Only Breach Of Contract Claim Survives in Ozzy Osbourne Guitarist Case

Rhoads v. Margolis, No. B249800 (Cal. App. Ct., 2d Dist. - Div. 7, Jan. 26, 2015).

Only a breach of contract claim survived in an action, brought by the family of a well-known rock guitarist who died in a 1982 plane crash, against Defendants based on the family's grant of the right to use personal information and memorabilia to make a documentary film about the deceased guitarist.  When the documentary project faltered, defendants instead published a book about the guitarist.  The family sued, alleging the book was based on materials they had provided for the exclusive purpose of making the documentary film.  Defendants moved to dismiss the complaint.

On appeal, the Court found that the Anti-SLAPP Statute (section 425.16) applied because the principal thrust of every claim was premised on the allegation that the defendants, in researching, writing and publishing the book, used the family's proprietary material provided solely for the purpose of the documentary.  Whether or not defendants violated the terms of the agreement, their conduct in writing and publishing the book qualified as a form of protected activity.  With the exception of the breach of contract claim, the family failed to establish a probability of prevailing on its claims. The fraud claim failed because there was no allegation that the defendants intended to create the book at the time of the agreement.  The misappropriation claim (based on the right of privacy) failed because the alleged acts did not implicate the personal privacy or publicity rights of the guitarist's family members.  Additionally, the life and death of the guitarist was a matter of public interest.  The unfair competition claim failed because plaintiffs had not articulated an actionable manner in which the public was likely to be deceived by the book or that consumers suffered substantial injury.