This section contains the nature of the case and procedural background.

P sued to over whether D violated their trademark and publicity rights by creating animatronic robotic figures (the 'robots') based upon their likenesses without their permission and placing these robots in airport bars modeled upon the set from the television show Cheers. In the first appeal, the court held that P's state law causes of action were not preempted by federal copyright law and that disputed issues of material fact precluded summary judgment because the district court's comparison of photographs of appellants. The court concluded that the comparison must be decided without reference to the context in which the image appears. Upon a remand from a first appeal, the district court granted summary judgment for a second time after an in-court inspection of the robots. It held that it could not 'find, by viewing both the robotics and the live persons of Mr. Wendt and Mr. Ratzenberger, that there is any 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.' The district court then awarded attorney's fees to Host and Paramount pursuant to Cal. Civ. Code S 3344. This appeal resulted. Ps contend material issues of fact remain as to the degree to which the animatronic figures appropriate the appellants' likenesses. Appellants claim that the district court erred in determining that the robots were not likenesses of the appellants because the 'likeness' need not be identical or photographic. Further, they argue that the likeness determination is an issue for the jury to decide in this case.

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