On August 30, 2018, Sony Music Group (Sony) and Michael Jackson’s estate (Estate) were handed a big win against a class of consumers who had purchased Michael Jackson’s posthumous self-titled album and filed suit against the label and Estate under California’s Unfair Competition Law (“UCL”). The Court of Appeal of California ruled Sony and the Estate’s anti-SLAPP motion to strike was improperly denied by the trial court. (Serova v. Sony Music Entm’t, 26 Cal. App. 5th, 759, 2018).

No matter what genre of music one prefers, most of the world recognizes Michael Jackson as the King of Pop. Although the iconic performer passed away in 2009, his fans were blessed with a posthumous, self-titled ten song album in December 2010. The album was released by Sony in conjunction with the Estate. Although the album’s release was highly anticipated, after listening to the album, some fans were displeased and suspected that some of the songs were performed by a vocalist other than Jackson.

A class action lawsuit was filed in 2014 by Vera Serova, a UCLA law student who had become particularly suspicious of the vocals on the songs “Monster,” “Keep Your Head Up” and “Breaking News.”  In the suit, Serova alleges that the defendants Sony, John Branca, (former co-executor of the Estate) and MJJ Productions, Inc. (the company dedicated to the business matters of Michael Jackson and the copyright holder of many of his works) falsely represented the icon as the vocalist of the aforementioned recordings in written statements that appeared on the album’s packaging and in a promotional video. Also, Sony’s attorney, Howard Weitzman, issued a statement confirming the defendant’s belief that Jackson was the singer of the disputed tracks. (Serova v. Sony Music Entm’t, 26 Cal. App. 5th 759, 767, 2018). Serova brought claims under the UCL and California’s Consumer Legal Remedies Act (“CLRA”) based on a theory that the defendants’ representations about the identity of the album’s vocalist constitute commercial speech and thus subject to regulation under those laws.[1]

In response to Serova’s complaint, defendants filed a motion to strike the putative class action lawsuit under California’s anti-SLAPP statute. The statute allows defendants to move to strike claims that arise from defendants’ exercise of fundamental speech and petition rights. (Code Civ. Proc., § 425.16) Once a moving defendant has shown that the plaintiff’s claims arise from protected activity, the plaintiff must then demonstrate that each claim is legally sufficient and factually substantiated. (Baral v. Schnitt, 1 Cal. 5th 376, 395, 2016). On appeal, Sony, the Estate, and MJJ Production overcame the controversial issue of the true identity of the album’s vocalist by asserting the First Amendment significance of the work to assess whether the advertisement of the album was purely commercial. (Serova v. Sony Music Entm’t, 26 Cal. App. 5th 759, 760, 2018). The Court of Appeals reversed the trial court’s denial of the appellant’s anti-SLAPP motion to strike, holding that the appellants’ statements about the identity of the album’s vocalist were expressive speech, not commercial speech, and therefore subject to full protection under the First Amendment and not actionable under UCL or CLRA.

Does this mean that record labels, artists’ estates, or other music industry players can go around releasing new albums featuring unknown artists and pass them off as performances by another, more recognized singer? Not exactly. Like many cases, it depends on the circumstance. For example, the appellants in the case at hand claimed they had personal knowledge of the artist’s identity. Therefore, their statement was a matter of opinion as opposed to fact. The California anti-SLAPP law was enacted to protect free speech rights of all Californians. Also, the Court of Appeals was adamant to caution that not all statements were entitled to such broad protection provided to the appellants. The Code of Civil Procedure §425.17 attempts to subvert corrupt abuse of the anti-SLAPP statute and  Section §425.17 prohibits anti-SLAPP motions in order to “encourage continued participation in matters of public significance.” (Code Civ. Proc., § 425.17, 2015). Future UCL/CLRA defendants in similar cases ought to consider all circumstances of the claims, and consider whether anti-SLAPP procedures can be used in connection with the promotion or sale of goods or services.

[1] The UCL California Business Professional Code §17200 states “unfair competition shall mean and include any unlawful, unfair or fraudulent business act or practice and unfair, deceptive, untrue or misleading advertising and act.” (Bus. & Prof. Code §17200, 1993).

Whitney Thompson is a J.D. candidate, 2020, at NYU School of Law.