Republic Pictures Corp. v. Rogers, 13314.

• Decision Date: 04 June 1954
• Docket Number: No. 13314.,13314.
• Citation: 213 F.2d 662
• Parties: REPUBLIC PICTURES CORP. et al. v. ROGERS.
• Court: U.S. Court of Appeals — Ninth Circuit

213 F.2d 662 (1954)

REPUBLIC PICTURES CORP. et al. v. ROGERS.

No. 13314.

United States Court of Appeals, Ninth Circuit.

June 4, 1954.

Loeb & Loeb, Frank B. Belcher, H. L. Gershon, Herman F. Selvin, Los Angeles, Cal., for appellants.

Gibson, Dunn & Crutcher, Frederic H. Sturdy, Richard H. Wolford, Henry F. Prince, Samuel O. Pruitt, Jr., Los Angeles, Cal., for appellee.

Before HEALY, BONE and POPE, Circuit Judges.

BONE, Circuit Judge.

This is an appeal from a judgment of the United States District Court for the Southern District of California, Central Division, enjoining appellants from distributing or licensing the exhibition of eighty-one motion pictures produced and owned by them upon sponsored or sustaining television programs. In each of those motion pictures appellee appears as the principal actor. Appellants claim the right, under contracts with appellee, to freely exhibit motion pictures produced pursuant to such contracts, on television or by any other means, regardless of whether advertising is connected with such exhibitions. All parties agree that pursuant to said contracts, appellee and only appellee has the right to use his name, picture or voice in advertisements (except for advertisements of motion pictures). Appellee contends that the exhibition of motion pictures in which appellee is the leading actor, upon commercially sponsored television programs, would be an advertising use of his name, picture and voice, a right not granted by the said contracts. Necessarily we must commence our study of this conflict by examining the contractual provisions which bear upon the controversy.

Only two contracts are involved, one executed in 1937, and the other in 1948. The pertinent parts of these contracts are excerpted as follows:

The 1937 contract, paragraph 4: "The artist expressly gives and grants to the producer the sole and exclusive right to photograph and/or otherwise reproduce any and all of his acts, poses, plays and appearances * * * during the term hereof * * *; and further gives and grants to the producer solely and exclusively all rights of every kind and character whatsoever in and to the same, or any of them, perpetually, including as well the perpetual right to use the name of the artist and pictures or other reproductions of the artist\'s physical likeness, and recordations and reproductions of the artist\'s voice, in connection with the advertising and exploitation * * *. The artist does also hereby grant to the producer, during the term hereof, the sole and exclusive right to make use of, and to allow others to make use of, his name for advertising, commercial and/or publicity purposes (other than in connection with the acts, poses, plays and appearances of the artist hereunder), as well as the sole and exclusive right to make use of and distribute * * * his pictures, photographs or other reproductions of his physical likeness and of his voice for like purposes."

The 1948 contract, paragraph 4: "(A) The Artist hereby grants to Producer the sole and exclusive right to his services for motion picture purposes during the term hereof * * * to photograph and/or otherwise reproduce any and all of his acts, poses, plays and appearances * * * and to record his voice and all instrumental, musical and other sound effects produced by him * * *. The Artist also grants to the Producer, solely and exclusively, all rights of every kind and character whatsoever in and to all such photographs, reproductions and recordings and all other results and proceeds of his services hereunder, perpetually, and also the perpetual right to use the Artist\'s name and pictures or other reproductions of his physical likeness and recordations and reproductions of his voice, in connection with the advertising and exploitation thereof * * *.

"(B) For the purpose of advertising the photoplays to be produced hereunder, and subject to the reservations set forth in Subparagraph (C) of this Paragraph 4, the Artist also hereby grants to the Producer the right, during the term hereof, to use and/or authorize the use of his name and/or likeness in so-called `commercial advertising,\' to wit, advertising relating to products other than motion pictures, subject to a number of limitations.

"(C) The Artist reserves to himself the right to enter into any and all commercial tie-ups for products of every kind or character (other than motion pictures) * * *."

It will be noted that these contracts use two different sets of descriptive words, not common in most contracts nor in ordinary parlance. They are (1) "acts, poses, plays and appearances" and (2) "name, voice and likeness." If these two sets of descriptive words mean one and the same thing, then appellants must probably be denied the result which they seek here, for it is clear to appellants, to appellee and to us that any contractual right which appellants had, to the use of appellee's "name, voice or likeness," in advertising anything other than the motion pictures, expired with the expiration of the contracts. The only issue would then be whether the proposed exhibition of these films would be an advertising use of appellee's name, voice and likeness.

But if those two sets of descriptive words mean two entirely different things, then any restriction upon one need not necessarily have any relation to rights to the other. It is appellants' contention that "acts, poses, plays and appearances" refer to the embodiment of appellee's services in the motion pictures where he appears, acts, poses and plays. Appellants distinguish the use of the product and reproduction of his acts, poses, plays and appearances in motion pictures, from the use of appellee's name, likeness and voice apart from their embodiment in motion pictures.

On their face, these contracts purport to be California contracts and that fact is not disputed. Being a diversity of citizenship case, the contracts will be interpreted so as to reach the same results as would be reached in a California court. Erie R. R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188; Sampson v. Channel, 1 Cir., 110 F.2d 754, 128 A.L.R. 394. In ascertaining whether or not these contracts are ambiguous, as found by the trial court, and in interpreting the contracts, this court is not bound by the findings of the trial court for in those matters we are principally concerned with questions of law. Brown v. Cowden Livestock Co., 9 Cir., 187 F.2d 1015, 1018; Plomb Tool Co. v. Sanger, 9 Cir., 193 F.2d 260, 264.

The focal point of this case does not involve any difficult questions of California law; rather, the principal points of reference in that law are quite well laid out. The statutory rules regarding interpretation of contracts are set forth in Calif.Civil Code §§ 1635-1662. We make particular reference to § 1638 ("The language of a contract is to govern its interpretation, if the language is clear and explicit, and does not involve an absurdity"), § 1641 ("The whole of a contract is to be taken together, so as to give effect to every part, if...