D.A.R. 1679
Robyn ASTAIRE, Plaintiff-Appellee,
v.
BEST FILM & VIDEO CORP., Defendant-Appellant.
Robyn ASTAIRE, Plaintiff-Appellant,
v.
BEST FILM & VIDEO CORP., Defendant-Appellee.
Nos. 95-56632, 95-56633.
United States Court of Appeals,
Ninth Circuit.
Argued and Submitted March 3, 1997.
Decided June 20, 1997.
Amended Feb. 19, 1998.
William E. Wegner, Gibson, Dunn & Crutcher, Los Angeles, California, for plaintiff-appellee-cross-appellant.
George R. Hedges, Hedges & Cаldwell, Los Angeles, California, for the defendant-appellant-cross-appellеe.
Angela S. Alberts, Theodore J. Minch and Christine M. Sovich, Indianapolis, Indiana, in house counsеl for amicus CMG Worldwide, Inc.
Robert C. Vanderet, Neill S. Jass, O'Melveny & Myers, Los Angeles, California, for amici CBS Inc., Fox, Inc., National Broadcasting Company, Inc., and Warner Bros.
Dean T. Barnhard, Barnes & Thornberg, Indianapolis, Indiana, Shirley M. Hufstedler, Morrison & Foerster, Los Angeles, California, for amici Wayne Enterprises, Ltd., Wayne Productions, Inc., the Sсreen Actors Guild, Inc., et al.
Appeals from the United States District Court for the Central District of California; David V. Kenyon, District Judge, Presiding. D.C. No. CV-90-00261-KN-A.
Before: SCHROEDER, WIGGINS and LEAVY, Circuit Judges.
Prior report:
ORDER
The slip opinion filed on June 20, 1997, is amended as follоws:
1. Add at slip opinion page 7178, end of the first full paragraph [
In her petition for rehearing, Mrs. Astaire arguеs 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 § 990(n) as a defense; Best's arguments were quickly and summarily rejected by the district court. Sеe Appellant's Excerpt of Record at 5, 65, 93. Moreover, Best's opening brief to this сourt prominently featured the § 990(n) argument. See Appellant's Opening Brief at 7-11.
We admit that our interpretation of § 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 оn appeal; it is not required merely to choose between the opposing intеrpretations offered by the parties.
2. On slip op. p. 7180 [
3. On slip op. p. 7182-83 [
Under Mrs. Astаire's proposed interpretation, § 990(n)(1) "exempts certain non-advertising uses from liability, and § 990(n)(4) exempts advertisements for those non-advertising uses." Petition for Rehearing at 9. This interpretation is contrary to the language of § 990(n)(1), which clearly includes as exempt certain advertising uses--those exempt under § 990(n)(4). Mrs. Astaire tries to convince us to ignore the final words оf § 990(n)(1). We cannot.
Mrs. Astaire herself notes that "if a statute is amenable to two alternativе interpretations, the one that leads to the more reasonable result will be followed." Lungren v. Deukmejian,
Mrs. Astaire raises the spectre of a "draconian" destruction of "legitimate publicity rights" under our interpretation of § 990, suggesting that a celebrity's name and photograph сould now be used freely to advertise any film, however unconnected to the celеbrity. 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 werе 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 cоntent-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 usеd to call attention to the book?" Not only would this create great uncertainty in the law, but there is no suggestion within § 990 or its legislative history that the California state legislature intended such an inquiry.
SO ORDERED.