It's a Little Known Fact That Copyright Law is in Conflict with the Right of Publicity Intellectual Property Comments 26 Touro Law Review 2010-2011

26 Touro L. Rev. 351 (2010-2011)
It's a Little Known Fact That Copyright Law is in Conflict with the Right of Publicity

handle is hein.journals/touro26 and id is 353 raw text is: IT'S A LITTLE KNOWN FACT THAT COPYRIGHT LAW IS
IN CONFLICT WITH THE RIGHT OF PUBLICITY
Madeline O'Connor*
INTRODUCTION
In 1997, the United States Court of Appeals for the Ninth Cir-
cuit decided the case of Wendt v. Host International, Inc.,' which in-
volved a conflict between the state statutory and common law right of
publicity and federal copyright law.2 The decision in Wendt contin-
ues to be cited by many circuits, even though the court's resolution
of the conflict was not clear, and leaves behind the question of
whether actors are able to unfairly exploit the right of publicity to lay
claim to characters that are not their own. In Wendt, actors George
Wendt and John Ratzenberger sued Host International, Inc. (Host)
in district court claiming their trademark and publicity rights were vi-
olated when Host, without their permission, placed animatronic ro-
botic figures (robots) based upon their likenesses in airport bars,
modeled upon the television show Cheers.4 The court had to decide
whether the California statutory and common law right of publicity
prevented Host from using robots based upon the actors' likenesses,s
* J.D. Candidate, 2010, Touro College Jacob D. Fuchsberg Law Center. I would like to
thank many special people: first, Professor Rena Seplowitz for her constant support and as-
sistance; second, Professors Melniker and Barshay, who have not only helped me throughout
my education, but have also guided me in reshaping my future; third, my good friend James
Lucarello, Editor-in-Chief of the Touro Law Review, and one of the finest human beings I
have had the pleasure of knowing; and, finally, I would like to thank my loving parents,
children, family, friends, and teachers who have stood beside me and helped me succeed in a
very difficult time in my life.
Wendt v. Host Int'l, Inc. (WendtI), 125 F.3d 806 (9th Cir. 1997).
Id. at 809.
See, e.g., Facenda v. N.F.L. Films, Inc., 542 F.3d 1007, 1025 (3d Cir. 2008); McBee v.
Delica Co., Ltd., 417 F.3d 107, 114 (1st Cir. 2005); Downing v. Abercrombie & Fitch, 265
F.3d 994, 1008 (9th Cir. 2001); Landham v. Lewis Galoob Toys, Inc., 227 F.3d 619, 623 (6th
Cir. 2000).
4 Wendt II, 125 F.3d at 808-09.
s Id. at 809.

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