Robyn Astaire v. Best Film & Video Corp., Robyn Astaire v. Best Film & Video Corp.

116 F.3d 1297, 43 U.S.P.Q. 2d (BNA) 1128, 97 Cal. Daily Op. Serv. 4708, 97 Daily Journal DAR 7792, 1997 U.S. App. LEXIS 14820
CourtCourt of Appeals for the Ninth Circuit
DecidedJune 20, 1997
Docket95-56632, 95-56633
StatusPublished
Cited by30 cases

This text of 116 F.3d 1297 (Robyn Astaire v. Best Film & Video Corp., Robyn Astaire v. Best Film & Video Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Robyn Astaire v. Best Film & Video Corp., Robyn Astaire v. Best Film & Video Corp., 116 F.3d 1297, 43 U.S.P.Q. 2d (BNA) 1128, 97 Cal. Daily Op. Serv. 4708, 97 Daily Journal DAR 7792, 1997 U.S. App. LEXIS 14820 (9th Cir. 1997).

Opinions

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 [1299]*1299exempt 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 Ghns-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.

[1300]*1300After 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 (6) 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.

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116 F.3d 1297, 43 U.S.P.Q. 2d (BNA) 1128, 97 Cal. Daily Op. Serv. 4708, 97 Daily Journal DAR 7792, 1997 U.S. App. LEXIS 14820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/robyn-astaire-v-best-film-video-corp-robyn-astaire-v-best-film-ca9-1997.