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