Wendt
Wendt v. Host International, Inc.
Opinion
Dissenting Opinion
Kozinski, J.
dissenting from the order rejecting the suggestion for rehearing en banc:
Robots again. In White v. Samsung Elees. Am., Inc., 971 F.2d 1395, 1399 (9th Cir.1992), we held that the right of publicity extends not just to the name, likeness, voice and signature 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 application 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…
Lead Opinion
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 bane. 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. RApp. P. 35.
The petition for rehearing is denied and the petition for rehearing en banc is rejected.