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 law.

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.