Vincent Cusano v. Gene Klein

FILED
NOT FOR PUBLICATION JUN 14 2012

MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

VINCENT CUSANO, individually, DBA No. 09-56854
Streetbeat Music, AKA Vinnie Vincent,
DBA Vinnie Vincent Music, D.C. No. 2:09-cv-06858-AHM-E

Plaintiff - Appellee,
MEMORANDUM *
v.

GENE KLEIN, an individual; PAUL
STANLEY, an individual, born Stanley
Eisen; THE KISS COMPANY, a New
York Corporation; GENE SIMMONS
WORLDWIDE, INC., a Delaware
corporation; SIMSTAN MUSIC, LTD.,

Defendants - Appellants.

Appeal from the United States District Court
for the Central District of California
A. Howard Matz, District Judge, Presiding

Argued and Submitted May 8, 2012
Pasadena, California

Before: D.W. NELSON, FISHER and CHRISTEN, Circuit Judges.

*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
 Defendants-Appellants Gene Klein, KISS Co. and others (collectively,

“Klein”) appeal the district court’s denial of their motion to dismiss Plaintiff-

Appellee Vincent Cusano’s complaint under California Code of Civil Procedure §

425.16, the so-called anti-SLAPP statute.1 We have jurisdiction under 28 U.S.C. §

1291, and we reverse.2

1. Klein met his threshold burden of showing that Cusano’s right of

publicity claim arises out of “conduct in furtherance of the exercise of the

constitutional right of . . . free speech in connection with a public issue or an issue

of public interest.” Cal. Civ. Proc. Code § 425.16(e)(4); see Equilon Enterprises,

LLC v. Consumer Cause, Inc., 52 P.3d 685, 694 (Cal. 2002). Dissemination of the

television program and DVD set constitutes conduct in furtherance of free speech.

See Schad v. Borough of Mount Ephraim, 452 U.S. 61, 65 (1981) (“Entertainment,

as well as political and ideological speech, is protected; motion pictures, programs

broadcast by radio and television, and live entertainment, such as musical and

1
SLAPP is an acronym for “strategic lawsuit against public participation.”
Equilon Enterprises, LLC v. Consumer Cause, Inc., 52 P.3d 685, 687 (Cal. 2002).
2
The district court did not deny Klein’s motion pursuant to California Civil
Procedure Code § 425.17, so Cusano’s contention that the order is not appealable
per subparagraph (e) of that section is inapposite. See Cal. Civ. Proc. Code §
425.17(e) (providing that an order denying an anti-SLAPP motion to strike under
this section in not immediately appealable).

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dramatic works fall within the First Amendment guarantee.”); Cinevision Corp. v.

City of Burbank, 745 F.2d 560, 567-68 (9th Cir. 1984) (recognizing that making

expressive materials available to the public “further[s] a first amendment interest”).

The challenged activities were in connection with a public issue because they

related to KISS and its members, individuals or entities who are in the public eye

or are of widespread, public interest. See No Doubt v. Activision Publishing, Inc.,

192 Cal. App. 4th 1018, 1027 (Cal. App. 2011) (holding that use of band members’

likenesses in a video game was a matter of public interest because of the

widespread fame the band had achieved); Nygard, Inc. v. Uusi-Kerttula, 159 Cal.

App. 4th 1027, 1042 (Cal. App. 2008) (holding that “an issue of public interest” is

“any issue in which the public is interested” and concluding that an article about a

“prominent businessman and celebrity” met the standard (emphasis omitted)).

3. Cusano has not met his burden of showing a probability of prevailing on

his state law right of publicity claim, see Equilon Enterprises, 52 P.3d at 694,

because that claim is preempted by federal copyright law, see 17 U.S.C. § 301(a).

The still and video footage of Cusano’s performances and public appearances as a

member of KISS are “original works of authorship fixed in [a] tangible medium of

expression” within the subject matter of copyright. 17 U.S.C. § 102(a); see also

Laws v. Sony Music Entertainment, Inc., 448 F.3d 1134, 1137-38 (9th Cir. 2006)

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(setting forth two-part test for copyright preemption). In addition, the right Cusano

seeks to vindicate under state law – to control the reproduction and dissemination

of copyrightable work – is “equivalent to . . . rights contained in 17 U.S.C. § 106,

which articulates the exclusive rights of copyright holders.” Laws, 448 F.3d at

1138. In short, “the underlying nature of [Cusano’s] state law claim[] is part and

parcel of a copyright claim.” Id. at 1144. It is therefore preempted by the

Copyright Act.

For the reasons stated, we reverse the district court’s order and remand for

dismissal of Cusano’s complaint.

REVERSED AND REMANDED.

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