Cain

MEMORANDUM *

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 un *716 der the Lanham Act. Those claims are barred by the fair use doctrine. See The New Kids on the Block v. News Am. Publ.,…