Monday, December 18, 2017
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Court of Appeal:
Proclaiming Autographs to Be Bogus Wasn’t Protected Speech
Opinion Says General Public Doesn’t Care if Company Is Selling Authentic Signatures
By a MetNews Staff Writer
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Iconographs, which is suing two autograph authenticating outfits which it says are falsely branding the items it sells as fakes, is presently offering for sale the above photos with signatures purported to be those of the late actor Peter Graves, who headed the cast in “Mission Impossible” ($60), singer Katy Perry ($75), actress Sophia Loren ($125) and the late founder/publisher of Playboy magazine, Hugh Hefner, $250. |
The public does have an interest in celebrities, but that doesn’t mean that the matter of whether their purported autographs that are being marketed are genuine or not is of general concern, the Fourth Court of Appeal has held, affirming denial of an anti-SLAPP motion brought by a company that authenticates signatures and has been sued for denigrating the wares of a memorabilia company.
Writing for Div. Three, Justice Raymond J. Ikola said in an unpublished opinion filed Thursday that Orange Superior Court Judge Andrew P. Banks properly denied a special motion to strike brought by the authenticating company and a competitor of the plaintiff, saying:
“The issue boils down to this: Do opinions about the authenticity of celebrity autographs concern a public issue? We conclude they do not, and thus affirm the order.”
Factual Allegations
Nelson Deedle and his company, Iconographs, allege in their complaint that Collectors Universe, Inc. (“Collectors”) and James Spence Authentication LLC (“JSA”) have routinely refused to certify legitimate autographs that Iconographs has offered for sale. It is stated that these two companies control 80 percent of the market for autograph authentication and are two of only three companies approved by eBay for performing that task.
Collectors filed an anti-SLAPP motion, in which JSA did not join, but another defendant, R&R Auction Company (“R&R”), did. It is a competitor of Iconographs in selling autographs, and its owner, Bob Eaton, performs as an expert authenticator for both Collectors and JSA.
The complaint sets forth that Iconographs, suspicious about JSA’s refusals to vouch for the bona fides of the autographs it was offering for sale, sent 100 autographs to it anonymously, and most were proclaimed genuine. It then submitted 92 autographs, identifying itself as the sender, the pleading avers, and 90 were pronounced fakes.
Further Test
Another time, it had two third parties each send JSA an item that had previously been branded bogus when an Iconographs certificate of authenticity was attached but, with no such document tying it to Deedle’s outfit, was approved.
R&R, the complaint says, proceeded to label anything submitted by Iconographs to be phony, then stopped doing business with it.
The complaint alleges intentional interference with prospective economic advantage, conspiracy to commit trade libel, and violation of the Unfair Competition Law.
Ikola’s Opinion
Ikola said Collectors and R&R contended that the conduct in issue came under the protection of the anti-SLAPP statute because it was “in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” The jurist responded:
“Here, the speech at issue was not about a celebrity, per se. Rather, it was about the authenticity of a signature on a particular piece of memorabilia. And there are only three people who cared whether that piece was authentic: the buyer, the seller, and the authenticator. As such, it was not a topic of widespread interest, nor did it affect a large number of people.”
Ikola differentiated various other Court of Appeal decisions where protected speech, based on discussion of an “issue of public interest,” was found. Such a finding satisfies the first prong of the anti-SLAPP statute, Code of Civil Procedure §426.16; the second prong is an inquiry—dispensed with if the first test is not met—as to whether the plaintiff can show a probability of prevailing on the merits.
Rolling Stones Decision
Ikola reported that Collectors “relies heavily” on the 2010 Court of Appeal decision in Stewart v. Rolling Stone LLC. In that case, a magazine published a feature depicting images of members of rock bands intertwined with Camel cigarette ads.
The plaintiffs, members of two bands, alleged that their lack of permission for use of their likenesses gave rise to liability. They asserted that the anti-SLAPP statute did not apply because the case involved commercial speech.
The First District’s Div. One disagreed, saying:
“The five-page Feature prepared by defendants concerns an extremely popular genre of music, and is a creatively crafted, whimsical editorial commentary on the many bands whose musical works have contributed to the development of the genre….We conclude that the act from which the complaint arises, namely, publication of the bands’ names within the graphic design of the Feature, constitutes conduct in furtherance of defendants’ right of free speech ‘in connection with a public issue or an issue of public interest.’ Accordingly, the first prong of the anti-SLAPP test is satisfied.”
‘No Comparison’
Ikola wrote:
“We find no comparison at all between the present case and Stewart. At issue in Stewart was an editorial published in a popular national magazine with statements about how certain public performers fit into a popular genre of music. Here, defendants’ statements were private communications about a particular object in which the public had no interest.”
The case is Deedle v. Collectors Universe, Inc., G054392.
Attorneys on appeal were Keith A. Attlesey and John P. Ward of the Tustin firm of Attlesey│Storm, for Collectors; Anita Jain of the downtown Los Angeles firm of Meylan Davitt Jain Arevian & Kim, for R&R; Matthew M. Clarke of the Lewisville, Texas firm of Christman, Kelley & Clarke, for Deedle Iconographs.
Clarke commented yesterday:
“We are pleased that the Court of Appeal reached the correct result that the California anti-SLAPP statute has no application to authentication of autographed memorabilia, even if the celebrities are involved. Now the case can proceed in the trial court to address the Defendants’ anti-competitive behavior which has harmed my clients.”
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