ROGERS v. GRIMALDI

OPINION

SWEET, District Judge.

Defendants Alberto Grimaldi ("Grimaldi"), MGM/UA Entertainment Co. ("MGM") and PEA Produzioni Europee Associate, s.r.l. ("PEA") (collectively, "Defendants") have moved pursuant to Fed.R. Civ.P. 56 for summary judgment dismissing the complaints of plaintiff Ginger Rogers ("Rogers") in their entirety. Upon the findings and conclusions set forth below, the motion is granted.

What must be determined here is the boundary between commercial and artistic speech and the extent of the protection given under the First Amendment to the expression of an idea in a commercial film "Federico Fellini's `Ginger and Fred'" (the "Film"), as opposed to the protection of a famous actress' name, Ginger Rogers, under the Lanham Act and the common law. The conflict is direct and significant and was presented with skill and strength by able advocates. In this contest artistic expression has prevailed, indeed, at least in part as a consequence of the symbolic fame of Ginger Rogers.

Facts

Ginger Rogers is well-known, a celebrity who enjoys a world-wide reputation. She has been performing in one entertainment medium or another for over 50 years, most prominently in motion pictures, having played major roles in some 73 films over a 35 year period and having won an Academy Award for her performance of the title role in "Kitty Foyle" in 1940. Rogers' greatest impact as far as this fact-finder is concerned, however, is attributable to the ten musical films in which she co-starred with Fred Astaire. These films, beginning with "Flying Down to Rio" in 1933 and concluding with "The Barkleys of Broadway" in 1949, established Fred Astaire and Ginger Rogers as the icons of elegant ballroom dancing during Hollywood's Golden Age. This famous pair became so well known that the term "Fred and Ginger" has come to be a metaphorical symbol for fine ballroom dancers and is frequently used in the press as a shorthand term for elegant dancers and dancing.1

During her career, Rogers has maintained a high standard of taste, avoiding that which she considers seedy, ugly, or profane. During her lifetime, while she has lent her name to certain enterprises, such as J.C. Penney, Rogers has been highly selective with respect to such endorsements.

The subject of this action is "Federico Fellini's `Ginger and Fred,'" a motion picture that began a relatively brief U.S. theatrical distribution in March 1986. MGM distributed the Film in the U.S. All the advertising and posters for the Film entitled it as it is in the defined term. PEA produced the Film, and Grimaldi acted as its individual producer. Federico Fellini ("Fellini"), who conceived, co-wrote and directed the Film, is widely regarded as one of the world's greatest film-makers. Over the last 34 years he has brought 17 full length films to the motion picture screen, four of which — "La Strada," "The Nights of Cabiria," "8½" and "Amarcord"—have garnered the Academy Award for Best Foreign Film.

The Film, which was advertised in promotional posters as "[t]he movie that looks at television through the eyes of Fellini," is a fictional work that depicts the bittersweet reunion of two retired dancers. Decades earlier, as the Film's story goes, these two dancers had made a living in Italian cabarets imitating Fred Astaire and Ginger Rogers, thus earning the nickname "Ginger and Fred." The Film satirizes the world of television by presenting the central characters' reunion against the background of an Italian television special for which they are called upon to reprise the routine that they have not performed in 30 years. Marcello Mastroianni and Giulietta Masina play the roles of Pippo and Amelia, the aging Italian "hoofers" who try to defy time by reviving their imitation of two legendary dancers of a bygone era.2

In an affidavit submitted in support of Defendants' motion, Fellini, who is not a party but who took part in writing both the story treatment and the actual screenplay for the Film, explained his reasons for utilizing Astaire and Rogers as the subject of the Film's imitation:

With respect to the Film's central characters, Fellini stated:

As opposed to portraying Rogers and Astaire in any representative form, Fellini claims that he invoked Rogers and Astaire "only as a reference in the film based on their well-deserved reputation as paragons of style and excellence in dancing."

Rogers commenced this action in March 1986, at or about the time the Film began its theatrical distribution in the U.S. She seeks permanent injunctive relief and money damages "arising from defendants' impermissible and unlawful misappropriation and infringement of Ginger Rogers' public personality." (Compl. ¶ 1). Rogers' first claim for relief is premised on the common law right of publicity. Her second claim alleges that the Film constitutes a false light invasion of privacy because it allegedly "depicts the Film's dance team, Fred and Ginger, as having been lovers and depicts them in a seedy manner." (Compl. ¶ 18). Her third claim is based upon Section 43(a) of the Lanham Act and alleges that the Film creates the false impression that Rogers endorsed or was involved in it. (Compl. ¶ 23).

After two years of discovery, Defendants moved for summary judgment dismissing the complaint. In opposition to the motion, Rogers has submitted a market research survey dated July 1986 which reports that based on approximately 200 interviews in Boston and New York (Staten Island) 43% of those exposed to the Film's title only connected the Film with Rogers and that 27% of those exposed to the Film's advertisement connected the Film with Rogers. Rogers also learned during discovery that MGM had devised several promotional ideas for marketing the Film on the strength of the public's familiarity with Ginger Rogers and Fred Astaire. These ideas included using still photographs of Ginger Rogers and Fred Astaire, requesting that guests invited to the New York premiere of the Film "Dress: Ginger or Fred," and using a "Ginger and Fred" dance cane, an item associated with Fred Astaire, despite the fact that the male lead in the Film does not use a cane during dance routines. Only the latter suggestion was ultimately implemented.

Oral argument on Defendants' motion for summary judgment was held on April 22, 1988.

Summary Judgment

Fed.R.Civ.P. 56 provides that "a court shall grant a motion for summary judgment if it determines that `there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.'" Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987). If the evidence is such that a reasonable finder of fact could return a verdict for the non-moving party, summary judgment should not be granted. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). After adequate time for discovery, if the non-moving party fails to make a showing sufficient to establish the existence of an element essential to its case, and on which it will bear the burden of proof at trial, summary judgment is appropriate. In such a situation, there can be no "genuine issue as to any material fact," since a failure of proof on an essential element of the case of the non-moving party "necessarily renders all other facts immaterial." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-2553, 91 L.Ed.2d 265 (1986).

Here, Defendants contend that Rogers' claims are precluded by the protections afforded Defendants pursuant to the First Amendment. The Defendants argue that the references to Rogers are entirely permissible and are part and parcel of Fellini's film, which is protected artistic expression. Rogers contends that the protections afforded by the First Amendment are not absolute and do not shield the Defendants' unauthorized appropriation, use and commercial exploitation of her name. Invoking the limited First Amendment protection that is afforded to "commercial speech," Rogers argues that her proprietary rights and the right of the public to be free from deception outweigh the Defendants' free speech claim because there were alternate ways for Defendants to communicate the message they claim the Film conveys.

Motion Pictures Are Protected By The First Amendment's Guarantees of Freedom of Speech and of the Press

The proposition "that motion pictures are a form of expression protected by the First Amendment," Natco Theatres, Inc. v. Ratner, 463 F.Supp. 1124, 1128 (S.D.N.Y.1979), has been settled for more than three decades, since the Supreme Court's decision in Joseph Burstyn, Inc. v. Wilson, 343 U.S. 495, 72 S.Ct. 777, 96 L.Ed. 1098 (1952). In Burstyn, the Court addressed the constitutionality of a New York statute that gave the New York State Board of Regents licensing authority over the exhibition of motion pictures, and which permitted the banning of films on the grounds that they were "sacrilegious." Burstyn, 343 U.S. at 497, 72 S.Ct. at 778. Following a determination that a film by Roberto Rossellini entitled "The Miracle" was sacrilegious, the Board of Regents had rescinded the license for its exhibition. The New York Court of Appeals rejected constitutional challenges to the licensing statute, but the Supreme Court reversed on appeal. The Court stated:

Id., at 501, 72 S.Ct. at 780 (footnote omitted). Thus, the Court concluded that "expression by means of motion pictures is included within the free speech and free press guaranty of the First and Fourteenth Amendments." Id. at 502, 72 S.Ct. at 781. The Court reaffirmed this principle with respect to all works of entertainment in Schad v. Borough of Mount Ephraim, 452 U.S. 61, 101 S.Ct. 2176, 68 L.Ed.2d 671 (1981):

Schad, 452 U.S. at 65, 101 S.Ct. at 2181 (citations omitted).

The New York courts, mindful of the importance of the First Amendment's protections and of the potential danger of levying civil sanctions which might inhibit artistic expression, have carefully guarded against imposing liability in connection with motion pictures. Thus, in the leading New York case of University of Notre Dame Du Lac v. Twentieth Century-Fox Corp., 22 A.D.2d 452, 256 N.Y.S.2d 301 (1st Dep't), aff'd, 15 N.Y.2d 940, 259 N.Y.S.2d 832, 207 N.E.2d 508 (1965), the Court stated:

Notre Dame, 256 N.Y.S.2d at 306. Accordingly, the courts in New York are cautious not to construe the First Amendment's scope too narrowly and have recognized its applicability to all legitimate forms of entertainment. As the court stated in Paulsen v. Personality Posters, Inc., 59 Misc.2d 444, 299 N.Y.S.2d 501 (N.Y.Co.1968):

Paulsen, 299 N.Y.S.2d at 506. The courts of this Circuit have been equally vigilant in recognizing the protection afforded artistic expression. See, e.g., United States v. A Motion Picture Film Entitled "I Am Curious — Yellow", 404 F.2d 196, 199 (2d Cir. 1968); Natco Theatres v. Ratner, 463 F.Supp. at 1128; Man v. Warner Bros. Inc. 317 F.Supp. 50, 52 (S.D.N.Y.1970); but cf. Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 467 F.Supp. 366 (S.D. N.Y.), aff'd, 604 F.2d 200 (2d Cir.1979).

Rogers maintains that there are countervailing legal and policy reasons why Defendants' unauthorized use of her name should not receive First Amendment protection. First, she contends that such use violates Section 43(a) of the Lanham Act. Second, Rogers contends that such use violates her rights to publicity and constitutes an invasion of privacy. Rogers contends that the First Amendment does not bar either claim because Defendants had alternate ways to convey the Film's message.

The Lanham Act Claim

Section 43(a) of the Lanham Act imposes civil liability on "[a]ny person who shall ... use in connection with any goods or services ... a false designation of origin, or any false description or representation, including words or other symbols tending falsely to describe or represent same, and shall cause such goods to enter into commerce ..." 15 U.S.C. § 1125(a). In support of her claim that Defendants' unauthorized use of her name in the screen play and title of the film constitutes a false designation of origin, Rogers relies on Allen v. National Video, Inc., 610 F.Supp. 612 (S.D.N.Y. 1985) and Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 467 F.Supp. 366 (S.D.N.Y.), aff'd, 604 F.2d 200 (2d Cir. 1979).

Allen involved an advertisement for a video rental chain that used a picture of a Woody Allen double. Discussing the applicability of the Lanham Act to acts that confuse the public with respect to a celebrity's endorsement of, or involvement with, goods or services, the court stated:

Allen, 610 F.Supp. at 625-26. In Allen, however, there was no dispute that the advertisement at issue was purely commercial speech, Allen 610 F.Supp. at 618, 622, and, therefore, was entitled to less protection than other constitutionally safeguarded forms of speech. See Bolger v. Youngs Drug Products Corp., 463 U.S. 60, 103 S.Ct. 2875, 77 L.Ed.2d 469 (1983); Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 98 S.Ct. 1912, 56 L.Ed.2d 444 (1978). Because the defendant's sole purpose in using a Woody Allen look alike in its advertising was to capitalize on Allen's familiar name, face and "reputation for artistic integrity" in order to boost sales of its movie rentals, the court found that such use violated the Lanham Act's prohibition against misleading advertising.

Dallas Cowboys, which involved the pornographic film "Debbie Does Dallas," in which the central character participates in sexual escapades wearing some but not always all the distinctive trademarked costume of the Dallas Cowboy Cheerleaders, presents a closer question concerning the unauthorized use of a celebrity's notoriety. On plaintiff's motion for a preliminary injunction, the court was asked to decide whether the film "Debbie Does Dallas," its promotion, and its advertising violated Section 43(a). In addition to finding that the movie depicted the film's lead, Debbie, engaging in sexually explicit conduct wearing a uniform resembling the Dallas Cowboy Cheerleaders uniform, the court found that the defendants had advertised the film with a large marquee containing a picture of Debbie wearing the uniform and that print advertisements for the film falsely represented that the woman playing the role of Debbie was an ex-Dallas Cowboy Cheerleader. Stating that "[i]t would appear obvious that Section 43(a) of the Lanham Act applies to a motion picture," Dallas Cowboys, 467 F.Supp. at 375, the court next considered whether the First Amendment afforded any protection to the defendants.

The film's promoter argued that the film was a parody or satire on female cheerleaders. Addressing this argument, the court stated:

Id. (citing Second Circuit copyright "fair use" cases). After discussing the meaning of the terms parody and satire, the court strongly rejected the defendant's claim that "Debbie Does Dallas" fell within that definition:

Dallas Cowboys, 467 F.Supp. at 376. The court concluded that the plaintiff's service marks and trademarks had been misappropriated for commercial purposes:

Id. (emphasis added).

Affirming the district court's issuance of a preliminary injunction against the film's distribution and exhibition, the Second Circuit did not reach the question whether the "fair use" doctrine is applicable to trademark infringements, although it agreed with the district court that the film's use of the Dallas Cheerleaders' uniform "hardly qualifies as parody or any other form of fair use." Dallas Cowboys, 604 F.2d at 206.3 Instead, the Court of Appeals appears to have rejected the defendants' claim of First Amendment protection on other grounds:

Id. The Circuit's decision in Dallas Cowboys thus permitted the Lanham Act to override First Amendment concerns, noting that the defendant had alternate ways of communicating his message without infringing upon the protected mark.

Construed narrowly, in light of the district court's express finding that the sole purpose of defendants' appropriation of the mark was "simply to use the attracting power and fame of the Dallas Cowboy Cheerleaders to draw customers for the sexual `performances' in the film," Dallas Cowboys, 467 F.Supp. at 376, the Second Circuit's opinion is consistent with Supreme Court decisions holding that the "Constitution ... accords a lesser protection to commercial speech than to other constitutionally guaranteed expression." Central Hudson Gas & Elec. Corp. v. Public Service Comm'n of New York, 447 U.S. 557, 563, 100 S.Ct. 2343, 2350, 65 L.Ed.2d 341 (1980) (citing Ohralik v. Ohio State Bar Ass'n, 436 U.S. at 456, 457, 98 S.Ct. at 1918, 1919). Among the reasons why commercial speech receives limited First Amendment protection is the legitimate public interest in suppressing "commercial messages that do not accurately inform the public about lawful activity." Id.4

In addition, the Supreme Court has held that where a company "enjoy[s] the full panoply of First Amendment protections for [its] direct comments on public issues, [t]here is no reason for providing similar constitutional protection when such statements are made only in the context of commercial transactions." Id. 447 U.S. at 563 n. 5, 100 S.Ct. at 2349 n. 5. Therefore, "advertising which `links a product to a current public debate' is not thereby entitled to the constitutional protection afforded noncommercial speech." Bolger v. Youngs Drug Prod., 463 U.S. at 68, 103 S.Ct. at 2881 (quoting Central Hudson Gas & Elec., 447 U.S. 557, 563 n. 5, 100 S.Ct. 2343, 2349 n. 5, 65 L.Ed.2d 341 (1980)). Although the language of the opinions of both the district court and the Court of Appeals in Dallas Cowboys do not contain any express limitation of the Lanham Act's override of the First Amendment to cases involving speech that is primarily commercial, such a narrowing is implicit in subsequent decisions of the Second Circuit in which the Court has held that "[m]isleading commercial speech" regulated by the Lanham Act "is beyond the protective reach of the First Amendment." Vidal Sassoon, Inc. v. Bristol-Myers Co., 661 F.2d 272, 276 n. 8 (2d Cir.1981); see also Consumers Union of United States, Inc. v. General Signal Corp., 724 F.2d 1044, 1052 (2d Cir.1983).

How to identify the line between commercial and artistic speech, however, constitutes the difficulty presented in the instant case. In an era where artistic expression is often intertwined with the use of well-known symbols, which because of their familiarity may have commercial value, to read Dallas Cowboys as Rogers suggests to require courts to decide whether an artistic message could have been conveyed in some other manner would have a chilling effect on the free expression of creative ideas.

As the late Andy Warhol is reported to have stated, "Being good in business is the most fascinating kind of art." With annual sales in the international auction market exceeding one billion dollars, see Kernan, "The Great Debate Over Artists' Rights," The Washington Post, May 22, 1988, at F1, it is hardly surprising that for some artists, like Warhol, the distinction between art and commerce has blurred beyond recognition. The staggering box office receipts of smash hit movies and the burgeoning video rental market may have a similar effect on the hearts and minds of those in the film industry. More than three decades ago, however, the Supreme Court rejected the contention that simply because the "production, distribution, and exhibition [of motion pictures] is a large-scale business conducted for private profit," expression by means of films should not be protected by the First Amendment. Joseph Burstyn, Inc. v. Wilson, 343 U.S. at 501-02, 72 S.Ct. at 780. Therefore, before expression through film can be curtailed by the Lanham Act, the party seeking relief bears the heavy burden of establishing that the challenged speech is intended primarily to serve a commercial function.

In the instant case, Defendants contend that the use of Rogers' first name in the title and screenplay of the Film constitutes an exercise of artistic expression rather than commercial speech. On the basis of viewing the Film and the undisputed facts in the record, it is so found.

In the commercial speech cases discussed above, the defendants' use of the plaintiffs' celebrated image or symbol was intended primarily to persuade the public to consume something that either had no connection to the plaintiff, Allen, or to convey the false impression that plaintiff was somehow involved with or had endorsed the product, Dallas Cowboys. Here, by contrast, the relevance of "Ginger" in both the Film's title and screenplay is apparent at two levels. First, the title accurately refers to the fictionalized nicknames of the Film's two central characters. Second, the screenplay establishes the reference to Rogers and Astaire as the basis for the Film's characters' livelihood and thereby recognizes the Rogers and Astaire phenomenon as a known element of modern culture.

In addition, the record here establishes that the Film's satirical vision of television entertainment in the 1980's rests in part on the contrast provided by the old hoofers' imitation of Hollywood entertainment in a bygone era. The director's affidavit evinces Fellini's intent to evoke an American cultural symbol the existence of which Rogers concedes in her complaint. There is nothing in the record to suggest that Fellini intended to use Rogers' name to deceive the public into flocking to his movie under the mistaken belief that the Film was about the true Rogers and Astaire. Moreover, the critics' reviews uniformly acknowledge the Film's artistic tribute to Rogers and Astaire. Against the overwhelming evidence squarely placing the Film's title and screenplay within the realm of artistic expression, the fact that the Film's distributors may have conceived of and even executed a few schemes to exploit commercially the public's familiarity with Rogers' name does not turn either the film or its title into commercial speech. See Bolger v. Young Drug Prod., 463 U.S. at 67, 103 S.Ct. at 2880.

Having determined that the speech in question is artistic expression, whether there were alternate avenues open to Fellini to convey his film's message is not subject to examination by this court. Because the speech at issue here is not primarily intended to serve a commercial purpose, the prohibitions of the Lanham Act do not apply, and the Film is entitled to the full scope of protection under the First Amendment.

The State Law Claims

Rogers' right of publicity claim rests on allegations of Defendants' unauthorized use of her name and public personality for advertising purposes or purposes of trade. See, e.g., Estate of Presley v. Russen, 513 F.Supp. 1339, 1353 (D.N.J. 1981); Ali v. Playgirl, Inc., 447 F.Supp. 723, 728-29 (S.D.N.Y.1978). Defendants contend that this claim and Rogers' false light invasion of privacy claim are precluded by overriding constitutional concerns raised by the First Amendment's protection of artistic speech.5

Courts have been consistently unwilling to recognize the right of publicity cause of action where the plaintiff's name or picture was used in connection with a matter of public interest, be it news or entertainment. In Paulsen v. Personality Posters, Inc., 59 Misc.2d 444, 299 N.Y.S.2d 501 (N.Y.Co.1968), the court denied comedian Pat Paulsen's motion for a preliminary injunction preventing the defendant from marketing posters bearing his photograph and the words "For President," in connection with Paulsen's mock run for the White House in 1968. The court noted that matters of public interest — from newspapers to motion pictures — are not to be considered as distributed for purposes of trade, "notwithstanding that they are also carried on for a profit." Paulsen, 299 N.Y.S.2d at 506. The court observed that Paulsen, like Rogers in the present case, "is concededly a well-known public personality by professional choice" and "indeed, as an entertainer he actively seeks to promote and stimulate such public attention to enhance his professional standing." Id. at 507. The court rejected Paulsen's claim, concluding:

Id. at 508-09 (citations omitted).

The court in Frosch v. Grosset & Dunlap, Inc., 75 A.D.2d 768, 427 N.Y.S.2d 828 (1st Dep't 1980), used a similar analysis in affirming summary judgment against the plaintiff, the executor of Marilyn Monroe's estate, who had brought suit on a book entitled "Marilyn." While noting that the New York courts did not recognize a descendible right of publicity, the court held:

Frosch, 427 N.Y.S.2d at 829. In Ann Margret v. High Society Magazine, Inc., 498 F.Supp. 401 (S.D.N.Y.1980), in which the plaintiff-actress brought right of privacy and publicity claims against a "soft-porn" magazine that had published several photographs of her from a film in which she had appeared partially nude, the Honorable Gerard L. Goettel also weighed the protections of the First Amendment against a public figure's right to publicity. Discussing the limitations that the First Amendment imposes on New York's statutory right to publicity, the court stated:

Ann Margret, 498 F.Supp. at 404 (other citations omitted). The court also noted "there is little doubt that the plaintiff, who has starred in numerous movies and television programs ... is, as the term has come to be understood, a `public figure.'" Id Accordingly, the court granted summary judgment dismissing the complaint, stating:

Ann Margret, 498 F.Supp. at 406 (other citations omitted).

In Hicks v. Casablanca Records, 464 F.Supp. 426 (S.D.N.Y.1978), the Honorable Lawrence W. Pierce addressed another factual situation similar to that presented here. Plaintiffs, the heir and assignees of the late mystery writer Agatha Christie, sued regarding the distribution of a movie and book entitled "Agatha," a fictional work about what might have transpired during an actual eleven day disappearance by Ms. Christie during her life. The court noted that Ms. Christie had been "one of the best-known mystery writers in modern times" and that she had cultivated her name "in such a way as to make it almost synonymous with mystery novels." Hicks, 464 F.Supp. at 428. The plaintiffs sought to enjoin distribution of the film and book, alleging unfair competition and infringement of the right of publicity, and the defendants moved to dismiss the complaint on First Amendment grounds. In considering the First Amendment's applicability, the court stated:

Id. at 430. After concluding that "there are no countervailing legal or policy grounds against" extending First Amendment protection to the book and film, the court dismissed the right of publicity claim. Id. at 431. Like the film and book "Agatha," "Federico Fellini's `Ginger and Fred'" is not a piece of "merchandise" like a perfume or line of apparel, whose name would likely bear no relation to the product. To the contrary, the Film is a protected work of artistic expression, the product of one of the world's great cinematic artists, clearly labeled as such in every poster and advertisement.

In addition to the cases discussed above, perhaps the most compelling opinion counselling that Rogers' claims are precluded as a matter of law by the First Amendment is that of the alternate majority of the California Supreme Court in Guglielmi v. Spelling-Goldberg Productions, 25 Cal.3d 860, 160 Cal.Rptr. 352, 603 P.2d 454 (1979) (Bird, C.J., concurring).6 Guglielmi concerned an unauthorized and fictionalized television film entitled "Legend of Valentino: A Romantic Fiction" on the life of actor Rudolph Valentino. Like Rogers here, the plaintiff (as putative assignee of Valentino's rights) complained that the defendants "used Valentino's name, likeness and personality in a fictionalized film which did not accurately portray his life." Guglielmi, 160 Cal.Rptr. at 354, 603 P.2d at 456. Observing that "this is not a case in which a celebrity's name is used to promote or endorse a collateral commercial product or is otherwise associated with a product or service in an advertisement," Guglielmi, 160 Cal.Rptr. at 355 n. 6, 603 P.2d at 457 n. 6, the opinion discussed the important role played by fictional works as a form of social commentary:

Id. at 357, 603 P.2d at 459. The majority rejected the plaintiff's claim that the use of Valentino's name and likeness in the film was impermissible and unnecessary and that it was done solely to increase the film's value, stating:

Id. at 358, 603 P.2d at 460. As the court concluded with respect to Valentino, since Rogers and Astaire are similarly "part of the cultural history of an era," their fame is an equally "apt topic" for Fellini's fictional work. See id.

Finally, Chief Justice Bird's opinion explained why the use of Valentino's name in advertising the film was equally protected and permissible:

The cases on which Rogers primarily relies to support her right of publicity claim can be distinguished from the instant case. In Zacchini v. Scripps-Howard Broadcasting Co., 433 U.S. 562, 97 S.Ct. 2849, 53 L.Ed.2d 965 (1977), the plaintiff performed a "human cannonball" act which the defendant broadcast on a news program. In a narrowly drawn opinion effectively limited to its facts, the Supreme Court held that the First Amendment did not bar the plaintiff's claim because Zacchini's "entire act" had been appropriated by the broadcast on television without his permission, thereby seriously interfering with the public's desire to pay to see him and destroying the economic viability of plaintiff's act. Zacchini, 433 U.S. at 575, 97 S.Ct. 2849. By contrast, here the Film does not interfere with Rogers' economic viability, there having been no showing that her reputation has suffered in any way from the Film. Indeed, one might assume that the reverse may be true, given the critical acclaim achieved by the Film and the resulting enhancement of Astaire and Rogers' fame. In Estate of Presley v. Russen, 513 F.Supp. 1339 (D.N.J.1981), which involved a concert featuring an Elvis Presley imitator, the court concluded that the imitator's concert was not protected since it "serves primarily to commercially exploit the likeness of Elvis Presley without contributing anything of substantial value to society" and that it "does not really have its own creative component and does not have a significant value as pure entertainment." Estate of Presley, 513 F.Supp. at 1359. Here, Rogers does not contend that the Film does not have its own creative component and, as discussed above, the Film's use of Rogers' name is not primarily for a commercial purpose.

Conclusion

Under the authorities discussed above, Rogers' claims, which are all premised on the same subject matter, fail as a matter of law because the Film is a work of protected artistic expression. It is not an "ordinary subject of commerce," a simple "commodity" or a piece of "merchandise." Under the cited authorities, the Film does not meet the requirements for "trade or advertising" or an "advertisement in disguise" for a "collateral commercial product." Thus, the Film enjoys the full protection of the First Amendment. Fellini was entitled to create a satire of modern television built around the bittersweet reunion of two somewhat tattered, retired hoofers who once earned the nicknames "Ginger and Fred" by imitating America's dancing legends, one of whom is the plaintiff here. Equally protected is the title of the Film, an integral part of the work's artistic expression, which is a reference to its central characters.

Upon the findings and conclusions set forth above, the motion for summary judgment dismissing the complaint with costs is granted. Enter judgment on notice.

It is so ordered.