C.A. Reaffirms View That Action Over Album Cover Is a SLAPP

Thursday, January 9, 2020

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C.A. Reaffirms View That Action Over Album Cover Is a SLAPP

Panel Determines, Following Transfer From Supreme Court, That It Got It Right in 2018 in Declaring That Special Motion to Strike Should Have Been Granted in Dispute Over Authenticity of Jackson Recordings

By a MetNews Staff Writer

The Court of Appeal for this district yesterday held—for the second time—that an anti-SLAPP motion should have been granted in a putative class action in which it is claimed that an album cover falsely depicts Michael Jackson as the lead singer on all 10 tracks when, it is contended, a sound-alike performer recorded three of the tracks.

Div. Two’s initial opinion was filed Aug. 28, 2018. The California Supreme Court granted review, then bounced the case back for consideration in light of its May 6, 2019 decision in FilmOn.com Inc. v. Double Verify Inc.

There, the Supreme Court dealt with the first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16: whether the action arises from protected activity. In particular, it focused on the catchall category, “conduct 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.”

Writing for a unanimous court, Justice Mariano-Florentino Cuéllar said that private reports to paying subscribers which disparaged the plaintiff’s services were not subject to a special motion to strike. This is not because the reports “serve business interests,” he said, but because the reports “are too tenuously tethered to the issues of public interest they implicate, and too remotely connected to the public conversation about those issues, to merit protection under the catchall provision.”

Protected Activity

Presiding Justice Elwood Lui again determined that the action brought by Vera Serova against Sony Music Entertainment, the Jackson estate, and MJJ Productions, Inc., to the extent it relates to the content of the cover and a video promoting the album, arises from speech in connection with a matter in which there is public interest. The album, “Michael”—released on or about December 14, 2010, about 18 months after Jackson’s death—takes a stance on a matter of controversy he said, explaining:

“[T]he representations that Serova challenges—that Michael Jackson was the lead singer on the three Disputed Tracks―did not simply promote sale of the album, but also stated a position on a disputed issue of public interest. Before the album was released, certain Jackson family members and others publicly claimed that Jackson was not the lead singer on the Disputed Tracks. Appellants disputed this claim. An attorney acting for the Estate released a public statement outlining the steps Appellants had taken to verify the authenticity of the tracks by consulting with experts and persons who were familiar with Jackson’s voice and recordings.”

That attorney is Howard Weitzman, a specialist in entertainment law.

Direct Claim

Lui continued:

“Thus, 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. By identifying the singer on the Disputed Tracks as Michael Jackson, Appellants’ challenged statements made a direct claim about the controversy itself.”

He acknowledged that a stance was not expressly taken that it was Jackson who sang the three songs in dispute, but that the authenticity was assumed “which communicated Appellants’ position on the issue.”

The commercial purpose of the statements, the jurist said, does not detract from the nature of the statements as assertions of beliefs relating to a public controversy. He cited FilmOn as declaring that the fact statements have a commercial aspect is not determinative as to whether they are protected; rather they must be taken in context.

Lui wrote that the fact the statements in issue “were made in the context of promoting the album does not change their constitutional significance.”

Jones’s View

Los Angeles Superior Court Judge Ann Jones, who ruled on the anti-SLAPP motion, was also of the view that Serova’s action stemmed from protected activity, and granted that motion as to some causes of action (which Serova did not appeal). With respect to the album cover and the video, Jones ruled that Serova met her burden under the second prong: showing a probability of succeeding on the merits.

Lui expressed disagreement.

Serova’s assault on the cover and the video were under the Unfair Competition Law and the Consumer Legal Remedies Act. If those statutes applied, Lui said, “to avoid possible liability for a mistaken judgment about the lead singer on the Disputed Tracks, Appellants would have needed to either: (1) provide disclaimers about the singer’s identity in its marketing materials; or (2) omit the Disputed Tracks from the album.”

Chilling Speech

He commented:

“The chilling effect of the second option is obvious. But the first option also has First Amendment implications. The United States Supreme Court has emphasized the potentially problematic nature of regulations that compel speech, even in a commercial context….

“By compelling disclosure of the controversy over the Disputed Tracks to avoid liability, the UCL and CLRA would, in effect, require Appellants to present views in their marketing materials with which they do not agree. The possibility that applying these unfair competition and consumer protection laws to Appellants’ speech would have the effect of chilling the content of that speech—whether by preventing the sale of particular musical works or by regulating the expression of a point of view on a public controversy about those works—is a further reason to conclude that the speech at issue was noncommercial.”

Success Precluded

The jurist declared:

“Appellant’s Challenged Statements on the Album Cover and in the Promotional Video were noncommercial speech outside the scope of the consumer protection claims that Serova asserts against Appellants. As a matter of law Serova therefore cannot show a likelihood that she will prevail on her claims under prong two of the anti-SLAPP procedure, and her claims against Appellants must be stricken.”

The case is Serova v. Sony Music Entertainment, 2020 S.O.S. 70.

Attorneys for the defendants were Zia F. Modabber, Andrew J. Demko, Charlotte S. Wasserstein, and Leah E. A. Solomon Katten Muchin Rosenman, and with Weitzman and Suann C. Macisaac of Kinsella Weitzman Iser Kump & Aldisert. Serova’s lawyers were Moss Bollinger, Jeremy F. Bollinger, Ari E. Moss and Dennis F. Moss.