Cain v. J.P. Productions

Full title: Dean CAIN, Plaintiffs-Appellant, v. J.P. PRODUCTIONS, a New York…

Court: United States Court of Appeals, Ninth Circuit

Date published: Feb 22, 2001

11 F. App'x 714 (9th Cir. 2001)

Opinion

11 Fed.Appx. 714 (9th Cir. 2001) Dean CAIN, Plaintiffs-Appellant, v. J.P. PRODUCTIONS, a New York corporation, d/b/a CPG Direct, James Farrazzano, an individual; Truly Unique Collectibles Inc., Defendants-Appellees. David Duchovny, Plaintiff-Appellant, v. Truly Unique Collectibles, a New York Corporation; James Ferrazzano, Defendants-Appellees David Duchovny, Plaintiff-Appellant, v. J.P. Productions Inc., a New York Corporation; dba CPG Direct; James Farrazzano, Defendants-Appellees. David Duchovny, Plaintiff-Appellant. v. J.P. Productions Inc., a New York corporation, dba CPG Direct; James Farrazzano, an individual, Defendants-Appellees. David Duchovny, Plaintiff-Appellant, v. Truly Unique Collectibles, Inc.; James Farrazzano, an individual, Defendants-Appellees. Dean Cain, Plaintiff-Appellant, v. J.P. Productions, a New York corporation, d/b/a CPG Direct, James Farrazzano, an individual; Truly Unique Collectibles Inc., Defendants-Appellees. No. 99-56250, 99-56259, 99-56260, 99-56553, 99-56555, 99-56556. D.C. Nos. CV-98-01637-RJK, CV-98-04995-RJK, CV-98-06479-RJK. United States Court of Appeals, Ninth Circuit. February 22, 2001

Argued and Submitted February 5, 2001.

As Corrected Feb. 23, 2001.

NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)

Actors brought claims for false endorsement, among other things. The United States District Court for the Central District of California, Robert J. Kelleher, Senior Judge, granted summary judgment to defendants and awarded them attorney fees. Actors appealed. The Court of Appeals held that: (1) it would not consider first sale defense which was raised for first time on appeal, and (2) claims for false endorsement under Lanham Act were barred by the fair use doctrine.

Affirmed. Appeal from the United States District Court for the Central District of California Robert J. Kelleher, Senior District Judge, Presiding.

Before PREGERSON, CANBY, and THOMPSON, Circuit Judges.

MEMORANDUM ^*

* This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Cir. R. 36-3.

Plaintiffs Dean Cain and David Duchovny appeal the district court's ruling granting summary judgment in favor of the defendants and awarding the defendants attorney's fees. We affirm.

The plaintiffs' arguments challenging the defendants' first sale defense are raised for the first time on appeal. Under Federal Rule of Civil Procedure 46, "[f]ederal appellate courts generally do not consider issues raise for the first time on appeal." Animal Protection Inst. of Am. v. Hodel, 860 F.2d 920, 927 (9th Cir.1988). Although this "rule of waiver is one of discretion rather than jurisdiction," Howell v. State Bd. of Equalization, 731 F.2d 624, 626 (9th Cir.1984), we decline to exercise our discretion given the record in this case. We therefore affirm the district court's decision granting summary judgment in favor of the defendants on the plaintiffs' claims for violation of California's common law and statutory right of publicity.

We also affirm the district court's judgment in favor of the defendants on the plaintiffs' claims for false endorsement under

Page 716.

the Lanham Act. Those claims are barred by the fair use doctrine. See The New Kids on the Block v. News Am. Publ., Inc., 971 F.2d 302, 306-08 (9th Cir.1992); Cairns v. Franklin Mint Co., 107 F.Supp.2d 1212, 1214 (C.D.Cal.2000).

With respect to the issue of attorney's fees, the district court's decision to award attorney's fees to the defendants is supported by California Civil Code § 3344(a), which provides in relevant part, "[t]he prevailing party in any action under this section shall also be entitled to attorney's fees and costs." Cal. Civ.Code § 3344(a) (emphasis added). Moreover, no apportionment was needed because "the claims are so inextricably intertwined that even an estimated adjustment would be meaningless." Gracie v. Gracie, 217 F.3d 1060, 1068, (9th Cir.2000); Reynolds Metals Co. v. Alperson, 25 Cal.3d 124, 129, 158 Cal.Rptr. 1, 599 P.2d 83 (1979).

AFFIRMED.