(CN) – Rolling Stone did not violate misappropriation laws by wedging a feature about indie rock bands between a Camel cigarette advertisement in a 2007 magazine spread, a California appeals court ruled.
Members of the bands Xiu Xiu and Fucked Up sued on behalf of 100 bands and 186 musicians listed in an indie rock feature in the Nov. 15, 2007 issue of Rolling Stone. They accused the magazine and R.J. Reynolds Tobacco Co. of using their names to hawk a product without permission, claiming the ad’s placement falsely suggested their endorsement of Camel cigarettes.
But the 1st District Court of Appeal in San Francisco said the ad’s location did not constitute misappropriation, because the magazine’s goal is to entertain and comment on the music industry.
“Rolling Stone magazine is primarily a periodical commentating on events of political and cultural interests of the day. Its articles critically assess these interests,” Justice Robert Dondero wrote. “While advertising naturally assists in the financing of the magazine, the publication’s editorial purpose is the presentation of written analysis of the contemporary American scene — non-commercial speech.”
The defendants moved to strike the lawsuit based on the anti-SLAPP (strategic litigation against public participation) statute, which bars lawsuits meant to stifle speech.
The trial court concluded that the feature could be considered commercial speech because it was “inextricably entwined” with Camel advertising.
But the appeals court said the feature did not violate misappropriation laws and was protected, non-commercial speech for purposes of the anti-SLAPP statute. It overturned an order denying the magazine’s motion to strike.
The nine-page “butterfly gatefold” — consisting of the five-page “Indie Rock Universe” feature and the four-page Camel ad — was not a “unified advertising vehicle,” Justice Dondero wrote. The ad and the feature had different graphic designs and backgrounds, the court noted, and none of the band names appeared in the Camel ad.
“[T]he only nexus between the ad and the feature is the mutual references to independent music,” Dondero wrote.
Rolling Stone’s editorial decision to place the feature material within the fold-out section was protected by the First Amendment, the court concluded.