More than a decade ago, allegations were made that Michael Jackson didn’t sing every song on his 2010 album “Michael,” released the year after his death. On Thursday, the California Supreme Court released a decision that set new legal precedent for entertainment advertising.
The issue the state’s highest court considered pitted consumer protections against free speech claims in advertising. The court sided with the consumers.
He ruled that Sony Music Entertainment’s advertising of songs on “Michael” as authentic was commercial speech – and, therefore, subject to consumer protection laws.
He also rejected Sony’s claim that claims of authenticity – on the back of the album and in a promotional video – were protected from consumer lawsuits by a free speech law designed to prevent statements on matters of public interest only become the subject of onerous and costly lawsuits. dispute.
The ruling, which overturns a lower appeals court decision, has been hailed by consumer protection advocates as a significant check on music and other arts advertisers, and a common-sense victory for ordinary consumers who do not deserve to be cheated by suppliers of artistic products. – even if these products have wide voice protections.
“The danger of this type of case is that a court could be led, by the artistic nature of the product at issue, to favor 1st Amendment and artistic expression concerns over consumer protection concerns,” said Ted Mermin, executive director of the Berkeley Center. for consumer law and economic justice. “But on the level of common sense, [we] know that if we buy an album that is marketed as the songs of Michael Jackson, it better have the songs of Michael Jackson.
The years-long legal battle began shortly after the release of “Michael,” which featured 10 tracks, nine of which were billed as unreleased recordings by the King of Pop. Jackson died the previous year, in 2009.
Rumors quickly swirled that three of the songs – known as the Cascio tracks, for allegedly being recorded at Jackson’s friend Edward Cascio’s home studio – were sung by a vocal impersonator.
Sony denied these claims, saying it had “full confidence” in the authenticity of the songs. But a fan and album buyer named Vera Serova was unconvinced and sued.
In a unanimous opinion from the seven-member state high court on Thursday, Judge Martin Jenkins wrote that Serova’s claims that advertising the album violated two California consumer protection laws were founded. and could not be dismissed based on Sony’s free speech argument.
“Perhaps in another context the First Amendment would limit the reach of our consumer protection laws, but Sony’s album return promise and video are commercial advertisements making claims about a product, and we will not place them beyond the reach of state regulation,” Jenkins wrote.
The decision was perhaps less important to Serova than it would have been just weeks ago, before it reached an undisclosed settlement in the case with the Sony and Jackson estate. But legal observers said it was no less important to California consumers and the entertainment industry in general, because it was issued by California’s highest court, where much of the music, films and television in the world is produced.
Jenkins noted the importance of the underlying issues in the case explaining why the court issued its opinion despite the settlement and the likelihood of the case being dismissed after being sent back to the lower courts.
A Sony spokeswoman did not respond to a request for comment on the decision. A spokeswoman for Jackson’s estate declined to comment.
Last week, Sony and the estate released a joint statement announcing the settlement with Serova, saying the parties had “mutually agreed to end litigation, which would have potentially included additional appeals and a lengthy legal process.”
He also noted that Sony had removed three disputed songs – “Breaking News”, “Monster” and “Keep Your Head Up” – from music platforms, which he said was “the easiest and best way to go beyond the conversation associated with these leads. once for all.”
In some respects, the dispute remains as to who sang the three songs, although the parties to the lawsuit agreed to state in court, for the purposes of their arguments, that the songs were not sung by Jackson.
Dennis Moss and Jeremy Bollinger, attorneys for Serova, said Thursday they expect all claims in the case – including claims against other parties involved in the production of the album – to be dismissed. based on the settlement with Sony and Jackson’s estate.
They also hailed the High Court’s ruling, saying it marked a victory not only for Serova but for other music and art consumers as well.
The lower appeals court had ruled that Sony’s advertisement for the album “did not merely promote the sale of the album, but also stated a position on a controversial matter of public interest” – whether Jackson had sang the songs – and so was protected speech.
Had that decision stood, Bollinger said, it would have set a “dangerous precedent for consumer protection laws” by emboldening music advertisers to stretch the truth.
Instead, he said, the High Court reaffirmed protections for art consumers, including in cases where the entity responsible for the false advertising was unaware that the speech was false. Sony had claimed that it was unaware that Cascio’s songs were not sung by Jackson, believing otherwise.
“The decision confirmed that it does not matter whether the seller has personal knowledge of the truthfulness of its statements about its products,” Bollinger said. “If you’re going to sell something, you’re responsible for those representations.”
Jenkins affirmed this standard in the opinion of the High Court, noting that if ignoring the authenticity of a product were a legitimate defense against false advertising claims, sellers would have an incentive to know as little as possible about their own products.
“Sellers who make statements about their offerings are surely not avoiding false advertising regulations, or having their statements treated as non-commercial speech, by scrupulously refusing to verify such statements or gain knowledge,” a writes Jenkins. “A knowledge test would undermine the law on false advertising and reward turning a blind eye.”
Mermin, of downtown Berkeley, co-wrote an amicus brief in the case and argued that Sony’s advertisements for the album were indeed commercial speech. He said he was satisfied with the decision, calling it the right balance between protecting consumers and preserving artistic freedoms.
A major issue in court, Mermin said, was Sony’s effort to shield itself behind California’s strong “anti-SLAPP” law, which Mermin said the court rightly rejected.
A SLAPP is a “strategic lawsuit against public participation”. Such cases are not brought for a valid legal reason, but rather for the strategic purpose of silencing another party’s speech by forcing them to restrict that speech or pay for a costly legal battle over it.
The state’s anti-SLAPP law was designed to prevent big companies from using such lawsuits to stifle public criticism of them or their products. Mermin said Sony in this case was trying to use the law backwards – to free it from liability under laws that protect small consumers.
Mermin said the court ruling narrowly dismissed Sony’s anti-gag arguments, based solely on the facts of the case in question, and therefore did not create a new precedent regarding the use or abuse of the law by companies.
Nonetheless, he said, the High Court ruling warned businesses that the state’s anti-SLAPP law does not leave them free to mislead consumers when advertising for the ‘art.
“The fact that this is going to establish a boundary there, at least as far as the entertainment industry is concerned, is very important,” he said.