False Ad About Allegations That ‘Michael’ Included Jackson Imitator Tracks May Continue

Since today’s unanimous decision by the California Supreme Court in Serova vs. Sony Music Entm’twritten by Judge Martin Jenkins:

Plaintiff Vera Serova purchased Michael, a music album billed as Michael Jackson’s first posthumous release. The back of the album promised “9 never-before-seen vocal tracks performed by” the pop superstar, but Serova now believes some of those tracks, the so-called Cascio tracks, feature a Jackson impersonator. She asserts MichaelMarketers misled her and violated two California consumer protection laws, the Unfair Competition Act and the Consumers Legal Remedies Act, by misrepresenting the singer on Cascio’s tracks through the packaging from the album and in a promotional video….

[The lower court held that, e]Even if the statements about Jackson’s contributions were false, …. the First Amendment requires classifying them as non-commercial speech, a classification that would afford the statements greater protection from government regulation and, by the parties’ agreement, place them beyond the reach of consumer protection laws Serova is relying on. The album sellers’ statements were, in the court’s view, non-commercial because they “related directly to the music which itself enjoyed full protection under the First Amendment” and “concerned a matter publicly controversial about which [the speaker] had no personal knowledge.”

We disagree and reverse. Both the statement and the album video were commercial advertisements intended to sell a product, and generally there “can be no constitutional objection to the removal of commercial messages which do not accurately inform the public”. We recognize that artistic works such as albums, in some cases, enjoy strong First Amendment protections, but that does not turn all commercialization of such works into non-commercial speech, and that is not the case in this case. . Further, a seller’s alleged misunderstanding of falsehood does not tell us whether that seller’s speech is commercial or non-commercial, and commercial speech does not lose its commercial nature simply because a seller unknowingly makes a statement. or which is difficult to verify. The First Amendment has long coexisted with no-fault false advertising laws….

Admittedly, sometimes commercial advertising for non-commercial speech – “non-commercial speech” here meaning speech such as books, movies, or music, which is not “commercial speech” for purposes of the First Amendment even s ‘it is sold commercially – is indeed equated with non-commercial speech. For example, the First Amendment protects, notwithstanding state “right of publicity” laws, the right of an author to publish and sell an unauthorized biography, and this includes the right to use the subject’s name in advertisements or the covers of the biography. But the court distinguished this situation as follows:

Sony contends in the alternative that if its representations on Michael seem commercial, yet they are so tied to fully protected, non-commercial speech –Michaelmusical content of – that they should be treated as non-commercial speech and benefit from the increased protection due to them. But, … we don’t see the required link.

[A]An advertising supplement to an expressive work should sometimes enjoy the same protected status as that work. Several appeals courts have ruled that the truthful use of a name and likeness to promote an expressive work cannot support a claim of image rights infringement. (For instance, De Havilland vs. FX Networks, LLC (2018) 21 Cal.App.5th 845, 862 [name of Olivia De Havilland to promote a program about her]; Polydoros c. Twentieth Century Fox Film Corp. (1997) 67 Cal.App.4th 318, 325 [“photographs of an actor resembling an actual personage to promote a fictional work” about that personage]; Montana vs. San Jose Mercury News, Inc. (1995) 34 Cal.App.4th 790, 797 [“a newspaper has a constitutional right to promote itself by reproducing its originally protected articles or photographs”].)

But another court ruled that where advertisements “did not reflect any character or part” of an expressive work and “instead contained the favorable opinion of a fictional reviewer”, the advertisements were not entitled to increased protection in as supplements to an expressive work and were instead subject to consumer protection laws. (Rezec v Sony Pictures Entertainment, Inc. (2004) 116 Cal.App.4th 135, 142–143 [rejecting a regime in which film advertisements would evade consumer protection laws when traditionally utilitarian products would not]; see Keimer v Buena Vista Books, Inc. (1999) 75 Cal.App.4th 1220, 1229 (Keimer) [holding that even promotional materials on book cover reflecting false claims of book could be commercial speech].) {Keimerwhich involved advertising material on a book cover taken directly from the text of the book (Keimer, above75 Cal.App.4th at p. 1225, 1233), has been criticized as insufficiently protective of free speech (e.g., Lacoff v Buena Vista Publ’g, Inc. (2000) 705 NYS2d 183, 191 [183 Misc.2d 600, 610] [classifying the identical advertising material as noncommercial and expressly rejecting Keimer]). Since Sony’s advertising does not reproduce the music on Michaelwe don’t need to get into this criticism of Keimer, or, for that matter, approach the complete contours of a doctrine governing the promotion of works of expression. (See Charles v. City of Los Angeles (9th Cir. 2012) 697 F.3d 1146, 1155 (Charles) [noting the conflict].)}

The Ninth Circuit addressed both entanglement and publicity complement to expressive works in Charles, supra, 697 F.3d 1146. She held that even if a television program was itself noncommercial expressive speech, a billboard advertising the show was commercial speech and did not “present interwoven speech”. The programme’s protected status “has not obscured all advertisements for the program with non-commercial status”, because “speech inviting the public to watch ‘a program’ is not inherently identical to the speech which constitutes the program itself. -same”.

The Ninth Circuit separately observed that the principle motivating California’s protection of advertisements complementary to expressive works “is the need to protect advertisers from tort claims that would otherwise threaten publishers’ ability to honestly promote particular works” in accurately conveying the content of those works, even when that content is itself false. A doctrine of supplemental advertising, she asserted, would be “warranted only to the extent necessary” to achieve this objective. (See Dear c. Forum Int’l, LTD (9th Cir. 1982) 692 F.2d 634, 639 [viewing tabloid magazine headlines, cover content, and advertising inserts as potentially “adjunct” to an article within the magazine but refusing to protect “patently false” representations].)

We conclude that Sony’s identification of Jackson as lead singer is not inextricably linked to the music on Michael or one of the arguably expressive elements of the album. No legal ordinance or law of nature compelled Sony to include what, for present purposes, it concedes to be misrepresentations on Cascio’s tracks or to market the album with a commercial video. It was hardly “impossible” for Sony to market Michael without these statements.

Additionally, Sony’s alleged misrepresentations are distinct from any artistic expression on Michael. Serova is not suing because MichaelThe artistic expression of has extended to promotional advertising, but because she believes Sony has made false commercials for the lead singer. Thus, even if we fully accept the proposal to limit claims based on truthful advertising of expressive works, this limitation would not apply to Serova’s claims. To invoke the doctrines of entanglement or ancillary advertising here would, in our view, strike an improper balance between the interests of consumers and those of sellers advertising expressive works.

Kudos to Jeremy Bollinger, Ari Moss and Dennis Moss of Moss Bollinger who represented the plaintiff. (Note that the complainant is a former law student of mine, although I don’t know her well.) Thanks to Bruce Wessel for the pointer.

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