Serova v. Sony Music Entm't
| Decision Date | 18 August 2022 |
| Docket Number | S260736 |
| Parties | Vera SEROVA, Plaintiff and Respondent, v. SONY MUSIC ENTERTAINMENT et al., Defendants and Appellants. |
| Court | California Supreme Court |
Katten Muchin Rosenman, Zia F. Modabber, Andrew J. Demko, Tami Kameda Sims, Shelby A. Palmer, Los Angeles, Charlotte S. Wasserstein, Leah E.A. Solomon, Los Angeles; Kinsella Weitzman Iser Kump & Aldisert, Kinsella Weitzman Iser Kump, Jonathan P. Steinsapir, Howard Weitzman and Suann C. Macisaac, Santa Monica, for Defendants and Appellants.
Davis Wright Tremaine, Thomas R. Burke, San Francisco, Rochelle L. Wilcox and Dan Laidman, Los Angeles, for First Amendment Coalition as Amicus Curiae on behalf of Defendants and Appellants.
Moss Bollinger, Jeremy F. Bollinger, Ari E. Moss, Sherman Oaks, and Dennis F. Moss, Los Angles, for Plaintiff and Respondent.
Seth E. Mermin and Eliza J. Duggan for UC Berkeley Center for Consumer Law and Economic Justice, Truth in Advertising, Inc., Public Counsel, Legal Aid Society of San Diego, Housing & Economic Rights Advocates, East Bay Community Law Center, Consumers for Auto Reliability and Safety, Consumer Action and Bay Area Legal Aid as Amici Curiae on behalf of Plaintiff and Respondent.
Arbogast Law, David M. Arbogast, Los Angeles; and Micha Star Liberty for Consumer Attorneys of California as Amicus Curiae on behalf of Plaintiff and Respondent.
Xavier Becerra and Rob Bonta, Attorneys General, Michael J. Mongan, State Solicitor General, Janill L. Richards, Principal Deputy State Solicitor General, Samuel T. Harbourt and Amari L. Hammonds, Deputy State Solicitors General, for the Attorney General as Amicus Curiae on behalf of Plaintiff and Respondent.
Michael N. Feuer, City Attorney (Los Angeles), Wilfredo R. Rivera, Deputy Chief City Attorney, Christina V. Tusan, William R. Pletcher and Miguel J. Ruiz, Deputy City Attorneys, for the Los Angeles City Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.
Plaintiff Vera Serova purchased Michael , an album of music billed as Michael Jackson's first posthumous release. The album's back promised "9 previously unreleased vocal tracks performed by" the pop superstar, but Serova now thinks some of these tracks, the so-called Cascio tracks, feature a Jackson imitator. She asserts Michael ’s marketers misled her and violated two California consumer protection laws, the unfair competition law and the Consumers Legal Remedies Act, by misrepresenting the vocalist on the Cascio tracks through the album's packaging and in a promotional video.
The question before us is whether Serova's claims, premised on Michael ’s packaging and video, are subject to the album marketers’ motion to strike under California's anti-SLAPP statute, which calls for early dismissal of meritless lawsuits if they arise from a defendant's acts in furtherance of free speech rights in connection with a public issue. ( Code. Civ. Proc., § 425.16, subd. (b)(1).)1 The Court of Appeal concluded the motion to strike should be granted, reasoning the First Amendment shields the album marketers from liability. Even if the statements about Jackson's contributions were false, said the court, the First Amendment requires classifying them as noncommercial speech, a classification that would offer the statements greater protection from government regulation and, per the parties’ agreement, put them beyond the reach of the consumer protection laws Serova invokes. ( Serova v. Sony Music Entertainment (2020) 44 Cal.App.5th 103, 124, 257 Cal.Rptr.3d 398 ( Serova ).) The album marketers’ statements were, in the court's view, noncommercial, because they "were directly connected to music that itself enjoyed full protection under the First Amendment" and "concerned a publicly disputed issue about which [the speaker] had no personal knowledge." ( Id. at p. 126, 257 Cal.Rptr.3d 398.) We disagree and reverse.
The album-back statement and video were commercial advertising meant to sell a product, and generally there "can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public." ( Central Hudson Gas & Elec. v. Public Serv. Comm'n (1980) 447 U.S. 557, 563, 100 S.Ct. 2343, 65 L.Ed.2d 341 ( Central Hudson ).) We recognize artistic works such as albums, in some instances, enjoy robust First Amendment protections, but that does not turn all marketing of such works into noncommercial speech, and it does not do so in this case. Additionally, a seller's purported lack of knowledge of falsity does not tell us whether that seller's speech is commercial or noncommercial, and commercial speech does not shed its commercial nature simply because a seller makes a statement without knowledge or that is hard to verify. The First Amendment has long coexisted with no-fault false advertising laws.
Lastly, we reject the album marketers’ tardily raised argument that federal copyright law preempts Serova's consumer deception claims and deprives California courts of subject matter jurisdiction.
Michael Jackson died in 2009. A posthumous, 2010 album titled Michael stirred controversy even before its release.
According to Serova, people familiar with Jackson's voice disputed the authenticity of three of the album's tracks: "Breaking News," "Monster," and "Keep Your Head Up." These tracks apparently emerged from a basement recording studio in the New Jersey home of Edward Cascio, whose family had befriended Jackson. Doubters allegedly included Jackson's mother, three of his brothers (of The Jackson 5 fame), two of his children, three of his nephews, and two former music producers.
A month before Michael ’s debut, the album's publisher, Sony Music Entertainment, spoke to the tracks originating from Cascio's basement. It allegedly offered the public "complete confidence in the results of our extensive research as well as the accounts of those who were in the studio with Michael that the vocals on the new album are his own."
A week later, a lawyer for Jackson's estate issued an open letter to fans. The estate named people who believed Jackson was indeed the lead vocalist on the Cascio tracks. These included six of Jackson's former producers or engineers, who reviewed raw vocals at a listening session; one of Jackson's previous musical directors; one of Jackson's vocal directors; two hired forensic musicologists; and two other industry professionals with connections to Jackson. The estate, furthermore, had obtained assurances a Jackson imitator rumored to be involved was not. Though asserting "overwhelming objective evidence" of authenticity, the estate pledged to follow up and noted, "[U]ltimately, Michael's fans will be the judges of these songs."
As Michael ’s release approached, Sony Music Entertainment, the Jackson estate, and possibly MJJ Productions, Inc., the copyright holder for Michael , produced a video commercial juxtaposing images of Jackson with a voiceover announcing, "Michael , the brand new album from the greatest artist of all time." Cascio, meanwhile, appeared on The Oprah Winfrey Show and, in an episode featuring the album, asserted Jackson had sung the lead vocals on the disputed tracks.
When Sony Music Entertainment and the Jackson estate released Michael , the album's front cover contained images of the pop legend. The album's back, after listing the included songs, stated, "This album contains 9 previously unreleased vocal tracks performed by Michael Jackson."
Serova purchased a CD of Michael , relying, she claims, on representations that Jackson had sung the lead vocals on the Cascio tracks. Specifically, she claims to have relied upon the album's packaging, the video commercial, Cascio's statements on The Oprah Winfrey Show , and the Jackson estate's letter.
As more information about the Cascio tracks emerged, Serova began to doubt Jackson was the lead vocalist, going so far, it appears, as commissioning an audio expert to evaluate the tracks. That expert allegedly found it "very likely" Jackson was not the singer, and an independent reviewer allegedly found the expert's methods and conclusions reasonable.
Serova also came to suspect that Cascio and his associates had "exclusive knowledge" Jackson was not the lead vocalist and had "actively concealed" this from Sony Music Entertainment and the Jackson estate in dealings over the tracks. Serova asserts Sony Music Entertainment and the Jackson estate chose to include "Breaking News," "Monster," and "Keep Your Head Up" in part because Cascio offered assurances of their authenticity.
Serova filed suit seeking to represent a class of all California purchasers of the Cascio tracks. She alleges Sony Music Entertainment, Jackson's estate, and MJJ Productions, Inc., (collectively Sony) violated the Consumers Legal Remedies Act (CLRA) and the unfair competition law (UCL) in marketing the disputed songs through the album packaging, video commercial, and estate letter. She alleges Cascio and his associates not only violated those same consumer protection laws, but also intentionally defrauded her and her fellow purchasers with misstatements on The Oprah Winfrey Show and, indirectly, by deceiving Sony. Serova sought to enjoin marketing the Cascio tracks as Jackson performances and to obtain restitution, disgorgement of profits, damages, punitive damages, costs of suit, and attorney fees.
Sony filed a special motion to strike Serova's CLRA and UCL causes of action, invoking Code of Civil Procedure section 425.16. This statute — the anti-SLAPP statute — calls for early dismissal of claims if they arise from a defendant's acts in furtherance of free speech rights in connection with a public issue and if a plaintiff cannot demonstrate a probability of prevailing. ( § 425.16, subd. (b)(1).) Sony's memorandum of points and authorities supporting its motion argued...
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