More than a decade ago, allegations surfaced that Michael Jackson did not sing all of the songs on his 2010 album Michael, released a year after his death. On Thursday, the California Supreme Court issued a ruling that set a new legal precedent regarding entertainment advertising.
The issue, which the country’s top court considered, challenged consumer protections against claims of free speech in advertising. The court decided in favor of consumers.
It ruled that Sony Music Entertainment’s promotion of the songs on “Michael” was deemed authentic commercial speech – and therefore subject to consumer protection laws.
It also dismissed Sony’s claim that the claims of authenticity – on the album’s back cover and in a promotional video – were protected from consumer disputes by a free speech law to prevent statements on matters of public interest from becoming onerous and expensive litigation.
The ruling, overturning a lower court of appeals decision, was hailed by consumer advocates as an important scrutiny for advertisers of music and other arts, and a reasonable win for ordinary consumers who don’t deserve to be fooled by suppliers of artistic products — even if those products are have comprehensive language protection.
“The danger with this type of case is that the artistic nature of the product in question could lead a court to favor First Amendment concerns and artistic expression concerns over consumer protection concerns,” said Ted Mermin, executive director of the Berkeley Center for Consumer Law & Economic Justice. “But on a common sense level [we] know that if we’re going to buy an album that’s marketed as Michael Jackson songs, it better have the Michael Jackson songs.”
The year-long legal battle began not long after the release of “Michael,” which contained 10 tracks, nine of which were touted as never-before-released recordings by the King of Pop. Jackson died a year earlier, in 2009.
Rumors quickly circulated that three of the songs – known as the Cascio tracks because they were said to have been recorded in Jackson’s friend Edward Cascio’s home studio – were sung by a vocal impersonator.
Sony denied the claims, saying they have “complete confidence” in the authenticity of the songs. But a fan and album buyer named Vera Serova wasn’t convinced and filed the lawsuit.
In a unanimous opinion for the seven-member state Supreme Court on Thursday, Judge Martin Jenkins wrote that Serova’s claims that promoting the album violated two California consumer protection laws are valid and cannot be dismissed on the basis of 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 back promise and video are commercial advertisements that make claims about a product, and we will not place them outside the reach of government regulation “, Jenkins wrote.
The decision may have been less important to Serova than it was a few weeks ago, before she reached a secret settlement in the case involving the Sony and Jackson estate. But legal observers said it’s no less important to California consumers and the entertainment industry in general because it was handed down from the Supreme Court in California, where much of the world’s music, film and television is produced.
Jenkins pointed to the importance of the issues underlying the case to explain why the court issued its opinion despite the settlement and the likelihood of the case being dismissed after being remanded 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 issued a joint statement announcing the settlement with Serova, saying the parties had “amicably decided to end the litigation, which might have involved additional appeals and a lengthy court hearing.”
It also noted that Sony had removed three controversial songs — “Breaking News,” “Monster,” and “Keep Your Head Up” — from music platforms, which “was the easiest and best way to move beyond the conversation associated with those tracks.” forever.”
In a way, the dispute as to who sang the three songs remains, although the parties to the litigation agreed to establish in court, for the purposes of their argument, that the songs were not sung by Jackson.
Dennis Moss and Jeremy Bollinger, attorneys for Serova, said Thursday they believe all claims in the case — including claims against other parties involved in the album’s production — will be dismissed based on the settlement with Sony and Jackson’s estate would.
They also praised the Supreme Court’s ruling, saying it was not just a victory for Serova, but for other music and art consumers as well.
The lower appeals court had ruled that Sony’s promotion of the album “not only promoted sales of the album, but also addressed a contentious issue of public interest” – whether Jackson had sung the songs – and was therefore protected.
Had that ruling stood, Bollinger said it would have set a “dangerous precedent for consumer protection laws” by encouraging music advertisers to tell the truth.
Instead, he said, the Supreme Court reaffirmed protections for art consumers, even in cases where the body responsible for the false publicity did not know the speech was false. Sony had claimed they were unaware that the Cascio songs were not sung by Jackson and believed the opposite.
“The decision confirmed that it doesn’t matter whether the seller has personal knowledge of the accuracy of what they say about their products,” Bollinger said. “If you want to sell something, you are responsible for these representations.”
Reinforcing this standard in the High Court’s view, Jenkins found that if ignorance of a product’s authenticity was a legitimate defense against false advertising claims, then sellers would have an incentive to know as little as possible about their own products.
“Sellers who make claims about their offerings are certainly not avoiding false advertising regulation or having their claims treated as non-commercial speech by conscientiously refusing to verify those claims or seek knowledge,” Jenkins wrote. “A knowledge test would undermine the right to false advertising and reward looking the other way.”
Mermin of the Berkeley Center co-wrote an amicus briefing on the case, arguing that Sony’s promotion of the album was in fact commercial speech. He said he was happy with the ruling, calling it the right balance between protecting consumers and upholding artistic freedoms.
A key issue in court, Mermin said, is Sony’s attempt to shelter behind California’s tough “anti-SLAPP” law, which Mermin says the court rightly rejected.
A SLAPP is a “strategic lawsuit against public participation”. Such cases are brought not for any sound legal reason, but for the strategic reason of silencing another party’s speech by forcing them to abridge that speech or pay for an expensive lawsuit over it.
The state anti-SLAPP law was intended to prevent large corporations from using such lawsuits to quell public criticism of them or their products. Mermin said Sony tried to apply the law in reverse in this case – to exempt it from liability under small consumer protection laws.
Mermin said that the court’s decision narrowly dismissed Sony’s anti-SLAPP arguments based only on the facts of the case in question, and thus did not set a broad new precedent regarding corporate use or abuse of the law.
Nonetheless, he said, the High Court ruling alerted companies that the state’s anti-SLAPP law does not allow them to mislead consumers when advertising art.
“The fact that this will set a limit, at least for the entertainment industry, is very important,” he said.
https://www.latimes.com/california/story/2022-08-18/california-supreme-court-says-promotion-of-disputed-michael-jackson-tracks-subject-to-consumer-protection-laws Consumers win in lawsuit over posthumous Michael Jackson album