Suit Over Michael Jackson Album Cover Was a SLAPP

Thursday, August 30, 2018

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Suit Over Michael Jackson Album Cover Was a SLAPP—Court of Appeal

By a MetNews Staff Writer

The Court of Appeal for this district has held that an anti-SLAPP motion should have been granted with respect to the cover of a posthumously released album which the plaintiffs, in a putative class action, contend falsely portray Michael Jackson as the lead singer in all 10 tracks when, they maintain, a sound-alike performer recorded three of the songs.

The representation on the album cover, Presiding Justice Elwood Lui of Div. Two said in an unpublished opinion filed Tuesday, was noncommercial speech, constituting opinion, precluding actions under the Unfair Competition Law (“UCL”) and the Consumer Legal Remedies Act (“CLRA”). Also beyond the reach of the UCL and the CLA, Lui declared, is a promotional YouTube video, describing the album, “Michael”—released 18 months after Jackson’s death—as “a brand new album from the greatest artist of all time.”

The cover says that “[t]his album contains 9 previously unreleased vocal tracks performed by Michael Jackson.” One was previously released.

Trial Court Ruling

Los Angeles Superior Court Judge Ann I. Jones had denied the anti-SLAPP motion brought by Sony Music Entertainment, the Jackson estate, and MJJ Productions, Inc. as to the album cover and the promotional video. She found that the first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16, was met inasmuch as the assertions were comments on a matter of public interest—the authenticity of three of the recordings was in wide controversy—but that the defendants failed to satisfy the second prong: being able to show a probability of prevailing on the merits.

Her skepticism as to the prospects of their success was grounded in her perception that the disputed statements constituted commercial speech which, under §425.17(c), is not protected by the anti-SLAPP law. However, she granted the motion as to other public statements that Jackson was the actual singer in all tracks and the plaintiffs did not appeal that ruling.

Plaintiff Vera Serova brought the putative class action in 2014 against Sony, the estate, and MJJ based on the alleged falsity of their assertions. She also sued a long-time friend of Jackson, Edward J. “Eddie” Cascio, as well as his production company and another defendant, alleging they committed fraud in telling Sony and the other defendants that Jackson had been the singer on all of the tracks.

Although Jones granted an anti-SLAPP motion as to statements made by Cascio on the Oprah television program, other causes of action against the Cascio defendants remain. (She also granted the anti-SLAPP motion as to representations made by Howard Weitzman, an attorney for Sony, the estate, and MJJ).

Lui’s Opinion

Lui agreed with Jones that the album cover and video contained speech on a matter of public interest, commenting:

“Serova’s own allegations describe the public controversy concerning the Disputed Tracks. Moreover, a significant body of case law holds that prominent entertainers and their accomplishments can be the subjects of public interest for purposes of the anti-SLAPP statute.”

He added:

“[T]here was significant interest in the release of the posthumous album Michael. Whether or not the lead singer on the Disputed Tracks was actually Michael Jackson was therefore also a matter of significant public interest, as confirmed by Serova’s own allegations.

“This public controversy distinguishes this case from cases that Serova cites concerning allegedly misleading descriptions of a particular commercial product or service.”

Lui disagreed, however, that album cover and video contain commercial speech. Noting that that Sony, the estate and MJJ based their view that Jackson was the lead singer on all tracks on Cascio’s representations, as well as determinations by experts and opinions of persons familiar wioth Jackson’s voice and recordings, he wrote:

“The absence of the element of personal knowledge is highly significant here. Because Appellants lacked actual knowledge of the identity of the lead singer on the Disputed Tracks, they could only draw a conclusion about that issue from their own research and the available evidence. Under these circumstances, Appellant’s representations about the identity of the singer amounted to a statement of opinion rather than fact.

He also observed:

“The identity of the artist on the three Disputed Tracks was a controversial issue of interest to Michael Jackson fans and others who care about his musical legacy. The identity of the lead singer was also integral to the artistic significance of the songs themselves. Under these circumstances, Appellants’ statements about the identity of the artist were not simply commercial speech but were subject to full First Amendment protection. They are therefore outside the scope of an actionable unfair competition or consumer protection claim in this case.”

The case is Serova v. Sony Music Entertainment, 2018 S.O.S. 4284.

The defendants were represented on appeal by Zia F. Modabber, Andrew J. Demko and Charlotte S. Wasserstein of Katten Muchin Rosenman’s Century City office; and Howard Weitzman and Suann C. MacIsaac of Kinsella Weitzman Iser Kump & Aldisert in Santa Monica. Serova’s attorneys were Ari E. Moss and Jeremy F. Bollinger of Moss Bollinger in Sherman Oaks.