Fred Astaire can't sell vacuum cleaners without his family's OK, but if a producer wants to stick him in a documentary about dance, then he's fair game.

That's the ruling of a federal appeals court which stands to further clarify one of those only-in-the-late-20th-century issues: The use of dead celebrities in TV and film.

Some ground rules have already been set: A 1984 California state law declares that if you want Fred Astaire for your Dirt Devil vacuum-cleaner commercial (as seen during this year's Super Bowl), or John Wayne for your beer commercial, then you first have to get approval from the star's survivors.

The ruling by the 9th U.S. Circuit Court of Appeals last Friday speaks to non-commercial use of a celebrity's image. Specifically, it said that a video company could use footage from two old Fred Astaire movies in its instructional dance series--even against family wishes. Astaire's widow, Robyn, had sued the New York-based Best Film & Video Corp., claiming that the clips violated California law.

The attorney for Best Film & Video says the court ruling, decided on a two-to-one vote by the judges, has "drawn a pretty clear line." Families don't have the right to interfere with the content of a documentary or informational project the way they can OK or deep-six a TV commercial, says George Hedges.

The project in question in the Astaire case is something called the Fred Astaire Dance Series, a how-to tape first released in 1989. The makers of the video were granted permission to use Astaire's name in the title by the Fred Astaire Dance Studios--which itself licensed the rights to use Astaire's name way back in 1965.

Of concern for Robyn Astaire was the video's use of about 90 seconds worth of footage of her late husband dancing in the movies Second Chorus and Royal Wedding.

Robyn Astaire says the video company asked her husband about lending his name to the project when he was still alive--and he turned them down. She says she's "extremely disappointed" by the court ruling and vows to pursue the case further. "It's a morality issue," Robyn Astaire says.

She first filed suit shortly after the video's release. Early court rulings went in her favor.

Fred Astaire died in 1987 at the age of 88.

(UPDATED JUNE 24, 1997 at 1:30 p.m.)

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