Michael Jackson Is Not Michael Jackson

Serova v. Sony Music Entm’t, No. B280526 (D2d2 Aug. 28, 2018)

About a year and a half after Michael Jackson died, his Label released an album called Michael, which purported to contain his final recordings. There’s been some controversy about the record. In particular, there are rumors that Jackson didn’t sing lead on all or some of the tracks—a soundalike was used instead. Plaintiffs here brought a class action against the Label and Jackson’s estate under the UCL, FAL, and CLRA. Key to the issue on appeal is that they asserted that album’s cover and some promotion materials were misleading because they suggested that Jackson was the lead singer on everything.


Defendants filed an anti-SLAPP motion. The court granted as to some stuff that isn’t appealed but denied as to the album cover and the promotional materials. It found that claim wasn’t subject to the commercial speech exception under Code of Civil Procedure § 425.17, because there’s an exception to the exception that coverts the “creation, dissemination, exhibition, advertisement, or other similar promotion” of the arts, including music. It further found that the issue was subject to sufficient controversy that the statements arose from protected activity under § 425.16(b) and (e). But it also found that the materials were, in fact, only commercial speech and that Plaintiff had shown potential for success on the merits in that—based on the parties stipulation that court could assume that Jackson wasn’t actually the singer—the cover and materials were likely misleading.

The Label first argues that it doesn’t even need to show “arising from,” because the artistic exception to the commercial speech exception in § 425.17(d)(2) means that the Legislature believed that anything within that category was entitled to be considered “arising from” per se. But that doesn’t really jive with the text or purpose of the anti-SLAPP regime. You certainly could have, for instance, an advertisement for a movie that falls within 425.17(d)(2), but doesn’t “arise from” because it doesn’t relate to an issue of public interest and thus isn’t subject to an anti-SLAPP motion.

The Court then finds that the cover and promotional materials “arise from protected activity” as defined in 425.16(e)(3) because they are public forum speech that address an public controversy about the authenticity of the recordings. Like it or not, celebrity stuff is of concern to the public. And given the substantial dispute over Jackson was actually the singer, the (e)(3) test was satisfied.

On the merits prong, the big issue is whether the statements count as commercial or non-commercial speech. If they are not commercial, the First Amendment generally shields them from scrutiny. If they are commercial speech, however, UCL/FAL/CLRA remedies generally can apply because there’s not really constitutional protection for misleading commercial speech. Or at least until lately.

It’s a pretty hard question. Sixteen years ago, the California Supreme Court decided Kasky v. Nike, Inc., 27 Cal. 4th 939 (2002), which held that Nike’s claims that its shoes weren’t made in Chinese sweatshops were commercial speech, notwithstanding their political-ish tint. The Court developed a special test to be used to determine whether speech is commercial for the purpose of the enforcement of consumer protection laws. A court faced with such a decision should consider “three elements: the speaker, the intended audience, and the content of the message.”  

The Court here agrees that the speaker and the message are both consistent with commercial speech. The Court says that the content, however, was different than Kasky in two key ways.

First, because—unlike Nike’s statements about its shoes—the speakers here don’t have personal knowledge of whether Jackson was or wasn’t the true vocalist. Because they couldn’t verify the truth of what they were saying, the only way they could comply with consumer law would be to either (1) provide a disclaimer; or (2) not include the tracks containing the disputed vocals on the album. That—according to the court—would chill legitimate First Amendment conduct.

The Court here finds that the US Supreme Court’s recent decision in National Institute of Family & Life Advocates v. Becerra, --- U.S. ---, 201 L. Ed. 2d 835 (2018) to be instructive on the effect that disclaimers can have on even speech in commercial context. It’s a 5-4 case where the court held that California couldn’t require crisis pregnancy centers to disclose that they are not actually licensed medical facilities. So a First Amendment right to pretend you are a women’s health clinic when you are really a church is really not all that different from a First Amendment right to sell a Michael Jackson album that might have songs on it that are not Michael Jackson songs. Because having to tell the truth might make you say something you don’t want to say. About something controversial. Truth is not truth anyway! Or something like that.

The Court also says that the cover and promo materials are also entitled to protection because they are closely related to the content of the music. It takes pains to say that it’s not saying that any advertisement about art is per se First Amendment protected from any regulation of the truthfulness of content. But here, where the identity of the singer was itself an issue of public interest and where the defendants did not have the personal knowledge to tell if Jackson was really the singer or not, the speech in the materials is sufficiently non-commercial such that its content cannot be regulated for truthfulness under the First Amendment.

Reversed.  

FWIW, this song—which is not sung by Michael Jackson—is clearly non-commercial speech. Or as Watt would maybe say, nonmersh.