Fred Is Her Co-Pilot

A cultural icon’s place in the public’s heart is much like a politician’s: He belongs to everyone and everyone acts as though they’ve elected him to Olympus. That’s true for no one more than Fred Astaire, the American god of an American art form, the smooth soft shoe. Long after the curtain fell on his career, his audience remains as devoted as any fervent constituents.

And when people think you’re messing with their legends, watch out. Indeed, Astaire’s widow, Robyn, has found herself embroiled in controversy over the way she has handled her guardianship of his image.

In the 10 years since Fred’s death, the storybook romance between the world’s greatest hoofer and the first great female jockey, 46 years his junior, has produced a dark epilogue. In this Hollywood story, the widow can pay the rent with no problem. In fact, she’s the one who has been cast as the villain.

Daggers have been drawn over the way Robyn Astaire has meagerly--and expensively--parceled out approval for the use of clips of his classic films. The furor was ignited when she prevented the Kennedy Center for the Performing Arts in Washington from using Fred Astaire clips for its televised tribute to Ginger Rogers in 1992--the same honor Astaire himself had received in 1978.

Meanwhile, Robyn Astaire’s pricey demands for the use of Fred’s clips held up the 1994 MGM film anthology “That’s Entertainment! III,” according to sources close to the production. MGM blamed the delay on technological problems.

Then when Fred was seen dancing with Dirt Devil vacuum cleaners in commercials during Super Bowl breaks this year, the anti-Robyn din grew louder. Critics accused her of hypocrisy, saying she was selling out Fred’s image to pad the war chest she used to protect it. All along, she has been vilified--a rare distinction for anyone so close to the pantheon of old Hollywood stars.

When the Dirt Devil commercials began appearing, TV journalists “would stop reporting the news and just start talking about me and lambasting me,” she says. “They were saying, ‘Fred never would have OKd this.’ Wait a minute. They don’t know me and they sure as hell don’t know Fred. I’m his wife. His closest confidant.”

“I was a little amazed at the controversy,” says Mike Merriman, chief executive officer of Royal Appliance Manufacturing Co. in Cleveland, which makes Dirt Devil products. “There was John Wayne doing Coors Beer and there was no response. Maybe some people felt John Wayne is in a bar and the image fit, and there’s a disconnect with Fred Astaire with a vacuum cleaner. But I think Fred trusted Robyn to safeguard his image.”

Fred Jr., who lives in San Luis Obispo, continues to be supportive of Robyn. He told People magazine: “I’m behind Robyn 100%. I think my father knew how people exploited personalities [after their death], and he didn’t want that to happen to him. Protecting him is Robyn’s job.”

But Fred’s daughter, Ava (pronounced AH-vuh) Astaire McKenzie, is prominent among her critics. She told Variety’s Army Archerd that she was returning her own Dirt Devil vacuum cleaner to the company, “saddened that after [Fred’s] wonderful career, he was sold to the devil”--the Dirt Devil. McKenzie declined to be interviewed for this story.

Veteran entertainment reporter Bob Thomas, author of “Astaire: The Man, the Dancer” (St. Martin’s Press, 1984), considers Robyn Astaire’s critics “misdirected,” particularly those who have failed to win her imprimatur for projects.

“They think maybe she was unreasonable in holding out her approval, but that’s between her and them,” he says. “That’s business, and she can be just as tough as any shark in the agency world.”

Is Robyn Astaire the greedy ogre her critics contend, condemning her husband’s image to obscurity in her misguided craving for money?

Or is she the protective widow, pining after the only person who really loved her and tending the fires of his lifelong perfectionism?

Winning an audience with Robyn Astaire to learn her answer is, as one writer put it, harder than scheduling an appointment with the Dalai Lama. It took several months to arrange an interview, and Astaire, who is fiercely private, declined to meet at the Beverly Hills home she shared with Fred and has left unchanged since his death. The interview took place at Santa Monica Airport, where Astaire houses two planes--a six-seat Piper Aerostar Super 700 and a two-passenger aerobatic Glasaire--that she uses to commute to her job as a corporate pilot for an air transport firm in Chino. She took up flying shortly after her husband’s death. “I’m not one to sit home and watch soap operas,” she says briskly.

In person, she is wraithlike and intense, with a tomboyish gait and the air of a younger Katharine Hepburn, from her wide, mannish pants to the chiseled planes of her face. She is 5-foot-7, and daily running has helped her maintain her riding weight of 110 pounds.

She is perplexed and dismayed by her public image. She says she is harshly misunderstood and is doing nothing more than carrying out Fred’s dying wish that she maintain the premium value of his life’s work.

“I’m embarrassed for my husband too,” she says. “It reads like he married a terrible person, and that’s not fair. He was a very intelligent man who knew exactly what he was doing, who was highly selective in the woman he chose to marry.”

What isn’t in question is that Robyn Astaire’s 10-year campaign to control the use of Fred’s image has sharply reduced unauthorized uses.

“It’s been a long, hard battle, and I do feel that I’m pretty much in control of situations,” she says. “Word’s out: Don’t even think of using Astaire without permission.”

But not all suitors to the throne want to sell vacuum cleaners. Some are documentary filmmakers, who say they have been widely discouraged from including Astaire in anthologies about Hollywood’s golden era.

“I’ve had to cut out countless clips because I knew it would be hell getting the rights,” filmmaker Peter Fitzgerald says.

Astaire’s business representative, Thomas A. White, denies that she routinely bars the way for filmmakers.

“Lots of documentaries have been approved for television,” he says, without providing examples. White says Astaire screens every request--including those for commercial uses--and judges them according to their artistic merit.

While Astaire wants to control all uses of film clips, her battle may finally have backfired. A federal appeals court recently ruled that a company that makes instructional dance videos didn’t need Astaire’s OK to use movie clips for its Fred Astaire Dance School series. The court, overturning a lower court’s decision in her favor, said such videos were covered under the state’s exemptions from an estate’s control. Astaire is fighting the decision. Some documentarians say they may be emboldened by the ruling, which they say may give them more legal clout in using Fred’s image without paying high fees.

If they’re not, the price paid by Fred’s estate may be higher than anyone intended--obscurity. Even Turner Entertainment, which holds the rights to most of Fred’s complete movies, cringes at the difficulty of getting its hands on clips so it can promote them with new shows on old Hollywood and other original programming. White notes, however, that Turner is free to use trailers and posters under Fred’s agreements with the studios.

“I think it’s very unfortunate because part of what we’re trying to do is expand the classic movie audience and bring it to new generations,” says Tom Karsch, senior vice president for Turner Classic Movies. “What saddens me is there will be a generation of people growing up who think Gene Kelly was the No. 1 dancer in Hollywood.”

When Fred Astaire died at age 88, he left Robyn the house and the Rolls-Royce, and she says she was well taken care of. But much of his fortune was depleted before they even met. Fred had passed on a chunk to his two children because he wasn’t expecting to marry again so long after the death of his first wife, Phyllis, in 1954.

So Fred left Robyn the jewel of his estate--the right to manage his intellectual property and buff the sheen on his artistic legacy. (When she dies, control passes on to his children.) In short, she claims the rights to his film clips while Turner Entertainment controls the complete films, White says. (Turner acquired the rights when it bought the old RKO and MGM film libraries in 1986.)

Robyn Astaire says that Fred had rights to his film clips that his peers lacked because he had star leverage--he was already a legend on Broadway when Hollywood wooed him, so he was able to negotiate control over the use of his image in his studio contracts with RKO and MGM in the ‘30s and ‘40s.

But a film historian who has seen the contracts says that Robyn is misinterpreting the references to film clips.

“In 1933, when Fred Astaire signed with RKO, nobody knew television would have cable networks with ‘Biography’ television programs 50 years hence,” says the historian, who asked for anonymity. “It’s a laughable idea.

“I interpreted that clause to mean that he wanted an assurance in writing that when his musical numbers were filmed, his body wouldn’t be clipped, that you wouldn’t see tap-dancing feet, that you would see the full face and figure.”

Astaire insists she has a clear understanding of her role as custodian of Fred’s artistic legacy, a mission she takes very seriously.

“We had many, many discussions,” she says. “He was worried that after he was no longer around that he’d be taken advantage of and he’d just been through hell with infringers. Little did I know. I promised him I wouldn’t let that happen. And Fred and I thought so much alike. He just said, ‘I trust you implicitly.’ ”

After Fred’s death, Astaire and her lawyers and advisors swooped down on commercial vultures feeding on his image--unauthorized purveyors of Fred Astaire jewelry, cologne, tuxedos and even condoms.

But some began to view her exercising of clout as bullying when she clashed with the producers of the Kennedy Center tribute to Ginger Rogers. She says she had lobbied for Rogers to win the honor, arguing, “What are you going to do, give this to her posthumously?”

Astaire says that she gladly offered the clips for the ceremony gratis but that the producer demanded clip rights for televising the show in perpetuity, or else “I’d be ruined in the media. I didn’t feel that I could give in to that kind of extortion, and then the producer made good on his vendetta: I became an ogre, a horrible person from this one good deed I tried to do for a good friend, which just completely backfired.

“I couldn’t give up perpetuity rights for clips to anyone. I promised Fred I’d never do that. That’s to me like saying, ‘Give me your home. You can live in it for a while but it’s ours.’ ”

In a statement faxed to The Times, producer George Stevens Jr. responded: “Robyn Astaire’s requests for money are well-documented and the only person I have ever threatened to ruin in the media is Saddam Hussein.”

In 1993, Stevens told People magazine that he had requested the clips for one-time presentation only and said the talks fell apart over Astaire’s request for $70,000 for permission to show four clips on TV. She says negotiations collapsed before money was even discussed.

When Astaire discusses her control over Fred’s image and her campaign to grant the same rights to his peers, she comes across as an evangelist for artists’ rights.

“It’s a moral issue with me,” she says. “I see some of these older, well-known actors struggling along, not knowing where their rent is going to come from. Their pictures are being shown every day, and once in a while people will use an excerpt and the person who created it gets absolutely nothing.”

When Astaire licensed Fred’s image to Dirt Devil, the fee was quite a bit more than that. Neither Astaire nor Dirt Devil would discuss payment beyond the company’s $50,000 donation to the Arthritis Foundation at Astaire’s request, but a source close to the family says the estate’s total take came to $750,000--a kitty that also benefits Fred’s children.

White declined to comment on Astaire’s fees.

“All the licenses we enter into are confidential by contract, so neither the licensee nor we once the deal is done can discuss it,” he says.

The company made three commercials with clips from “Royal Wedding” and “Easter Parade,” replacing Fred’s old dancing partners--a hat rack, a cane and a mirror--with vacuum cleaners. Company CEO Merriman says Dirt Devil enjoyed a clear spike in sales after the Super Bowl, and a fourth commercial is scheduled for broadcast in the fall.

Given Astaire’s claim to the high ground, many observers went ballistic when the commercials came out: “Thus will Fred Astaire become the latest American cultural icon to be sucked into advertising hell,” sniffed the Detroit News.

Says Robert Osborne, Hollywood Reporter columnist and host for Turner Classic Movies: “I think people wouldn’t criticize her if the image she was protecting was shown only in the loftiest positions. But when he’s in a commercial electronically fixed so he’s dancing with a vacuum cleaner, I’m not sure that’s protecting his image. It does strike me that it’s moneymaking.”

If money were the only carrot in the deal, Astaire has had ample opportunities to cash in on her husband’s image that she’s rejected. She says she gave the nod to Dirt Devil because the company granted her artistic control and because Fred himself was no stranger to commercials--during his life, he appeared in ads for Chesterfield cigarettes and the now-defunct Western Airlines, among others.

“I know Fred would have done it. Period,” she says. “I didn’t change his work. All I did was substitute in each frame one of Fred’s props for one of Dirt Devil’s products. He’d take anything as a prop and dance with it. I think they’re well done and people love them.”

But a commercial agent, who says he spent hours discussing Fred’s advertising philosophy with the star when he was alive, disputed Astaire’s account of his values. He said Fred’s preferences were illustrated by a commercial he did in 1980 for Home Savings, in which he discussed what it took to be a perfectionist. A voice-over followed, saying the message was “brought to you by Home Savings.”

“It was very soft,” says the agent, who asked for anonymity. “It was more of an oblique endorsement rather than standing up like Ed McMahon hawking the product. I would take great issue with the fact that he would do the Dirt Devil thing. People have a fond memory of Mr. Astaire--and I think this denigrated it, and it denigrated it posthumously. [People think] maybe someone was screwing over an icon without his knowledge.”

But there’s another reason why Astaire believes Fred would have wanted her to do the commercials--the money. She says she has spent more than $1 million on legal fees, earning a reputation for being difficult and litigious in the process. And the coffers need to be refilled.

“I’ve had to deplete much of my financial security over the years to prosecute infringers,” she says. “And neither Fred nor I contemplated having to sustain the burden of nine or 10 years of costly litigation. I just feel Fred would have wanted me to do these commercials.”

Astaire has also been accused of demanding high fees for uses whose commercial value is questionable, particularly documentaries. White, Astaire’s business representative, denied that filmmakers are discouraged by the price tag for Fred’s clips.

“There’s absolutely no truth to any suggestion that it’s priced way out of the ballpark,” he says. “We do a lot of transactions, I’ll just put it that way, whether it’s film clips, sound recordings or still photographs. Things Mr. Astaire did during his lifetime are being routinely used in all sorts of productions.”

White acknowledges, however, that Fred Astaire fees are generally at a premium.

“I’ve never seen anyone who would like to get something for nothing and to exploit the value be happy about having to pay for it,” he says. “The people who are tops in their field receive premiums. If you were selling a Rolls-Royce, you wouldn’t be selling it for the same price as a Pinto. But it doesn’t stop them from dreaming about it.”

But documentarians generally don’t have Rolls-Royce budgets.

“She’s always charging money, and a lot of people are leaving Fred Astaire out of anthologies,” says Robert Osborne. “I’m not sure it hurts his image to be shown in those things.”

Filmmaker Peter Jones, who has profiled Judy Garland, Buster Keaton and Jack Benny for A&E;’s “Biography” series, says he gave up courting Robyn Astaire when she declined to respond to numerous letters.

“The network has said the first person who delivers Fred Astaire, which means Robyn, gets to produce it,” he says. “It’s like the 10 Most Wanted list.”

What’s more, filmmakers argue that Astaire may be defeating her own goal to protect his image by pricing him into oblivion. A source close to “That’s Entertainment! III” says her rate for Fred clips was $250,000 per half-hour, although less than that was used. (Astaire and White declined comment on her fees.)

Negotiations were sometimes fractious, with Astaire occasionally crying, the source said.

“That’s preposterous,” White says. “Mrs. Astaire and I went to the MGM offices in Santa Monica and had a cordial meeting. Everyone was smiling. She never had any conversations with anyone after that.”

While commercial theatrical releases generally command higher fees than televised documentaries, A&E; producer Jones says he too finds “her prices [to be] prohibitive.”

“And she’s putting the body of work in jeopardy,” he says. “I can understand if someone comes to them and says, ‘Don’t just give this away.’ But there’s a difference between licensing an Edward G. Robinson line of cigars and a documentary on his life, which oddly enough increases the value because it puts the image out there.”

California law makes such distinctions as well. A statute that grants heirs rights to the name, voice, likeness and persona of deceased celebrities also makes exceptions mindful of the broadcast media’s protection under the 1st Amendment. Some heirs, notably Astaire, argue that televised documentaries should not be exempt from fees, because they benefit for-profit networks.

“Anything which is sold, whether it’s the L.A. Times or a videotape, can be considered commercial to that extent,” counters attorney George Hedges, who represented the video company that has been fighting Astaire in court. “The fact that you sell newspapers for a profit doesn’t mean the 1st Amendment doesn’t apply.”

It’s a murky area of California law that has been largely untested--until now. Generally, filmmakers have made a nominal payment as a goodwill gesture to a deceased celebrity’s heirs to encourage cooperation even if an estate fee isn’t required.

Jones says he paid $5,000 to Gloria Swanson’s daughters “to show respect to the family,” and $20,000 to Judy Garland’s estate even though he contested her heirs’ claims to her image. “The estate legally controlled our ability to use Capitol Records recordings,” he says, but “you’re basically buying off a lawsuit.”

Such modest payments are typical, says Mark Roseler, CEO of the Indianapolis-based CMG Worldwide, which represents 200 names in sports and entertainment.

“Some uses are clearly outside the 1st Amendment--when you deal with someone making a T-shirt or an ad or an endorsement,” he says. “Then you have things in the gray area and everyone knows they’re in a gray area, so it drives the price down. Typically, you either work out a nominal fee or you give them a free license.”

But Astaire’s rates are hardly typical, according to some potential business partners. A lawyer for a filmmaker interested in making a television documentary on Fred Astaire says Robyn’s attorney told him “the price would be so high that it wasn’t worth talking about” given the budget--well under half a million dollars.

“My recollection is that he informed me that she would require a significant percentage, from which I inferred anywhere from 20 to 50,” the lawyer says.

Now that murky area is beginning to clear with a recent decision by the U.S. 9th Circuit Court of Appeals. The ruling pertained to Astaire’s nine-year battle against Best Film & Video Corp. for using clips without her permission when it made Fred Astaire Dance School instructional tapes.

“Fred didn’t want to have anything to do with the dance studios, and it made people think that Fred Astaire still owned the dance studios,” Robyn says. “The bottom line is Fred would have said no, so I said no.”

She says her fight for control is the centerpiece of her campaign for other artists’ rights to manage the use of their image: “I’m doing it for Fred.”

The court said the video maker did not need Astaire’s permission under the 1984 California law governing the rights to deceased celebrities’ personas. The law provides certain exemptions from heirs’ control, allowing a celebrity’s image to be used in a play, book, magazine, newspaper, musical composition, film, radio or television program. The court said those exemptions also applied to videos.

Astaire--who was supported in court by the Screen Actors Guild, the Artists’ Rights Foundation of the Directors Guild and 25 major stars she personally recruited such as Katharine Hepburn and Frank Sinatra--has already filed a request for the case to be reheard at the appellate level.

“Needless to say, I was extremely distressed,” she says. “It’s immoral. The only person who should have the right to control the use of their personas are the artists themselves or their designees.”

Meanwhile, documentarians as well as studios and networks that backed up Best Video in court--CBS, NBC, 20th Century Fox and Warner Bros.--are eyeing the case carefully.

That may embolden filmmakers as well.

“I’ve had documentary filmmakers call me even from Europe, saying, ‘Thank you very much for clarifying this issue,’ ” attorney Hedges says. “People have been very intimidated by the threat of a lawsuit by someone who claims to hold what Mrs. Astaire claims to hold.”

But Los Angeles attorney Robert N. Benjamin, a specialist in entertainment and intellectual property law, says the decision will only affect videotapes: “The opinion was very narrow. A documentarian wouldn’t be affected by this.”

The ruling wouldn’t affect Robyn’s control over clips protected under Fred’s contracts--the Best Video clips were not covered by them, because a licensing deal had already been struck with the schools. On the other hand, it will also do nothing for her campaign to extend to other artists the kind of control Fred had under his special contracts, Benjamin says.

Meanwhile, the jury is still out on the access Fred Astaire will have to the imaginations of future audiences.

Says Robyn Astaire: “I’ll never let people forget about Fred, and I don’t think that I would even have that control. Fred is out there to stay. He’s too special to the world. He belongs to the world.”