fees award because it depended on defendants’ prevailing-party status after summary judgment.

## Legal Principles

- California’s right of publicity may be violated by commercial use that appropriates a person’s identity; a “likeness” need not be an exact photographic reproduction and can include non-photographic, three-dimensional representations.
- When reasonable factfinders could disagree whether a depiction is sufficiently similar to a person to constitute a likeness or identity appropriation, summary judgment is inappropriate.
- Lanham Act § 43(a) false endorsement claims turn on likelihood of consumer confusion; courts must evaluate the relevant multi-factor confusion test rather than resolving disputed inferences against the nonmovant on summary judgment.
- Consumer survey evidence is commonly probative in false endorsement cases and should not be excluded in a manner that effectively forecloses proof on key elements at the summary judgment stage.
- A fee award predicated on a party’s success on summary judgment cannot stand when the merits disposition is reversed and claims are reinstated for trial.

## Conclusion

The Ninth Circuit held that a jury could reasonably find that animatronic bar figures in a *Cheers*-themed setting appropriated the actors’ identities and created a false impression of endorsement, and it reinstated the claims for trial while reversing the evidentiary exclusions and fee award that rested on the erroneous summary judgment.


Wendt v. Host Int’l, Inc., 125 F.3d 806 (9th Cir. 1997)