Appeals Court Curbs Widow’s Control of Astaire’s Likeness

A federal appeals court has ruled that Fred Astaire’s widow cannot control his likeness in film clips if they are included as part of the content of an instructional videotape or documentary.

The ruling, published Friday by the U.S. 9th Circuit Court of Appeals, upholds an earlier decision by the same panel last year on an issue that has been closely watched throughout the Hollywood film industry. By a 2-1 vote, appellate justices denied Robyn Astaire’s request for a rehearing on the matter.

“This decision lifts a cloud, which has existed for some time over the creative community,” said George Hedges, the attorney opposing Astaire in the case, a 10-year-old lawsuit.

“The creative community doesn’t know when they’re allowed to use a film clip of Fred Astaire or any other celebrity or not,” he said. “This is the first time this issue has been this squarely addressed and determined.”

While she stopped short of promising to go on to the U.S. Supreme Court, Astaire called Friday’s rejection an “intolerable and unacceptable decision,” influenced by a “single judge who was wrongly predisposed to ignore the personal property rights of artists and creators. . . .”

“I will never concede to injustice or ignorance, even within the judiciary,” she said in a written statement. “The case is not over by any means.”

Robyn Astaire--a former jockey who was 46 years younger than the legendary dancer--has drawn the ire of many in the movie industry with her zealous--some would argue obsessive--control of the images of her late husband, who died in 1987. Critics say she has pushed the boundaries of what has been considered normal vigilance over the image of dead icons.

She created a controversy when she refused to give permission for clips to be used in the 1992 televised salute to her husband’s dance partner, Ginger Rogers, at the Kennedy Center for the Performing Arts. Two years later, she was blamed by Hollywood sources for holding up production of MGM’s “That’s Entertainment! III” with what they called exorbitant demands for money.

Meanwhile, she was roundly booed for allowing the dancer’s graceful image to be used in Dirt Devil vacuum cleaner ads.

The ruling involves a federal lawsuit filed by Robyn Astaire against Best Film & Video Corp., which made unauthorized use of film clips in its 1989 video illustrating an instruction dance series at the Fred Astaire Dance Studios.

She won at the trial level, arguing she had the right to control the dancer’s image as part of the state law granting publicity rights to celebrities and their estates.

But Best Film appealed, arguing that the clips from the 1940s movies “Second Chorus” and “Royal Wedding” were exempt because they were in the public domain and were incorporated as part of the video’s content, not to promote the classes.

Last June, the 9th Circuit court agreed, noting that a similar exception exists for books, newspapers, plays, magazines and musical compositions. And in its denial of a rehearing, it added a sharp rebuke to the dancer’s widow.

“The absurdity Mrs. Astaire claims will arise from our interpretation would in reality arise from hers,” the court said in an addendum to its decision. “She is asking courts to make a content-based decision every time a filmmaker or author uses the name or image of a celebrity.”