Dr. Buzz Aldrin et al v. Topps Company, Inc. et al
Filing
41
ORDER by Judge Dean D. Pregerson: Defendants Special Motion to Strike is GRANTED 14 . Plaintiffs Motion for a Preliminary Injunction is DENIED as moot 18 . In addition, the Scheduling Conference set for December 1, 2011 is vacated.(Made JS-6. Case Terminated.) (lc)
<![CDATA[
1
2
O
3
4
5
6
7
8
UNITED STATES DISTRICT COURT
9
CENTRAL DISTRICT OF CALIFORNIA
10
11
12
DR. BUZZ ALDRIN and
STARBUZZ, LLC, a California
limited liability company,
13
Plaintiffs,
14
15
v.
TOPPS COMPANY, INC., a
Delaware corporation,
16
Defendant.
17
___________________________
)
)
)
)
)
)
)
)
)
)
)
)
)
)
Case No. CV 10-09939 DDP (FMOx)
ORDER GRANTING SPECIAL MOTION TO
STRIKE COMPLAINT
[Motion filed on 3/4/11]
18
19
Presently before the court is Defendant Topps Company, Inc.
20
(“Topps”)’s Special Motion to Strike Plaintiffs’ Complaint.
21
Having reviewed the parties’ moving papers and heard oral
22
argument, the court grants the motion and adopts the following
23
order.
24
I.
25
Background
In 2009, Topps released a trading card set entitled “Topps
26
American Heritage: American Heroes Edition” (the “set of cards”).
27
The set of cards includes hundreds of images of well-known
28
American politicians, actors, athletes, scientists, organizations,
1
artifacts, and events.
2
face of the cards, historical information related to the image
3
displayed on the front of the cards.
4
The cards also display, on the reverse
The set of cards features several themes, including “Heroes
5
of Sport,” “Medal of Honor,” and “Heroes of Spaceflight.”
6
“Heroes of Spaceflight” theme includes several types of cards.
7
Twenty-eight of thee cards depict various National Aeronautics and
8
Space Administration (“NASA”) missions.
9
of NASA vehicles and mission patches.
The
These cards depict images
Many of the mission patches
10
include the surnames of the respective mission’s crew members.
11
The reverse faces of the cards describe the various NASA missions.
12
The Gemini XII card, for example, lists the Gemini XII mission
13
dates, crew, and launch site.
14
historical description:
15
16
17
18
The card also gives the following
Astronauts had operated outside the spacecraft before,
but astronaut Buzz Aldrin’s smooth, multi-tasking 140minute space walk outside of Gemini XII was what
finally confirmed NASA’s highes hopes for extravehicular astronaut activity. Gemini XII’s flawless,
computer-guided re-entry marked the end of Project
Gemini; America was ready to shoot for the moon.
19
Other themed cards depict NASA mission fabric patches, various
20
spacecraft, and rare “Heroes of Spaceflight Relics” and “Heroes of
21
Spaceflight Cut Signatures,” which contain original astronaut
22
signatures cut from other documents.
23
The set of cards is packaged in cardboard boxes bearing three
24
images: an image of Abraham Lincoln (captioned “Abraham Lincoln”),
25
an image of Mickey Mantle (captioned “Mickey Mantle,” and an image
26
of “arguably the world’s most famous space-related photo”, the
27
“Visor Shot” (captioned “Moon Landing Apollo 11”).
28
Shot” is an image of an astronaut in a white space suit.
2
The “Visor
The
1
astronaut’s helmet visor obscures the astronaut’s face, and
2
reflects an image of another astronaut alongside a lunar landing
3
module.
4
bears the name “E.Aldrin.”
5
NASA’s “Visor Shot” photograph of Buzz Aldrin, taken by Neil
6
Armstrong during the Apollo 11 moon landing.
7
Close inspection of the image reveals that the spacesuit
The parties agree that the image is
On December 27, 2010, Plaintiffs (hereinafter “Aldrin”)
8
filed suit in this court alleging violations of their common law
9
and statutory rights to publicity, unfair business practices under
10
California Business and Professions Code § 7200, and unjust
11
enrichment.
12
image, and likeness with respect to the “Visor Shot” image on the
13
cardboard box, the Gemini XII card (described above), and the Buzz
14
Aldrin “cut signature” card (collectively, “the images”).
15
now specially moves to strike Aldrin’s complaint under California
16
Code of Civil Procedure § 425.16.
17
II.
18
The complaint alleges improper uses of Aldrin’s name,
Topps
Legal Standard
Under California’s anti-SLAPP (Strategic Lawsuits Against
19
Public Participation) statute, “[a] cause of action against a
20
person arising from any act of that person in furtherance of the
21
person’s right of petition or free speech . . . in connection with
22
a public issue shall be subject to a special motion to strike
23
unless the court determines that the plaintiff has established
24
that there is a probability that the plaintiff will prevail on the
25
claim.”
26
special motion to strike, courts must first determine “whether the
27
defendant has made a threshold showing that the challenged cause
28
of action is one arising from protected activity.”
Cal. Cod. Civ. Pro. § 426.16(b)(1).
3
In examining a
Navellier v.
1
Sletten, 29 Cal.4th 82, 88 (2002).
2
the plaintiff’s evidence, determine whether plaintiff has
3
demonstrated a probability of success.
4
of action does arise from protected activity, and the plaintiff
5
cannot show that a complaint is 1) legally sufficient and 2)
6
supported by a prima facie showing of facts, the cause of action
7
is properly stricken under the anti-SLAPP statute.
8
III.
9
The court must then, crediting
Id. at 89.
If the cause
Id.
Discussion
Topps bears the burden of making a threshold showing that
10
its use of the images arise from protected activity.
11
Topps argues that its use of the images is an exercise of its
12
right to free speech on an issue of public interest.
13
10).
14
commercial speech.
15
is protected.
16
Id. at 88.
(Mot. at
Aldrin contends that Topps use of the images is unprotected
The court agrees with Topps that its activity
The incorporation of a prominent person’s name or likeness in
17
a commercial product can constitute protected expression.
18
Gugliemi v. Spelling-Goldberg Prods., 25 Cal. #d 860, 875 n.21
19
(1979).
20
protection because it is undertaken for profit.”
21
Prods., Inc. v. Gary Saderup, Inc., 25 Cal.4th 387, 396 (2001)
22
(alterations and quotation marks omitted).
23
has noted, “the core notion of commercial speech is that it does
24
no more than propose a commercial transaction,” and simply
25
advertises something for business purposes.
26
Cards, 599 F.3d 894, 905 n.7 (9th Cir. 2010) (quotations omitted).
27
The mere fact that a product is sold for a profit does not render
28
the product commercial speech.
“An expressive activity does not lose its constitutional
Id.
4
Comedy III
As the Ninth Circuit
Hilton v. Hallmark
1
Aldrin points to several examples of commercial speech.
In
2
Yeager v. Cingular Wireless LLC, for example, the defendant
3
advertised that “Nearly 60 years ago, the legendary test pilot
4
Chuck Yeager broke the sound barrier and achieved Mach 1.
5
Cingular is breaking another kind of barrier with our MACH 1 and
6
MACH 2 mobile command centers.”
7
673 F.Supp.2d. 1089, 1095 (E.D. Cal. 2009).
8
the statement constituted commercial speech because it had no
9
informative purpose other than to create positive associations
Today,
Yeager v. Cingular Wireles LLC,
The court found that
10
with a brand and used Chuck Yeager’s identity to promote an
11
unrelated product.
12
General Motors Corp., the Ninth Circuit found that a defendant
13
engaged in unprotected commercial speech where it used a
14
basketball star’s name and accomplishments, without permission, to
15
promote a car.
16
407, 413, 416 (9th Cir. 1996).
17
Id. at 1098-99.
Similarly, in Abdul Jabbar v.
Abdul Jabbar v. General Motors Corp., 85 F.3d
Contrary to Aldrin’s assertions, Topps’ use of the images is
18
not analogous to the commercial speech in Yeager and Abdul Jabbar.
19
In those cases, the names of the individuals were linked to
20
products that bore no relationship to those individuals or their
21
activities, and conveyed no message other than information about
22
the unrelated products.
23
name in the course of conveying information about his historically
24
significant achievements.
25
commercial transaction, and are not advertisements for any
26
product, let alone an unrelated product.
27
the speech is the product, and is protected.
28
905 n.7 (noting that a greeting card bearing a celebrity’s
Here, in contrast, the cards use Aldrin’s
Furthermore, the cards propose no
5
Rather, as in Hilton,
See Hilton, 599 F.3d
1
likeness was a product rather than an advertisement, and was
2
protected).
3
cards’ cardboard packaging constitutes an advertisement, it is a
4
“mere adjunct” to the cards themselves, and is also protected.
5
See Guglielmi, 25 Cal.3d at 862-3 (“It would be illogical to allow
6
respondents to [engage in protected activity] but effectively
7
preclude any advance discussion or promotion of their lawful
8
enterprise.”); See also William O’Neil & Co., Inc. v. Validea.com
9
Inc., 202 F.Supp.2d 1113, 1119 (C.D. Cal. 2002) (holding book
10
To the extent that the “Visor Shot” image on the
cover to be “mere adjunct” of protected book and listing cases).1
11
Because Topps has met its burden to demonstrate that Aldrin’s
12
claim arises out of protected speech related to a public issue,
13
the burden now shifts to Aldrin to show a likelihood of success.
14
Navellier, 29 Cal.4th at 89.
15
arguments regarding the legal sufficiency of his claim are
16
premised on the contention that Topps’s use of the images
17
constitutes unprotected commercial speech.
18
discussed above, the images are not commercial speech, and have
19
been utilized in furtherance of Topps’ First Amendment rights.
20
Accordingly, Aldrin has not shown that his complaint has merit.
Aldrin has not met this burden.
(Mot. at 19).
His
As
21
22
23
///
24
///
25
///
26
1
27
28
Aldrin appears to contest the “public issue” element of the
anti-SLAPP statute only with respect to the “Visor Shot.” (Mot. at
15:25-6.) As discussed above, however, the “Visor Shot” is a mere
adjunct to the protected cards themselves.
6
1
2
IV.
Conclusion
For the reasons stated above, Defendant’s Special Motion to
3
Strike is GRANTED.
Plaintiff’s Motion for a Preliminary
4
Injunction is DENIED as moot.
5
Conference set for December 1, 2011 is vacated.
In addition, the Scheduling
6
7
IS SO ORDERED.
8
9
10
Dated: September 27, 2011
DEAN D. PREGERSON
United States District Judge
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
7
]]>
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?
