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Dr. Buzz Aldrin and Starbuzz, LLC, A California Limited Liability Company v. Topps Company

September 27, 2011

DR. BUZZ ALDRIN AND STARBUZZ, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, PLAINTIFFS,
v.
TOPPS COMPANY, INC., A DELAWARE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Dean D. Pregerson United States District Judge

O

ORDER GRANTING SPECIAL MOTION TO STRIKE COMPLAINT

[Motion filed on 3/4/11]

Presently before the court is Defendant Topps Company, Inc. ("Topps")'s Special Motion to Strike Plaintiffs' Complaint. Having reviewed the parties' moving papers and heard oral argument, the court grants the motion and adopts the following order.

I. Background

In 2009, Topps released a trading card set entitled "Topps American Heritage: American Heroes Edition" (the "set of cards"). The set of cards includes hundreds of images of well-known American politicians, actors, athletes, scientists, organizations, artifacts, and events. The cards also display, on the reverse face of the cards, historical information related to the image displayed on the front of the cards.

The set of cards features several themes, including "Heroes of Sport," "Medal of Honor," and "Heroes of Spaceflight." The "Heroes of Spaceflight" theme includes several types of cards. Twenty-eight of thee cards depict various National Aeronautics and Space Administration ("NASA") missions. These cards depict images of NASA vehicles and mission patches. Many of the mission patches include the surnames of the respective mission's crew members.

The reverse faces of the cards describe the various NASA missions. The Gemini XII card, for example, lists the Gemini XII mission dates, crew, and launch site. The card also gives the following historical description:

Astronauts had operated outside the spacecraft before, but astronaut Buzz Aldrin's smooth, multi-tasking 140-minute space walk outside of Gemini XII was what finally confirmed NASA's highes hopes for extra-vehicular astronaut activity. Gemini XII's flawless, computer-guided re-entry marked the end of Project Gemini; America was ready to shoot for the moon.

Other themed cards depict NASA mission fabric patches, various spacecraft, and rare "Heroes of Spaceflight Relics" and "Heroes of Spaceflight Cut Signatures," which contain original astronaut signatures cut from other documents.

The set of cards is packaged in cardboard boxes bearing three images: an image of Abraham Lincoln (captioned "Abraham Lincoln"), an image of Mickey Mantle (captioned "Mickey Mantle," and an image of "arguably the world's most famous space-related photo", the "Visor Shot" (captioned "Moon Landing Apollo 11"). The "Visor Shot" is an image of an astronaut in a white space suit. The astronaut's helmet visor obscures the astronaut's face, and reflects an image of another astronaut alongside a lunar landing module. Close inspection of the image reveals that the spacesuit bears the name "E.Aldrin." The parties agree that the image is NASA's "Visor Shot" photograph of Buzz Aldrin, taken by Neil Armstrong during the Apollo 11 moon landing.

On December 27, 2010, Plaintiffs (hereinafter "Aldrin") filed suit in this court alleging violations of their common law and statutory rights to publicity, unfair business practices under California Business and Professions Code § 7200, and unjust enrichment. The complaint alleges improper uses of Aldrin's name, image, and likeness with respect to the "Visor Shot" image on the cardboard box, the Gemini XII card (described above), and the Buzz Aldrin "cut signature" card (collectively, "the images"). Topps now specially moves to strike Aldrin's complaint under California Code of Civil Procedure § 425.16.

II. Legal Standard

Under California's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech . . . in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Cal. Cod. Civ. Pro. ยง 426.16(b)(1). In examining a special motion to strike, courts must first determine "whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity." Navellier v. Sletten, 29 Cal.4th 82, 88 (2002). The court must then, crediting the plaintiff's evidence, determine whether plaintiff has demonstrated a probability of success. Id. at 89. If the cause of action does ...


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