Serova v. Sony Music Entertainment, 515 P.3d 1

Background

Vera Serova bought Michael, a posthumous Michael Jackson album, after album packaging and a promotional video stated it contained “9 previously unreleased vocal tracks performed by Michael Jackson.”
Some listeners disputed the authenticity of three Cascio-origin tracks; Serova alleges Sony and the estate misrepresented Jackson as the vocalist and concealed contrary information.
Serova sued on behalf of California purchasers under the Consumers Legal Remedies Act (CLRA) and the Unfair Competition Law (UCL), seeking injunctive and monetary relief for deceptive marketing.
Sony moved to strike under California’s anti‑SLAPP statute, stipulating the court should decide only two issues: whether the challenged statements were noncommercial (thus protected) and whether they were sufficiently false or misleading.
Trial court treated the album back and video as commercial speech but the Court of Appeal held the statements were noncommercial and immune; the California Supreme Court granted review and reversed the appellate decision.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Sony’s album-back statement and promotional video are commercial or protected noncommercial speech for anti‑SLAPP purposes	Serova: marketing statements promising Jackson vocals are commercial advertising aimed at purchasers and regulable under CLRA/UCL	Sony: statements concern an expressive work and public controversy; thus they are noncommercial and entitled to heightened First Amendment protection	Held: Commercial — album packaging and video are product-promoting advertising and subject to consumer protection laws
Whether the speaker’s lack of knowledge or the difficulty of verification makes the statements noncommercial	Serova: even if hard to verify, commercial classification stands; scienter is irrelevant to speech category	Sony: because falsity was disputed and not readily verifiable, statements lack the Kasky “personal knowledge” element and are noncommercial	Held: Knowledge/verifiability do not convert otherwise commercial promotion into noncommercial speech; no personal-knowledge requirement for commercial categorization
Whether the album’s expressive elements (title/artwork/music) render the promotional statements "inextricably intertwined" with protected speech	Serova: promotional attribution of vocals can be separated from the expressive content and regulated	Sony: promotional identification of Jackson is adjunct to expressive work and should share its protection	Held: Not inextricably intertwined here — the attribution is separable commercial advertising and not cloaked by the album’s expressive content
Whether federal copyright law preempts Serova’s state-law CLRA/UCL claims or divests courts of jurisdiction	Serova: consumer-deception claims require an extra element (misrepresentation) and thus are distinct from copyright claims	Sony: (raised belatedly) copyright preempts and deprives state courts of jurisdiction	Held: Rejected — CLRA/UCL deception claims are not equivalent to copyright claims and can coexist; no preemption or jurisdictional bar here

Key Cases Cited

Central Hudson Gas & Electric Corp. v. Public Serv. Comm’n, 447 U.S. 557 (U.S. 1980) (commercial speech that is false or misleading may be regulated or prohibited)
Kasky v. Nike, Inc., 27 Cal.4th 939 (Cal. 2002) (framework for determining commercial speech: speaker, audience, content)
Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (U.S. 2003) (distinguishing origin-of-goods claims from misrepresentation claims about a work’s content)
Rogers v. Grimaldi, 875 F.2d 994 (2d Cir. 1989) (titles of expressive works can have commercial component and be regulable when explicitly misleading)
Riley v. Nat’l Fed. of the Blind, 487 U.S. 781 (U.S. 1988) (disclosure required by law can be "inextricably intertwined" with protected solicitation)
Board of Trustees v. Fox, 492 U.S. 469 (U.S. 1989) (discussing when commercial and noncommercial speech may be inseparable)
Charles v. City of Los Angeles, 697 F.3d 1146 (9th Cir. 2012) (promotional advertising for an expressive program is commercial and not necessarily intertwined with the program’s protected speech)
Bates v. State Bar of Arizona, 433 U.S. 350 (U.S. 1977) (commercial speech regulation to ensure truthfulness is permissible)