44 Cal.App.5th 103
Cal. Ct. App.2020Background
- Sony, the Estate of Michael Jackson, and MJJ released a posthumous album titled "Michael." Three tracks ("Breaking News," "Monster," "Keep Your Head Up") were publicly disputed as to whether Jackson was the lead singer.
- Vera Serova sued under the UCL and CLRA (and alleged fraud against the Cascio defendants), claiming the album cover and a promotional video falsely represented Jackson as lead vocalist on all ten vocal tracks.
- Defendants moved to strike under California’s anti-SLAPP statute (§ 425.16). The parties stipulated, for the motion only, that Jackson did not sing the three Disputed Tracks.
- The trial court granted the anti-SLAPP motion as to public statements (Weitzman email and Oprah remarks) but denied it as to the Album Cover and Promotional Video, finding those were commercial advertisements likely to deceive consumers.
- On appeal (after a prior opinion and Supreme Court transfer for reconsideration in light of FilmOn), the Court of Appeal held the challenged promotional statements arise from protected speech connected to a public issue and, at prong two, concluded those promotional statements are noncommercial (thus outside UCL/CLRA scope) and struck Serova’s claims against appellants.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Do the Album Cover and Promotional Video arise from protected speech (anti‑SLAPP prong 1)? | Serova: materials were commercial ads, not part of public debate, so not protected. | Defendants: statements addressed a public controversy about the tracks’ authenticity and thus are in furtherance of free speech. | Held: Yes. Content and context (speaker, audience, purpose) show the statements contributed to a public debate about Jackson’s musical legacy; protected under §425.16(e)(3)/(4). |
| 2. Does §425.17(d)(2) (exempting promotion of musical works from the §425.17 commercial‑speech exclusion) mean music advertising automatically qualifies for anti‑SLAPP protection? | Serova: N/A (argued statements were commercial). | Defendants: the legislative exclusion means music promotion is eligible for anti‑SLAPP protection. | Held: No. The exclusion removed some commercial‑speech limits but does not eliminate the §425.16 public‑interest requirement or make protection automatic. |
| 3. Are the challenged statements commercial speech subject to UCL/CLRA (anti‑SLAPP prong 2)? | Serova: statements were promotional representations about the product and thus commercial and actionable. | Defendants: even if promotional, the statements lacked personal knowledge and were tied to protected artistic expression, so noncommercial. | Held: Noncommercial. Under Kasky factors, content (no personal knowledge; tied to protected art) makes the statements noncommercial, so UCL/CLRA do not apply. |
| 4. Were the Album Cover and Promotional Video likely to deceive a reasonable consumer? | Serova: Yes; images and unqualified claims implied Jackson sang the tracks. | Defendants: argued not actionable or inextricably intertwined with expressive content. | Held: Court did not reach the merits because claims fail at prong two (noncommercial speech); trial court’s deception finding need not be decided for appellants. |
Key Cases Cited
- FilmOn.com Inc. v. DoubleVerify Inc., 7 Cal.5th 133 (clarified that context—speaker, audience, purpose—matters in determining whether speech is "in connection with" a public issue under §425.16)
- Baral v. Schnitt, 1 Cal.5th 376 (explains two‑step anti‑SLAPP procedure)
- Kasky v. Nike, Inc., 27 Cal.4th 939 (commercial‑speech test: speaker, audience, content; focus on personal knowledge and commercial purpose)
- Bolger v. Youngs Drug Prods. Corp., 463 U.S. 60 (identifies factors indicating commercial speech)
- Va. State Bd. of Pharmacy v. Va. Consumer Council, 425 U.S. 748 (commercial speech has constitutional protection but may be regulated)
- Riley v. Natl. Fedn. of the Blind, 487 U.S. 781 (inextricable‑intertwining doctrine for expressive works and ancillary advertising)
- Rivero v. AFSCME, 105 Cal.App.4th 913 (factors defining an issue of public interest)
- Rezec v. Sony Pictures Entm't, 116 Cal.App.4th 135 (advertising for expressive works can still be commercial speech)
- Dyer v. Childress, 147 Cal.App.4th 1273 (§425.17(d)(2) exclusion does not grant blanket anti‑SLAPP protection for motion pictures/music)
- San Diegans for Open Government v. SDSU Research Found., 13 Cal.App.5th 76 (identity of speaker and speech purpose matter when assessing protected status)