Rolling Stone wins anti-SLAPP decision in misappropriation suit

A California appellate court yesterday found that a lawsuit by "indie" rock musicians  against Rolling Stone over a feature article inside fold-out advertising pages should be dismissed under the state anti-SLAPP statute.

A San Francisco appeals court held that the article in question, a visual representation of a variety of bands in the “Indie Rock Universe,” was noncommercial speech protected by the First Amendment.

A group of musicians sued Rolling Stone over the use of their names in an article that was wedged between pages of a Camel cigarette advertisement. The musicians said it implied they sponsored the cigarette brand and was a commercial use that misappropriated their names and likenesses. Misappropriation occurs when a person’s identity is used without their permission for a commercial purpose, such as in an advertisement.

The Rolling Stone article appeared in the November 2007 issue of the magazine.  After the musicians sued, the magazine filed an anti-SLAPP — a Strategic Lawsuit Against Public Participation — motion to dismiss, which was denied because the court ruled that a judge could find that the article about the bands was transformed from editorial into commercial speech by its closeness to the advertisements.

But the appeals court agreed with Rolling Stone that because the main purpose of the magazine is commentary and entertainment journalism, nearby advertising did not constitute using the band’s names to sell the particular product advertised, as is required in a misappropriation case.

"There is … 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," Justice Robert Dondero wrote in the opinion.

The Reporters Committee joined a friend-of-the-court brief filed by media organizations.