Monday, February 01, 2010

Magazine Shielded from Suit for Placing Musicians’ Names Near Tobacco Ads

This posting was written by William Zale, Editor of CCH Advertising Law Guide.

Rolling Stone magazine’s feature article “Indie Rock Universe”—presented in a gatefold format enclosed in full-page cigarette advertising—was fully protected noncommercial speech, a California appellate court has ruled.

The musicians complained that their names were used without authorization to advertise Camel cigarettes through placement in close proximity to R.J. Reynold’s expressions of corporate sponsorship for independent music.

The musicians asserted statutory and common law right of publicity claims, as well statutory unfair competition claims, under California law.

The publishers’ motion to strike the complaint under the California anti-SLAPP statute was granted. The statute applies to “strategic lawsuits against public participation” presenting claims based on acts in furtherance of a person’s rights of free speech or petition. The musicians failed to demonstrate a probability of prevailing, according to the court.

Noncommercial Speech

In considering whether the article was commercial or noncommercial speech, the court relied on the analytical framework developed in the 2002 decision of Kasky v. Nike, Inc. (CCH Advetising Law Guide ¶60,496).

In that case, the California Supreme Court held that Nike’s allegedly false statements in a public relations campaign constituted commercial speech and could give rise to California false advertising and unfair competition claims brought by a private citizen on behalf of the public.

Unlike Nike, the “speakers” in the present case—the publishers of Rolling Stone—did not have a direct business interest in Camel cigarettes—the goods that were the subject of the speech at issue, the court found. The musicians failed to cite a case, and the court’s research disclosed none, in which a magazine’s editorial content had been held to be transformed into commercial speech merely because of its proximity to advertisements touching on the same subject matter.

Actual Malice

To prevail, the musicians were required to provide clear and convincing evidence that the publishers acted with actual malice.

At best, the court said, the evidence raised a triable issue of negligence in publishing the gatefold. It was undisputed that the magazine’s editorial staff played no part in designing the Camel ad and that R.J. Reynold‘s staff had no role in designing the feature article.

Freedom of the Press

In addition to the freedom of speech, the court agreed with the publishers that the freedom of the press also barred the musicians’ causes of action. The freedom of the press had been extended to the content and placement of advertisements. Of the magazine’s 215 pages, no less than 108 were devoted to full-page advertisements.

The gatefold layout might intensify the readers’ exposure to the ads because the pages ran contiguously and because the format required readers to lift the advertising pages to the left and to the right to access the feature, instead of just mindlessly turning them, the court noted.

However, the court saw no principled legal distinction between a page of editorial content that was preceded and followed by full-page ads, and the gatefold format, in which the ads appeared on the reverse side of the feature’s pages.

The January 28 opinion in Stewart v. Rolling Stone LLC, California Court of Appeal, First Appellate District, Division One, No. A122452, is reported at CCH Advertising Law Guide ¶63,736.

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