Astaire v. Best Film & Video Corp.

• Decision Date: 20 June 1997
• Docket Number: Nos. 95-56632,95-56633,s. 95-56632
• Citation: 116 F.3d 1297
• Parties: , 45 U.S.P.Q.2d 1902, 97 Cal. Daily Op. Serv. 4708, 97 Daily Journal D.A.R. 7792 Robyn ASTAIRE, Plaintiff-Appellee, v. BEST FILM & VIDEO CORP., Defendant-Appellant. Robyn ASTAIRE, Plaintiff-Appellant, v. BEST FILM & VIDEO CORP., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1297

116 F.3d 1297

43 U.S.P.Q.2d 1128, 45 U.S.P.Q.2d 1902,

97 Cal. Daily Op. Serv. 4708,

97 Daily Journal D.A.R. 7792

Robyn ASTAIRE, Plaintiff-Appellee, v. BEST FILM & VIDEO CORP., Defendant-Appellant.

Robyn ASTAIRE, Plaintiff-Appellant, v. BEST FILM & VIDEO CORP., Defendant-Appellee.

Nos. 95-56632, 95-56633.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 3, 1997.

Decided June 20, 1997.

William E. Wegner, Gibson, Dunn & Crutcher, Los Angeles, CA, for plaintiff-appellee-cross-appellant.

George R. Hedges, Hedges & Caldwell, Los Angeles, CA, for defendant-appellant-cross-appellee.

Angela S. Alberts, Theodore J. Minch and Christine M. Sovich, Indianapolis, IN, in house counsel for amicus CMG Worldwide, Inc.

Robert C. Vanderet, Neil S. Jahss, O'Melveny & Myers, Los Angeles, CA, for amici CBS Inc., Fox, Inc., National Broadcasting Co., Inc., and Warner Bros.

Dean T. Barnhard, Barnes & Thornberg, Indianapolis, IN, Shirley M. Hufstedler, Morrison & Foerster, Los Angeles, CA, for amici Wayne Enterprises Ltd., Wayne Productions, Inc., the Screen Actors Guild, Inc., et al.

Appeals from the United States District Court for the Central District of California; David V. Kenyon, District Judge, Presiding. D.C. No. CV-90-00261-KN.

Before: SCHROEDER, WIGGINS and LEAVY, Circuit Judges.

Opinion by Judge WIGGINS; Dissent by Judge SCHROEDER.

WIGGINS, Circuit Judge:

Best Film & Video Corporation ("Best") is a New York corporation which manufactures, markets, and distributes pre-recorded videotapes. Robyn Astaire ("Mrs.Astaire") is the widow of the legendary performer Fred Astaire. Mrs. Astaire sued Best in federal district court, alleging that Best's use of her late husband's image in a series of dance instructional videotapes violated her statutory right to control such use under California law. Although the district court concluded that Astaire's image was not used for the purpose of advertising, selling, or soliciting the purchase of the videotapes, the district court granted summary judgment in favor of Mrs. Astaire. Both sides appeal. Concluding that Best's use of Astaire's image is

exempt from liability pursuant to Cal. Civ.Code § 990(n), we reverse.

BACKGROUND

In 1965, Fred Astaire granted the Ronby Corporation ("Ronby") an exclusive license to use his name in connection with the operation of dance studios, schools, and related activities. Astaire also granted Ronby the right to use certain pictures, photographs, and other likenesses of himself as had been used under a previous agreement, as well as any new photographs and likenesses that he approved in writing.

Twenty-four years later, Best entered into an agreement with Ronby to produce a series of dance instructional videotapes using the Fred Astaire Dance Studios name and licenses. Since October 1989, Best has been manufacturing and distributing a series of five videotapes known as the "Fred Astaire Dance Series." The videotapes are each about thirty minutes long and provide instruction in a type of dancing, with titles such as "Swing," "Latin Dancing," and "Ballroom."

Each videotape is packaged in a box prominently labelled "Fred Astaire Franchised Dance Studios" on every side. The back of the box features the following quote attributed to Astaire: "Some people feel that good dancers are born. All the good dancers I've known have been taught or trained." The back also contains a description of the videotape that refers to Astaire as "the master" and "the world's greatest dancer."

The videotape itself begins with an introductory segment. After Best's logo is shown, the title "Fred Astaire Dance Studios Presents How to Dance Series" appears on the screen. Then, before any other footage or narration, the videotape contains about ninety seconds of footage from two of Astaire's films-Second Chorus and Royal Wedding-in which Astaire is shown dancing alone and with a partner ("the Astaire film clips"). Some still photographs of Astaire follow, and then a narrator appears on a stage adorned with more Astaire photographs. The narrator then introduces the series and the instructional portion of the video.

Fred Astaire died in 1987. He was survived by his wife, Robyn, who has succeeded to all rights in his name, voice, signature, photograph, likeness and persona under Cal. Civ.Code § 990. ¹ In 1989, Mrs. Astaire sued Best and others in federal district court, alleging inter alia that the Best videotapes violated her § 990 rights by using Astaire's image as it appears in the clips from Second Chorus and Royal Wedding without her permission. Although Mrs. Astaire originally contended otherwise, the parties no longer dispute that Best's use of Astaire's name and the still photographs are authorized under Astaire's agreement with Ronby. Thus, this case focuses entirely on whether § 990 provides Mrs. Astaire with a claim against Best's use of the Astaire film clips.

After several years of proceedings, the district court entered a judgment which made the following legal determinations: (1) Best's use of the Astaire film clips was covered by § 990(a)'s "on or in products, merchandise, or goods" language; (2) Best's use of the Astaire film clips was not a use for "advertising, selling, or soliciting" in violation of § 990(a); (3) Best's use of the Astaire film clips was not exempt under § 990(n); (4) Mrs. Astaire's § 990 claim was not preempted by the federal Copyright Act; and (5) Best's use of Astaire's likeness was not protected by the First Amendment. Both sides appeal. We have jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

I. Standard of Review

We review the district court's decision on an issue of state law under the same de novo standard applied to decisions of federal law. Mastro v. Witt, 39 F.3d 238, 241 (9th Cir.1994). For questions of California law, we must apply the law as we believe the California Supreme Court would apply it. Intel Corp. v. Hartford Accident & Indem. Co., 952 F.2d 1551, 1556 (9th Cir.1991). In the absence of a California Supreme Court decision, we must predict how the California Supreme Court would decide the issue using intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises and restatements as guidance. Lewis v. Telephone Employees Credit Union, 87 F.3d 1537, 1545 (9th Cir.1996).

II. Section 990

Many of the parties' arguments focus on § 990. Best argues that the district court erred when it concluded that its use of the Astaire film clips violated the "on or in products, merchandise, or goods" prong of the statute. Best also contends that the district court erred when it concluded that its use of the Astaire film clips was not exempt under subsection (n). Mrs. Astaire argues that the district court erred when it concluded that Best's use of the Astaire film clips did not violate the "advertising, selling, or soliciting" prong of subsection (a). We first address Best's subsection (n) argument, because if Best's use is exempt from § 990 liability altogether, we need not reach the other issues presented by this case.

We begin by reviewing California law on statutory interpretation. The California Supreme Court recently stated that "[the] first task in construing a statute is to ascertain the intent of the legislature so as to effectuate the purpose of the law." Quintano v. Mercury Cas. Co., 11 Cal.4th 1049, 48 Cal.Rptr.2d 1, 906 P.2d 1057, 1060 (1995). This process of apprehending the legislature's intent sensibly starts with the statute's language:

In determining such intent, a court must look first to the words of the statute themselves, giving to the language its usual, ordinary import and according significance, if possible, to every word, phrase and sentence in pursuance of the legislative purpose.... The words of the statute must be construed in context, keeping in mind the statutory purpose, and statutes or statutory sections relating to the same subject must be harmonized, both internally and with each other, to the extent possible.

Dyna-Med, Inc. v. Fair Employment & Housing Comm'n., 43 Cal.3d 1379, 241 Cal.Rptr. 67, 743 P.2d 1323, 1326 (1987).

With these principles in mind, we turn to the language of the statute. Section 990(n) provides:

(n) This section shall not apply to the use of a deceased personality's name, voice, signature, photograph, or likeness, in any of the following instances:

(1) A play, book, magazine, newspaper, musical composition, film, radio or television program, other than an advertisement or commercial announcement not exempt under paragraph (4).

(2) Material that is of political or newsworthy value.

(3) Single and original works of fine art.

(4) An advertisement or commercial announcement for a use permitted by paragraph (1), (2), or (3).

Cal. Civ.Code § 990(n).

Giving this language its ordinary and usual meaning, this provision tells us that the Given this fairly convoluted statutory scheme, a few examples help us determine what these provisions mean:

following uses are exempt from § 990 liability: use in a play, book, magazine, newspaper, musical composition, film, radio or television program; use in material that is of political or newsworthy value; use in single and original works of fine art; and use in an advertisement or commercial announcement for any of the aforementioned uses. However, subsection (n)(1) limits the exemption for use in a play, book, magazine, newspaper, musical composition, film, radio or television program: such uses are not exempt if they are advertisements or commercial announcements. However, that limitation is also limited: such advertisements or commercial announcements may still be exempt under subsection (n)(4), the provision which exempts advertisements and commercial announcements for the uses described in subsections (n)(1), (n)(2), and (n)(3). Thus, to determine whether a use is exempt under subsection (n)(1) requires reference to subsection (n)(4), which in turn refers back to...