Vincent Cusano v. Gene Klein

MEMORANDUM

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. We have jurisdiction under 28 U.S.C. § 1291 , and we reverse.

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., 29 Cal.4th 53 , 124 Cal.Rptr.2d 507 , 52 P.3d 685, 694 (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 , 101 S.Ct. 2176 , 68 L.Ed.2d 671 (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 dramatic works fall within the First Amendment guarantee.”);…