Roy Rogers and Gene Autry Do Not Endorse This Project: Actors,Advertising,and Feature Films on Early Television

In July 2016, after Stephen Colbert performed a segment called “The Word” on his CBS Late Show, Viacom, the corporate home of Colbert’s previous show, The Colbert Report (2005–2015), threatened him with legal action. “The Word” had been a regular segment on The Colbert Report, and Viacom claimed intellectual property rights over it as a “work made for hire” (Gardner 2016). Since Stephen Colbert played a character “Stephen Colbert” on The Colbert Report, Viacom’s claims raised many complex legal questions about copyright, parody, fair use, intellectual property rights, and even the relationship between “Stephen Colbert” the character, writer, and person. Viacom’s case highlights the slippery nature of stardom and personhood, and the complexities of contractual claims to ownership of performance, likeness, and creative works. Indeed, it demonstrates what Jane Gaines (1991, 4) describes as the law functioning as a discourse of power that “restrains persons and regulates other objects of culture.”

Other cases that force a consideration of these issues have arisen in previous eras in media history—television’s transition to a commercial medium in the late 1940s was precisely one of those times. During this incipient period, television and film industries were determining how they could work together and distribute content between and across the two mediums (Balio 1990; Hilmes 1990). That process compelled a close study of the many issues that would be raised some eight decades later by Colbert’s case. In that earlier period, two other personalities who used their real names as their character names, Roy Rogers and Gene Autry, were hugely successful stars in the western genre who moved between the mediums of radio, television, and film. Their attempts to build multimedia empires, and, in particular, their lawsuits against Republic Studios to prevent their feature films from appearing on television, are seminal in the history of film and television’s mutual imbrications. The relationship between television stations and networks during this early period is expounded through this litigation, which helped shape the early years of television as a live medium by precluding major studio films from appearing on television until the late 1950s. The cases demonstrate how persons and organizations with diverse interests influence all periods of disruption, and how—amid a tangled web of agendas—two stars from B-westerns could hold the film and television industries in suspense for years.

Since the earliest days of film, every aspect of the media has influenced and been influenced by media law and regulation, raising fundamental questions about the nature of copyright and the ways in which it determines media production and consumption. Scholars such as Gaines (1991, 164–71) have analyzed Rogers’s and Autry’s cases as they relate to controlling rights to stars’ images on and off screen and the ways that those rights challenge studios’ copyright in their motion pictures. Peter Decherney (2012) considered these same cases as they relate to moral rights, or artists’ control over their names and works when copyrights belong to corporations (2012, 116–22). However, as Gaines and Decherney point out, copyright only protects certain aspects of any work and, in the Rogers and Autry cases, questions about those limits played a significant role in the history of copyright. While the present study of the Rogers and Autry cases in part explicates the ways in which copyright and trademark law define and demarcate control of images and likenesses—which, as Gaines (1991, 208–27) illustrates, underwent significant shifts at that time, it also broadens consideration of these lawsuits through close consultation of the archival materials used as evidence. While Gaines drew on the decisions in the lawsuits, my research included the thousands of pages of transcripts from the trials, which afforded access not only to the grievances filed in the original claims and the conclusions drawn by judges in their decisions, but also to the wider logic and argumentation operating in these conflicts. The transcripts from the trials animate a form of historical ethnography, which allows for a more productive elucidation of the issues from the standpoints of the diverse perspectives involved. Ultimately, the archival materials reveal that there was much more at stake in the ways these cases determined the relationship between the film and television mediums, defined and limited the star as transmedia mogul in this earlier period, and managed the ways that texts and images circulated between and across platforms during moments of disruption and convergence. Furthermore, the cases demonstrate the power of contract law to restrict the movement of images, texts, industries, and individuals among different mediums, particularly during a period when an existing medium—in this case, film—was confronted by the new medium of television. And, finally, the Rogers and Autry cases explicate the ways in which the law, more broadly speaking, functions as an ideological and economic instrument that defines the boundaries and functions of any new medium well before those producing or consuming the medium’s content are themselves sure as to what the medium is capable of. Thus, the naissance of television provoked a welter of legal issues whose relevance demonstrates that some elements of the medium have not kept up with the many cycles of innovation that television has undergone since it first appeared in American homes.

In the larger context of the history of film and television, this closer look at Rogers’s and Autry’s lawsuits limns operations beneath the surfaces of these media, illuminating a pivotal period in media history and even overturning some long-held beliefs about that time. The cases highlight the challenges the film and television industries had to negotiate prior to the appearance of Hollywood’s feature films on television. Contrary to an enduring belief that either apathy or hostility characterized early television’s relationship to film, there was in fact a constellation of practical obstacles that led to a prolonged period of sluggish progress (Porst 2013). Rogers’s and Autry’s cases foreground the difficulties that stars faced in their efforts to move from film to television in those early days, and the ways in which television, as an advertising medium, conflicted with the financial model of the film industry. What emerges is just how complex the media environment was for stars who worked to develop multimedia endorsement deals and negotiate sponsors across different media.

In the late 1940s and early 1950s, as television networks focused on live programming, local stations depended upon feature films to meet their quota of minimum hours on air, as mandated by the Federal Communications Commission (FCC). Milford Fenster, film manager for television station WOR-TV in New York, explained that feature films were “the lifeblood of the programming of an independent station” (Testimony of Milford Fenster 1955, 871–72, 893). And, indeed, of the films on air, some of the most popular were B-westerns, many of which transitioned to television first through locally aired reedited film serials, and eventually through national syndication and network distribution (Kackman 2008, 77; Daily Variety 1948d, 1). Hopalong Cassidy was one of the genre’s biggest stars, and his films commanded some of the highest prices (Daily Variety 1948c, 11). Because television broadcasters were especially concerned with the appropriateness of film content for family, these family-friendly B-westerns worked well. William Boyd, the actor who played Hopalong Cassidy, was able to release his films to television because he owned the rights to them. In 1948, when Boyd believed he had exhausted the theatrical value of his films, he negotiated to purchase the television and nontheatrical rights to the films produced when he was contracted with Paramount as well as the rights to any future uses of the Hopalong Cassidy character (Roy Rogers’s Testimony 1951, 723; Kackman 2008, 79). When Cassidy’s films first appeared on television, he did not have many endorsement deals, or what—at the time—was called a “commercial tie-up business.” Once his films found success on television, a very extensive commercial tie-up business developed. When Autry and Rogers, both stars in B-westerns produced by Republic Studios, noticed Cassidy’s success in television, they began investigating opportunities for themselves. Both Rogers and Autry, like Cassidy, had extensive merchandising and licensing deals, a relatively rare enterprise during a time when studios still largely controlled actors’ merchandising and licensing rights (Gaines 1991, 171–74). In Rogers’s and Autry’s cases, Republic, as a minor studio, encouraged its stars to pursue their own merchandising and licensing deals in lieu of raising their salaries. The income from those deals was significant, and Rogers and Autry wanted to get into television to offset the competition posed by Cassidy’s newfound success in those areas (Roy Rogers’s Testimony 1951, 725–28).

When other Hollywood studios saw how well westerns—and the Hopalong Cassidy films, in particular—performed on television, they began investigating the westerns they had stored in their vaults and “sounding out” their exhibitors on their reaction to the possibility of selling older westerns to television. Some studios had reservations about selling their stars’ old films, “for fear of rousing exhibs’ ire” (Daily Variety 1950a). And for good reason, as the studios had learned from instances such as one in September 1950, when Allied Exhibitors, a Midwest chain of theaters, refused to show Autry’s films because he appeared in films produced directly for television (Television Magazine 1950, 5). Nonetheless, negotiations over Rogers’s films on television began in early 1950, when William Arthur “Art” Rush, Rogers’s representative, met with Herbert Yates, Republic’s president. In that meeting, Rush explained that he had studied Hopalong Cassidy’s popularity and drew Yates’s attention to the extensive advertising campaigns run by Cassidy’s sponsors. Rush outlined the ways department stores sold Cassidy’s merchandise and explained that he and Rogers were concerned about possible losses to their own merchandising business as a result. Rush wanted Republic to put Rogers’s films on television and suggested that his company, Art Rush, Inc., manage the distribution of Rogers’s films, and all of Republic’s library, to television (William Arthur Rush’s Testimony 1951, 1001). Yates, however, was not impressed by this plan, and the meeting concluded with a stern warning from Yates that, in the words of Art Rush, Rogers needed to

Make up his mind whether he could make more money from his merchandise business and television than he could continuing making motion pictures . . . For a number of years 81 of Rogers’ pictures were distributed throughout the world with heavy publicity and advertising campaigns and his popularity as it stood today was due to those pictures and that publicity and advertising. And I told him that I think that the matter is serious and I advised him to watch his step. (William Arthur Rush 1950)

In a subsequent letter to Yates, Rush explained that food and beverage company Quaker Oats was “ready and willing” to sponsor the films on television and provide local and national advertising for them. He envisioned a transmedia marketing campaign that would include Rogers’s comic strips in newspapers and spots on hundreds of television and radio stations. Sometime shortly after that meeting, Robert “Bob” Newman, then vice president of Republic, met with Frederic Sturdy, a lawyer for Rogers, and found that both sides had changed their tunes. Republic had decided to circumvent Rogers’s team and make its own deal to provide 10 films to Sherman & Marquette for Quaker Oats for use on television. At that point, Sturdy told Newman that Republic did not have the rights to release the films to Sherman & Marquette or Quaker Oats. According to Art Rush, this claim prompted a great deal of “colorful” language from Newman (William Arthur Rush’s Testimony 1951, 973–74).

Both Rogers and Autry had worked in radio for a number of years, and the former was negotiating with Quaker Oats to expand those radio deals to include television. He had a successful radio show with Quaker on the Mutual Network since August 1948, and his contract with Quaker was to end in July 1951 (Arthur Marquette’s Deposition 1951, 1415). In early 1951, Rogers thus began negotiations with Sherman & Marquette, the agency behind the show (Arthur Rush’s Deposition 1951, 63), for the terms of a new contract. Quaker was happy to continue with the radio show alone, but Rogers and Rush wanted to do radio and television together (Arthur Marquette’s Deposition 1951, 1430). Quaker suggested a half-hour television show on film called The Roy Rogers Television Show, which would air in the Quaker timeslot on NBC. In March 1951, Rush told Yates that he could only make a deal with Quaker for Rogers on television provided Republic agreed to keep Rogers’s old pictures off the television for a year. As Rush recalled, Yates wanted to shoot Rogers’s show on the Republic lot, which interested Rogers because they could use the same crew that had worked on his films (Arthur Rush’s Deposition 1951, 132–34). Yates proposed having Republic make four films a year with Rogers for theatrical distribution, and Rogers could go on television for Quaker Oats. Republic would put up half the money for both groups of pictures, and Rush would put up the other half, and they would split the profits (Herbert J. Yates’s Testimony 1951, 2100). When Quaker Oats wanted Republic to guarantee that it would not put Rogers’s pictures on television for at least a year, Yates demurred, unless it received a share of the profits from Rogers’s television show and merchandise deals (Herbert J. Yates’s Deposition 1951, 66). And, since Sherman & Marquette only had a thirty-minute timeslot on NBC, they did not want to purchase Rogers’s old films, which were too long for those timeslots. With the various parties at an impasse, negotiations for a new deal between Rogers and Quaker fell apart (William Arthur Rush’s Testimony 1951, 808). In May, Marquette and Quaker indicated that they would neither renew Rogers’s existing contract for the Quaker Oats radio show nor move forward with a television show because of their concern about Rogers’s features appearing on television (Roy Rogers’s Testimony 1951, 119–23).

With the Quaker Oats deal scotched, Rush traveled to New York to meet with Frank Folsom and Joe McConnell at RCA/NBC about the possibility of another deal with Rogers. The proposed deal for radio and television was similar to the one they had tried to work out with Quaker Oats (William Arthur Rush’s Testimony 1951, 1076, 1078). In the new deal, NBC would employ Rogers for 10 years. In their negotiations, they discussed an “escape clause” in the event that when Republic aired Rogers’s films on television, NBC would be entitled to terminate the contract (Arthur William Rush’s Testimony 1951, 1836). Although Rush was negotiating with NBC, General Foods and its Post cereal division would sponsor the show, and General Foods wanted to deal directly with Rogers (Walter Frank Craig’s Testimony 1951, 2338). Just as Quaker balked at the possibility that Rogers’s old films might make their way to television, General Foods wanted to reserve the right to cancel its contract if such a situation arose with Rogers (Roy Rogers’s Testimony 1951, 746–47). They estimated that the budget for the television show would run close to three million dollars a year (Walter Frank Craig’s Testimony 1951, 2329) and did not want to jeopardize the success of that kind of investment with competition from their own star. The deal was potentially a very lucrative one for Rogers in that once NBC had recouped the money it spent in producing the show, NBC and Rogers would divide the profits from syndication (Arthur William Rush’s Testimony 1951, 1843–45).

Amid those negotiations, in June 1951, Hollywood Television Service, Inc., a subsidiary of Republic that distributed films to television, sent a letter to advertising agencies throughout the United States offering to license Rogers’s films for television (Earl R. Collins 1951, 8; Roy Rogers’s Testimony 1951, 126–29; Affidavit of Morton Scott 1951, 1; Herbert J. Yates’s Testimony 1951, 2108). Hollywood Television Service offered 52 of Rogers’s films that had been completed before January 1942 (Morton Scott’s Testimony 1951, 1155–57, 1193; Affidavit of Morton Scott 1951, 2–3) and offered Autry’s films and the films of another of its B-western stars, Red Ryder, at lower prices. As a condition of the deal for any of these films, the purchaser had to pay a 5 percent fee to the American Federation of Musicians (AFM) as an early form of residual payment for the soundtrack rights (Morton Scott’s Testimony 1951, 1158, 1160, 1162, 1167, 1174, 1176).

On June 23, 1951, Rogers filed a suit against Republic and Hollywood Television Service and requested a temporary restraining order to prevent them from selling or licensing his feature films to television (Motion for Issuance of Temporary Restraining Order 1951, 1–2). The next month, the judge issued an injunction restraining and enjoining Republic and Hollywood Television Service, pending the outcome of the trial, from leasing, selling, licensing, or permitting others to use the voice or likeness of Rogers or his famous horse, Trigger, or any of their motion pictures for advertising purposes (Preliminary Injunction 1951, 3). The trial for Rogers’s case against Republic began in September 1951, in the district court in Los Angeles with Judge Pierson M. Hall presiding. The judge offered that he was not only “not much of a picture fan,” but also did not own a television set and had seen “very few television programs” (Reporter’s Transcript of Proceedings, Civil Case No. 13220-PH 1951, 223, 434). At quite a few points during the trial, considerable time was expended trying to define television and understand how it worked technologically, formally, and economically. For example, Herman Selvin, one of Republic’s lawyers mused,

I think I understand the general principle of a television set, and what is actually referred to as the screen, that is the thing on which you see the image, is actually the business end of a very large tube which is called a cathode ray tube . . . . And which, if I understand it, if I remember some earlier experiences properly, is actually the thing which is also the basis of what we know now as radar. Television and radar are substantially the same thing, actually. (Roy Rogers’s Testimony 1951)

By attempting to distinguish between exhibition on television and exhibition in theaters, the persons involved in the case were engaging in a Bazinian theorization of the ontology of the image in the new medium of television (Bazin 1960). They were not consciously doing the work of media theory, but this wrestling with complex issues demonstrates the ways in which the law demands complex thinking about the fundamental nature of the objects it regulates, in this case, the new medium of television.

Republic’s defense was relatively simple: its contracts granted it the perpetual right to use Roy Rogers’s name and likeness for the purpose of advertising the films, which Republic owned. It also argued that during its contract negotiations for each of Rogers’s contracts starting in 1937, Republic wanted—and Rogers agreed to—“unqualified television rights” (Opening statements of Herman F. Selvin 1951, 18). In 1937, as Selvin, Republic’s lawyer, explained, they were “contracting for the future” because they did not know what form television might take (Herman F. Selvin Argument, 2425). Since most actors at the time still worked under long-term contracts with the studios, the fact that the studios claimed blanket rights to a yet-to-be-realized medium demonstrates the inherent power imbalance of those arrangements (Carman and Drake 2015, 211–12). To this point, Saul Rittenberg, an attorney for Republic, argued that in their most recent contract negotiations with Rogers in 1948: “The conversations were that we were to have unlimited, unqualified television rights . . . . There was no discussion of what that meant or what that included in its scope. We said unlimited and that is what we meant” (Saul N. Rittenberg’s Testimony 1951, 1962).

Rogers’s argument was more complicated. Countering Republic’s capacious claim to the television rights to his films, Rogers said that when he made his films, he had, understandably, never considered television. In 1937, he was just happy to have a job, so he signed the contract without examining it in any detail. Rogers maintained that television had only come onto his radar in 1948 after his contract negotiations that year about whether his films could appear on television; further, he could not recall if his representatives had broached the issue with Republic (Roy Rogers’s Testimony 1951, 266–68, 331–32, 342). In response to this, Judge Hall declared, “Everybody in making a business deal lets sleeping dogs lie until they start barking. And here television started barking and everybody started looking at the contract.” The central conflict of the case, however, did not turn on whether Republic held television rights, because, according to Rogers’s contracts, they clearly had those rights. The problem was that television was a medium funded by advertising, and the actual point of contention in the case was the role of advertising and its relationship to the actors and feature films on television. As Rogers’s attorney explained, “This lawsuit had nothing to do with television, it had to do with the right to use Mr. Rogers’ name or likeness or voice for advertising purposes” (Reporter’s Transcript of Proceedings, Civil Case No. 13220-PH 1951, 2542). In Rogers’s contract, Republic had given Rogers the right to his own name and likeness except in the films themselves and in the advertising for the films. Typically, studios retained monopoly rights to characters’ likeness and image in all mediums (Gaines 1991, 161–65), but since no one held the monopoly rights to the “Roy Rogers” name and likeness, the judge had to define the television medium to distinguish whose rights applied in that format. Rogers argued that Republic only held the rights to using Rogers’s name and likeness for the purposes of advertising the films themselves, but Republic, by offering the films to television, asserted the right to license the films for the purpose of advertising products other than motion pictures (Frederic H. Sturdy Argument 1951, 2370). Judge Hall sought to put a finer point on the precise issue at hand, asserting that “The lawsuit is here over not the right to telecast the pictures, but the right to telecast them for commercial purposes” (Reporter’s Transcript of Proceedings, Civil Case No. 13220-PH 1951, 1888).

Problems arose, however, when the judge and lawyers tried to define commercial television, and they found themselves wrestling with the distinction between commercial and sustaining programs. In a sustaining program, as Rogers described,

There appears at the beginning an announcement . . . to the effect that the particular station or the particular network, as the case may be, presents such-and-such a program. So, for example, it would start out with an announcement saying, “KTTV now presents Movietime. Our feature for tonight is such-and-such a star in such-and-such a picture.” (Roy Rogers’s Testimony 1951, 361–62)

Sustaining programs did not have sponsors; the station absorbed the costs for them in order to meet the FCC’s required minimum number of broadcast hours. Sustaining programs also included content like the news, which met FCC requirements for programming in the public interest. Rogers’s lawyers argued that even sustaining programs were effectively commercially sponsored because the broadcast served as an advertisement for the station (Frederic H. Sturdy’s Opening Statement 1951, 11–12).

Republic’s lawyers responded by pointing out that movie theaters presented advertisements before their films. In fact, at that time, the majority of theaters sold space for advertisements to play as a part of their film programs (Reporter’s Transcript of Proceedings, Civil Case No. 13596-BH 1952, 423–24). Rogers, in turn, argued that the fundamental difference between film and television was that, in a theater, the film “is furnished to the patrons by the patrons themselves paying for it, whereas on a television broadcast the picture is furnished to them by the sponsor” (Roy Rogers’s Testimony 1951, 430, 458). The question of advertising also raised the issue of implied endorsements and possible conflicts with Rogers’s existing endorsement deals. Starting in 1938, Republic had encouraged Rogers to license his name, voice, and likeness for various commercial purposes such as advertising, rodeos, personal appearances, and radio (Frederic H. Sturdy’s Opening Statement, 1951, 14). As Rogers recalled, during that time, he struggled to make a living and raised the subject of a salary increase with Yates, who suggested that Rogers develop outside income from opportunities like radio, commercial tie-ups, and personal appearances (Roy Rogers’s Testimony 1951, 273–74). At that time, stars who succeeded in reserving the right to negotiate these matters for themselves were the exception (Gaines 1991, 161). Yates likely suggested this deal because Republic, as one of the “Poverty Row” studios, did not have the deep pockets of the larger Hollywood studios. The term “Poverty Row” was a slang term used to refer to B-movie studios in Hollywood from the 1920s through the 1950s (Balio 1990, 4; Hurst 2007). By the time of the trial in 1952, Rogers had sixty or seventy licenses out (Frederic H. Sturdy’s Opening Statement 1951, 15). The year 1950 alone saw sales of over twenty million dollars’ worth of merchandise by some seventy-four manufacturers to which Rogers’s name and likeness were licensed (W. Arthur Rush Affidavit 1951, 2). Since Republic had encouraged those enterprises, Rogers believed that Republic should not dilute his business by “throwing a lot of his old pictures on.” Rogers’s lawyers argued that sponsors for television wanted exclusivity, and that if his films were “permitted to go out to any and all stations throughout the country on what they call a syndication basis or a series basis, to be sponsored by anybody that will pay the money, that he would be irreparably damaged” (Frederic H. Sturdy’s Opening Statement 1951, 15–16). Wayne Tiss, vice president in advertising agency BDDO’s (formerly BBD&O) Hollywood office, concurred that broadcasting Rogers’s films on television under commercial sponsorship would limit his ability to license his name or likeness for advertising purposes. Because, as he explained,

If a Roy Rogers picture was sold, let’s say, in Ames, Iowa, to be used on a television station on which there may be three or four commercials cut into this film . . . even though Roy Rogers was not involved in those commercials, and let’s say one of them . . . is on for a bread that is made in Ames, Iowa, if at the same time Roy Rogers was attempting to sell a television show of his own . . . to the Wonder Bread Company or the Continental Baking Company, they would not find it quite a good idea to sponsor that program because they would never know when another bread would show up on a Roy Rogers show over which they had no control. (Wayne Tiss’s Testimony 1951, 526)

Both Yates and William Golden, in publicity at MGM, argued, however, that by airing Rogers’s films on television, Republic would be affording Rogers’s exposure to larger audiences, which would increase sales of any of the products with which he was associated (Herbert J. Yates’s Deposition 1951, 74; William R. Golden’s Testimony 1951, 1510).

This case was further complicated by the fact that in granting the rights to the name and likeness of Roy Rogers, the parties to the contracts were talking about Rogers’s actual name because Rogers always played himself. In other words, the actor Roy Rogers always portrayed a character called Roy Rogers (Opening Statements of Herman F. Selvin 1951, 23). Before Rogers joined Republic, he appeared under his birth name, Len Slye. Shortly after joining Republic, Rogers used the name Dick Weston, but just before he started his first picture, Republic gave him the name Roy Rogers. In 1942, he legally changed his real name, so his film credits read, “Roy Rogers played by Roy Rogers.” By collapsing the distinction between Roy Rogers the person, the star persona, and the onscreen character, Rogers embodied Barry King’s theorization of the “personal monopoly” (King 1985) and had perhaps unwittingly complicated these rights issues. Rogers was concerned that audiences who viewed his old pictures on a sponsored television program would associate him with the product being sponsored, and that television would create an even stronger association than radio because television audiences could both see and hear him. Redoubling his apprehension was that, as Rogers explained to the judge: “Without the control of the sponsorship, your Honor, they could put it on any kind of a program they wanted to, such as beer or whisky, cigarettes, which would cause irreparable damage to the name” (Roy Rogers’s Testimony 1951, 46, 48–49, 144, 155). As Avi Santo notes in his work on the brand licensing of the Lone Ranger, “concerns over commercial exploitation are especially acute when children are imagined as the primary audiences for cultural commodities” (2015, 83). Wayne Tiss testified that research his firm had conducted indicated that audiences associated the advertised product with the stars and, by extension, construed the star’s approval of the product (Wayne Tiss’s Testimony 1951, 510, 522). Tiss further argued that sponsors were interested in the value of the name, reputation, and sincerity of an actor. Any commercial advertising programs based on a show starring Rogers would want to trade on the name and goodwill Rogers had built up with his audiences over many years (Wayne Tiss’s Affidavit 1951, 1427–28). Rogers argued that he had worked hard to maintain a good reputation and did not want to dilute the value he had accrued by allowing his films to appear on television without his control over the sponsorship. He continued,

If they weren’t controlled and were run an awful lot of times, it would make your name just like a new song that comes out, it is sung so much that people get sick of hearing it . . . . They have just about ruined Mr. Cassidy through the same idea. (Roy Rogers’s Testimony 1951, 142–43)

Republic, however, contended that Rogers was not concerned about the effect of televising his films on his reputation or his other endorsement deals but rather that such programming might prevent him from acquiring work appearing in live or half-hour filmed programs. Indeed, Republic asserted that his primary interest was in suppressing the competition of his own films (Reporter’s Transcript of Proceedings, Civil Case No. 13220-PH 1951, 13), a contention that referred in part to Rogers’s contract negotiations with NBC and General Foods concurrent with the trial (Roy Rogers’s Testimony 1951, 324). Rogers’s radio program, sponsored by General Foods’s Crinkles Breakfast Cereal, actually began broadcasting nationwide on October 5, 1951, on NBC (Arthur William Rush’s Testimony 1951, 1823). Rogers had begun production on his first television films even earlier, in July 1951 (William Arthur Rush’s Testimony 1951, 881). His production company, Frontiers, Incorporated, made westerns that ran in half-hour time slots. By the end of 1951, Rogers had made four television series, but they were yet to appear on television (Roy Rogers’s Testimony 1951, 296, 320). So he did, in fact, have an extensive business in television that could have been affected by the broadcast of his older films.

The judge presented his decision on October 18, 1951 (Judge Peirson M. Hall’s Memorandum Opinion 1951, 2580). He determined that the main question in the case was, “Is there a limit on the method by which Rogers’s pictures can be exhibited or transmitted?” (Reporter’s Transcript of Proceedings, Civil Case No. 13220-PH 1951, 24). As Hall explained,

Each one of the counsel claimed the contracts were clear and unambiguous, but as proof of the fact that they are ambiguous is that they each spell out exactly a contrary meaning from what appears to each counsel to be very clear terms.

The judge concluded that Republic had the right to televise its films—but it did not have the right to televise them under commercial sponsorship or to use them for advertising, commercial, or publicity purposes for anything other than advertising the films themselves. But the judge complicated his own findings by asserting that sustaining programs were actually commercial in nature. He explained,

Any use by a sponsor of Roy Rogers’ name, voice, or likeness in connection with any product, whether that is used as an attention getter or as a direct or indirect endorsement or otherwise, is a commercial use, as the whole purpose is to sell something, whether a tangible article such as a shoe or a boot, or an intangible article, such as a service which is given by radio or television. And hence I must come to the conclusion that the use of the pictures on radio or television on a sustaining program is a commercial use.

The judge actually based his opinion of the commercial nature of sustaining programs on language contained in Republic’s contract with the AFM, asserting that “Republic itself has recognized, by its voluntary execution of that contract, that the use of these films or any films on the sustaining program by the television station itself or by a radio program itself is a commercial use” (Reporter’s Transcript of Proceedings, Roy Rogers v. Republic Production, Inc. and Hollywood Television Service 1951, 2, 8, 9). Through his determination that both commercial and sustaining programs were commercial in nature, the judge legally defined television as advertising. Gaines’s thesis that “judicial opinions pinpoint cultural trouble spots” (1991, 14) surely resonates here; specifically, Judge Hall’s ruling isolated the trouble posed by the collision of two industries that produced and exhibited similar content, but whose economic structures were significantly different, and in this case, at odds with each other.

Republic filed an appeal in February 1952 (Harry L. Gershon 1952); however, since the decision in favor of Rogers meant that the court’s injunction against Republic’s selling or licensing its films to television was upheld, Republic was unable to offer Rogers’s films to the new medium until the appeals court made its decision (Judgment for Defendants 1952). As Republic moved forward with licensing the rest of its catalog to television, Autry was working to make sure that his films were not among them. When the court awarded Rogers the temporary restraining order in June 1951—effectively preventing Republic and Hollywood Television from releasing his work to television—Gene Autry announced that he, too, would take legal action, if necessary, to prevent the showing of his films on TV (New York Times 1951, 25). In July 1951, Autry sent a letter to Republic and Hollywood Television Service demanding that they withdraw their offers to license his films for broadcast, but Republic refused and stated that it intended to exercise its rights with regard to its films (“Answer” 1951, 4). Autry then waited for the outcome of Rogers’s trial. When Rogers won his case, Autry filed his own suit against Republic for unfair competition, declaratory relief, and an injunction to stop Republic from releasing his films to television (“Complaint for Unfair Competition, For Declaratory Relief, and for Injunction” 1951). The trial began in March 1952. In the Rogers trial, the language of the contracts was in dispute; as such, the judge thought it pertinent to investigate the intentions of the different parties during the negotiations that led to those contracts. In Autry’s case, however, the judge was not interested in that kind of evidence, making for a much shorter trial (Reporter’s Transcript of Proceedings, Civil Case No. 13596-BH 1952, 1, 4, 467–68).

Autry worked for Republic under four contracts between 1936 and 1947, during which he made fifty-six films for the company. Republic argued that it held, by virtue of its employment contracts with Autry, exclusive ownership of all proceeds of the services rendered by Autry in the course of his employment and, likewise, had the exclusive right to sell, license, or use the films for any purpose and in any manner whatsoever (“Answer” 1951, 3, 7). Republic maintained that these privileges included the right to exhibit the films on television. Autry’s argument was substantially the same as the one Rogers used in his case. He contended that because television was a commercial medium, the use of his films on television constituted commercial advertising. As Martin Gang, Autry’s lawyer, explained,

Our position is that under no contract does Republic have the right to commercial advertising with reference to Gene Autry in any way, shape or form except to use his name to advertise the picture in which he rendered services for Republic. (Reporter’s Transcript of Proceedings, Civil Case No. 13596-BH 1952, 35)

Autry’s lawyers echoed the judge’s decision in the Rogers case and argued that even sustaining programs were commercial in nature because they advertised the station, which had a service and time to sell (Gene Autry’s Testimony 1952, 35). Autry, like Rogers, argued that

It was my understanding that I was to make those pictures to be shown in theatres where an admission is charged. If they wanted to use my picture to put in a newspaper to advertise the theatre, or the theatre where the picture was showing, they had that right. They never had the right, as far as I was concerned, to ever use my name for any other means of advertising. (Reporter’s Transcript of Proceedings, Civil Case No. 13596-BH 1952, 464).

As in the Rogers case, Autry was concerned about the use of his films on television without any limitation as to who the advertisers might be. If that occurred, Autry saw two potential problems. First, the public might believe that Autry implicitly endorsed those products (Gene Autry’s Testimony 1952, 71). Second, those advertisements might conflict with his existing endorsement deals, which had, by the time of the trial, earned Autry a million and a half dollars. Further complicating the matter, and as was the case with Rogers, Gene Autry played a character named Gene Autry in his films. Like Rogers, Autry had worked to cultivate a wholesome image, and he was especially concerned about advertisements for products like alcohol and cigarettes appearing alongside his films on television (Reporter’s Transcript of Proceedings, Civil Case No. 13596-BH 1952, 41, 83). Republic countered that the license agreement through which the films would be exhibited on television expressly prohibited any advertisements that could be understood as the actors’ endorsement of the product or sponsor. As a further concern, Autry believed that reediting his films for television broadcast would further damage his image. Just as they had with Rogers’s films, Republic wanted to edit Autry’s films to 53½ minutes each in length, thus allowing approximately seven minutes of advertising in an hour-long television program (Autry v. Republic Productions, Inc. et al. 1954). Autry’s lawyer explained one of the many objections they had to the reediting of Autry’s films for television:

It would be unfair to the public to show vintage pictures cut up in any fashion that Republic decided to cut them up, showing clothes that were out of style, showing old automobiles, showing Mr. Autry wearing heavy make-up, all of which would be to the great disadvantage of Mr. Autry in his present efforts. That these pictures would be sold indiscriminately to advertisers and would do great injury to the audience that Mr. Autry has built up, and to his reputation and esteem with that audience. (Reporter’s Transcript of Proceedings, Civil Case No. 13596-BH 1952, 339–40)

Republic’s lawyers then asked whether Autry also objected to releasing his older films in theaters. Gang responded, saying,

Yes, but the economies protect him there, because they have to put on them, “A re-release,” as will be seen when you see one of these pictures. The audience knows that, and the theatre owners pay very little money for the old pictures. (Reporter’s Transcript of Proceedings, Civil Case No. 13596-BH 1952, 217)

It was also the case that if Autry’s older features were rereleased theatrically, they would play in subsequent-run theaters, whose physical distinction from first-run theaters helped clarify for audiences the difference between newer and older films. As Gang pointed out, films that ran on television at that time did not necessarily indicate their year of production. For an actor like Autry who was at that time trying to rebrand himself as a “modern” western star, the television broadcast of his older, more traditional, westerns could derail his rebranding efforts. As in the Rogers trial, the parties disagreed as to the nature of advertising in television versus advertising in a motion picture theater. According to Roswell Metzger, vice president of radio and television for the Ruthrauff & Ryan advertising agency in Chicago, advertising in theaters and advertising on television had different associations for audiences. Films attract audiences to theaters, so the films build up an audience for the advertising in theaters. Furthermore, he maintained that audiences in theaters did not associate advertising in theaters with the films being shown; rather they connected them with the theaters and understood that they provided an additional source of revenue for the theaters. Autry’s lawyers agreed and argued that the advertiser on radio and television wanted to associate as closely as possible the star of the program with the product or service being advertised, which was not true with advertisements shown in motion picture theaters (Reporter’s Transcript of Proceedings, Civil Case No. 13596-BH 1952, 221–22, 341).

Like Rogers, Autry was extremely concerned about the release of his films to television damaging his income from producing films for television. By the time of the trial, Autry was very involved in television and even owned a couple of television stations. As early as April 1948, he owned 50 percent of KOWL in Santa Monica, California; and 2/5 of the shares of KAPO, Tucson; and the FCC had approved his application to buy station KOOL in Phoenix, Arizona (Daily Variety 1948a, 3). He had a radio show on CBS that was sponsored by Wrigley, maker of chewing gum, and he was working on a deal with CBS and Wrigley for a television show that would tie in with his existing radio show (Daily Variety 1948b). By June 1951, when Hollywood Television Service first offered to license Autry’s films to television, Autry had already established a production company, Flying A Pictures, to make content for television. As Judge Ben Harrison noted in his opinion on the case, “Thus Republic, by offering the pictures produced under the various contracts, entered the plaintiff’s old pictures in competition with his present productions much to the displeasure of the plaintiff” (Opinion 1952, 6). Although today audiences can access older films in a variety of different ways, those films are not necessarily considered direct competition for new films or television shows, but in this earlier period they were viewed as competitive particularly in terms of the potential dilution of a star’s value for audiences and advertisers. Rogers and Autry wanted to avoid that devaluation.

The decision in Autry’s case was filed in May 1952 and, unlike the decision in the Rogers case, Judge Harrison ruled in favor of Republic and characterized Autry’s claim as “untenable” and “unfair” in seeking to prevent Republic “from enjoying the full share of the profits to be derived from said photoplays” (Pryor 1952, 39). The judge’s opinion concluded,

Finally to boil this case down to substance, the plaintiff is seeking to prevent Republic from televising the photoplays in which plaintiff starred, his complaint being that sponsored televising of a photoplay is “commercial advertising” . . . . It is my view that television of motion pictures is a form of entertainment and not “commercial advertising.”

The judge continued that since the broadcast of films on television was a form of entertainment and not advertising, the use of the films on television did not constitute unfair competition; thus, Republic was free to use them on television. He concluded, “If plaintiff is worthy of his hire, certainly Republic is entitled to the full use of the fruits of his labor” (Opinion 1952, 12). Like Republic had when it lost the Rogers case, Autry filed for an appeal, in August 1952 (“Appellant’s Opening Brief” 1953, 3).

As both of the trials made their way through the courts, the motion picture and television industries watched with “keen interest,” as the outcomes would determine the future of feature films on television (Pryor 1951c, 7). Because neither the film studios nor the television stations and networks wanted a precedent set that afforded actors such power over the rights to their films, these cases present a rare instance in which the film studios worked in unison with the television stations and networks, and a number of television industry personnel testified on Republic’s behalf (Harry L. Gershon 1951). Although Autry’s and Rogers’s lawsuits and the judges’ decisions were different, the two cases posed similar questions about personal and corporate rights relative to the licensing and sale of films as advertiser-sponsored television programs and, for that reason, they held industry-wide importance (Pryor 1954, X5). John Dales, Jr., executive secretary of the Screen Actors Guild, contended that the outcome of the Rogers case held great significance for all motion picture stars (Pryor 1951a, 24). Rogers’s lawsuit alarmed many in the film industry who feared that other actors would follow in his footsteps and attempt to prevent the sale of their old films to television, and some television sponsors became skittish about licensing old films because of possible legal entanglements (Pryor 1951b, 21).

As the film and television industries waited with bated breath, Republic’s appeal of the lower court’s decision in the Rogers case finally went to court in 1954. In June, the court of appeals overturned the lower court’s decision and found that, on the basis of Rogers’s contracts, restrictions regarding advertising were restrictions upon the use of his name, voice and likeness, not upon Republic’s use of Rogers’s acting or the motion pictures themselves. Judge Homer Bone explained that Rogers was paid for his services in creating the films and thus had specifically relinquished all rights to the films (Opinion of Judge Bone 1954). Rogers appealed that decision all the way to the Supreme Court, which, in November 1954, sent the case back to the district court to enter judgment for Republic (Supreme Court Decision 1954, 1). At the district court’s rehearing in December 1954, Republic’s lawyer complained that the studio had suffered a significant loss of income from the injunction against exhibiting Rogers’s films on television over the previous three years—during which time Rogers had enjoyed “unfettered competition” on television (Statements of Harry L. Gershon 1954, 13–14). Nonetheless, in those years, Republic had made a significant amount of money licensing its other films to television. In 1952, the first full year after they offered their films to television, and 1953, they made approximately $2.5 million (Further Answers of Defendants Republic Pictures Corporation 1953). Had they licensed the Rogers and Autry films as well, they might have exponentially increased those sums. But Rogers appealed the decision once again and asked the court to modify or clarify its mandate and protect his motion picture and non-motion picture (i.e., the name, voice, and likeness) rights. It was not until August 1955 that Rogers had exhausted his appeals, and the matter was finally put to rest (Republic Pictures Corporation et al. 1955, 2–3).

In June 1954, just when the appeals court overturned the lower court’s decision in the Rogers case, the appeals court upheld the previous decision in Autry’s case in favor of Republic. In the lower court’s decision, Judge Harrison had ruled that the contracts placed no restrictions upon Republic in the use of the films, and the films’ use on television did not constitute unfair competition (Opinion 1952, 12). Judge Harrison had also granted Republic the right to “cut, edit and otherwise revise and to license others (to do otherwise) . . . in any manner, to any length and for any purpose” (Pryor 1954, X5). The court of appeals upheld the previous court’s ruling with some modifications (Autry v. Republic Productions, Inc. et al. 1954): it affirmed the district court’s decision that Republic be allowed to cut Autry’s motion pictures and show them on commercial television, but it disapproved of the parts of the decision in which—it believed—the district court had gone beyond the issues presented to it. Judge Bone explained that although Republic had the right to edit the films and license others to do the same, it was possible that

Such cutting and editing could result in emasculating the motion pictures so that they would no longer contain substantially the same motion and dynamic and dramatic qualities which it was the purpose of the artist’s employment to produce. And although appellees unquestionably have the right to exhibit the motion pictures in connection with or for the purpose or advertising commercial products of all sorts, we can conceive that some such exhibitions could be so “doctored” as to make it appear that the artist actually endorses the products of the programs’ sponsors. (Opinion of Judge Bone 1954)

Judge Bone’s concern about the “emasculation” of the film suggests a “view of intellectual property as an extension of one’s own body,” derived from Enlightenment philosopher John Locke’s conception of the right of personal property as a protraction of our own control over our bodies. This link between intellectual property rights to film and moral rights—which, in this case related to Autry’s claim that excessive editing and the incorporation of advertisements violated the integrity of his work—“established the judicial formula that would eventually lead to the expansion of moral rights for filmmakers” (Decherney 2012, 121–22). So, the Appeals Court prevented Republic from editing the pictures to less than fifty-three minutes of running time, from presenting them as other than feature films, and from permitting their exhibition in connection with advertising in a manner that would suggest that Autry endorsed the product of the sponsors of the program. Autry considered those modifications a “substantial victory.” The ruling clearly established the right of studios having clear title to films to present them on TV in connection with advertising, but, at the same time, the court recognized that actors were entitled to protection against unrestricted exploitation for advertising purposes. These rulings in favor of Republic cleared the way for them to release Rogers’s and Autry’s films for television exhibition. Republic immediately began negotiations to televise them in the fall of that year (Pryor 1954, X5).

The combined rulings in these two cases were momentous not only because they forced Republic to delay the release of many of its higher-quality feature films to television for almost four years, but also because the other major Hollywood studios held off releasing their films to television until the matter was resolved for fear that their actors might file similar suits. The cases were also decisive as they posed basic questions about personal and corporate rights and privileges relative to the sale or lease of movies as advertiser-sponsored entertainment. The prolonged uncertainty about who owned the rights to content in a new medium—even when extant contracts articulated those rights in what the studios believed to be the clearest possible terms—became one of the central issues to define the early relationship between the film and television industries and largely determined the content of American television programming before 1960 (Porst 2020).

This legal history parses out this complex and precedent-setting period in media history, painting a clearer picture of the obstacles that prevented Hollywood’s feature films from appearing on television. It also complicates long-held beliefs about this period—such as the notion that stars simply preferred work in film because it was more prestigious. As Rogers’s and Autry’s experiences demonstrate, more practical interests often compelled stars to participate in one medium over another. As Gaines (1991) argues, study of these legal debates about copyright and the ownership of media texts “tells us things about the ideological construction of the star image that we could not have known even after years of close textual analysis” (239). Such scholarship also reveals the intricate workings of the film and television industries, and, as we saw again in the conflict over the rights to “Stephen Colbert,” demonstrate the ways in which the law directly impacts, and largely determines, how and what appears on our screens. In the early years of television, the precise and operational meaning of core concepts like advertising and even of television itself were still being determined. The courts ultimately established those definitions, thereby circumscribing the ways in which the industries would relate to each other for decades. As digital technologies and streaming media continue to grow, laws and regulation will have to evolve and adapt to their specific characteristics. Now that Disney has created a convincing posthumous digital recreation of Carrie Fisher as Princess Leia for the Star Wars series and Celebes the crested macaque—star of the monkey selfie copyright dispute—is taking photos, the next legal battlefront may have to deal not only with stars’ rights to their images in different media, but also with the possibly even more complex question of the rights of the deceased and nonhumans to their image and work.