Center Files Amicus Brief in CA Supreme Court Defending False Advertising Statutes in Case Involving Posthumous Michael Jackson Album

December 14, 2020

On Friday, the Center filed an amicus brief in the California Supreme Court in Serova v. Sony, a case that threatens to undermine the state’s deceptive advertising laws. Increasingly, commercial defendants in false advertising cases have been filing anti-SLAPP motions, claiming that their free speech rights are being threatened. The irony of these claims is sharp: the anti-SLAPP statute was enacted specifically to prevent large businesses from bringing baseless but expensive lawsuits against individual and nonprofit whistleblowers. The amicus brief lays out this history and points out that, despite the focus in the lower courts here on “strategic lawsuits against public participation,” the case is actually a rather straightforward deceptive advertising action. 

The Center was joined on the brief by Truth in Advertising, Inc., Public Counsel, the Legal Aid Society of San Diego, Housing & Economic Rights Advocates, the East Bay Community Law Center, Consumers for Auto Reliability & Safety, and Consumer Action. 

The case began when Sony Music produced a posthumous Michael Jackson album, entitled Michael, which contained three songs that some people thought might have been sung by a “sound-a-like” singer instead of by the King of Pop. Sony had not recorded the songs, but had purchased the rights from another producer. A Michael Jackson fan, Serova, filed a suit against Sony for deceptive advertising. She observed, for example, that the album cover included the statement “This album contains 9 previously unreleased vocal tracks performed by Michael Jackson.” In response, Sony filed an anti-SLAPP motion (Cal. Civ. Code section 425.16), a procedure designed to quickly strike unmeritorious complaints that are brought to chill the defendant’s freedom of speech. For the past four years, the case has been in litigation at this motion stage. 

Sony stipulated, for the purposes of the anti-SLAPP motion, that Jackson did not sing the disputed songs, arguing that the company had a free speech right to promote the album as one by Michael Jackson regardless. 

Although common sense would seem to suggest that a music producer should not be permitted to profit from falsely claiming that an international superstar was the lead vocalist on all of an album’s tracks, the court of appeal agreed with Sony that its speech was protected and granted Sony’s anti-SLAPP motion to strike Serova’s claims. That court reasoned that, in advertising the album, Sony was expressing its “opinion” about an issue of public interest rather than making misleading commercial statements. And, since Sony did not record the songs and therefore did not have “personal knowledge” about the songs’ origins, the company could not be held liable. Finally, because the statements were not “commercial,” in the court’s view, California’s consumer protection statutes could not apply. 

The Center’s amicus brief argues that Sony’s statements clearly constitute false and misleading commercial speech, which has never been protected under the U.S. or California Constitution, and therefore California’s consumer protection laws apply. Even advertisements promoting constitutionally protected works of art or music can mislead consumers, and consumers have a right not to be deceived about the origins of those works. If the law were otherwise, forgers and other unscrupulous sellers would be able to peddle fraudulent works of art as long as they claim that they don’t know where the works originated. Such a regime would put the onus on the consumer to investigate the authenticity of every piece of art or music.  

The Center’s brief observes that Sony’s motion case has flipped the original purpose of the anti-SLAPP statute on its head. The statute was designed to protect individuals and nonprofit organizations from corporate litigation abuse — instead, a well-resourced corporation is using the statute to stop a consumer from exercising her rights under California’s consumer protection statutes. The term “SLAPP” (for “strategic lawsuit against public participation”) was developed to describe the manner in which commercial corporations would file meritless suits against citizens who spoke out against them. Companies that file a SLAPP don’t expect to win — they just want the person who spoke up against them to be silenced. In response, several states, including California, created an anti-SLAPP motion so that individuals faced with such meritless suits could dispose of them quickly. 

Unfortunately, corporate litigants soon figured out how to use the anti-SLAPP procedure to their advantage — to the point that PLI even held a seminar for commercial defendants on “How to dismiss a false advertising claim” as a SLAPP. 

In this case, Sony provides an excellent example of such corporate misuse of the anti-SLAPP statute. For purposes of its anti-SLAPP motion, Sony admits that Michael Jackson did not sing the songs on the album, yet argues that Serova’s false advertising claims infringe on its freedom of speech. Such a perversion of the statute has no basis either in the text and legislative history of the statute or in common sense. 

California’s highest court will now have the opportunity to shore up the integrity of the state’s deceptive advertising laws and to take steps toward restoring the anti-SLAPP statute to the purpose for which it was designed.