ASTAIRE v BEST FILM, 9556632v2
U.S. 9th Circuit Court of Appeals
ASTAIRE v BEST FILM
9556632v2
ROBYN ASTAIRE,Plaintiff-Appellee,No. 95-56632v.D.C. No.CV-90-00261-KN-ABEST FILM & VIDEO CORP.,Defendant-Appellant.ROBYN ASTAIRE, No. 95-56633Plaintiff-Appellant,D.C. No.v. CV-90-00261-KN-ABEST FILM & VIDEO CORP., ORDER ANDDefendant-Appellee. AMENDED OPINION
Appeals from the United States District Courtfor the Central District of CaliforniaDavid V. Kenyon, District Judge, PresidingArgued and SubmittedMarch 3, 1997--Pasadena, CaliforniaFiled June 20, 1997Amended February 19, 1998Before: Mary M. Schroeder, Charles E. Wiggins andEdward Leavy, Circuit Judges.Opinion by Judge Wiggins; Dissent by Judge SchroederSUMMARY
______________________COUNSEL William E. Wegner, Gibson, Dunn & Crutcher, Los Angeles,California, for the plaintiff-appellee-cross-appellant.George R. Hedges, Hedges & Caldwell, Los Angeles, Califor-nia, for the defendant-appellant-cross-appellee.Angela S. Alberts, Theodore J. Minch and Christine M.Sovich, Indianapolis, Indiana, in house counsel for amicusCMG Worldwide, Inc.Robert C. Vanderet, Neill S. Jass, O'Melveny & Myers, LosAngeles, California, for amici CBS Inc., Fox, Inc., NationalBroadcasting Company, Inc., and Warner Bros.Dean T. Barnhard, Barnes & Thornberg, Indianapolis, Indi-ana, Shirley M. Hufstedler, Morrison & Foerster, Los Ange-les, California, for amici Wayne Enterprises Ltd., WayneProductions, Inc., the Screen Actors Guild, Inc., et al.
_____________________________ORDER The slip opinion filed on June 20, 1997, is amended as fol-lows:1. Add at slip opinion page 7178, end of the first fullparagraph, the following footnote: In her petition for rehearing, Mrs. Astaire argues that we have improperly decided the case on a ground neither raised below nor briefed in this court. This argument is plainly incorrect. The record below discloses that Best raised S 990(n) as a defense; Best's arguments were quickly and summarily rejected by the district court. See Appellant's Excerpt of Record at 5, 65, 93. Moreover, Best's opening brief to this court prominently featured the S 990(n) argument. See Appellant's Opening Brief at 7-11. We admit that our interpretation of S 990(n) was not offered by any of the parties. But that does not make it improper or any less correct. This court can interpret a statute de novo on appeal; it is not required merely to choose between the opposing interpretations offered by the parties.2. On slip op. p. 7180, change "that limitation is alsolimited" to "that limitation is itself limited."3. On slip op. p. 7182-83, remove the last paragraph onpage 7182 and replace it with the following: Under Mrs. Astaire's proposed interpretation, S 990(n)(1) "exempts certain non-advertising uses from liability, and S 990(n)(4) exempts advertise- ments for those non-advertising uses." Petition for Rehearing at 9. This interpretation is contrary to the language of S 990(n)(1), which clearly includes as exempt certain advertising uses -- those exempt under S 990(n)(4). Mrs. Astaire tries to convince us to ignore the final words of S 990(n)(1). We cannot. Mrs. Astaire herself notes that "if a statute is ame- nable to two alternative interpretations, the one that leads to the more reasonable result will be followed." Lungren v. Deukmejian, 755 P.2d 299, 304 (Cal. 1988). However, we cannot consider her interpretation, which ignores the language in S 990(n)(1), to be the more reasonable. She wishes us to hold that the clips of Astaire dancing at the start of the video are not connected to the content of the learn-to-dance video and, therefore, are merely an advertisement for the video. She contends then that the advertisement is a distinct entity analytically, separate from the video. Thus, under her interpreta- tion, there would be no "use" of Astaire's persona in the video itself that would fall under S 990(n)(1). Even assuming for the sake of argument that the clips are only an advertisement, we do not think it is reasonable to conclude that the video itself did not contain the film clips. The Astaire film clips are clearly part of the video. In addition, even if we were to consider the rest of the video separately, there was use of Astaire's persona within it, since his name and stills from his movies were prominently displayed. Mrs. Astaire raises the spectre of a "draconian" destruction of "legitimate publicity rights" under our interpretation of S 990, suggesting that a celebrity's name and photograph could now be used freely to advertise any film, however unconnected to the celebrity. That is not so. Our holding in this case is narrow and driven by the unusual facts that Astaire had licensed the use of his name to the dance studios and that the film clips of Astaire dancing, clips which were in the public domain, were used in a how-to-dance video. The absurdity Mrs. Astaire claims will arise from our interpretation would in reality arise from hers. She is asking courts to make a content-based decision every time a filmmaker or author uses the name or image of a celebrity: "Is this use of his name related to the content of this book, or is it merely advertising used to call attention to the book?" Not only would this create great uncertainty in the law, but there is no suggestion within S 990 or its legislative history that the California state legisla- ture intended such an inquiry.SO ORDERED.
_____________________________OPINION WIGGINS, Circuit Judge:Best Film & Video Corporation ("Best") is a New Yorkcorporation which manufactures, markets, and distributes pre-recorded videotapes. Robyn Astaire ("Mrs. Astaire") is thewidow of the legendary performer Fred Astaire. Mrs. Astairesued Best in federal district court, alleging that Best's use ofher late husband's image in a series of dance instructional vid-eotapes violated her statutory right to control such use underCalifornia law. Although the district court concluded thatAstaire's image was not used for the purpose of advertising,selling, or soliciting the purchase of the videotapes, the dis-trict court granted summary judgment in favor of Mrs.Astaire. Both sides appeal. Concluding that Best's use ofAstaire's image is exempt from liability pursuant to Cal. Civ.Code S 990(n), we reverse.BACKGROUNDIn 1965, Fred Astaire granted the Ronby Corporation("Ronby") an exclusive license to use his name in connectionwith the operation of dance studios, schools, and related activ-ities. Astaire also granted Ronby the right to use certain pic-tures, photographs, and other likenesses of himself as hadbeen used under a previous agreement, as well as any newphotographs and likenesses that he approved in writing.Twenty-four years later, Best entered into an agreementwith Ronby to produce a series of dance instructional video-tapes using the Fred Astaire Dance Studios name and licenses.Since October 1989, Best has been manufacturing and distrib-uting a series of five videotapes known as the "Fred AstaireDance Series." The videotapes are each about thirty minuteslong and provide instruction in a type of dancing, with titlessuch as "Swing," "Latin Dancing," and "Ballroom."Each videotape is packaged in a box prominently labelled"Fred Astaire Franchised Dance Studios" on every side. Theback of the box features the following quote attributed toAstaire: "Some people feel that good dancers are born. All thegood dancers I've known have been taught or trained. " Theback also contains a description of the videotape that refers toAstaire 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 Stu-dios Presents How to Dance Series" appears on the screen.Then, before any other footage or narration, the videotapecontains about ninety seconds of footage from two ofAstaire's films--Second Chorus and Royal Wedding--inwhich Astaire is shown dancing alone and with a partner ("theAstaire film clips"). Some still photographs of Astaire follow,and then a narrator appears on a stage adorned with moreAstaire photographs. The narrator then introduces the seriesand 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 S 990.1 In 1989, Mrs. Astaire sued Best and others infederal district court, alleging inter alia that the Best video-tapes violated her S 990 rights by using Astaire's image as itappears in the clips from Second Chorus and Royal Weddingwithout her permission. Although Mrs. Astaire originally con-tended otherwise, the parties no longer dispute that Best's useof Astaire's name and the still photographs are authorizedunder Astaire's agreement with Ronby. Thus, this casefocuses entirely on whether S 990 provides Mrs. Astaire witha claim against Best's use of the Astaire film clips.After several years of proceedings, the district court entereda judgment which made the following legal determinations:(1) Best's use of the Astaire film clips was covered byS 990(a)'s "on or in products, merchandise, or goods" lan-guage; (2) Best's use of the Astaire film clips was not a usefor "advertising, selling, or soliciting" in violation ofS 990(a); (3) Best's use of the Astaire film clips was notexempt under S 990(n); (4) Mrs. Astaire'sS 990 claim wasnot preempted by the federal Copyright Act; and (5) Best'suse of Astaire's likeness was not protected by the FirstAmendment. Both sides appeal. We have jurisdiction under28 U.S.C. S 1291.DISCUSSIONI. Standard of ReviewWe review the district court's decision on an issue of statelaw under the same de novo standard applied to decisions offederal law. Mastro v. Witt, 39 F.3d 238, 241 (9th Cir. 1994).For questions of California law, we must apply the law as webelieve the California Supreme Court would apply it. IntelCorp. v. Hartford Accident & Indem. Co., 952 F.2d 1551,1556 (9th Cir. 1991). In the absence of a California SupremeCourt decision, we must predict how the California SupremeCourt would decide the issue using intermediate appellatecourt decisions, decisions from other jurisdictions, statutes,treatises and restatements as guidance. Lewis v. TelephoneEmployees Credit Union, 87 F.3d 1537, 1545 (9th Cir. 1996).II. Section 990Many of the parties' arguments focus on S 990. Best arguesthat the district court erred when it concluded that its use ofthe Astaire film clips violated the "on or in products, mer-chandise, or goods" prong of the statute. Best also contendsthat the district court erred when it concluded that its use ofthe Astaire film clips was not exempt under subsection (n).Mrs. Astaire argues that the district court erred when it con-cluded that Best's use of the Astaire film clips did not violatethe "advertising, selling, or soliciting" prong of subsection(a). We first address Best's subsection (n) argument, becauseif Best's use is exempt from S 990 liability altogether, weneed not reach the other issues presented by this case.2We begin by reviewing California law on statutory inter-pretation. The California Supreme Court recently stated that"[the] first task in construing a statute is to ascertain the intentof the legislature so as to effectuate the purpose of the law."Quintano v. Mercury Cas. Co., 906 P.2d 1057, 1060 (Cal.1995). This process of apprehending the legislature's intentsensibly 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 con- text, keeping in mind the statutory purpose, and stat- utes 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.,743 P.2d 1323, 1326 (Cal. 1987).With these principles in mind, we turn to the language ofthe statute. Section 990(n) provides: (n) This section shall not apply to the use of a deceased personality's name, voice, signature, pho- tograph, 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 announce- ment for a use permitted by paragraph (1), (2), or (3).Cal. Civ. Code S 990(n).Giving this language its ordinary and usual meaning, thisprovision tells us that the following uses are exempt fromS 990 liability: use in a play, book, magazine, newspaper,musical composition, film, radio or television program; use inmaterial that is of political or newsworthy value; use in singleand original works of fine art; and use in an advertisement orcommercial announcement for any of the aforementioneduses. However, subsection (n)(1) limits the exemption for usein a play, book, magazine, newspaper, musical composition,film, radio or television program: such uses are not exempt ifthey are advertisements or commercial announcements. How-ever, that limitation is itself limited: such advertisements orcommercial announcements may still be exempt under sub-section (n)(4), the provision which exempts advertisementsand commercial announcements for the uses described in sub-sections (n)(1), (n)(2), and (n)(3). Thus, to determine whethera use is exempt under subsection (n)(1) requires reference tosubsection (n)(4), which in turn refers back to subsections (n)(1), (n)(2), and (n)(3).Given this fairly convoluted statutory scheme, a few exam-ples help us determine what these provisions mean:Example 1. Suppose someone writes a magazine articleabout the history of television that uses a deceased personali-ty's name without authorization. Neither the writer nor themagazine publisher could be sued under S 990: the writer'suse of the deceased personality's name would be exempt fromS 990 liability pursuant to subsection (n)(1).Example 2. Suppose that an automobile manufacturerwanted to advertise its latest model in the same magazine witha splashy color layout that included the picture of a deceasedpersonality. Although the use appears in a magazine, the useof the deceased personality's photograph would not beexempt under subsection (n)(1) because it appears in anadvertisement. The use is not permitted in subsections (n)(1),(n)(2), or (n)(3), so it is not exempt under subsection (n)(4).Example 3. Suppose that the magazine publisher fromExample 1 wanted to advertise its magazine by referring tovarious articles that had appeared within its pages, includingthe article about the history of cinema. If that advertisementused the deceased personality's name, that use would beexempt under subsection (n)(4), because the advertisementwas for a magazine, a use permitted by subsection (n)(1).[1] With these examples in mind, we turn to Best's use ofthe Astaire film clips. Best's use of the Astaire film clipsappears on a pre-recorded videotape. Although subsection (n)(1) exempts films and television programs, it does not men-tion videotapes. Ordinarily, if the language of the statute isclear and unambiguous, there is no need to resort to the indi-cia of the intent of the legislature. Lungren v. Deukmejian,755 P.2d 299, 303-04 (Cal. 1988). However, this "plainmeaning" rule "does not prohibit a court from determiningwhether the literal meaning of a statute comports with itspurpose." Id. at 304. "It is a settled rule of statutory interpreta-tion that language of a statute should not be given a literalmeaning if doing so would result in absurd consequenceswhich the Legislature did not intend." Younger v. SuperiorCourt, 577 P.2d 1014, 1021-22 (Cal. 1978). "The intent pre-vails over the letter, and the letter will, if possible, be so readso to conform to the spirit of the act." Lungren, 755 P.2d at304.[2] Interpreting subsection (n)(1) to exempt a film or televi-sion program but not a videotape creates an absurd result: amotion picture is exempt from S 990 liability when it isshown in a theater or on cable television but not when some-one rents it at a video store and plays it on his VCR. More-over, a narrow construction of "film" and "televisionprogram" would be inconsistent with S 990(i), which defines"photograph" broadly to include "any photographic reproduc-tion, still or moving, of any video tape or live television trans-mission . . . such that the deceased personality is readilyidentifiable." It would be anomalous if the definition of pho-tograph included a videotape recording of a film but "film"did not. Consequently, we conclude that the CaliforniaSupreme Court would not adhere to the literal language ofsubsection (n)(1); rather, we conclude that the term "film" insubsection (n)(1) encompasses Best's pre-recorded video-tapes.[3] However, our inquiry is not yet complete. As Example2 illustrates, a use is not automatically exempt because it islisted in the first part of subsection (n)(1). The uses listed inthe first part of subsection (n)(1) are not exempt if they are"advertisement[s] or commercial announcement[s] notexempt under [subsection] (n)(4)." The parties disputewhether Best's use of the Astaire film clips is an advertise-ment or commercial announcement. We need not resolve thisdispute, however, because Best's use of the Astaire film clipsis exempt from liability in either case.[4] If Best's use of the Astaire film clips is not an advertise-ment or commercial announcement, then the second part ofsubsection (n)(1) does not apply. Accordingly, Best's use isexempt from liability pursuant to subsection (n)(1). If, how-ever, we assume for argument's sake that Best's use of theAstaire film clips is an advertisement or commercialannouncement, Best's use is still exempt from liability. If theAstaire film clips are an advertisement, they are certainly anadvertisement for the videotapes themselves rather than someother product. As Example 3 illustrates, subsection (n)(4)exempts advertisements and commercial announcements foruses permitted in subsections (n)(1), (n)(2), and (n)(3).Because Best's videotapes are among the uses exempted bythe first part of subsection (n)(1), subsection (n)(4) providesthat even if Best's use of the Astaire film clips is an advertise-ment or commercial announcement, such a use is exemptfrom liability.Under Mrs. Astaire's proposed interpretation, S 990(n)(1)"exempts certain non-advertising uses from liability, andS 990(n)(4) exempts advertisements for those non-advertisinguses." Petition for Rehearing at 9. This interpretation is con-trary to the language of S 990(n)(1), which clearly includes asexempt certain advertising uses -- those exempt underS 990(n)(4). Mrs. Astaire tries to convince us to ignore thefinal words of S 990(n)(1). We cannot.[5] Mrs. Astaire herself notes that "if a statute is amenableto two alternative interpretations, the one that leads to themore reasonable result will be followed." Lungren v. Deukme-jian, 755 P.2d 299, 304 (Cal. 1988). However, we cannot con-sider her interpretation, which ignores the language inS 990(n)(1), to be the more reasonable. She wishes us to holdthat the clips of Astaire dancing at the start of the video arenot connected to the content of the learn-to-dance video and,therefore, are merely an advertisement for the video. She con-tends then that the advertisement is a distinct entity analyti-cally, separate from the video. Thus, under her interpretation,there would be no "use" of Astaire's persona in the videoitself that would fall under S 990(n)(1). Even assuming for thesake of argument that the clips are only an advertisement, wedo not think it is reasonable to conclude that the video itselfdid not contain the film clips. The Astaire film clips areclearly part of the video. In addition, even if we were to con-sider the rest of the video separately, there was use ofAstaire's persona within it, since his name and stills from hismovies were prominently displayed.[6] Mrs. Astaire raises the spectre of a "draconian" destruc-tion of "legitimate publicity rights" under our interpretation ofS 990, suggesting that a celebrity's name and photographcould now be used freely to advertise any film, howeverunconnected to the celebrity. That is not so. Our holding inthis case is narrow and driven by the unusual facts thatAstaire had licensed the use of his name to the dance studiosand that the film clips of Astaire dancing, clips which were inthe public domain, were used in a how-to-dance video. Theabsurdity Mrs. Astaire claims will arise from our interpreta-tion would in reality arise from hers. She is asking courts tomake a content-based decision every time a filmmaker orauthor uses the name or image of a celebrity: "Is this use ofhis name related to the content of this book, or is it merelyadvertising used to call attention to the book?" Not onlywould this create great uncertainty in the law, but there is nosuggestion within S 990 or its legislative history that the Cali-fornia state legislature intended such an inquiry.In sum, we conclude that when subsection (n) is read in itsentirety, the only interpretation of its plain language which isinternally consistent and gives effect to each phrase andclause of the provisions leads to the conclusion that Best's useof the Astaire film clips is exempt. Rather than end theinquiry here, however, under California law we must deter-mine whether the meaning of the plain language comportswith the legislature's purpose.Mrs. Astaire asserts that the legislative history of SenateBill 613 ("SB 613"), the legislation which enacted S 990 in1984, supports the district court's conclusion that subsection(n)(1) creates a limited exception for "legitimate historical,fictional, and biographical accounts of deceased celebrities."Mrs. Astaire asserts that because the Astaire film clips wereincluded in Best's videotapes to make them more attractiveand salable, the exemption of subsection (n)(1) does notapply.To support her argument that the Legislature intended sub-section (n)(1)'s exemption to be limited to legitimate histori-cal, biographical, and fictional works, Mrs. Astaire principallyrelies on several letters written by the author of SB 613. Nomatter how illuminating we might find these letters, Califor-nia law generally prevents us from "consider[ing] the motivesor understandings of an individual legislator even if he or sheauthored the statute." Williams v. Garcetti, 853 P.2d 507, 510(Cal. 1993) (quoting Delaney v. Superior Court, 789 P.2d734, 743 n.12 (Cal. 1990)). As a result, we may not considerthe various letters written by the author of SB 613.We may consider, however, "the history of the statute,committee reports, and staff bill reports . . . to determine theintent of the Legislature." DeCastro West Chodorow & Burns,Inc. v. Superior Court, 54 Cal. Rptr. 2d 792, 798 (Cal. Ct.App. 1996). We may also consider the evolution of a pro-posed statute after its original introduction in the CaliforniaState Senate or Assembly, as such evolution may "offer con-siderable enlightenment as to legislative intent. " People v.Goodloe, 44 Cal. Rptr. 2d 15, 19 (Cal. Ct. App. 1995).As originally introduced, SB 613 did not containS 990 atall, instead focusing on modifications to existing statutoryprovisions to create a right of publicity for the heirs and des-cendents of deceased personalities. After the bill was passedby the Senate, however, it was amended in the Assembly sev-eral times. On June 12, 1984, S 990(n) appeared for the firsttime in the amended legislation. It read: Nothing in this section shall be construed to dero- gate from any rights protected by constitutional guarantees of freedom of speech or freedom of the press, such as the right to use a deceased personali- ty's name, voice, signature, photograph, or likeness in a play, book, magazine, newspaper, film, televi- sion program, or similar medium of expression, to the extent the use is protected by the constitutional guarantees of freedom of speech or freedom of the press.S.B. 613, 1983-84 Reg. Sess. (Cal. 1984) (hereinafter "S.B.613") (as amended June 12, 1984).A staff report on this version of SB 613 criticized this lan-guage for being superfluous: "[i]rrespective of this statedintent, a defendant who has used a person's name, voice, etc.without authorization may assert a First Amendmentprivilege." Staff of Assembly Comm. on Judiciary, 1983-84Reg. Sess., Report on S.B. 613 (Campbell) As Amended 6/12/84 at 6 (Cal. 1984). Shortly thereafter, S 990(n) was amendedto its current version, which does not contain the languageexplicitly limiting the scope of its exemption to constitution-ally protected uses. See S.B. 613 (as amended July 3, 1984).[7] The Legislature's removal of the language "to theextent the use is protected by the constitutional guarantees offreedom of speech or freedom of the press" from SB 613 isa telling clue as to the Legislature's intent. By deleting thislanguage, the Legislature demonstrated an intent to adopt abroader exemption that was not limited to constitutionallyprotected uses. In other words, the evolution of subsection (n)demonstrates that the interpretation of the statute we concludeis required by the plain language is consistent with the Legis-lature's intent.The same staff report on SB 613 describes the bill generallyas follows: [T]he bill is intended to address circumstances in which (a) commercial gain is had through the exploi- tation of the name, voice, signature, photograph, or likeness of a celebrity or public figure in the market- ing of goods or services or (b) a celebrity or public figure is subjected to abuse or ridicule in the form of a marketed product. Such goods or services typically involved the use of a deceased celebrity's name or likeness, e.g., on posters, T-shirts, porcelain plates, and other collectibles; in toys, gadgets, and other merchandise; in look-alike services.Staff of Assembly Comm. on Judiciary, supra, at 3-4. Severalother legislative staff reports describe the legislation similarly.See, e.g., Assembly Office of Research, 1983-84 Reg. Sess.,Report on S.B. 613 (Campbell) As Amended 8/9/84 at 3 (Cal.1984).To the extent these reports reflect the Legislature's intentwhen it enacted S 990, our conclusion that Best's use of theAstaire film clips is exempt from liability is not inconsistentwith this expressed intent. Best's use in no possible way sub-jects Fred Astaire to abuse or ridicule. Best's use is also noth-ing like the exploitative marketing uses described in theselegislative staff reports.[8] We recognize, however, that Best placed these filmclips in its videotapes for a reason: to make the videotapesmore salable. Nevertheless, neither the statute nor the legisla-tive history provides any support for treating Best's use of theAstaire film clips any differently from the use of the sameclips in a documentary about dance in film, a use that Mrs.Astaire concedes would be exempt from liability. In short,whether the use is included to increase the marketability of aproduct cannot be the test of whether it is exempt from S 990liability.[9] Having considered what limited guidance the legislativehistory of SB 613 gives us regarding the meaning of subsec-tion (n), we conclude that the legislative history does not sup-port Mrs. Astaire's contentions that the exception for use ina "play, book, magazine, newspaper, musical composition,film, radio or television program" is limited to "legitimate his-torical, fictional, and biographical accounts of deceasedcelebrities." We conclude that the language of subsection (n)should be given its ordinary and usual meaning, and thatBest's use of the Astaire film clips is accordingly exempt.3CONCLUSIONWe conclude that Best's use of the late Fred Astaire'slikeness/photograph in its "How to Dance" videotapes isexempt from S 990 liability pursuant to subsection (n).4Accordingly, the judgment of the district court is reversed andwe remand with instructions to enter judgment in favor ofBest.REVERSED and REMANDED.
_____________________________SCHROEDER, Circuit Judge, Dissenting:I dissent from the majority's conclusion that this use ofFred Astaire's legendary film performances, to preface a vid-eotape having nothing to do with Fred Astaire, is exemptunder the California statute. I dissent with respect, however,because the statute is not as clear as judges would like.First I assume, without needing to decide, that the majorityis correct in holding that subsection (n)(1) of Cal. Civ. CodeS 990 exempts uses in videotapes, as well as in films, playsand other forms of expression, even though the statute doesnot expressly refer to videotapes. In my view, the majoritygoes wrong when it holds that this use of the Astaire footageis exempt as an "advertisement or commercial announce-ment" of an exempt use.The majority reasons that the language of subsection (n) (4)exempts all advertisements or commercial announcements forplays, films, videotapes, etc. This is incorrect. That subsectionexempts only advertisements or commercial announcementsfor uses permitted in the earlier paragraphs. The relevantexemption in this case must be the exemption in paragraph (1)for use of an image or likeness in a videotape, film, play orother expressive form. This footage of Astaire, however, isnot used in the dance instruction video. The clips are used topromote the accompanying videotape of dance instruction thatdoes not use Astaire's image. Had the clips been used in anannouncement physically separated from the rest of the video,the use of the clips would clearly not have been exempt. Thefact that Best chose to attach the clips to the dance instructionvideo in the form of a prefatory announcement does notchange its essential nature: a commercial announcement ofsomething unrelated to any exempted use of a photograph orlikeness. The clips are therefore not advertising or announcinga "use permitted by paragraph (1)," and thus they are notexempt under paragraph (4).Under the majority's reasoning one could with impunityhawk a videotape on fashion for the next century by introduc-ing it with footage of Jacqueline Kennedy. The statute wasintended to prevent such exploitation, not immunize it. Itherefore must respectfully dissent. the end
___________________________FOOTNOTES 1 Section 990 provides, in relevant part: (a) Any person who uses a deceased personality's name, voice, signature, photograph, or likeness, in any manner, on or in products, merchandise, or goods, or for the purposes of advertis- ing or selling, or soliciting purchases of, products, merchandise, goods, or services, without prior consent from the person or per- sons specified in subdivision (c), shall be liable for any damages sustained by the person or persons injured as a result thereof. . . . . . . (h) As used in this section, "deceased personality" means any natural person whose name, voice, signature, photograph, or like- ness has commercial value at the time of his or her death . . . . (i) As used in this section, "photograph " means any photo- graph or photographic reproduction, still or moving, or any video tape or live television transmission, of any person, such that the deceased personality is readily identifiable. . . . . . . (n) This section shall not apply to the use of a deceased per- sonality's name, voice, signature, photograph, or likeness, in any of the following instances: (1) A play, book, magazine, newspaper, musical composi- tion, film, radio or television program, other than an advertise- ment 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 S 990 (West Supp. 1997).2 In her petition for rehearing, Mrs. Astaire argues that we have improp-erly decided the case on a ground neither raised below nor briefed in thiscourt. This argument is plainly incorrect. The record below discloses thatBest raised S 990(n) as a defense; Best's arguments were quickly and sum-marily rejected by the district court. See Appellant's Excerpt of Record at5, 65, 93. Moreover, Best's opening brief to this court prominently fea-tured the S 990(n) argument. See Appellant's Opening Brief at 7-11.We admit that our interpretation of S 990(n) was not offered by any ofthe parties. But that does not make it improper or any less correct. Thiscourt can interpret a statute de novo on appeal; it is not required merelyto choose between the opposing interpretations offered by the parties.3 Construing subsection (n) to exempt Best's use of the Astaire film clipsalso has the commendable effect of avoiding the potential First Amend-ment concern which would be created were Best held liable for using thefilm clips in an original videotape. Under California's principles of statu-tory construction, a construction which best avoids conflict with constitu-tional limitations is favored. See J.A. Savage v. Pacific Gas & Elec. Co.,26 Cal. Rptr. 2d 305, 312 (Cal. Ct. App. 1993).4 Having concluded that Best's use of the Astaire film clips is exemptfrom liability under S 990, we need not reach the other issues presentedby the parties' arguments, viz., whether Best's use is covered by S 990(a),whether Mrs. Astaire's S 990 claim is preempted by the federal CopyrightAct, and whether holding Best liable violates the First Amendment.