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California Supreme Court:
Hype for Michael Jackson Album Was Commercial Speech
Unanimous Opinion Reverses C.A. Decision Saying That Anti-SLAPP Motion Should Have Been Granted
By a MetNews Staff Writer
Record album marketers, in touting a new release as containing nine tracks that were recorded by Michael Jackson when, they later came to realize, three songs were sung by an imitator, were not immune from liability on the ground that the speech was noncommercial and thus protected by the First Amendment, the California Supreme Court held yesterday, reversing a decision of the Court of Appeal for this district.
Justice Martin J. Jenkins wrote for a unanimous court in declaring that Div. Two erred in its Aug. 28, 2018 opinion that reversed then-Los Angeles Superior Court Judge Ann I. Jones’s denial of an anti-SLAPP motion, sought by Sony Music Entertainment and other marketers of an album titled “Michael,” as it pertained to representations on the back of the CD’s packaging and in a promotional video.
The album was released in 2010, the year after Jackson’s death.
The back of the cover proclaims that that the recording “contains 9 previously unreleased vocal tracks performed by Michael Jackson” and the video represents the product to be “a brand new album from the greatest artist of all time.” The opinion restricts attention to those statements, expressly passing no judgment on the relevance of the album title and images of Jackson.
“The content of Sony’’ statements on Michael’s packaging and in the video—made in traditional advertising contexts—strikes us as commercial,” Jenkins said, noting that the statements were made to induce sales. He added:
“[T]his case concerns an explicit promise of a superstar’s vocal contributions to a product. We, again, view this as commercial content.”
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Depicted above is the front of the packaging of a CD purportedly containing nine posthumously released recordings made by Michel Jackson. Three of the tracks were subsequently determined to have been recorded by an impersonator. The California Supreme Court declared yesterday that the Court of Appeal for this district erred in concluding that the false claims were protected noncommercial speech. |
Personal Knowledge Unnecessary
In the Court of Appeal opinion, Lui said that Sony’s statements “lacked the critical element of personal knowledge,” declaring: “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.”
The Supreme Court rejected that reasoning.
“A knowledge test would undermine false advertising law and reward turning a blind eye,” Jenkins wrote, adding: “[O]therwise commercial speech does not lose its commercial nature simply because a seller makes a statement without knowledge or that is hard to verify.”
Class Action
Vera Serova, a purchaser of the album, on June 12, 2014, brought a class action under the Unfair Competition Law and the Consumers Legal Remedies Act. She was admitted to the State Bar in 2020 and is an associate at Greenberg Glusker, attached to its Litigation Group.
Jenkins noted:
“After full briefing from the parties and amici curiae, and after oral argument in this court, Sony informed us that the parties “reached an agreement to settle the case independent of the outcome of the opinion from this Court, subject to the superior court’s approval of the dismissal of the action pursuant to California Rules of Court 3.770,” governing dismissals of class actions. Serova responded, asking us to decide this matter because the settlement is not yet approved and because of the importance of the issues. Whether or not the yet-to-be-approved settlement moots the parties’ dispute, we render this opinion ‘[i]n light of the important issues presented.’”
The case is Serova v. Sony Music Entertainment, 2022 S.O.S. 3927.
Copyright 2022, Metropolitan News Company