“Robots again.” That’s how federal appellate judge Alex Kozinski begins his dissent from the Ninth Circuit’s decision not to rehear Wendt v. Host International. The “robots” refers to animatronic replicas of Cliff and Norm from the TV series Cheers built by an airport bar chain as a gimmick. The “again” refers to the earlier case of White v. Samsung, where Samsung ran ads depicting a robot version of Wheel of Fortune’s Vanna White with the tag line “Longest-running game show, 2012 A.D.” She sued. (To her credit, however, Ms. White kept her head. She did not turn into a car and drive over to Samsung headquarters, as was no doubt her first instinct.)
People suing over robot versions of themselves is just one of the ways robots make ordinary cases more interesting. As personal robotics moves toward the multibillion-dollar market Bill Gates and some analysts predict, we are likely to see more—and more interesting—robot-driven litigation. What follows is a little tour of robot case law to date.
Wendt and White are examples of torts, such as "appropriation of likeness," involving the right to publicity. Robot versions of people also complicate trade tariffs. According to the Harmonized Tariff Schedule of the United States, "[t]oys representing animals or non-human creatures (for example, robots and monsters)" get different treatment from toys representing straightforward humans. The U.S. Court of International Trade once had to sort out whether various Marvel action figures were human. Robot Wolverine was a cinch; the parties eventually stipulated to his categorization as non-human. Others were not so easy. Today’s figures are even trickier. What if someone tried to import a Cylon figurine of Helo and Athena’s daughter on Battlestar Galactica?
Copyright law presents another context where robot toys trigger lawsuits. It turns out, for instance, that “robot-like battle machines … and direct communication between machine and human brain” are “familiar themes” not entitled to copyright protection. (“Familiar themes” makes it sounds almost comforting…) Nor, thank God, does trademark protect the concept of pitting small robots against one another in battle.
On the more physical side of things, criminal law gives us the recent example of Reinhardt v. Fuller. Dave Reinhardt was holed up in his parent’s house following a dispute over his inheritance. The local swat team arrived and deployed a two-and-a-half foot tall robot complete with cameras, a microphone, a mounted gun, and a “claw… for breaking glass” to subdue Reinhardt. “Appellant fired four shotgun blasts at the robot.” He was soon arrested.
Industrial robots have also wrought their share of chaos. In what is no joking matter, a court denied liability on the part of the robot manufacturer where a worksite was improperly secured, “thereby exposing [plaintiffs] to the danger of injury by being caught in the robot's jaws.”
Amusing, however, is the 1998 case of Robotic Vision Systems, Inc. v. Cybo Systems, Inc., where an industrial parts company convinced its manufacturer client to take on Al Bove and Al Treu, two “robot technicians,” as installation support. The client gave the robots a shot, but ended up having to hire a human technician to finish the job.
I predict that robot-related litigation will only grow. A personal robot wanders into a neighbors yard collides and with a toddler. Is this robot like a dog, in which case the owner may be liable? Or is there a cause of action against the manufacturer? Experts argue that the use of intelligent robots may cause us to rethink the laws of war. Others argue that robots will one day themselves hold rights and liabilities. The possibilities are endless. We may even eventually see a robot practice group akin to today’s practice groups around video games. Maybe Al Bove and Al Treu could join up. I hear they are looking for work.
Cast of cases by order of appearance:
Wendt v. Host Intern., Inc., 197 F.3d 1284 (9th Cir. 1999).
White v. Samsung Elec. Am., Inc., 971 F.2d 1395 (9th Cir. 1992)
Toy Biz, Inc. v. U.S., 248 F.Supp.2d 1234 (CIT 2003)
FASA Corp. v. Playmates Toys, Inc., 869 F.Supp. 1334 (N.D. Ill 1994)
Robot Wars LLC v. Roski, 51 F.Supp.2d 491, 494 (S.D.N.Y.1999)
Reinhardt v. Feller, 2008 WL 5386802 (E.D. Ca. 2008)
Payne v. ABB Flexible Automation, Inc., 116 F.3d 480 (8th Cir. 1997)
Robotic Vision Systems, Inc. v. Cybo Systems, Inc., 17 F.Supp.2d 151 (E.D.N.Y. 1998)