Copyright Law Blog: Exclusive Rights

Cal Court of Appeals finds that First Amendment bars right of publicity claims against Rolling Stone

Shourin Sen - 1 February 2010 – 9:00 am

Stewart v. Rolling Stone LLC, 2010 WL 317016 (Cal. App. 1 Dist. 2009)

The California First Appellate District (Marchiano, Margulies, Dondero writing) issued a First Amendment decision in an interesting right of publicity case on Thursday. The class action plaintiffs were a group of one hundred and eighty-six Indie Rock musicians whose band names were featured in a centerfold spread “Indie Rock Universe” in the November 15, 2007 issue of Rolling Stone.

The spread contained five pages of content and four pages of advertisements for Camel cigarettes. The plaintiffs brought three claims against Rolling Stone and R.J. Reynolds: (1) the unauthorized use of name in violation of California Civil Code section 3344, (2) a common law right of publicity claim for unauthorized use of name for commercial advantage, and (3) a claim for unfair competition claim for violation of California Business and Professions Code sections 17200-17203.

At bar, Rolling Stone appealed from the trial court’s order denying its special motion to strike a class action complaint under California’s Anti-SLAPP provisions. Rolling Stone (R.J. Reynolds wasn’t a party on appeal) argued that there wasn’t a triable issue as to whether the foldout constituted commercial speech, and that the plaintiffs did not present evidence sufficient to establish that they had a probability of prevailing on the merits. The California Court of Appeals agreed and reversed, finding that Rolling Stone was shielded by the First Amendment’s Freedom of Speech and Press protections.

Was the speech commercial? Was clear and convincing evidence of actual malice required?

The trial court found that the foldout was commercial speech on behalf of Rolling Stone because the magazine, through its “layout decision,” published “an allegedly integrated 9-page advertisement” for Camel cigarettes. The trial court found that a trier of fact could conclude that the feature was commercial speech because it was “inextricably intertwined” with the advertisement. The Court of Appeals looked to both the Ninth Circuit’s and California Supreme Court’s tests for commercial speech and found that the speech was non-commercial:

Simply put, there is no legal precedent for converting noncommercial speech into commercial speech merely based on its proximity to the latter. There is also no precedent for converting a noncommercial speaker into a commercial speaker in the absence of any direct interest in the product or service being sold. We thus conclude that the Feature is noncommercial speech.

The Court of Appeals next looked to New York Times Co. v. Sullivan, 376 U.S. 254, 279-280 (1964) for the proposition that a “plaintiff who is either a public official or public figure may not recover damages for defamation absent proof that the defendant published defamatory statements with ‘actual malice,’ that is, either with knowledge of their falsity or with reckless disregard for the truth.” The Court of Appeals found that as non-commercial speech the plaintiff needed to show actual malice for the commercial misappropriation claims brought under the common law and Section 3344. The Court dismissed finding that the plaintiff could not present evidence that would surmount the First Amendment defense.

Freedom of Press

The Court of Appeals further found that the plaintiff’s claims were also barred by the First Amendment Freedom of Press protections:

It is well established that “The choice of material to go into a newspaper, and the decisions made as to limitations on the size and content of the paper, and treatment of public issues and public officials-whether fair or unfair-constitute the exercise of editorial control and judgment. It has yet to be demonstrated how governmental regulation of this crucial process can be exercised consistent with First Amendment guarantees of a free press as they have evolved to this time.” ( Miami Herald Publishing Co., Division of Knight Newspapers, Inc. v. Tornillo (1974) 418 U.S. 241, 258 [41 L.Ed.2d 730, 94 S.Ct. 2831].) “[T]he courts have long held that the right to control the content of a privately published newspaper rests entirely with the newspaper’s publisher. The First Amendment protects the newspaper itself, and grants it a virtually unfettered right to choose what to print and what not to.” ( Eisenberg v. Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1391 [88 Cal.Rptr.2d 802].)