Serova v. Sony Music EntertainmentSerova v. Sony Music Entertainment
APPEAL from an order of the Superior Court of Los Angeles County. Ann I. Jones, Judge. Affirmed in part and reversed in part with directions.
Defendants and appellants Sony Music Entertainment (Sony), John Branca, as co-executor of the estate of Michael J. Jackson (the Estate), and MJJ Productions, Inc. (collectively Appellants) appealed from an order of the superior court partially denying their motion to strike under the anti-SLAPP statute. (
The case concerns allegations that Appellants misleadingly marketed a posthumous Michael Jackson album entitled simply “Michael.” Serova claims that the album cover and a promotional video wrongly represented that Jackson was the lead singer on each of the 10 vocal tracks on the album, when in fact he was not the lead singer on three of those tracks. Serova alleged claims under the Unfair Competition Law (UCL;
Our prior opinion held that: (1) Serova‘s claims against Appellants arose from conduct furthering Appellants’ right of free speech “in connection with a public issue” under
Upon reconsideration of these holdings in light of FilmOn, we conclude that our original opinion was correct. Consequently, we largely adopt that
FilmOn concerned only the first step of the anti-SLAPP analysis, i.e., whether particular claims arise from conduct that the anti-SLAPP statute protects. Specifically, FilmOn considered “whether the commercial nature of a defendant‘s speech is relevant in determining whether that speech merits protection” under
As we explained in our prior opinion, the representations that Serova challenges—that Michael Jackson was the lead singer on the three Disputed Tracks—did not simply promote sale of the album, but also stated a position on a disputed issue of public interest. Before the album was released, certain Jackson family members and others publicly claimed that Jackson was not the lead singer on the Disputed Tracks. Appellants disputed this claim. An attorney acting for the Estate released a public statement outlining the steps Appellants had taken to verify the authenticity of the tracks by consulting with experts and persons who were familiar with Jackson‘s voice and recordings.
Thus, the identity of the artist on the three Disputed Tracks was a controversial issue of interest to Michael Jackson fans and others who care about his musical legacy. By identifying the singer on the Disputed Tracks as Michael Jackson, Appellants’ challenged statements made a direct claim about the controversy itself. The statements were made publicly to an audience—potential purchasers of the album—that was likely to have an interest in the identity of the singer. And, although Appellants’ ultimate goal was presumably to sell albums by marketing songs sung by Michael Jackson, that goal did not make the controversy over the identity of the artist any less real or important to those who cared about the issue. The challenged statements furthered Appellants’ position on the controversy by articulating a consistent and unqualified belief in the identity of the artist. Appellants’ challenged statements were therefore sufficiently connected to an issue of public interest to warrant anti-SLAPP protection.
Our Supreme Court‘s decision in FilmOn did not address the second step of the anti-SLAPP analysis, which concerns the merits of a plaintiff‘s claims. Nor did it address the criteria for identifying commercial and noncommercial
BACKGROUND
1. The Anti-SLAPP Procedure
Thus, ruling on an anti-SLAPP motion involves a two-step procedure. First, the moving defendant must show that the challenged claims arise from protected activity. (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral); Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) Second, if the defendant makes such a showing, the “burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.” (Baral, at p. 396.) Without resolving evidentiary conflicts, the court determines “whether the plaintiff‘s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment.” (Ibid.)
In 2003 the Legislature enacted
2. Serova‘s Allegations3
The album “Michael” was released on or about December 14, 2010, about 18 months after Michael Jackson‘s death. Sony released the album in conjunction with the Estate. The album contained 10 songs. Serova alleges that the three songs on the Disputed Tracks—“Breaking News,” “Monster,” and “Keep Your Head Up” (the Songs)—have been controversial “[s]ince Michael‘s inception.”
Serova claims that the Cascio Defendants recorded the initial versions of the Disputed Tracks and had “exclusive knowledge” that the lead vocals for the Songs were actually performed by a singer other than Michael Jackson. Serova alleges that Cascio then falsely represented to Appellants that Michael Jackson was the singer.
Prior to “Michael‘s” release, various members of Michael Jackson‘s family and others familiar with his recordings disputed whether he was the lead singer on the Disputed Tracks. In response to those concerns, Sony and the Estate (through Attorney Howard Weitzman) both publicly issued statements confirming their belief that Jackson was the singer.
The album cover for “Michael” (Album Cover) included a statement that “‘[t]his album contains 9 previously unreleased vocal tracks performed by Michael Jackson.‘”4 A video released before the album (the Promotional Video) described “Michael” as “a brand new album from the greatest artist of all time.” While appearing on the Oprah Winfrey show, Cascio also stated that Jackson performed the lead vocals on the Disputed Tracks.
The Complaint alleges that the lead singer on the Disputed Tracks actually sounds like the “soundalike” singer mentioned in the Weitzman Statement. Serova claims she discovered evidence indicating that the lead singer on the Disputed Tracks was not Michael Jackson. Among other things, she claims that: (1) Cascio did not produce any “demos, outtakes, alternate takes, and multi-track recordings” when requested; (2) Jackson never mentioned that he had recorded the Songs; (3) the Songs did not appear on a list of ongoing or planned projects found in Michael Jackson‘s house after his death; and (4) various persons that the Weitzman Statement said had confirmed that the lead singer on the Disputed Tracks was Jackson in fact had doubts about that conclusion.
Serova also hired an audio expert who prepared a report concluding that Michael Jackson “very likely did not sing” the lead vocals on the Disputed Tracks. The report was peer-reviewed by another expert who concluded that the study‘s “methodologies and conclusions were reasonable.”
The Complaint alleges claims against all defendants under the CLRA and UCL, and asserts a fraud claim against the Cascio Defendants only. The
3. Appellants’ Anti-SLAPP Motion
Appellants and the Cascio Defendants filed motions to strike under
To permit a ruling on the anti-SLAPP motions in advance of discovery, the parties stipulated that, “solely for purposes of this determination on the Motions,” Michael Jackson did not sing the lead vocals on the three Disputed Tracks (the Stipulation). The parties also stipulated to the authenticity of copies of the Weitzman Statement, the Album Cover, and the Promotional Video.
The trial court granted the defendants’ motions with respect to allegations concerning the Weitzman Statement and Cascio‘s statement on the Oprah Winfrey show, but denied the motions with respect to allegations concerning statements on the Album Cover and in the Promotional Video.
Under prong one of the anti-SLAPP procedure, the trial court ruled that all the statements addressed in the defendants’ motions arose from conduct in furtherance of the defendants’ right of free speech concerning an issue of public interest. The court concluded that the Weitzman Statement was “made in a public forum about a matter of public interest.” The court reasoned that the Weitzman Statement “responded to a matter of public concern, i.e., the authenticity of certain recordings released posthumously and claimed to have been written and recorded by a pop superstar.” Similarly, the court concluded that Cascio‘s statement on the Oprah Winfrey show addressed “the same controversy.”
In contrast, the trial court concluded that the Album Cover and the Promotional Video were simply promotional materials that “did not speak to the controversy surrounding the performance [or] address or refute” the allegations concerning the Disputed Tracks. The court nevertheless found that statements on the Album Cover and in the Promotional Video arose from protected conduct because “Michael Jackson‘s professional standing and accomplishments created legitimate and widespread attention to the release of a new album.”
However, the court concluded that the challenged statements on the Album Cover and in the Promotional Video were advertisements constituting commercial speech. The court rejected the defendants’ argument that this speech was “inextricably intertwined” with the Songs themselves under Riley v. National Federation of Blind (1988) 487 U.S. 781, 796 (Riley). The court reasoned that “[n]othing in this case prevented Defendants from giving the album a different title and look or from electing not to attest to the authenticity of the recordings on the cover or in a commercial.”
The court also found that, assuming (pursuant to the parties’ Stipulation) that Michael Jackson was not actually the lead singer on the Disputed Tracks, both the Album Cover and the Promotional Video were likely to deceive a reasonable consumer. The court concluded that images of Michael Jackson and the challenged statements on the Album Cover, along with the lack of any attribution to others, conveyed the message that Jackson was the lead singer on the Disputed Tracks. The court also concluded that a reasonable consumer would believe that Michael Jackson was the “artist” referenced in the statement on the Promotional Video that “Michael” was “a brand new album from the greatest artist of all time.”
DISCUSSION
Appellants challenge the trial court‘s rulings that: (1) the Promotional Video and the Album Cover were commercial speech that may be subject to claims under the UCL and CLRA; and (2) the representations in those materials were likely to deceive a reasonable consumer. Serova argues that those rulings were correct, and also asserts as an alternative ground for affirmance that her claims do not “arise from” protected free speech activity under prong one of the anti-SLAPP procedure. (See Klem v. Access Ins. Co. (2017) 17 Cal.App.5th 595, 609 [“A prevailing party on an anti-SLAPP motion need not file a cross-appeal to preserve his disagreement with the trial court‘s reasoning“].)5
1. Serova‘s Claims Concerning the Promotional Video and the Album Cover Arise from Appellants’ Right of Free Speech Under the United States and California Constitutions
Appellants claim the trial court correctly concluded that Serova‘s claims arose from protected speech concerning an issue of public interest, but also suggest that we need not reach that issue. Appellants argue that the Legislature‘s decision to create an exception for the marketing of musical works under
a. The significance of the Legislature‘s exclusion of music advertisements from the scope of section 425.17
As mentioned,
Such a conclusion would be inconsistent with the Legislature‘s stated intent. The Legislature specifically stated that it enacted
The interpretation that Appellants suggest would also be inconsistent with the definitions of protected conduct under
Ignoring the public interest requirement in defining the conduct that is protected under
The court in Dyer v. Childress (2007) 147 Cal.App.4th 1273 rejected an argument similar to the one that Appellants make
here. After reviewing the legislative history concerning
Similarly, the exception of
We therefore consider whether Appellants’ Challenged Statements were made “in connection with a public issue or an issue of public interest.” (
b. The challenged promotional statements in this case
In FilmOn our Supreme Court held that, “within the framework of
that engage in copyright infringement and contain “adult content.” (Id. at pp. 140-142.) The court held that these reports were not “‘in connection with‘” an issue of
Before reaching this conclusion, the court explained the appropriate process for determining whether challenged speech has a sufficient connection to a public issue to warrant anti-SLAPP protection. “First, we ask what ‘public issue or . . . issue of public interest’ the speech in question implicates—a question we answer by looking to the content of the speech. (
In analyzing the relationship between the challenged speech and the issue of public interest, it is “‘not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.‘” (FilmOn, supra, 7 Cal.5th at p. 150.) A defendant has contributed to the public debate if he or she “participated in, or furthered, the discourse that makes an issue one of public interest.” (Id. at p. 151.)
i. The issue of public interest
FilmOn did not announce any change in the approach that courts should take to identifying issues of public interest. On the contrary, the court said that the Courts of Appeal have “ably distilled the characteristics of a ‘public issue or an issue of public interest‘” for purposes of
In Rivero, the court surveyed a number of cases and identified three common elements in statements that concerned an issue of public interest. The statements concerned either: (1) a person or entity “in the public eye“; (2) conduct that “could directly affect a large number of people beyond the direct participants“; or (3) a “topic of widespread, public interest.” (Rivero, supra, 105 Cal.App.4th at p. 924.) In Weinberg, the court offered additional analysis consistent with the categories in Rivero. Among other things, the court explained that public interest “does not equate with mere curiosity” and
The issue of public interest here is whether Michael Jackson was in fact the singer on the three Disputed Tracks. It is beyond dispute that Michael Jackson was a famous entertainer who was very much “in the public eye.” (Rivero, supra, 105 Cal.App.4th at p. 924.) As the court stated in Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664 (Stewart), “‘there is a public interest which attaches to people who, by their accomplishments, mode of living, professional standing or calling, create a legitimate and widespread attention to their activities.‘” (Id. at pp. 677-678, quoting Eastwood v. Superior Court (1983) 149 Cal.App.3d 409, 422; see No Doubt v. Activision Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1027 [video game distributor‘s use of band members’ likenesses in a video game was a “matter of public interest because of the widespread fame” of the band]; Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1347 [Marlon Brando‘s decisions concerning the distribution of his assets was an issue of public interest].)
Moreover, the question whether Michael Jackson was the singer on the Disputed Tracks did not simply concern some trivial fact about his life, but related to his artistic legacy. Facts concerning the creation of works of art and entertainment can themselves be issues of public interest. For example, in Kronemyer v. Internet Movie Database Inc. (2007) 150 Cal.App.4th 941, the plaintiff challenged the omission of his name from the credits listed for the movie My Big Fat Greek Wedding on a widely visited Web site. (Id. at p. 944.) The court concluded that the movie “was a topic of widespread public interest,” and the Web site was a public forum. (Id. at pp. 949-950.) Accordingly, the plaintiff‘s action challenging the listings was “within the ambit of section 425.16, subdivision (e)(3) and (4).” (Id. at p. 950; see Tamkin v. CBS Broadcasting, Inc. (2011) 193 Cal.App.4th 133, 143-144 [there was a “public interest in the writing, casting and broadcasting” of a television episode for purposes of the anti-SLAPP statute].)
The controversy over the identity of the singer on the Disputed Tracks was also of widespread interest among Michael Jackson fans. (See Rivero, supra, 105 Cal.App.4th at p. 924; Weinberg, supra, 110 Cal.App.4th at p. 1132.) The Complaint alleges that, “[b]efore Michael‘s release, numerous people familiar with Michael Jackson‘s voice disputed the authenticity” of the Disputed
This public controversy distinguishes this case from cases that Serova cites concerning allegedly misleading descriptions of a particular commercial product or service. (See Consumer Justice Center v. Trimedica International, Inc. (2003) 107 Cal.App.4th 595, 599, 601 [claims about a pill for breast enlargement]; Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 43–46 [list of ingredients on labels for nutritional and dietary supplements]; Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 423 [claims about the safety and efficacy of a particular weight loss product]; L.A. Taxi Cooperative, Inc. v. The Independent Taxi Owners Assn. of Los Angeles (2015) 239 Cal.App.4th 918, 921, 927–928 [alleged misleading advertisements concerning contact information for companies providing taxi services]; Jewett v. Capital One Bank (2003) 113 Cal.App.4th 805, 814–816 [alleged false statements in credit card solicitations].)
The representations at issue here concerned the body of work of a well-known artist and an album containing his songs that generated significant public attention. We therefore conclude that the issue was one of “public interest” for purposes of
ii. The relationship between the Challenged Statements and the public debate
As discussed above, the court in FilmOn explained that courts considering whether challenged speech concerned an issue of public interest should analyze not only the nature of the issue but also the connection between the issue and the speech. In the latter analysis, the context of the speech—the speaker, audience and purpose—are important.
We discussed the context of the Challenged Statements at some length in our prior opinion in analyzing whether those statements can be categorized as actionable commercial speech for purposes of the second step of the anti-SLAPP procedure. (Serova I, supra, 26 Cal.App.5th at pp. 775–781.) Much of that analysis is also relevant to the connection between the statements that Serova challenges and the issue of public interest for purposes of the first step in the anti-SLAPP analysis.
However, the court in FilmOn explained that “[w]hether speech has a commercial or promotional aspect is not dispositive of whether it is made in connection with an issue of public interest.” (FilmOn, supra, 7 Cal.5th at p. 154, quoting Industrial Waste & Debris Service, Inc. v. Murphy (2016) 4 Cal.App.5th 1135, 1150.) The court stated unequivocally that “[s]ome commercially oriented speech will, in fact, merit anti-SLAPP protection.” (FilmOn, at p. 153.) The proper analysis focuses on the same “contextual cues” that show a statement “to be ‘commercial’ in nature—whether it was private or public, to whom it was said, and for what purpose.” (Id. at p. 148.) The ultimate question is whether the “wedding of content and context” shows that the statement “contributes to or furthers the public conversation on an issue of public interest.” (Id. at p. 154.)
Analysis of the content and context of the Challenged Statements here shows that they merit anti-SLAPP protection.
(a) Content
The content of the Challenged Statements related directly to the issue of public interest. According to Serova‘s Complaint, the statements identified Michael Jackson as the singer on the Disputed Tracks, which was the precise focus of the public controversy. Thus, the statements at issue here were not just tangentially connected to the issue of public interest through a creative generalization of their subject matter (what the court in FilmOn characterized as the “‘synecdoche theory’ of public interest“). (FilmOn, supra, 7 Cal.5th at p. 152; see Commonwealth Energy Corp. v. Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34 [“The part is not synonymous with the whole. Selling an herbal breast enlargement product is not a disquisition on alternative medicine“].)
In her supplemental brief, Serova disputes that there was any connection between the Challenged Statements and the issue of public interest, claiming that the statements did not refer to the identity of the singer on the Disputed Tracks at all. She argues that the Challenged Statements “do not reference the three controversial songs and do not suggest to the audience that these three songs are somehow special.”
The question in the first step of the anti-SLAPP analysis is whether the claims at issue arise from protected conduct. (
It is true that the statements on the Album Cover and the Promotional Video did not actually refer to the public debate about the identity of the singer. And, unlike the Weitzman Statement, they did not offer any argument in support of the conclusion that Michael Jackson was the singer. They simply asserted the conclusion as fact. But they certainly showed Appellants’ acceptance of that fact, which communicated Appellants’ position on the issue. As Serova acknowledges, a statement “need not necessarily reference the debate to participate in it.” Whether couched as argument or fact, the Challenged Statements expressed a position on the question whether Michael Jackson was the singer on the Disputed Tracks.
Serova also argues that “nothing about Jackson‘s persona, life or career is communicated by the advertisements” at issue. This assumes that the content of Jackson‘s body of work is irrelevant to those interested in his life and career. The assumption is unreasonable on its face, and belied in any event by Serova‘s own allegations, which acknowledge the public controversy over the identity of the singer.
(b) Context
As discussed above, the commercial purpose of the Challenged Statements—to sell albums—does not itself determine whether they contributed to the public debate. It certainly reflects that Appellants had a commercial interest in the debate, but it does not divorce the statements from that debate. Appellants had the same commercial interest in defending their claims about the identity of the singer in the Weitzman Statement, which Serova does not dispute was protected speech. The purpose of the Challenged Statements is essentially a neutral consideration in determining whether the statements were protected conduct.
There is another important fact concerning the identity of the speakers here. Appellants were not sellers of a typical consumer product; they were sellers of a product (music) that is itself subject to First Amendment protection. In explaining that the identity of the speaker matters in analyzing context, the court in FilmOn cited as an example the identity of the defendants in San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76 (San Diegans). (FilmOn, supra, 7 Cal.5th at p. 145.) In San Diegans, the plaintiff claimed that contracts for collaborative news reporting between a defendant, inewsource, and a public radio and television station, KPBS, violated prohibitions on self-dealing and gifts of public funds. (San Diegans, at p. 103.) In holding that the claims arose from protected speech activity, the court observed that “the fact these contracts are for gathering and delivering news stories and not some other purpose matters.” (Id. at p. 105.) The court explained that inewsource “is not a construction company. It is in the news reporting business, and the contracts [the plaintiff] challenges shape the way inewsource and KPBS gather, produce, and report the news.” (Id. at p. 106.)
Similarly, the challenged conduct in this case helped shape the experience of the music that consumers purchased. There is no dispute that the identity of the singer on the Disputed Tracks affected the musical experience for many listeners; indeed, the basis for Serova‘s Complaint is that whether the singer was Michael Jackson mattered to consumers.
Moreover, in FilmOn, the court instructed that courts should undertake the analysis of context mindful of the anti-SLAPP statute‘s purpose to “encourage continued participation in matters of public significance.” (FilmOn, supra, 7 Cal.5th at p. 154, quoting
We therefore conclude that, consistent with the analysis and holding in FilmOn, Appellants’ Challenged Statements on the Album Cover and the Promotional Video were protected speech under
2. The Challenged Statements Were Noncommercial Speech Outside the Scope of Serova‘s Consumer Protection Claims
Appellants argue that Serova cannot show a probability of success on her UCL and CLRA claims under prong two of the anti-SLAPP analysis because those statutes apply only to commercial speech. They claim that their Challenged Statements about the lead singer on the Disputed Tracks were not commercial speech, or, if they were, that those statements were inextricably intertwined with the protected contents of the Songs themselves.
Appellants argue that the consumer protection claims that Serova asserts against them apply only to commercial speech. A number of cases support that assertion. (See Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 952 (Kasky) [identifying criteria for determining whether speech may constitutionally be regulated as commercial speech under California‘s false advertising laws]; Rezec v. Sony Pictures Entertainment, Inc. (2004) 116 Cal.App.4th 135, 140 (Rezec) [California‘s consumer protection laws, like the unfair competition law, govern only commercial speech]; Keimer v. Buena Vista Books, Inc. (1999) 75 Cal.App.4th 1220, 1231 (Keimer) [
a. Identifying commercial speech
Restrictions on purely commercial speech are subject to a lesser level of scrutiny than are “‘other constitutionally safeguarded forms of expression.‘”
The United States Supreme Court first held that commercial speech is entitled to some constitutional protection in Bigelow v. Virginia (1975) 421 U.S. 809. In Bigelow, the court rejected the proposition that “advertising, as such, was entitled to no First Amendment protection.” (Id. at p. 825.) Following that decision, courts have had to grapple with the distinction between expressive activities that are merely commercial in nature and those that are subject to more stringent First Amendment protection.
In Bolger, the court held that materials distributed by a manufacturer of contraceptives, including both promotional flyers and informational pamphlets about contraceptives, were commercial speech. (Bolger, supra, 463 U.S. at pp. 62, 66–68Id. at p. 66, quoting Va. Pharmacy Bd. v. Va. Consumer Council (1976) 425 U.S. 748, 762 (Virginia Pharmacy).) However, the informational pamphlets required further analysis. The court identified three factors indicating that the pamphlets were commercial speech: (1) the pamphlets were “conceded to be advertisements“; (2) they referred to a specific product; and (3) the defendant had an economic motivation for mailing them. (Bolger, at pp. 66–67.) The court stated that none of these factors alone was sufficient to show that the speech was commercial, but “[t]he combination of all these characteristics . . . provides strong support” for the decision that the informational pamphlets were commercial speech. (Id. at p. 67.)
In Kasky, supra, 27 Cal.4th 939, our Supreme Court considered the factors the court identified in Bolger, supra, 463 U.S. 60, along with other relevant United States Supreme Court precedent and crafted a “limited-purpose” test for identifying commercial speech. The test applies when, as here, “a court must decide whether particular speech may be subjected to laws aimed at preventing false advertising or other forms of commercial deception.” (Kasky, at p. 960Ibid.)
The court in Kasky applied those factors to the allegations that the defendant, Nike, made false statements about labor practices in its own
b. Appellants’ Challenged Statements
Applying the three-factor test for identifying commercial speech described in Kasky, we conclude that Appellants’ challenged representations were noncommercial speech.
As discussed above, the first two factors—the speaker and the intended audience—both suggest a commercial purpose. Appellants were “engaged in commerce” in making representations on the Album Cover and on the Promotional Video to sell the album. (Kasky, supra, 27 Cal.4th at p. 963.) And the audience for those representations was potential purchasers of the album. (Id. at p. 964.) However, the third factor—the content of the challenged speech—shows that the speech at issue here is critically different from the type of speech that may be regulated as purely commercial speech under Kasky. That is so for two reasons. First, Appellants’ Challenged Statements concerned a publicly disputed issue about which they had no personal knowledge. Second, the statements were directly connected to music that itself enjoyed full protection under the First Amendment.
i. Personal knowledge
The court in Kasky explained that, “at least in relation to regulations aimed at protecting consumers from false and misleading promotional practices, commercial speech must consist of factual representations about the business operations, products, or services of the speaker (or the individual or company on whose behalf the speaker is speaking), made for the purpose of promoting sales of, or other commercial transactions in, the speaker‘s products or services.” (Kasky, supra, 27 Cal.4th at p. 962Ibid., quoting Virginia Pharmacy, supra, 425 U.S. at p. 772, fn. 24.)
These factors were important for the court‘s ruling. The court in Kasky ascribed great significance to the fact that, “[i]n describing its own labor
Here, Appellants’ representations about the identity of the lead singer on the Disputed Tracks did not concern their own business operations or a fact of which they had personal knowledge. Serova alleges that the Cascio Defendants, not Appellants, “jointly created, produced, and recorded the initial versions” of the Disputed Tracks. She claims that the “lead vocals on these songs were performed by another singer under the direction, and with the knowledge, cooperation, participation, and substantial assistance of the Cascio Defendants.” And she further alleges that the Cascio Defendants had ”exclusive knowledge of the fact that Jackson did not perform the songs.” (Italics added.)10
As discussed above, Appellants’ Challenged Statements in the Promotional Video and on the Album Cover concerned an issue of public interest and debate—whether the three Songs on the Disputed Tracks should be included in Michael Jackson‘s body of work. Appellants did not record the Songs and, according to Serova‘s allegations, were themselves deceived about the identity of the singer. Appellants’ statements therefore lacked the critical element of personal knowledge under the Kasky standard.
As the trial court correctly concluded, Appellants’ statements directly addressing the public controversy about the identity of the singer—including the Weitzman Statement—were noncommercial. The Challenged Statements on the Album Cover and the Promotional Video also staked out a position in that controversy by identifying the singer as Michael Jackson. The fact that those statements were made in the context of promoting the album does not change their constitutional significance.
Economic motivation is only one of the factors, insufficient in itself, that may indicate that speech is commercial. (Bolger, 463 U.S. at p. 67.) As our Supreme Court explained in Kasky, whether speech is commercial or noncommercial should take account of the reasons for affording commercial
The absence of the element of personal knowledge is highly significant here. Because Appellants lacked actual knowledge of the identity of the lead singer on the Disputed Tracks, they could only draw a conclusion about that issue from their own research and the available evidence. Under these circumstances, Appellant‘s representations about the identity of the singer amounted to a statement of opinion rather than fact.12 (Cf. Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 348 [statements of opinion on Planned Parenthood‘s Web site concerning scientific research about abortion and breast cancer were not commercial speech].)