FALSE CLAIMS OF AUTHENTICITY BY SONY AND MICHAEL JACKSON’S ESTATE FOUND TO BE PROTECTED BY FIRST AMENDMENT
Steven T. Lowe
On August 28, 2018, a California appellate court ruled that a posthumously released Michael Jackson album that featured a “soundalike” vocalist on three tracks did not give rise to claims against Sony Music and the Jackson estate even though they had impliedly and expressly represented that Jackson sang all 10 songs, on both the album cover and promotional video.
The court’s ruling came more than two years after a California judge refused to dismiss Sony’s bids to dismiss claims in a proposed class action. According to the suit, a production company committed fraud by having a “soundalike” record vocals for Michael Jackson’s 2010’s “Michael” album, and Sony and Jackson’s estate violated consumer protection laws by falsely advertising the tracks’ authenticity.
Sony initially filed a motion to strike the suit under California’s anti-SLAPP statute, which applies to certain speech that is constitutionally protected. The trial court did grant the anti-SLAPP motion in part, but denied it in regard to the album cover and video, which it said “constituted commercial speech, subject to regulation under California’s Unfair Competition Law and the Consumers Legal Remedies Act.” On appeal, the California Court of Appeal reversed this order ruling that the representation of Michael Jackson being the lead singer on the three disputed tracks did not simply promote sale of the album, but also stated a position on a disputed issue of public interest. The panel stated:
“certain Jackson family members had publicly contested whether Jackson sang the songs, making the artist’s identity ‘a controversial issue of interest that was also integral to the artistic significance of the songs themselves’…Under these circumstances, Appellants’ statements about the identity of the artist were not simply commercial speech but were subject to full First Amendment protection…They are therefore outside the scope of an actionable unfair competition or consumer protection claim in this case.”
The appellate court added that because [defendants] lacked actual knowledge of the identity of the lead singer on the Disputed Tracks, “they could only draw a conclusion about that issue from their own research and the available evidence.” Under these circumstances, [their] representations about the identity of the singer amounted to a statement of opinion rather than fact.
This author believes this is an unreasonable and unfair ruling.
The case is Vera Serova v. Sony Music Entertainment et al., case number BC548468, in the Superior Court of the State of California, County of Los Angeles.
* Lowe & Associates (“The Firm”) is a boutique entertainment and business litigation firm located in Beverly Hills, California. The Firm has extensive experience handling cases involving entertainment law, having provided top quality legal services to its clients since 1991. The Firm is recognized in multiple