Wendt V. Host US Court of Appeals for the Ninth Circuit Case Name:WENDT V HOST INTERNATIONAL Case Number: Date Filed: 96-55243 12/28/99 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GEORGE WENDT, an individual; JOHN RATZENBERGER, an individual, Plaintiffs-Appellants, v. No. 96-55243 HOST INTERNATIONAL, INC., a Delaware corporation, D.C. No. Defendant-Appellee, CV-93-00142-R and ORDER PARAMOUNT PICTURES, CORPORATION, a Delaware corporation, Defendant-Intervenor.
Filed December 28, 1999 Before: Betty B. Fletcher and Stephen S. Trott, Circuit Judges, and Bruce S. Jenkins,1 District Judge. Order; Dissent by Judge Kozinski ORDER The panel has voted to deny the petition for rehearing. Judge Trott voted to reject the petition for rehearing en banc and Judges B. Fletcher and Jenkins so recommend.
The full court was advised of the petition for rehearing en 1 Honorable Bruce S. Jenkins, Senior United States District Judge for the District of Utah, sitting by designation. 14901 banc. An active Judge requested a vote on whether to rehear the matter en banc. The matter failed to receive a majority of the votes in favor of en banc consideration. Fed.
R. App. P. 35. The petition for rehearing is denied and the petition for rehearing en banc is rejected.
KOZINSKI, Circuit Judge, with whom Judges KLEINFELD and TASHIMA join, dissenting from the order rejecting the suggestion for rehearing en banc: Robots again. In White v. Samsung Elecs. Am., Inc., 971 F.2d 1395, 1399 (9th Cir. 1992), we held that the right of pub- licity extends not just to the name, likeness, voice and signa- ture of a famous person, but to anything at all that evokes that person’s identity. The plaintiff there was Vanna White, Wheel of Fortune letter-turner extraordinaire; the offending robot stood next to a letter board, decked out in a blonde wig, Vanna-style gown and garish jewelry.
Dissenting from our failure to take the case en banc, I argued that our broad appli- cation of the right of publicity put state law on a collision course with the federal rights of the copyright holder. See 989 F.2d 1512, 1517-18 (9th Cir. 1993). The conflict in White was hypothetical, since the defendant (Samsung) did not have a license from the Wheel of Fortune copyright holder. Here it is concrete: The panel holds that licensed animatronic figures based on the copyrighted Cheers characters Norm and Cliff infringe on the rights of the actors who portrayed them. As I predicted, White’s voracious logic swallows up rights conferred by Congress under the Copy- 14902 right Act.
I Though a bit dated now, Cheers remains near and dear to the hearts of many TV viewers. Set in a friendly neighbor- hood bar in Boston, the show revolved around a familiar scene. Sam, the owner and bartender, entertained the boys with tales of his glory days pitching for the Red Sox. Coach piped in with sincere, obtuse advice. Diane and Frasier chat- tered self-importantly about Lord Byron. Carla terrorized patrons with acerbic comments. And there were Norm and Cliff, the two characters at issue here.
Norm, a fat, endearing, oft-unemployed1 accountant, parked himself at the corner of the bar, where he was joined by Cliff, a dweebish 2 mailman and something of a know-it-all windbag.3 After eleven years on the air, the gang at Cheers became like family to many fans, ensuring many more years in syndication. See Gebe Martinez, Cheers Fans Cry in Their Beers as Sitcom Ends Long Run, L.A. Times, May 21, 1993, at B1. Defendant Host International decided to tap into this keg of goodwill. After securing a license from Paramount, the copy- right holder, Host opened a line of Cheers airport bars. To help get patrons into a Cheers mood, Host populated the bars with animatronic figures4 resembling Norm and Cliff: One is fat; the other is dressed as a mailman.5 1 Sam: Hey, what’s happening, Norm? Norm: Well, it’s a dog-eat-dog world, and I’m wearing Milk Bone underwear.
2 There’s no rule against postal workers not dating women. It just works out that way. 3 It’s a little known fact that the tan became popular in what is known as the Bronze Age. 4 As best the record discloses, these are life-size stuffed dolls that move somewhat and play pre-recorded quips. 5 In a half-hearted attempt to avoid litigation, Host changed the robots’ names to Hank and Bob.
14903 Plaintiffs George Wendt and John Ratzenberger, the only actors who ever portrayed Norm and Cliff, sued Host for unfair competition and violation of their right of publicity. Paramount intervened, claiming that its copyright preempted any claim Wendt and Ratzenberger might have under state law. The district court granted summary judgment for the defendants because it found that the robots didn’t look like the plaintiffs: [T]here is [no] similarity at all . . . except that one of the robots, like one of the plaintiffs, is heavier than the other .
. . . The facial features are totally different. 125 F.3d at 809.
Relying on White, the panel here reverses but offers little explanation beyond the curt assertion that material facts exist that might cause a reasonable jury to find[the robots] sufficiently `like’ [Wendt and Ratzenberger ] to violate their right of publicity. Id. at 810. II This case, unlike White, pits actor against copyright holder. The parties are fighting over the same bundle of intellectual property rights–the right to make dramatic representations of the characters Norm and Cliff.
Host and Paramount as sert their right under the Copyright Act to present the Cheers char- acters in airport bars; Wendt and Ratzenberger assert their right under California law to control the exploitation of their likenesses. But to millions of viewers, Wendt and Ratzenber- ger are Norm and Cliff; it’s impossible to exploit the latter without also evoking thoughts about the former. So who wins? The Copyright Act makes it simple, at least insofar as the plaintiffs interfere with Paramount’s right to ex- ploit the Cheers characters. Section 301 of the Copyright Act preempts any state law legal or equitable rights that are equivalent to any of the exclusive rights within the general scope of copyright[.] 17 U.S.C. S 301(a).
The copyright to Cheers carries with it the right to make derivative works based on its characters. See generally Warner Bros., Inc. v. American Broadcasting Cos., 720 F.2d 231, 235 (2d Cir. 14904 1983) (Superman copyright belongs to Warner Brothers). The presentation of the robots in the Cheers bars is a derivative work, just like a TV clip, promotion, photograph, poster, sequel or dramatic rendering of an episode.
Thus, under fed- eral law, Host has the unconditional right to present robots that resemble Norm and Cliff. Instead, the panel allows the plaintiffs to pick up where Vanna left off: Copyright or no copyright, anyone who wants to use a figure, statue, robot, drawing or poster that reminds the public of Wendt and Ratzenberger must first obtain (and pay for) their consent. This cannot be squared with the right of the copyright holder to recreate Norm and Cliff however it sees fit. At the very least, Paramount must be able to repro- duce the characteristics that bring Norm and Cliff to mind. The problem lies with the sweeping standard we adopted in White. The right of publicity, as defined by the state courts, is limited to using a celebrity’s name, voice, face or signature.
See, e.g., Stephano v. News Group Publications, Inc., 474 N.E.2d 580, 583-84 (N.Y. 1984) (finding right of publicity under New York law limited to statutory protection of name, portrait or picture); Lugosi v. Universal Pictures, 25 Cal. 3d 813, 828 (1979) (Mosk, J., concurring) (If Bela Lugosi were alive today, he would be unable to claim an invasion of his right to privacy for Universal’s exploitation . .
. of products created in the image of Count Dracula, a role Lugosi played.). A copyright holder can generally avoid using any of these tangible elements in exploiting its copyright. White exploded the right of publicity to include anything that brings the celebrity to mind. See White, 971 F.2d at 1399.
It’s inevi- table that so broad and ill-defined a property right will trench on the rights of the copyright holder. According to the panel, Paramount and Host may not use Norm and Cliff in a way that reminds people of the actors who played them and whose identity is therefore fused in the public mind. This is a daunt- ing burden. Can Warner Brothers exploit Rhett Butler without also reminding people of Clark Gable? Can Paramount cast 14905 Shelley Long in The Brady Bunch Movie without creating a triable issue of fact as to whether it is treading on Florence Henderson’s right of publicity? How about Dracula and Bela Lugosi? Ripley and Sigourney Weaver? Kramer and Michael Richards? When portraying a character who was portrayed by an actor, it is impossible to recreate the character without evok- ing the image of the actor in the minds of viewers. Suppose the Seinfeld minions create a spin-off called Kramer.
One of the Seinfeld characters was Newman, a fat mailman. Suppose Wayne Knight–the actor who played Newman–won’t do Kramer. So Kramer brings in someone else to play Newman, a corpulent actor who (when dressed as a mailman) reminds people of Wayne Knight. What happens when Knight sues? Under White and the panel decision here, Knight can go to trial on a claim that the new Newman evokes his (Knight’s) identity, even though Castle Rock owns the rights to make de- rivative works based on Seinfeld. It would be no defense that everyone knows the new actor is not Wayne Knight; no one, after all, thinks the robots here or in White were, in fact, Wendt, Ratzenberger or White. So long as the casting director comes up with a new Newman who reminds the public of the old Newman (i.e.
Knight), Knight has a right-of-publicity claim that will at least survive summary judgment. Under the unbounded right of publicity announced in White , copyright holders will seldom be able to avoid trial when sued for infringement of the right to publicity. Remember Vanna: Even though the robot looked nothing like her, a jury awarded her $400,000. See Vanna White Wins Suit, Wall St. J., Jan. 24, 1994, at B2.6 6 To avoid going to trial in such a situation, producers will have to cast new actors who look and sound very different from the old ones. A Seinfeld spin-off thus ends up in a bizarro world where a skinny Newman sits down to coffee with a svelte George, a stocky Kramer, a fat Jerry and a lanky blonde Elaine.
Not only is goodwill associated with the old show lost, the artistic freedom of the screenwriters and producers is severely cramped. 14906 III The panel’s refusal to recognize copyright preemption puts us in conflict with the Seventh Circuit in Baltimore Orioles, Inc. v. Major League Baseball Players Ass’n , 805 F.2d 663 (7th Cir. 1986). Baltimore Orioles held that the baseball clubs –not the players–own the rights to baseball telecasts under copyright law, and the players can’t use their state law right of publicity to veto the telecast of their performance.
This was so even though the telecast (obviously) used the players’ iden- tities and likenesses. The Seventh Circuit acknowledged that the state law right of publicity gave the players a property interest in their actual performances, see Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562 (1977), but held that this right could not trump the Clubs’ right under the Copyright Act to control the telecast. See 805 F.2d at 678-79. The Seventh Circuit recog- nized, as the panel here does not, that the players and the clubs were fighting over the same bundle of intellectual prop- erty rights: In this litigation, the Players have attempted to obtain ex post what they did not negotiate ex ante.
That is to say, they seek a judicial declaration that they possess a right–the right to control the tele- casts of major league baseball games–that they could not procure in bargaining with the Clubs. Id. at 679. The clubs owned both the right to sell tickets to see the games and the copyright to the telecast. The copyright preempted whatever state law rights the players claimed, at least insofar as state law would prevent ordinary use of the copyrighted work. See also Fleet v. CBS, Inc., 50 Cal.
App. 4th 1911, 1920-21 (1996). The same reasoning applies here: The plaintiffs’ right to control the use of their likeness is pre- empted by Paramount’s right to exploit the Norm and Cliff characters however it sees fit. If Wendt and Ratzenberger 14907 wanted to control how the Cheers characters were portrayed after they left the show, they should have negotiated for it beforehand.7 IV Coming home to roost is yet another problem I warned about in White–that a broad reading of the state right of pub- licity runs afoul of the dormant Copyright Clause, which pre- empts state intellectual property laws to the extent they prejudice the interests of other States. Goldstein v. Califor- nia, 412 U.S.
546, 558 (1973). Just as a state law regulating the length of trucks is invalid under the dormant Commerce Clause if it poses an undue burden on interstate commerce, see Kassel v. Consolidated Freightways Corp. , 450 U.S. 662, 674 (1981), so California’s right of publicity law is invalid if it substantially interferes with federal copyright law, even ab- sent preemptive legislation.
A copyright licensee must be able to exercise rights which are inherently federal in nature without worrying that 50 sepa- rate states will burden those rights. This is most obviously true when state law restricts the display of derivative works outside the borders of its state. Compare Goldstein, 412 U.S. at 558. Yet that is exactly what the panel approves here: 7 The Seventh Circuit is not alone in recognizing the need to limit the right of publicity.
See, e.g., Allison v. Vintage Sports Plaques, 136 F.3d 1443, 1447-49 (11th Cir. 1998) (recognizing first sale doctrine as limiting right of publicity). Scholars, too, have soundly rejected White. See Arlen W. Langvardt, The Troubling Implications of a Right of Publicity Wheel Spun Out of Control, 45 U.
Kan. L. Rev. 329 (1997); Stephen R. Barnett, First Amendment Limits on the Right of Publicity, 30 Tort & Ins. L.J.
635 (1995); Steven C. Clay, Starstruck: The Overextension of Celebrity Publicity Rights in State and Federal Courts, 79 Minn. L. Rev. 485 (1994); Jeff Sanders, By Force of Persona: How the Right of Publicity Undermines the First Amendment, 28 Beverly Hills B.
Ass’n J. 13 (1994). Even our treatment of Wendt and Ratzenberger’s claim has already been criticized. See Felix H. Kent, Right of Privacy and of Publicity, N.Y.L.J., Dec. 19, 1997, at 3; Recent Case, 17 No. 4 Ent.
L. Rep. 17 (1995). 14908 Plaintiffs are using California law to stop Host from display- ing a copyrighted work in Kansas City and Cleveland. Why California should set the national standard for what is a per- missible use of a licensed derivative work is beyond me.
Rather than construe the right of publicity narrowly to avoid this constitutional conundrum, see Crowell v. Benson, 285 U.S. 22, 62 (1932), the panel compounds White ‘s errors by enforcing California’s right of publicity way beyond Califor- nia’s borders. V The First Amendment concerns raised by White are even more pressing here. White was an advertisement and therefore subject to the less demanding commercial speech standard of Central Hudson Gas & Elec.
Corp. v. Public Serv. Comm., 447 U.S. 557, 561-63 (1980). Here, the portrayal of the Cheers characters is core protected speech: Using Norm and Cliff dummies in a Cheers-themed bar is a dramatic presenta- tion.8 It’s like a play. Cheers may not have the social impact of Hair, see Southeastern Promotions, Ltd.
v. Conrad, 420 U.S. 546 (1975), but it’s a literary work nonetheless, worthy of the highest First Amendment protection from intrusive state laws like California’s right-of-publicity statute. See Cardtoons, L.C. v. Major League Baseball Players Ass’n, 95 F.3d 959, 970-72 (10th Cir.
1996). Host did not plaster Wendt’s face on a billboard with a Budweiser logo. It cashed in on the Cheers goodwill by creatively putting its familiar mise-en-scene to work. The robots are a new derivation of a copyrighted work, not unlike a TV series based on a movie or 8 No doubt the decision to put animatronic Norm and Cliff figures in the bars was profit-driven. But that doesn’t mean Central Hudson applies: The Supreme Court limits the outhouse of commercial speech to pure advertising–speech that does no more than propose a commercial trans- action. Virginia State Bd. of Pharmacy v.
Virginia Citizens Consumer Council, Inc., 425 U.S. 748, 762 (1976); Nordyke v. Santa Clara County, 110 F.3d 707, 710 (9th Cir. 1997); Cardtoons, L.C. v.
Major League Base- ball Players Ass’n, 95 F.3d 959, 970 (10th Cir. 1996). 14909 a Broadway play based on a novel. The novelty of using ani- matronic figures based on TV characters ought to prick up our ears to First Amendment concerns. Instead we again let the right of publicity snuff out creativity.
VI As I noted in White, No California statute, no California court has actually tried to reach this far. It is ironic that it is we who plant this kudzu in the fertile soil of our federal sys- tem. 989 F.2d at 1519. We pass up yet another opportunity to root out this weed. Instead, we feed it Miracle-Gro. I dis- sent.
14910 http://www.ca9.uscourts.gov/ca9/newopinions.nsf/04 485f8dcbd4e1ea882569520074e698/b3ec68ff03b90b06882 569580068d047?OpenDocument Case Name:WENDT V HOST INTERNATIONAL INC Case Number: Date Filed: 96-55243 09/22/97 FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GEORGE WENDT, an individual; JOHN RATZENBERGER, an individual, Plaintiffs-Appellants, v. No. 96-55243 HOST INTERNATIONAL, INC., a D.C. No. Delaware corporation; CV-93-142-R Defendant-Appellee, OPINION and PARAMOUNT PICTURES CORPORATION, a Delaware corporation, Defendant-Intervenor.
Appeal from the United States District Court for the Central District of California Manuel L. Real, District Judge, Presiding Argued and Submitted March 11, 1997–Pasadena, California Filed September 22, 1997 Before: Betty B. Fletcher and Stephen S. Trott, Circuit Judges, and Bruce S. Jenkins,* District Judge. Opinion by Judge Fletcher *Honorable Bruce S.
Jenkins, Senior United States District Judge for the District of Utah, sitting by designation. 12347 SUMMARY The summary, which does not constitute a part of the opinion of the court, is copyrighted C 1994 by Barclays Law Publishers. Intellectual Property/Entertainment The court of appeals reversed a judgment of the district court. The court held that actors have statutory and common- law rights against the unauthorized use of their likenesses in promotional figures based on an infringer’s copyrighted char- acters. Appellants George Wendt and John Ratzenberger are actors who played the characters of Norm and Cliff in the Cheers television series.
They sued appellee Host Interna- tional, Inc. alleging violations of their trademark and publicity rights under Cal. Civ. Code S 3344 (liability for unauthorized commercial use of person’s likeness), California common law, and unfair competition under the Lanham Act. The com- plaint alleged that Host had used their likenesses without authorization in animatronic, i.e., robot, figures in airport Cheers bars. In Wendt I, the Ninth Circuit held that the state-law claims were not preempted by federal copyright law, and that sum- mary judgment for Host was inappropriate because the district court’s comparison of photographs of Wendt and Ratzenber- ger with photographs of the robots was insufficient to resolve their claims under S 3344, and that the comparison had to be made without reference to the context in which the images appeared.
The court also concluded that disputed issues of material fact remained regarding the common-law claims because the similarity between the actors’ physical character- istics and those of the robots was disputed. Lastly, the court ruled that the Lanham Act claims required the application of a standard test to determine whether Host’s conduct created a likelihood of confusion as to whether the actors were endorsing Host’s product. 12348 On remand, Host again moved for summary judgment. Wendt and Ratzenberger presented evidence of actual confu- sion among members of the public in the form of comments by travelers in airport Cheers bars. The district court excluded their proffered consumer survey taken in the vicinity of Cheers bars.
Wendt and Ratzenberger also submitted evi- dence that Host intentionally designed the robot figures to resemble them because the value of the association of the robots with them was a major drawing card of the Cheers concept. Ratzenberger testified that he had rejected offers from small breweries to appear in their advertisements in order to be available to a large brewery. The district court made an in-court comparison of Wendt and Ratzenberger with the actual robots (now named Hank and Bob), finding that there was no similarity except that one was heavier than the other. The court granted Host’s motion, dismissed the action, and awarded Host attorneys fees. Wendt and Ratzenberger appealed, contending that dis- missal was inappropriate because material issues of fact remained as to the degree to which the robots appropriated their likenesses.
They asserted that the likenesses did not have to be identical or photographic, and that the determination of the issue was for the jury. Wendt and Ratzenberger conceded that they retained no rights to the characters Norm and Cliff, but asserted that Bob and Hank were not related to Para- mount’s copyright of the creative elements of the characters Norm and Cliff. It was their contention that it was the physi- cal likeness to them that had commercial value to Host. Host countered that the figures appropriated only the identi- ties of the characters of Norm and Cliff, to which intervenor Paramount Pictures Corp. owned the copyrights, and not the identities of Wendt and Ratzenberger.
It was Host’s position that Wendt and Ratzenberger could not claim appropriation of 12349 identity by relying on indicia like the Cheers bar set that were the property of or licensed by a copyright owner.  The degree to which the robots resembled, caricatured, or bore an impressionistic resemblance to Wendt and Ratzen- berger was material to the claim of violations ofS 3344. Sum- mary judgment would have been appropriate on remand only if no genuine issues of material fact concerning the degree of that resemblance were raised by Wendt and Ratzenberger.  Material facts existed that might have caused a reasonable jury to find them sufficiently like Wendt and Ratzenberger to violate S 3344.  Wendt and Ratzenberger were not seeking to prevent Paramount from exhibiting its copyrighted work in the Cheers series.
Their claims were not preempted by the copyright stat- ute so long as they contained elements, such as the invasion of personal rights, that were different in kind from copyright infringement. As a general proposition, S 3344 is intended to protect rights that cannot be copyrighted.  California recognizes a common-law right of privacy that includes protection against appropriation for the defen- dant’s advantage of the plaintiff’s name or likeness. The right is referred to as the right of publicity. A common-law cause of action for appropriation of name or likeness may be alleged by pleading (1) the defendant’s use of the plaintiff’s identity; (2) appropriation of the plaintiff’s name or likeness to the defendant’s advantage; (3) lack of consent; and (4) resulting injury.
 This common-law right protects against more than knowing use of a plaintiff’s name or likeness for commercial purposes. It also protects against appropriations of the plain- tiff’s identity by other means.  While it was true that Wendt’s and Ratzenberger’s fame arose in large part through their participation in Cheers, an actor does not lose the right 12350 to control the commercial exploitation of his or her likeness by portraying a fictional character.  Wendt and Ratzenberger raised genuine issues of mate- rial fact concerning the degree to which the figures looked like them. Because they did so, they also raised triable issues as to whether Host sought to appropriate their likenesses for its own advantage, and whether it succeeded.
The issue for the jury was whether the defendants were commercially exploit- ing the likeness of the figures to Wendt and Ratzenberger intending to engender profits.  The Lanham Act prohibits the use of any symbol or device that is likely to deceive consumers as to the associa- tion, sponsorship, or approval of goods or services by another person. Wendt’s and Ratzenberger’s claim was for false endorsement–that by using an imitation of their unique phys- ical characteristics, Host misrepresented their association with and endorsement of the Cheers bar concept.  To determine if it was likely that Host’s conduct created a likelihood of confusion as to whether Wendt and Ratzenber- ger were endorsing Host’s product, an eight-factor test applied. This test required consideration of (1) the strength of the plaintiff’s mark; (2) relatedness of the goods; (3) similar- ity of the marks; (4) evidence of actual confusion; (5) market- ing channels used; (6) likely degree of purchaser care; (7) defendant’s intent in selecting the mark; and (8) likelihood of expansion of the product lines.
 On remand, the district court simply compared the robots with Wendt and Ratzenberger and awarded judgment because there was no similarity. The court erred in failing to analyze any of the other relevant factors to determine whether there was a likelihood of confusion to consumers as to whether Wendt and Ratzenberger sponsored, approved of, or were otherwise associated with the Cheers bars.  The Lanham Act’s likelihood of confusion standard is predomi- 12351 nantly factual. Summary judgment is inappropriate when a jury could reasonably conclude that most of the factors weighed in the plaintiff’s favor.  The district court erred in rejecting the Lanham Act claim at the summary judgment stage because a jury could reasonably have concluded that most of the factors weighed in favor of Wendt and Ratzenberger. They were principal players on Cheers, a popular television show.
They were well known among the target customers of Host’s Cheers bars. A jury could reasonably have concluded that their mark was strong.  For the same reasons, their goods (their skills and fame as actors) were obviously related to Host’s goods (the products sold in the Cheers bars and the bars themselves) even if they were not strictly competitive. The issue was whether a consumer would be confused as to Wendt’s and Ratzenberger’s association with or sponsorship of Host’s bars. The source of their fame and the Host bars was identical: the Cheers television series.
 Similarity of the marks was the primary issue in dis- pute. Because Wendt and Ratzenberger raised triable issues of material fact concerning the degree to which the robots resembled them, a reasonable jury might have found that this factor weighed in their favor. Under the Lanham Act, in cam- era inspection is not sufficient. The district court had to view the marks as they appeared in the marketplace.  Wendt and Ratzenberger presented evidence of actual consumer confusion in their declarations and in the form of survey evidence.
This evidence should not have been excluded. Sufficient evidence existed by which a reasonable jury might have inferred actual consumer confusion.  The factor of marketing channels used weighed in favor of Wendt and Ratzenberger. The allegation that appro- 12352 priating their likenesses because the target audience of the Cheers bars was customers who were fans of the television series was a similarity in marketing channels that suggested that there was at least a likelihood of consumer confusion.  The factor of degree of purchaser care weighed in favor of Wendt and Ratzenberger as well.
Consumers were not likely to be particularly careful in determining who endorses or is affiliated with an airport bar in which they might purchase a single beverage. They would be even less likely to scrutinize the source of the figures used to attract patrons. This low degree of care made confusion of sponsor- ship likely.  Wendt and Ratzenberger alleged facts that could have given rise to an inference that Host intended to confuse cus- tomers as to their sponsorship or endorsement of the Cheers bars by creating robots with their physical characteristics. Based on the evidence in opposition to summary judgment, an inference could have been raised that Host intended to exploit their celebrity by confusion as to the similarity between the figures and Wendt and Ratzenberger.  The f …