Astaire v. Best Film & Video: The Film Exemption That Reshaped California's Post-Mortem Statute

In Astaire v. Best Film & Video Corp., 116 F.3d 1297 (9th Cir. 1997), amended, 136 F.3d 1208 (9th Cir. 1998), the United States Court of Appeals for the Ninth Circuit interpreted the media exemption in California’s post-mortem right of publicity statute and, in doing so, provoked the legislative reform that bears Fred Astaire’s name. The estate of one of the most recognizable dancers in film history sued over the use of Astaire clips in a series of instructional videos. The Ninth Circuit held that the videos were “films” within the statutory exemption and therefore beyond the reach of the estate’s claim. The decision is a leading illustration of how a statutory carve-out can cabin an estate’s licensing monopoly, and its perceived overbreadth drove California to amend the very statute the court had construed.

At a glance

• Case: Astaire v. Best Film & Video Corp., 116 F.3d 1297 (9th Cir. 1997), amended, 136 F.3d 1208 (9th Cir. 1998).
• Decided: 1997, opinion amended 1998, by the United States Court of Appeals for the Ninth Circuit, reversing judgment for the plaintiff.
• Holding: The use of Fred Astaire film clips in dance instructional videotapes fell within the film exemption of California Civil Code section 990(n), defeating his widow’s post-mortem publicity claim.
• Significance: A defining reading of the statute’s media exemptions that prompted the 1999 Astaire Celebrity Image Protection Act.
• Status: Final as to the parties; the underlying statute was amended and renumbered shortly afterward.

California’s post-mortem statute and its media exemption

California enacted a statutory post-mortem right of publicity, originally codified as Civil Code section 990, to give the heirs of deceased personalities control over the commercial use of a name, voice, signature, photograph, or likeness. The statute filled a gap left by the uncertainty of California common law and let estates license and protect a departed celebrity’s identity for a term of years after death.

Like every publicity regime, the statute had to accommodate the First Amendment, and it did so through a set of media exemptions. Section 990(n) provided that the statute would not apply to the use of a deceased personality’s identity in a play, book, magazine, newspaper, musical composition, film, radio program, or television program, subject to a carve-back for advertisements and commercial announcements not otherwise exempt. The exemption reflects a basic constitutional judgment: expressive works, including films, cannot be held hostage to an estate’s veto simply because they depict a real person. The case turned on how far the word “film” reached.

Fred Astaire’s clips in a dance-lesson video

Best Film & Video Corp. produced a series of dance instructional videotapes taught by a dance instructor. Each tape opened with a short introductory segment that featured clips of Fred Astaire dancing, drawn from his films, before the lesson itself began. Robyn Astaire, Fred Astaire’s widow and the holder of his post-mortem rights, sued under section 990, contending that the use of her late husband’s image to open and promote the instructional videos violated the statute.

The district court ruled for the estate on liability. It concluded that Best’s use of the clips fell within section 990(a)‘s prohibition on use “on or in products, merchandise, or goods,” that no section 990(n) exemption applied, and that the claim was neither preempted by the Copyright Act nor barred by the First Amendment. Notably, it also concluded that Best’s use was not a use for “advertising, selling, or soliciting” under section 990(a), a finding Robyn Astaire herself cross-appealed. Best Film & Video appealed, arguing that the whole videotape was a film and that the exemption covered the entire work.

Film means film, whatever the playback medium

The Ninth Circuit reversed. It held that Best’s use of Astaire’s image was exempt under section 990(n) because the videotapes were films within the meaning of the exemption. The court reasoned that a motion picture does not lose its character as a film depending on how audiences watch it. A film is a film whether it is shown in a theater, broadcast on cable television, or rented from a video store and played on a home VCR. The delivery format, the court explained, is irrelevant to whether the work qualifies as a film for purposes of the statutory exemption.

That conclusion swept in the introductory Astaire clips. Astaire argued in the alternative that the clips were not exempt because they were an advertisement or commercial announcement. The court answered that even on that characterization the use was exempt, because subsection (n)(4) separately exempts an advertisement or commercial announcement for a use permitted by subsections (n)(1), (n)(2), or (n)(3). Since the videotape itself was exempt under (n)(1), a promotional segment for it was exempt too. On that reading, the estate’s claim failed, because the statute simply did not apply to a use occurring within a film. The court’s construction gave the media exemptions substantial breadth, protecting works that combine documentary or archival footage of a celebrity with instructional or other content.

The exemption’s limits and the Astaire Act

The decision landed as a warning to celebrity estates. If a commercial product could qualify for the film exemption merely by packaging archival clips inside a videotape, the post-mortem statute’s protection looked porous. Estates and their advocates argued that the ruling let profitable uses of a star’s image escape the statute under the banner of expressive works.

The California legislature responded in 1999 with the Astaire Celebrity Image Protection Act. The Act renumbered section 990 as Civil Code section 3344.1 and made several changes: it extended the post-mortem term from fifty to seventy years after death, it added provisions addressing conduct occurring within California, and it rewrote the exemption framework to tighten estate control over advertising and merchandising uses. The core exemptions for genuinely expressive works, such as films and books, remained intact for constitutional reasons, but the amendments reduced the room for using the exemption as a shield for what estates viewed as commercial exploitation. The result is a statute that still protects expressive uses of a deceased personality but gives heirs firmer control at the advertising and merchandise end of the spectrum. Astaire thus occupies an unusual place in the doctrine: a decision whose immediate holding was quickly qualified by the legislation it inspired, yet whose reasoning about the breadth of the film exemption continues to inform how courts read expressive-work carve-outs.

Open questions

• Where is the line between an exempt film and a disguised advertisement? Subsection (n)(4) exempted an advertisement only when it promoted a use already permitted, so an advertisement for a separate, non-exempt product could still fall outside the carve-out.
• How do the amendments change the analysis? The 1999 Act rewrote the exemptions, so the precise outcome on similar facts under current section 3344.1 is not identical to the outcome under former section 990.
• Does the reasoning extend to new formats? The court’s format-neutral logic naturally reaches streaming and other media, but its application to interactive or AI-generated works is untested.
• What counts as a single expressive work? By treating the whole videotape as one film, the court left open how to classify compilations that mix promotional and expressive elements.

Implications for estates and businesses

• The film exemption is broad and format-neutral. A motion picture remains exempt whether shown in theaters, on television, or on home video, so estates cannot defeat the exemption by pointing to the delivery medium.
• Packaging matters, but not everything. Combining archival celebrity footage with instructional or narrative content can bring a product within the exemption, though a genuine standalone advertisement may not qualify.
• Statutory reform followed the ruling. Because the Astaire Act rewrote the exemptions and extended the term to seventy years, licensing decisions should be evaluated under current section 3344.1, not the former section 990 the case construed.
• Expressive-work carve-outs limit licensing monopolies. Estates should recognize that constitutionally grounded exemptions leave a meaningful zone of use they cannot license or block, especially for films, books, and similar works.

Frequently asked questions

What did Astaire v. Best Film & Video hold? The Ninth Circuit held that a dance instructional videotape that opened with clips of Fred Astaire dancing fell within the film exemption of California Civil Code section 990, the state’s post-mortem right of publicity statute. Because the use appeared in a film, it was exempt from liability, and the court reversed the judgment for Astaire’s widow.

Why did the medium of the videotape matter? The statute exempted use in a film, and the court held that a motion picture remains a film whether it is shown in a theater, broadcast on cable, or rented on videotape and played on a VCR. The playback medium did not change the character of the work, so the home-video format did not remove the exemption.

How did this case change California law? The decision exposed how broadly the media exemptions could be read, and the backlash led the California legislature to pass the Astaire Celebrity Image Protection Act in 1999. That statute renumbered section 990 as Civil Code section 3344.1, extended the post-mortem term from fifty to seventy years, and rewrote the exemptions to strengthen estate control over advertising and merchandise.

Authorities and sources

• Astaire v. Best Film & Video Corp., 116 F.3d 1297 (9th Cir. 1997), full opinion: https://caselaw.findlaw.com/court/us-9th-circuit/1058015.html
• California Civil Code section 3344.1 (post-mortem right of publicity, formerly section 990): https://leginfo.legislature.ca.gov/faces/codes_displaySection.xhtml?lawCode=CIV&sectionNum=3344.1
• Erika Paulsrude, “Not the Last Dance: Astaire v. Best Film and Video Corp. Proves California Right of Publicity Statutes and the First Amendment Can Co-Exist,” 18 Loy. L.A. Ent. L. Rev. 395 (1998): https://digitalcommons.lmu.edu/elr/vol18/iss2/5/
• California Senate Bill 209 (1999), legislative analysis of the Astaire Celebrity Image Protection Act: https://leginfo.ca.gov/pub/99-00/bill/sen/sb_0201-0250/sb_209_cfa_19990617_150808_sen_comm.html
• California Celebrities Rights Act and the Astaire Celebrity Image Protection Act, overview: https://en.wikipedia.org/wiki/California_Celebrities_Rights_Act
• Rothman’s Roadmap to the Right of Publicity, California: https://rightofpublicityroadmap.com/state_page/california/