Fending off accusations it misappropriated the names of more than 185 indie rockers to promote cigarettes, Rolling Stone magazine on Thursday appeared to have one appellate justice solidly in its corner.
However, two votes are needed to win and one justice was absent during oral arguments in San Francisco's 1st District Court of Appeal. The third didn't tip his hand.
Rolling Stone was sued last year by a class of indie bands -- led by the San Francisco Bay Area's Xiu Xiu and Toronto's Fucked Up -- who claimed the magazine had traded on their names by using them in a November 2007 graphic/article juxtaposed with a four-page, fold-out advertisement by the R.J. Reynolds Tobacco Co. that touted Camel cigarettes and the manufacturer's collaborations with indie groups.
The accompanying five-page article is composed mostly of hand-drawn, futuristic images describing the various realms of the "Indie Rock Universe." R.J. Reynolds' ad, which is no longer available online, has more of a farm look, according to court papers.
Nonetheless, the bands claim Rolling Stone intentionally used their names to help R.J. Reynolds sell Camels and that the ad implied the bands endorsed the product.
Rolling Stone, which claims the article and ad were generated separately, tried to have the case dismissed as a SLAPP suit, or strategic lawsuit against public participation. But the magazine was rebuffed by former Alameda County Superior Court Judge Bonnie Sabraw.
At issue in Rolling Stone LLC v. Stewart, A122452, is whether Rolling Stone's article was noncommercial speech protected by the First Amendment or whether the four-page ad that accompanied it converted the story into commercial speech aimed at selling a product.
The case has the publishing industry's attention, with seven media organizations -- including the California Newspapers Publishers Association -- filing an amicus curiae brief backing Rolling Stone.
"Imposing liability on publishers based on advertising in their publications ... would chill the innovative advertising techniques that generate revenues essential to subsidize publications that cannot survive on subscriptions alone," Jeremy Rosen, a partner with Encino, Calif.'s Horvitz & Levy, wrote for the groups, "and also intensify the severe economic challenges currently facing the publishing industry."
First District Justice Robert Dondero gave Rolling Stone some hope on Thursday with questions that seemed skeptical of the bands' argument that the ad and story were "integrated" into a single piece.
Addressing Christopher Hunt, a partner with San Francisco's Bartko, Zankel, Tarrant & Miller who argued the bands' case, Dondero noted that the Rolling Stone article was listed in the magazine's table of contents.
"It was a clear reference to this article," he said, "as being an editorial article, isn't that right?"
Dondero followed up moments later by asking if Hunt was aware of any case law that said an editorial piece was converted into commercial speech just because of its proximity to an ad targeting a specific audience.
"No, none," Hunt admitted, before referring to Kasky v. Nike Inc., 27 Cal.4th 939, the California Supreme Court's 2002 ruling that said speech is commercial if it's "likely to influence consumers in their commercial decisions."
Dondero wasn't convinced.
"In Kasky, Nike was trying to sell shoes," he responded. "In this case, Rolling Stone was not trying to sell cigarettes."
Rather, he added, the magazine was attempting to sell an article on indie music and to sell advertisements.
Elizabeth McNamara, a partner in Davis Wright Tremaine's New York office who represented Rolling Stone, told the justices that the lower court's ruling was "unprecedented."
"The law on commercial speech," she argued, "has never been stretched so far."
Justice James Marchiano wondered, though, whether readers might have gotten the perception that the ad and story were integrated into one entity.
If Rolling Stone had intended "one integrated, nine-page salvo," McNamara argued, it would have sold all nine pages as an ad, not just four of them.
The indie bands, she added, must prove that Rolling Stone intended for the ad and the article to run as a single entity. But, she added, they can't.
"Here, we have two speakers with two entirely different commercial goals," she argued.
Court officials said that Justice Sandra Margulies, who was supposed to attend Thursday's arguments, had to cancel because she was speaking at the funeral of close friend and Alameda County Superior Court Judge Barbara Miller, who died last week.
Margulies will listen to oral arguments by tape.
