Serova vs. Sony Music Entertainment

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The California Supreme Court has ruled that statements made during the marketing of Michael Jackson’s posthumous album Michael on the authenticity of the tracks allegedly recorded by the Jackson impersonator were commercial in nature, and that claims under state consumer protection laws and misleading advertising laws alleging that the statements were false or inaccurate were not subject to release under California’s anti-SLAPP law.

Plaintiff Vera Serova bought the 2010 album Michael, billed as Michael Jackson’s first posthumous release, and later sued Sony Music Entertainment, Jackson’s estate, and MJJ Productions, Inc., each involved in the release and promotion of the album, for violating California’s copyright laws. consumer protection and misleading advertising. Serova alleged that Michael’s packaging and marketing misrepresented that Jackson was the album’s vocalist, when in fact some tracks that apparently came from a recording studio in the basement of a friend of Jackson’s house in New Jersey actually featured a Jackson impersonator.

A month before the album’s release, Sony offered the public “full confidence in the results of our extensive research as well as in the accounts of those in the studio with Michael that the vocals on the new album are his own.” . Similarly, Jackson’s estate released an open letter to fans stating that several producers, engineers, and other industry professionals affiliated with Jackson supported the authenticity of the new tracks. As the album’s release approached, the defendants produced a video ad juxtaposing footage of Jackson with a voiceover announcing “Michael, the all-new album from the greatest artist of all time.” When the album was released, its cover featured images of Jackson, while its back cover included a track listing and read, “This album contains 9 previously unreleased vocal tracks performed by Michael Jackson.” Serova, however, was unconvinced and hired her own audio expert, who concluded that Jackson was “most likely” not the source of the vocals on three of the tracks at issue. Serova filed its lawsuit allegedly on behalf of a class of all California buyers of the three tracks and targeted the video advertisement, estate letter and album packaging as containing alleged misrepresentations.

Defendants have filed a special motion to strike Serova’s claims under California’s anti-SLAPP statute, which provides a mechanism for early dismissal of lawsuits arising from a defendant’s exercise of free speech rights in as part of a public issue. The Superior Court partially granted the defendants’ motion, finding that the estate letter constituted non-commercial speech, but found that the album packaging and video were commercial speech that could be false or misleading enough to allow the continuation of the pursuit. The defendants appealed, but Serova did not, removing the letter of succession from the litigation on appeal. The Court of Appeals overturned, finding that the remaining statements were more than mere commercial speech for purposes of the First Amendment and therefore immune from California’s consumer protection and misleading advertising laws. Serova appealed, and the California Supreme Court overturned the Court of Appeals decision.

At issue on appeal were Serova’s claims that the packaging of the video and album violated the Consumer Legal Remedies Act, which prohibits sellers of consumer goods from claiming that goods have characteristics that missing; and the California Unfair Competition Act, which prohibits any unlawful, unfair or fraudulent act or business practice and unfair, deceptive, misleading or deceptive advertising. In the view of the Court of Appeals, these statements were not commercial because they “related directly to music which itself enjoyed full protection under the First Amendment” and “concerned a matter publicly disputed” (the authenticity of the song) of which the defendants had no idea. personal knowledge.

The California Supreme Court disagreed and found that the statement and the album video were unmistakably commercial speech. The court explained that commercial speech is less protected by the First Amendment than non-commercial speech because, among other things, it is generally more easily verifiable by its broadcaster and less likely to suffer the chilling effect of regulation in because of its underlying profit motives. For this reason, commercial speech may be prohibited altogether if it is false or misleading, the court explained. Noting that commercial speech essentially consists of “speech proposing a commercial transaction”, the court analyzed three elements to determine whether the defendants’ statements should be characterized as commercial or non-commercial: the speaker, the intended audience and the content of the message. .

On the first element, the court noted that the defendants were the “speaker” and directly promoted Michael for sale. On the second element, the court held that the audience for the messages constituted potential buyers of the album, such as Serova, and that the statements could therefore induce this audience to buy. Moving on to the third element, the court explained that the content of a speech is generally commercial when it includes representations of facts about the speaker, the speaker’s business, or the person or business that the speaker represents for promotional purposes. Importantly, the court ruled that commercial speech that includes representations is not protected by the First Amendment simply because it relates to a matter of public interest or controversy. The court found that the statements on the back of the album that it “contains 9 previously unreleased vocal tracks performed by” Jackson and in the video that he was “of” Jackson were the kind of representations of fact that classify the content speech as commercial.

The court also rejected defendants’ argument that Michael’s the promotion was non-commercial because it related to art and an artist. The court explained that the art can be sold and promoted like any other product on the market, making misrepresentations just as harmful to consumers and subject to state consumer protection laws. The court noted that the underlying policy rationales for why commercial speech is subject to greater regulation – the speaker’s close relationship to the product, the pursuit of profit, and the traditional role of government in preventing harm commercial – also applied when the product being marketed is artistic. Similarly, the court held that the defendants’ statements were not so “inextricably linked” to an expressive work to qualify for the increased protection given to non-commercial speech.

Defendants separately argued that since commercial speech requires a representation of facts, the statements at issue were not commercial because their truth was not readily ascertainable and therefore the defendants had no knowledge of their falsity. . The Court of Appeal agreed with this argument, holding that the defendants’ statements were not commercial because they lacked the essential element of personal knowledge. But the California Supreme Court rejected that claim, holding that knowledge and verifiability are not requirements when analyzing the commercial or non-commercial content of speech. The court noted that these requirements would lead to inconsistent results, where two identical promotional statements could face different regulations due to the speakers’ mental state and could have the unintended result of causing speakers to intentionally avoid knowing the accuracy or falsity of their statements. The court found that otherwise commercial speech does not lose its commercial nature simply because a seller makes a statement that is unknown to him or difficult to verify.

Although the court determined that the statements on the album packaging constituted commercial speech, it declined to consider whether the title of the album (Michael) and the album artwork featuring images of Jackson constituted commercial speech, given his expressed preference for “narrower resolutions of constitutional issues”.

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