In lawsuit brought by family of guitarist Randy Rhoads against writer and publisher of his biography, California appellate court affirms lower court denial of anti-SLAPP motion as it relates to family's breach of contract claim, but otherwise reverses denial, concluding that "principal thrust" of suit was defendants’ constitutionally protected publication of the biography.

In 1982, well-known guitarist Randy Rhoads died in a plane crash. In 2007, the Rhoads family entered into an agreement with Peter Margolis, Randy’s former guitar student, granting Margolis the right to produce, distribute, and otherwise exploit a documentary about Randy for the limited purpose of creating a motion picture, television production, or other similar production.

After signing the licensing agreement, Margolis assigned his rights under the agreement to Dakota Entertainment North, which then hired Margolis to produce the documentary. For the next two years, Margolis, along with Andrew Klein, videotaped over 100 interviews and obtained numerous photographs and video clips of Randy. The documentary was never released. Eventually, however, Margolis collaborated with Steven Rosen, a journalist, to write a biography of Randy’s life. Margolis, Klein, and Rosen published a book that contained numerous photographs from the Rhoads family and appeared to contain excerpted interview transcripts originally prepared for the documentary.

The Rhoads family filed suit, alleging breach of contract; fraud; invasion of privacy; violation of common-law rights of publicity; misappropriation of names, voices, and likenesses; and unfair competition. The defendants filed a special motion to strike the entire complaint under the California anti-SLAPP statute. The trial court granted in part and denied in part the motion. On appeal, the Second District panel first held that each cause of action in the Rhoads family’s complaint arose from protected expressive activity. Even though the Rhoads family alleged breach of contract or tort causes of action, the “principal thrust” of every claim was premised on constitutionally protected activity – the publication of the biography.

The panel held that the breach of contract cause of action survived the anti-SLAPP motion because the Rhoads family had successfully established a prima facie claim that Margolis misused the materials provided pursuant to the limited licensing agreement and that factual inquiries to determine breach of contract liability were more appropriate for a finder of fact.

The panel concluded that the other causes of action alleged in the complaint should have been stricken, however, because the Rhoads family failed to establish a probability of prevailing on those causes of action. As to fraud, the Rhoads family failed to produce any evidence that Margolis and Klein contemplated writing a book before entering into the licensing agreement. As to misappropriation, most of the material in the book concerned Randy and did not implicate the personal privacy or publicity rights of his family members. In addition, the Rhoads family’s lives as Randy’s relatives are matters of public interest. As to unfair competition, the Rhoads family could not establish substantial evidence that the public likely would be, or already had been, deceived by the book.