Sony’s claim that Michael Jackson performed songs on album was just its opinion

Serova v. Sony Music Entertainment, — Cal.Rptr.3d —- ,
2018 WL 4090622, No. B280526 (Ct. App. Aug. 28, 2018)
[This case says a bunch of stuff that’s way too broad for
the facts; people who are concerned about things like attribution rights, and
the right of publicity, should probably be paying attention.]
Serova sued defendants for marketing a posthumous Michael
Jackson album, Michael. The album
cover and a promotional video allegedly misrepresented that Jackson was the
lead singer on each of the 10 vocal tracks on the album, when in fact he was
not the lead singer on three of those tracks. 
Serova brought a fraud claim against some defendants, alleging knowing
misrepresentation.  The trial court
concluded that the album cover, including statements about the contents of the
album, and a promotional video for the album were commercial speech that was
subject to regulation under the UCL and the CLRA. 
The court of appeals reversed because the claims about
Jackson’s performance “did not simply promote sale of the album, but also
stated a position on a disputed issue of public interest.”  That dispute was that some Jackson family
members, and others, publicly claimed that Jackson wasn’t the lead singer, and
Sony disputed that claim.  [Nice work if
you can get it, to create a disputed issue of public interest by making the statement
that’s being attacked.] “The identity of the lead singer was also integral to
the artistic significance of the songs themselves.” Thus, statements about the
identity of the artist were not simply commercial speech, and couldn’t be the
subject of actionable unfair competition or consumer protection claims, and
Sony was entitled to succeed on its anti-SLAPP defense.
Although music ads are not categorically covered by the
anti-SLAPP law, the “commercial speech” amendment that was designed to curb
abuses of the anti-SLAPP law by commercial advertisers does exclude ads for
expressive works.  [Meaning that this
decision isn’t as broadly significant as it might sound—ordinary advertisers
can’t take advantage of the “create a public controversy” way out; indeed, this
case is an example of exactly why the legislature amended the anti-SLAPP law to
exclude most advertisers.]  If an ad
falsely claimed that an album contained a particular song, that “mundane
commercial misrepresentation” wouldn’t be automatically covered by the anti-SLAPP
So the question was whether the challenged conduct had some
connection to a “public issue” or an “issue of public interest.” [Of course,
the mundane commercial misrepresentation could rise to that level!]  “[P]rominent entertainers and their
accomplishments can be the subjects of public interest for purposes of the
anti-SLAPP statute.”  The complaint
itself described the controversy over the performances. “Facts concerning the
creation of works of art and entertainment can also be an issue of public
interest for purposes of the anti-SLAPP statute.”
Was this noncommercial speech?  Under Nike
v. Kasky
, the speaker and the intended audience both suggested a commercial
purpose.  But the content was “critically
different from the type of speech that may be regulated as purely commercial
speech under Kasky” for two reasons
[one terrible, one not]. First, the statements “concerned a publicly disputed
issue about which [Sony] had no personal knowledge,” and second, “the
statements were directly connected to music that itself enjoyed full protection
under the First Amendment.”  [Note that
if reason number one is sufficient, then this decision is much broader than it
says it is, because it would cover a lot of advertising claims for
non-expressive products and services.]
Personal knowledge: “Kasky
ascribed great significance to the fact that, ‘[i]n describing its own labor
policies, and the practices and working conditions in factories where its
products are made, Nike was making factual representations about its own
business operations” and “was in a position to readily verify the truth of any
factual assertions it made on these topics.” [Except that Nike was making
representations about its subcontractors’
business operations, and part of the dispute was its limited opportunity to
verify all that—even if you think that “Nike” is capable of having “personal
knowledge” of anything.  Nike was in a better position to verify the truth of
its factual assertions than its audience, but that relative position is not the
same as having personal knowledge.  If you
engage in speech promoting your own products or services, you are responsible
for the claims you make.  If you can’t
verify their truth, then you shouldn’t be making those claims.  See also: substantiation.]
Here, Serova alleged that another set of defendants, not
Sony, “jointly created, produced, and recorded the initial versions” of the
Disputed Tracks and knew that Jackson didn’t perform them.  According to Serova’s allegations, Sony was
itself deceived and thus “lacked the critical element of personal knowledge
under the Kasky standard.”  Because Sony lacked actual knowledge, it could
“only draw a conclusion about that issue from [its] 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 lack of personal knowledge
also meant that regulating the speech here had a greater risk of a chilling
effect, given that the UCL and CLRA create liability without intentional or
willful conduct.
Sony’s PR statements directly addressing the public
controversy were noncommercial, and the statements on the album cover and promo
video “also staked out a position in that controversy by identifying the singer
as Michael Jackson. The fact that those statements were made in the context of
promoting the album does not change their constitutional significance.”
The court of appeals was unwilling to force Sony to either
provide disclaimers about the singer’s identity or omit the disputed tracks
from the album.  And in another instance
of disturbingly broad language, the court of appeals thought that it would be
constitutionally problematic to compel commercial speech of this type, citing Nat’l
Inst. of Family & Life Advocates v. Becerra (2018) ––– U.S. ––––, 201
L.Ed.2d 835. Although commercial speech disclosures can mandate “purely factual
and uncontroversial information,” the compelled disclosure here wouldn’t be “uncontroversial”
because there was controversy around the performer of the tracks, and it wouldn’t
be “purely factual” from Sony’s perspective, as it had no personal knowledge of
the facts.  [That’s … not what “purely
factual” means.  You’re entitled to your
own opinion, but not to your own facts.]
[This analysis hints at one reason why commercial speech
doctrine has persisted despite assaults on it: all the other ways we have of
making distinctions between ok and not ok false speech that seeks to sell a
product are much worse. If “controversial” is independently meaningful (and it
shouldn’t be if a disclosure is factual), then it’s easy enough for a large entity
to generate the necessary “controversy” by taking a stand, no matter how stupid
and disprovable that stand is. Likewise with a requirement that a corporate
entity have “personal knowledge” of the falsity of its claims—my understanding
is that this has royally messed up securities law and consumer protection law
went to strict liability for very solid reasons.]
Second, the statements at issue described and promoted an
album that was fully protected by the First Amendment. “The identity of a
singer, composer, or artist can be an important component of understanding the
art itself…. [W]hether Michael Jackson was actually the lead singer of the
songs on the Disputed Tracks certainly affects the listener’s understanding of
their significance.”  Thus, the
statements at issue here were “unlike the purely factual product or service descriptions”
in other cases, such as Kwikset and
the representation that products were manufactured in the US. [Look, I might
even agree with this outcome, but this distinction is profoundly
disingenuous.  Kwikset is very much about specific definitions of “Made in the USA”
that are subject to contestation, and consumers are extremely unlikely to have
a definition of the term specific enough to make the distinctions that the
actual regulators have to make.]
Not all ads promoting an artwork are noncommercial speech; “mundane
or willfully misleading” claims might not be protected, such as a statement
falsely stating that a particular song is included in an album. But “where, as
here, a challenged statement in an advertisement relates to a public
controversy about the identity of an artist responsible for a particular work,
and the advertiser has no personal knowledge of the artist’s identity, it is
appropriate to take account of the First Amendment significance of the work
itself in assessing whether the content of the statement was purely commercial.”
Indeed, a footnote suggested that even representations about the identity of
the artist could be regulated, at least if the identity of the artist wasn’t an
issue of public interest [in which case no materiality] and the defendants had
personal knowledge of the issue.

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