Metropolitan News-Enterprise


Friday, January 29, 2010


Page 3


Court of Appeal Dismisses ‘Indie’ Musicians’ Suit Against Rolling Stone as SLAPP


By a MetNews Staff Writer


The First District Court of Appeal yesterday threw out a lawsuit against the publishers of Rolling Stone magazine by a group of musicians who claimed the magazine had misappropriated their identities to market Camel cigarettes by juxtaposing five pages of commentary on their bands’ contributions to the development of the “indie” rock genre with four full-page advertisements promoting R.J. Reynolds’ corporate sponsorship for independent music.

Div. One ruled that the November 2007 article, which was part of a nine-page pull-out section entitled “Indie Rock Universe,” was protected, non-commercial speech for purposes of the anti-SLAPP statute and reversed Alameda Superior Court Judge Bonnie Sabraw’s order declining to grant a special motion to strike the complaint.

The putative class plaintiffs filed their complaint against Rolling Stone LLC, Wener Media LLC and the R.J. Reynolds Tobacco Company in December 2007, alleging causes of action for the unauthorized use of their names and unfair business practices.

Sabraw denied the defendants’ anti-SLAPP motion, finding that a reasonable trier of fact could conclude the editorial content of the fold-out section had been transformed into commercial speech since it had become “inextricably intertwined” with the surrounding advertisement.

Defendants Faulted

The judge faulted defendants for selling advertising “that would enclose [the editorial content],” permitting R.J. Reynolds “to design the Camel advertisement to integrate with a feature about ‘indie rock,’ ” failing to expressly or implicitly identify the editorial content as the product of Rolling Stone, and failing to ensure the editorial content and advertisement were “sufficiently distinct.” Rolling Stone and Werner Media appealed.

Writing for the appellate court, Justice Robert L. Dondero opined that the article in question was “a creatively crafted, whimsical editorial commentary” made “in connection with a public issue or an issue of public interest” since it concerned “an extremely popular genre of music.”

He also declined to apply Code of Civil Procedure Sec. 425.17(c)’s exemption to the anti-SLAPP law’s protections.

Sec. 425.17 provides that “any cause of action brought against a person primarily engaged in the business of selling or leasing goods or services” is not subject to a special motion to strike if the complained-of statement of conduct “consists of representations of fact about that person’s or a business competitor’s business operations, goods, or services, that is made for the purpose of obtaining approval for, promoting, or securing sales or leases of, or commercial transactions in, the person’s goods or services” and the intended audience is “an actual or potential buyer or customer, or a person likely to repeat the statement to, or otherwise influence, an actual or potential buyer or customer….”

Goods Sold

Dondero emphasized that the goods Rolling Stone and Werner Media sell are copies of the magazine, not cigarettes, and the conduct at issue was their alleged representation that plaintiffs endorse Camel products, not any representations of fact about the magazine or its competitors.

The justice further reasoned that the editorial content of the fold-out section was non-commercial speech as a matter of law. He reasoned that the content of the cigarette advertisement had “nothing to do with Rolling Stone” aside from mutual references to independent music.

Although Rolling Stone sold the advertising space to R.J. Reynolds, Dondero posited that the magazine had no financial interest in the products its advertisers sell and that it serves as “merely the medium through which commercial messages are delivered.”

Dondero said that there was no precedent for ruling that a magazine’s editorial content was transformed into commercial speech based upon its proximity to advertisements touching on the same subject matter or for converting a noncommercial speaker into a commercial speaker in the absence of any direct interest in the product or service being sold.

Taking into consideration the “expressive elements” of the article, “namely, the fanciful depiction of this genre of music as a universe, complete with planets and constellations that define the various styles and artists whose music has contributed to this genre,” Dondero concluded that the editorial content was entitled to full First Amendment protection.

As the First Amendment was applicable, Dondero explained that the plaintiffs had to provide clear and convincing evidence that Rolling Stone and Werner Media had acted with actual malice in using the plaintiffs’ identities.

Based on undisputed evidence that the magazine’s staff had played no part in designing the Camel advertisements and, at most, had only disclosed the topic that would be addressed in the pull-out section to R.J. Reynolds, Dondero reasoned that actual malice had not been shown.

Dondero added that the constitutional right guaranteeing freedom of the press also served as a bar to the plaintiffs’ causes of action since that right encompasses the content and placement of advertisements in a private publication.

Presiding Justice James J. Marchiano and Justice Sandra L. Margulies joined Dondero in his decision.

The case is Stewart v. Rolling Stone LLC, 10 S.O.S. 471.


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