Court rules in favor of dance vid on image issue

In what is considered an important victory for producers who use footage of now-deceased celebrities, a federal appeals court ruled that the makers of a series of how-to-dance videos could use movie clips of Fred Astaire without the consent of his widow.

The 9th U.S. Circuit Court of Appeals, in a two-to-one ruling issued Friday, said that while state law may prohibit the use of celebrity film clips to advertise a commercial product without consent, the clips can be used to promote films and other projects such as the dance videos.

CBS, NBC, Fox and Warner Bros. had submitted written arguments on the side of the video company, while the Screen Actors Guild threw its support behind Robyn Astaire, the widow of Fred Astaire, who died in 1987.

Advertising vs. information

George Hedges, the attorney who represented the video company, said that the ruling makes clear the use of celebrity film clips to advertise a product vs. promoting an informational project or documentary.

The ruling, he said, made clear that producers would have to get permission “if they wanted to use clips of Astaire to sell vacuum cleaners in commercials during the Superbowl” but “when it comes to using clips in this type of creative context, the estates have no right to interfere.”

No more ‘cloud’

“It really clarifies an area that has been deeply litigated,” he said. Hedges added that documentary producers and others will “no longer have to feel there is a cloud” over the use of film clips in the public domain.

Robyn Astaire could not be reached, and her attorney, William Wegner, was not available for comment.

Best Film & Video Corp. had produced a series of videos in 1989 that begin with about 90 seconds of clips of Astaire dancing in the movies “Second Chorus” and “Royal Wedding.” The Astaire segments were followed by dance instruction from the Fred Astaire Dance Studios. In 1965, Astaire had granted the Ronby Corp. the right to use his name in connection with the dance studios. Ronby later entered into an agreement with Best for production of the videos.

Previous decision overturned

The ruling overturned a previous decision that favored Robyn Astaire, who has legal rights to Fred Astaire’s name, voice, likeness and persona under California law. A lower district court said that the videos violated the law because producers failed to get her consent.

The state law was passed in 1984 in the wake of estates’ complaints that deceased celebrities’ names and likenesses were being exploited in the sale of merchandise such as T-shirts and porcelain plates and in look-alike services, all of which were on the market without their consent.

Exemption in law

But the appeals court pointed to an exemption in the law that allows for the use of a deceased celebrity’s persona in a play, book, magazine, newspaper, musical composition, film, radio or television program. The judges interpreted the law as applying to videos as well. And they said that the exemption applies when clips were used to make the projects more marketable, even in advertisements that directly promote the project. For example, a publisher may want to advertise its magazine by referring to articles within its pages, including passages that mention the names of deceased celebrities.

“Best placed these film clips in its videotapes for a reason: to make the videotapes more salable,” said the opinion by Judge Charles Wiggins. “Nevertheless, neither statute nor the legislative history provides any support for treating Best’s use of the film clips any differently from the use of the same clips in a documentary about dance in film, a use that Mrs. Astaire concedes would be exempted from liability.”

In her dissent, Judge Mary Schroeder said that “under the majority’s reasoning, one could with impunity hawk a videotape on fashion for the next century by introducing it with footage of Jacqueline Kennedy. The statute was designed to prevent such exploitation, not immunize it.”

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