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Attorneys

Michael Jackson, Commercial Speech and Anti-SLAPP Motions

September 19 2018

By James Kachmar

A California appellate court recently dealt a blow to fans of Michael Jackson who brought a class action alleging unfair competition and violations of the Consumers Legal Remedies Act (“CLRA”) in connection with the sale of an album titled simply “Michael” following the singer’s death.  The appellate court found that statements on the album cover and in a promotional video did not amount to pure “commercial speech” and that the Plaintiff’s claims should have been dismissed in connection with an anti-SLAPP motion brought by the Defendants.  (An anti-SLAPP motion is a procedural mechanism by which defendants can seek early disposition of claims against them when: (1) the defendants show that plaintiffs seek to impose liability for some protected activity; and (2) plaintiffs are unable to establish the viability of their claims.)

More than a year after Michael Jackson’s death, an album titled, “Michael” was released by Sony and Michael Jackson’s estate containing 10 songs.  The Serova Plaintiffs alleged that on at least three of the tracks, Michael Jackson was not the singer but rather an unidentified “sound alike” singer had been hired to sing the lyrics.  Even before the album was released several members of the Michael Jackson family disputed whether Michael Jackson was the singer of the three “disputed tracks.”  Sony and the estate, through its attorney, Howard Weitzman, issued public statements confirming their belief that Michael Jackson was the singer of the disputed tracks.  The album cover for “Michael” included a statement that it contained “9 previously unreleased vocal tracks performed by Michael Jackson.”  Shortly before the album was released, a promotional video was distributed that described the album as “a brand new album from the greatest artist of all time.”

Following the issuance of the album and video, a class action lawsuit was filed against Sony and the estate (and others) alleging that because Michael Jackson was not the singer of the three disputed tracks, the album cover and promotional video were misleading and constituted unfair competition and violation of the CLRA.  The complaint alleged that the class members lost money or property as a result of their purchase of the Michael album because of the alleged misrepresentations.

The defendants filed an anti-SLAPP motion against the class action claims, which was granted in part only as to the statements by the attorneys concerning the identity of the lead singer of the disputed tracks as being Michael Jackson.  The trial court declined, however, to dismiss the claims as to the album cover and promotional video finding that these were purely commercial speech and that Plaintiffs could pursue claims as a result thereof.   The defendants immediately appealed this decision to the Second Appellate District for California.

The appellate court began by reviewing the history of the anti-SLAPP procedure.  In essence, the anti-SLAPP laws allow a defendant to file a “special motion to strike” any claim asserted against them “arising from any act of that person in furtherance of the person’s right of petition or free speech under the [U.S.] Constitution or the California Constitution in connection with a public issue” except in those cases where “the Court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”  While not resolving any conflicts in the evidence, the anti-SLAPP procedure allows the Court to dispose of claims early in the litigation if it determines that the plaintiff cannot make a showing that, if accepted by the trier of fact (i.e., the Court or jury), would not be sufficient to prevail on his or her claims.

In 2003, the California legislature enacted section 425.17 in reaction to what it concluded to be a disturbing abuse of the anti-SLAPP procedures by defendants.  For purposes of the Michael Jackson case, it established an exclusion from the anti-SLAPP procedures for “claims concerning commercial speech,” which it defined as being “representations of fact about that person’s or a business competitor’s business operations goods or services” that is made “to promote commercial transactions” and where the intended audience is an actual or potential customer.

To get around the prohibition on the Court having to make a factual finding as to disputed evidence, the Defendants stipulated that for purposes of the anti-SLAPP motion, Michael Jackson was not the singer of the three disputed tracks.  In their appeal, the defendants disputed the trial court’s finding that the statements in the promotional video and album cover were commercial speech or that the representations in those materials “were likely to deceive a reasonable consumer.”  Given that the appeal concerned the ruling on anti-SLAPP motion, the appellate court was free to look at the evidence in support of and in opposition to the motion “de novo.”

The defendants first argued that the legislature intended to extend broad protection to “the marketing of musical works” when they enacted the 2003 limitations on the anti-SLAPP procedure.  The appellate court rejected this argument finding that it was a misreading of the legislature’s intent.  Arguably, under such a reading, a music publisher could market an album claiming that it contained track x when no such track was on the album.  The court concluded that this misstatement would clearly give rise to claims under the unfair competition and CLRA claim laws.

The court, however, rejected the claim by plaintiffs that the statements as to the identity of the lead singer on the disputed tracks was simply “claims about the contents of a commercial product that appellant’s offered for sale” and therefore, there was no anti-SLAPP protection.  The Court concluded that there was a significant body of law that held that “prominent entertainers and their accomplishments can be the subjects of public interest for purposes of the anti-SLAPP statute.”  Furthermore, the Court recognized that in connection with the promotion of the film, My Big Fat Greek Wedding, it had been held that “facts concerning the creation of works of art in entertainment can also be an issue of public interest for purposes of the anti-SLAPP statute.”

In the case before it, the Court concluded that there was significant interest in the release of the Michael album and whether or not Jackson had in fact snag the lead vocals on the three disputed tracks.  Thus, the Court concluded that the defendants were engaging in protected activity that satisfied the first prong of an anti-SLAPP analysis.

The Court then turned to the issue of whether the plaintiffs could prevail on their unfair competition and CLRA claims.  Because those claims only apply to commercial speech, the appellate court began by recognizing that commercial speech is subject to less First Amendment protection than other types of expression. Furthermore, the California Supreme Court had held that false or misleading commercial speech is not entitled to First Amendment protection and may be prohibited in its entirety.  In determining whether speech is commercial speech that could be limited, the California Supreme Court had ruled that trial courts should consider three elements: (1) the identity of the speaker; (2) the intended audience; and (3) the content of the message.

In the Michael case, the appellate court found that the first two factors clearly indicated that the statements were likely commercial speech in that the defendants were “engaged in commerce” in marketing the Michael album; and the intended audience for the statements were actual or potential buyers of it.  The court concluded, however, that the content of the message did not demonstrate that it was purely commercial speech.

First, the Court concluded that the defendants made the statements on the album cover and promotional video concerning an issue of public interest for which they had no “personal knowledge.”  Rather, given that the defendants were not present when the three disputed tacks were recorded, they did not personally know whether or not Michael Jackson had in fact sung these tracks.  Rather, they were forced to rely on expert opinion that the voice was indeed Michael’s, as well as the fact that the alleged unidentified singer who allegedly sung the tracks denied to them that he had sung them. The court concluded that the defendants’ statements on the album cover and promotional video that Michael Jackson was the singer was one more of opinion rather than fact given their lack of personal knowledge.

The Court found that any other conclusion would likely violate the First Amendment.  For instance, the defendants could have been required to put disclaimers on the album stating that the identity of the singer of the three tracks was disputed or just keep those tracks off the album in its entirety.  The Court found that the second option, the exclusion of the tracks could serve as a chill on defendants’ First Amendment rights and that requiring a disclaimer could be construed as compelled speech concerning an issue that the defendants personally disagreed with.

Finally, the Court reasoned that the music itself on the album was entitled to full protection under the First Amendment.  Given that the challenged statements raised by the plaintiff’s compliant related directly to this piece of art, those statements likely had independent significance under the First Amendment.  For example, the identity of the singer as being Michael Jackson was likely “an important component of understanding the art itself.”  While the Court was careful to caution that not all statements made in connection with the promotion of a work of art such as an album or film were entitled to such broad protection, given that the issue as to the identity of the singer on the three tracks was of significant public interest, the Court concluded that the defendants’ anti-SLAPP motion should have also been granted as to the album cover and promotional video claims.

The Serova case is a reminder to defendants to consider the importance of the anti-SLAPP procedures and whether they can be utilized in connection with the promotion or sale of good and services.  Given that attorney’s fees are also available to a prevailing defendant bringing a successful anti-SLAPP motion, there is significant upside to prevailing on such a motion early in a lawsuit.

 

James Kachmar is a shareholder in Weintraub Tobin Chediak Coleman Grodin’s litigation section.  He represents corporate and individual clients in both state and federal courts in various business litigation matters, including trade secret misappropriation, unfair business competition, stockholder disputes, and intellectual property disputes.  For additional articles on intellectual property issues, please visit Weintraub’s law blog at www.theiplawblog.com