Friday, September 14, 2018

New verse, same as the first in Sony/Michael Jackson case

Serova v. Sony Music Entertainment, 2018 WL 4356891, --- Cal.Rptr.3d ----, No. B280526 (Ct. App. 2018)

The court amends its opinion finding that Sony’s advertising that Michael Jackson was the performer of all the songs on the posthumous Jackson album Sony released wasn't commercial speech, but the amendment doesn’t make things any better.  This provides an interesting contrast to the other day’s One A Day opinion.  The court here adds a footnote arguing that it didn’t matter whether consumers would have understood Sony’s advertising to make factual claims about the singer’s identity. What mattered instead was Sony’s lack of personal involvement in creating the recordings [pretending that “Sony” is the kind of entity that can have personal involvement]. It’s not that Sony’s statement is opinion (in which case consumer understanding of what claim was being made would be relevant), it’s that Sony’s lack of personal knowledge of its own business operations makes the speech noncommercial.

Obviously, this creates pretty bad incentives for corporations, but I think it’s worth reiterating that this is also inconsistent with Kasky, on which the court of appeals purportedly relies, since Nike was making statements about its subcontractors’ practices that the California Supreme Court concluded were commercial speech. [Nike’s defenders even argued that, precisely because it was talking about its subcontractors, the argument that commercial speech has greater verifiability than other kinds of speech shouldn’t apply.]  Nike’s statements were the kinds of factual claims, including claims about Nike’s outsourcing practices and their results, that it was in a better position to verify than consumers. Consumers were also likely to rely on Nike’s expertise and greater relative access to knowledge, as the Bayer court observed with respect to Bayer.  To the extent that Nike may have lacked “actual” knowledge, that was (1) a creation of Nike’s own choices to subcontract rather than to do the work itself, for which it was responsible (the analogy between that and the situation here is fairly strong), and (2) a reason that Nike should have verified its statements rather than just saying them. [In the actual situation involved in Nike, Nike maintained that it took steps to substantiate its advertising claims—it simply took the position in the California and US Supreme Courts that it didn’t have to do so and should be able to win dismissal even assuming it had made those claims without knowing if they were true.]

No comments: