Cher v. Forum Intern., Ltd.

• Decision Date: 18 November 1982
• Docket Number: Nos. 82-5105,82-5106,82-5107,s. 82-5105
• Citation: 692 F.2d 634
• Parties: , 8 Media L. Rep. 2484 CHER, Plaintiff-Appellee, v. FORUM INTERNATIONAL, LTD., a New York corporation, dba Forum Magazine; Penthouse International, Ltd., a New York corporation; News Group Publications, Inc., a Delaware corporation, dba the Star; Fred Robbins, an individual, Defendants-Appellants.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 634

692 F.2d 634

217 U.S.P.Q. 407, 8 Media L. Rep. 2484

CHER, Plaintiff-Appellee, v. FORUM INTERNATIONAL, LTD., a New York corporation, dba Forum

Magazine; Penthouse International, Ltd., a New York

corporation; News Group Publications, Inc., a Delaware

corporation, dba the Star; Fred Robbins, an individual,

Defendants-Appellants.

Nos. 82-5105, 82-5106, 82-5107.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Aug. 3, 1982.

Decided Nov. 18, 1982.

N. Roy Grutman, New York City, argued for Forum Intern., Ltd. and Fred Robbins; Paul, Hastings, Janofsky & Walker, Los Angeles, Cal., on brief.

Louis P. Petrich, Los Angeles, Cal., argued for Penthouse Intern., Ltd.; Youngman, Hungate & Leopold, Los Angeles, Cal., on brief.

John D. Forbess, Rudin, Perlstein & Chieffo, Beverly Hills, Cal., for Cher.

Lawrence W. Dam, Lillick McHose & Charles, Los Angeles, Cal., Howard M. Squadron, Squadron, Ellenoff, Plesent & Lehrer, New York City, for News Group Publications, Inc.

Appeal from the United States District Court for the Central District of California.

Before CHAMBERS and GOODWIN, Circuit Judges, EAST, ^* District Judge.

GOODWIN, Circuit Judge.

A well-known entertainer who performs under the name "Cher" sued a number of defendants for damages allegedly arising out of the unauthorized publication in two magazines of portions of an interview that she had given to a writer for a third, which did not use it. A court trial resulted in judgment for compensatory and punitive damages against all defendants. They appeal.

This controversy began when Fred Robbins taped an hour-and-a-half interview with Cher in Atlantic City. Robbins is a radio talk show host who interviews celebrities and sells the interviews, or parts of them, to as many magazines as possible. Robbins and Cher understood that the taped interview was to be published in Us magazine. Cher and her agents were apparently interested in having a cover story in that magazine, timed to reach the public about the same time Cher expected to release a new album.

The editors of Us magazine, at Cher's request, did not run the interview, and returned it to Robbins, paying him a "kill" fee. Cher apparently did not feel that the interview sufficiently emphasized her new band. Robbins sold the interview to two of the defendants, the publishers of a tabloid called Star, and the publishers of a pocket-sized magazine called Forum.

Cher does not allege that the published text of the interview was false or defamatory. Nor does she contend that private facts were published without her consent. Instead her complaint charged breach of contract, unfair competition, misappropriation of name and likeness, misappropriation of right to publicity, and violations of the Lanham Act, ¹ all with reference to the publishers' use of headlines, cover promotions and advertising in connection with the interview.

The trial court found for Cher and awarded general and punitive damages against all defendants. The court indulged in the regrettable practice of asking the winning lawyers to draw the findings of fact; so we do not know what the trial court would have said in its own words. We therefore give the findings special scrutiny. United States v. State of Washington, 641 F.2d 1368, 1371 (9th Cir.1981), cert. denied, 454 U.S. 1143, 102 S.Ct. 1001, 71 L.Ed.2d 294 (1982); Photo Electronics Corp. v. England, 581 F.2d 772, 777 (9th Cir.1978). After examining the record, we conclude that the evidence does not support the findings in their entirety, and the law does not support parts of the judgment.

(1) Fred Robbins

Robbins taped the interview with Cher with her consent and cooperation. She now says she gave that consent under the mistaken belief that the interview would appear as a cover story in Us magazine and that she did not consent to other uses of the interview. The trial court found that Cher had no contract with Robbins. We accept that finding. Moreover, it was stipulated that Robbins had never promised any interviewee approval rights over an interview. Accordingly, any liability of Robbins to Cher must be predicated upon a finding that Robbins participated in one or more of the tortious actions of the publisher defendants.

Robbins had no part in the publishing, advertising or marketing of the articles in question. Accordingly, the judgment against Robbins is clearly erroneous and must be vacated. ²

(2) News Group Publications, Inc.

News Group Publications, Inc. publishes, among other things, a tabloid called Star. Star published portions of the Robbins interview in its March 17 and 24, 1981, issues and printed Cher's picture and these words on its March 17 cover: "Exclusive Series", followed by "Cher: My life, my husbands and my many, many men."

Cher's theory against News Group was that her image as a major celebrity was degraded by the suggestion that she would give an exclusive interview to that publication. Cher also claimed that News Group had wrongfully appropriated Cher's implied endorsement of Star for commercial purposes.

We note first that it was stipulated that "exclusive" interviews with Cher had previously appeared in Star a number of times. We also note that Cher conceded at trial that she had never been paid for an interview, and that Star had never paid an interviewee for an interview. Whether the article itself was an "exclusive," it was stipulated that the Star article had not previously appeared in any other publication. Even if some of the material in Star had already appeared in Forum, Cher did not suffer any damage from Star's exaggerated claims of exclusivity.

Star bought an interview with a public figure from a free-lance writer and published portions of it. This activity is protected by the First and Fourteenth Amendments in the absence of a showing that the publishers knew that their statements were false or published them in reckless disregard of the truth. Time, Inc. v. Hill, 385 U.S. 374, 87 S.Ct. 534, 17 L.Ed.2d 456 (1967). Cher makes no claim that Star published any statements from the interview with knowledge that they were false or with reckless disregard for their truth.

Cher's theory was that by using the words "Exclusive Series" and "Cher: My life, my husbands and my many, many men" on the cover of Star, the magazine was falsely representing to the public that Cher had given Star an exclusive interview.

Star was entitled to inform its readers that the issue contained an article about Cher, that the article was based on an interview with Cher herself, and that the article had not previously appeared elsewhere. It sought to do so by the use of words, including "Exclusive Series." The use of these words cannot support a finding of the knowing or reckless falsity required under Time, Inc. v. Hill.

Neither do the words in question constitute a false claim that Cher endorsed Star magazine. There is no evidence in the record to support such a theory. The district court in effect imposed liability on the basis of earlier negotiations between Cher and News Group relating to a contract for commercial advertising and Cher's endorsement of Star, to be aired on television. These negotiations were never concluded, and were not relevant in this case, where no endorsement was in fact shown.

The California statute governing the use of another's name or likeness for commercial purposes contains an express exception for news accounts. Cal.Civ.Code Sec. 3344(d).

The California Supreme Court has subjected the "right of publicity" under California law to a narrowing interpretation which accords with First Amendment values. The Court has acknowledged that "the right of publicity has not been held to outweigh the value of free expression. Any other conclusion would allow reports and commentaries on the thoughts and conduct of public and prominent persons to be subject to censorship under the guise of preventing the dissipation of the publicity value of a person's identity." Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, 873, 160 Cal.Rptr. 352, 359-360, 603 P.2d 454, 461-462 (1979) (Bird, J. concurring.) Cher has no claim based on Star's publication and exploitation of her interview with Robbins.

The judgment against News Group is reversed.

(3) Forum International, Ltd.

Forum International, Ltd., a New York corporation, published part of the Robbins interview in the March 1981 issue of Forum, identifying Robbins as the interviewer but changing the text so that Forum appeared as the poser of questions and Cher appeared as the respondent (apparently a common practice in the industry). The magazine printed Cher's picture on its cover with the words: "Exclusive: Cher Talks Straight." Forum also caused to be published advertising copy referring to Cher which is discussed below. Cher sued Forum International on two theories: (1) falsely creating and exploiting the impression that Cher had in fact given an exclusive interview directly to Forum when she had not; and (2) exploiting Cher's celebrity value to sell magazines without her consent by implying that she endorsed Forum.

Cher concedes that Forum's publication of the interview was protected by the First Amendment. As explained above with reference to News Group, this protection extends to Forum's use of headlines and cover display so long as the headlines and promotional devices were true or were not published with knowledge that they were false or in reckless disregard for their truth. It was stipulated that the photos used by Forum were purchased from an independent agency which owned them. Unlike Star, however, Forum also engaged in explicit advertising using Cher's name and picture. This advertising provided an alternate basis for...