Serova v. Sony Music Entertainment ( 2022 )

IN THE SUPREME COURT OF
CALIFORNIA
VERA SEROVA,
Plaintiff and Respondent,
v.
SONY MUSIC ENTERTAINMENT et al.,
Defendants and Appellants.
S260736
Second Appellate District, Division Two
B280526
Los Angeles County Superior Court
BC548468
August 18, 2022
Justice Jenkins authored the opinion of the Court, in which
Chief Justice Cantil-Sakauye and Justices Corrigan, Liu,
Kruger, Groban, and Guerrero concurred.
SEROVA v. SONY MUSIC ENTERTAINMENT
S260736
Opinion of the Court by Jenkins, J.
Plaintiff Vera Serova purchased Michael, an album of
music billed as Michael Jackson’s first posthumous release. The
album’s back promised “9 previously unreleased vocal tracks
performed by” the pop superstar, but Serova now thinks some of
these tracks, the so-called Cascio tracks, feature a Jackson
imitator. She asserts Michael’s marketers misled her and
violated two California consumer protection laws, the unfair
competition law and the Consumers Legal Remedies Act, by
misrepresenting the vocalist on the Cascio tracks through the
album’s packaging and in a promotional video.
The question before us is whether Serova’s claims,
premised on Michael’s packaging and video, are subject to the
album marketers’ motion to strike under California’s anti-
SLAPP statute, which calls for early dismissal of meritless
lawsuits if they arise from a defendant’s acts in furtherance of
free speech rights in connection with a public issue. (Code. Civ.
Proc., § 425.16, subd. (b)(1).)1 The Court of Appeal concluded
the motion to strike should be granted, reasoning the First
Amendment shields the album marketers from liability. Even
if the statements about Jackson’s contributions were false, said
the court, the First Amendment requires classifying them as
noncommercial speech, a classification that would offer the
1
Further statutory references are to the Code of Civil
Procedure unless noted.
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Opinion of the Court by Jenkins, J.
statements greater protection from government regulation and,
per the parties’ agreement, put them beyond the reach of the
consumer protection laws Serova invokes. (Serova v. Sony
Music Entertainment (2020) 44 Cal.App.5th 103, 124 (Serova).)
The album marketers’ statements were, in the court’s view,
noncommercial, because they “were directly connected to music
that itself enjoyed full protection under the First Amendment”
and “concerned a publicly disputed issue about which [the
speaker] had no personal knowledge.” (Id. at p. 126.) We
disagree and reverse.
The album-back statement and video were commercial
advertising meant to sell a product, and generally there “can be
no constitutional objection to the suppression of commercial
messages that do not accurately inform the public.” (Central
Hudson Gas & Elec. v. Public Serv. Comm’n (1980) 447 U.S. 557,
563 (Central Hudson).) We recognize artistic works such as
albums, in some instances, enjoy robust First Amendment
protections, but that does not turn all marketing of such works
into noncommercial speech, and it does not do so in this case.
Additionally, a seller’s purported lack of knowledge of falsity
does not tell us whether that seller’s speech is commercial or
noncommercial, and commercial speech does not shed its
commercial nature simply because a seller makes a statement
without knowledge or that is hard to verify. The First
Amendment has long coexisted with no-fault false advertising
laws.
Lastly, we reject the album marketers’ tardily raised
argument that federal copyright law preempts Serova’s
consumer deception claims and deprives California courts of
subject matter jurisdiction.
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Opinion of the Court by Jenkins, J.
I. FACTS
A. Michael’s Release
Michael Jackson died in 2009. A posthumous, 2010 album
titled Michael stirred controversy even before its release.
According to Serova, people familiar with Jackson’s voice
disputed the authenticity of three of the album’s tracks:
“Breaking News,” “Monster,” and “Keep Your Head Up.” These
tracks apparently emerged from a basement recording studio in
the New Jersey home of Edward Cascio, whose family had
befriended Jackson. Doubters allegedly included Jackson’s
mother, three of his brothers (of The Jackson 5 fame), two of his
children, three of his nephews, and two former music producers.
A month before Michael’s debut, the album’s publisher,
Sony Music Entertainment, spoke to the tracks originating from
Cascio’s basement. It allegedly offered the public “complete
confidence in the results of our extensive research as well as the
accounts of those who were in the studio with Michael that the
vocals on the new album are his own.”
A week later, a lawyer for Jackson’s estate issued an open
letter to fans. The estate named people who believed Jackson
was indeed the lead vocalist on the Cascio tracks. These
included six of Jackson’s former producers or engineers, who
reviewed raw vocals at a listening session; one of Jackson’s
previous musical directors; one of Jackson’s vocal directors; two
hired forensic musicologists; and two other industry
professionals with connections to Jackson. The estate,
furthermore, had obtained assurances a Jackson imitator
rumored to be involved was not. Though asserting
“overwhelming objective evidence” of authenticity, the estate
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pledged to follow up and noted, “[U]ltimately, Michael’s fans will
be the judges of these songs.”
As Michael’s release approached, Sony Music
Entertainment, the Jackson estate, and possibly MJJ
Productions, Inc., the copyright holder for Michael, produced a
video commercial juxtaposing images of Jackson with a
voiceover announcing, “Michael, the brand new album from the
greatest artist of all time.” Cascio, meanwhile, appeared on The
Oprah Winfrey Show and, in an episode featuring the album,
asserted Jackson had sung the lead vocals on the disputed
tracks.
When Sony Music Entertainment and the Jackson estate
released Michael, the album’s front cover contained images of
the pop legend. The album’s back, after listing the included
songs, stated, “This album contains 9 previously unreleased
vocal tracks performed by Michael Jackson.”
B. Serova Purchases Michael
Serova purchased a CD of Michael, relying, she claims, on
representations that Jackson had sung the lead vocals on the
Cascio tracks. Specifically, she claims to have relied upon the
album’s packaging, the video commercial, Cascio’s statements
on The Oprah Winfrey Show, and the Jackson estate’s letter.
As more information about the Cascio tracks emerged,
Serova began to doubt Jackson was the lead vocalist, going so
far, it appears, as commissioning an audio expert to evaluate the
tracks. That expert allegedly found it “very likely” Jackson was
not the singer, and an independent reviewer allegedly found the
expert’s methods and conclusions reasonable.
Serova also came to suspect that Cascio and his associates
had “exclusive knowledge” Jackson was not the lead vocalist and
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had “actively concealed” this from Sony Music Entertainment
and the Jackson estate in dealings over the tracks. Serova
asserts Sony Music Entertainment and the Jackson estate chose
to include “Breaking News,” “Monster,” and “Keep Your Head
Up” in part because Cascio offered assurances of their
authenticity.
C. Serova’s Class Action Lawsuit and Sony’s Special
Motion To Strike
Serova filed suit seeking to represent a class of all
California purchasers of the Cascio tracks. She alleges Sony
Music Entertainment, Jackson’s estate, and MJJ Productions,
Inc., (collectively Sony) violated the Consumers Legal Remedies
Act (CLRA) and the unfair competition law (UCL) in marketing
the disputed songs through the album packaging, video
commercial, and estate letter. She alleges Cascio and his
associates not only violated those same consumer protection
laws, but also intentionally defrauded her and her fellow
purchasers with misstatements on The Oprah Winfrey Show
and, indirectly, by deceiving Sony. Serova sought to enjoin
marketing the Cascio tracks as Jackson performances and to
obtain restitution, disgorgement of profits, damages, punitive
damages, costs of suit, and attorney fees.
Sony filed a special motion to strike Serova’s CLRA and
UCL causes of action, invoking Code of Civil Procedure section
425.16. This statute — the anti-SLAPP statute — calls for early
dismissal of claims if they arise from a defendant’s acts in
furtherance of free speech rights in connection with a public
issue and if a plaintiff cannot demonstrate a probability of
prevailing. (§ 425.16, subd. (b)(1).) Sony’s memorandum of
points and authorities supporting its motion argued the
album-back statement, video commercial (which it assumed, for
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the motion, similarly conveyed that Jackson had sung all of
Michael’s lead vocals), and estate letter were protected by the
anti-SLAPP statute and were not actionable.
To facilitate having its motion to strike heard without
discovery (see § 425.16, subd. (g) [allowing discovery into
challenged claims for good cause]), Sony stipulated it would, for
the time being, only argue Serova’s consumer deception claims
lacked merit for two reasons: (1) its speech was noncommercial,
conferring it heightened First Amendment protection and
putting it beyond the reach of consumer protection laws; and (2)
its speech was “not sufficiently false or misleading,” even
“assuming solely for purposes of this determination . . . Michael
Jackson did not sing the lead vocals on” the Cascio tracks.
Because Sony did not otherwise contest the merits of Serova’s
claims, Serova had no reason to otherwise support them.2
The superior court partially granted Sony’s motion. It
ruled Serova’s challenges to the album packaging, video
2
The parties’ stipulation produced an anti-SLAPP motion
with almost no evidentiary submissions. There was no
declaration from Serova explaining what she knew and why she
purchased Michael, nor do we have any of the experts’
conclusions regarding Michael. And Serova has not had to
square her alleged harm with her prepurchase knowledge of the
Cascio track controversy. (See, e.g., Kwikset Corp. v. Superior
Court (2011) 51 Cal.4th 310, 326–327 [UCL plaintiff must show
economic loss and causation to have standing to sue].) Initially,
the superior court refused the parties’ issue-limiting stipulation
and declined ruling on Sony’s anti-SLAPP motion. But Sony
sought a writ petition and, after the Court of Appeal issued a
Palma notice suggesting it would grant the petition (see Brown,
Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal.4th
1233 [describing the Palma process]), the superior court agreed
to address the anti-SLAPP motion on the parties’ terms. We
have not been called upon to address these procedures.
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commercial, and estate letter targeted protected speech under
the anti-SLAPP statute. The superior court viewed the letter as
noncommercial speech unregulable under the CLRA and UCL.
But it concluded the album packaging and video were
commercial speech that, given Sony’s stipulation, could be
sufficiently false or misleading to permit Serova’s lawsuit to
proceed.
Sony appealed, but Serova did not, removing the estate’s
letter from the present dispute. (Serova v. Sony Music
Entertainment (2018) 26 Cal.App.5th 759, 769–770 & fn. 5.) The
Court of Appeal agreed with the superior court that Serova’s
challenges to the album packaging and video targeted Sony’s
protected speech. (Id. at pp. 772–773.) But it concluded this
speech was more than mere commercial speech for purposes of
the First Amendment and therefore immune from the statutes
Serova had invoked. (Id. at pp. 773–781.) Accordingly, the
Court of Appeal effectively directed judgment for Sony in full.
(Id. at p. 782.)
We granted Serova’s petition for review but paused all
proceedings related to her petition for FilmOn.com v.
DoubleVerify, Inc. (2019) 7 Cal.5th 133, which also concerned
the anti-SLAPP statute and corporate speech. After resolving
FilmOn, we transferred this case back to the Court of Appeal for
reconsideration. When the Court of Appeal reached the same
result, we again granted review.
After full briefing from the parties and amici curiae, and
after oral argument in this court, Sony informed us that the
parties “reached an agreement to settle the case independent of
the outcome of the opinion from this Court, subject to the
superior court’s approval of the dismissal of the action pursuant
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to California Rules of Court 3.770,” governing dismissals of class
actions. Serova responded, asking us to decide this matter
because the settlement is not yet approved and because of the
importance of the issues. Whether or not the yet-to-be-approved
settlement moots the parties’ dispute, we render this opinion
“[i]n light of the important issues presented.” (Berroteran v.
Superior Court (2022) 12 Cal.5th 867, 877; see State of Cal. ex
rel. State Lands Com. v. Superior Court (1995) 11 Cal.4th 50,
62.)
II. THE ANTI-SLAPP STATUTE
The anti-SLAPP statute enables courts, early in litigation,
to strike meritless claims in lawsuits when those claims risk
chilling “continued participation in matters of public
significance.” (§ 425.16, subd. (a); see id., subds. (b)(1), (f).) “A
cause of action against a person arising from any act of that
person in furtherance of the person’s right of petition or free
speech under the United States Constitution or the California
Constitution in connection with a public issue shall be subject to
a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (Id., subd. (b)(1).) Thus,
when a defendant seeks to strike a plaintiff’s claim under the
anti-SLAPP statute there are two inquiries: First, does the
claim call for the anti-SLAPP statute’s protections? Second, if
so, does it have sufficient merit? (Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995, 1009.)
Typically, a defendant must establish the anti-SLAPP
statute’s applicability before the burden shifts and a plaintiff
must establish a claim has sufficient merit. (Baral v. Schnitt
(2016) 1 Cal.5th 376, 384.) But only a claim “ ‘that satisfies both
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prongs of the anti-SLAPP statute . . . is a SLAPP, subject to
being stricken under the statute.’ ” (Oasis West Realty, LLC v.
Goldman (2011) 51 Cal.4th 811, 820.) Given this and “this
court’s ‘inherent, primary authority over the practice of law,’ ”
we may conclude a contested portion of an anti-SLAPP motion
should be denied solely based on a plaintiff’s showing of merit,
as a sufficiently meritorious claim cannot be struck regardless
of whether it arises from activity the anti-SLAPP statute
protects. (Ibid.; see generally Citizens for Fair REU Rates v.
City of Redding (2018) 6 Cal.5th 1, 7 [when one argument
resolved a case, we did not need to discuss an alternative
argument that would have led to the same result].) Considering
Serova’s showing of merit, we choose this approach.
III. SEROVA’S PROBABILITY OF PREVAILING
The parties’ stipulation eases Serova’s burden of showing
she could prevail. Under it, she had to address only Sony’s
contentions that its challenged representations elude regulation
because they are (1) noncommercial and enjoy heightened First
Amendment protection, or (2) insufficiently false or misleading,
even assuming Jackson did not sing lead vocals on the Cascio
tracks. Although the superior court addressed both issues, the
Court of Appeal addressed only the speech classification issue.
The parties’ petition and answer before this Court, as well as
their briefing, omit the falsity issue. We likewise limit our
discussion.
A. Commercial Speech Doctrine and Consumer
Deception Laws
“[E]rroneous statement is inevitable in free debate . . . .”
(New York Times Co. v. Sullivan (1964) 376 U.S. 254, 271.) We
therefore tolerate some falsehoods, even if they do not directly
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advance society’s interests. (United States v. Alvarez (2012) 567
U.S. 709, 719 [invalidating a law criminalizing lies about having
received congressional military decorations]; see generally
Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 953 (Kasky).)
But under First Amendment 3 doctrine, “commercial
speech that is false or misleading . . . ‘may be prohibited
entirely.’ ” (Kasky, supra, 27 Cal.4th at p. 953; see id. at p. 959;
see also 44 Liquormart, Inc. v. Rhode Island (1996) 517 U.S. 484,
501 [embracing regulation of “commercial messages to protect
consumers from misleading, deceptive, or aggressive sales
practices”]; Central Hudson, supra, 447 U.S. at p. 563 [“there
can be no constitutional objection to the suppression of
commercial messages that do not accurately inform the public
about lawful activity,” thus “government may ban forms of
communication more likely to deceive the public than to inform
it”]; Leoni v. State Bar (1985) 39 Cal.3d 609, 624 [noting states
can regulate “ ‘deceptive or misleading’ ” advertising, even if not
“ ‘probably false, or even wholly false’ ”].) This reflects the high
court’s view that the First Amendment, in the commercial
sphere, aims to safeguard the flow of “accurate . . . information”
to consumers. (Edenfield v. Fane (1993) 507 U.S. 761, 766; see
Zauderer v. Office of Disciplinary Counsel (1985) 471 U.S. 626,
651 [“extension of First Amendment protection to commercial
speech is justified principally by the value to consumers of the
information such speech provides”]; Central Hudson, at p. 563
3
Sony has not argued the California Constitution’s free
speech clause, article I, section 2, requires a different analysis
of whether its speech is commercial. (See Kasky, supra, 27
Cal.4th at p. 959 [“This court has never suggested that the state
and federal Constitutions impose different boundaries between
the categories of commercial and noncommercial speech”].)
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[reasoning the protection of commercial speech relates to “the
informational function of advertising”].)
There are three common justifications for permitting
greater regulation of commercial, as opposed to noncommercial,
speech. First, commercial speech “ ‘may be more easily verifiable
by its disseminator,’ ” who “ ‘presumably knows more about’ ” a
“ ‘product or service . . . than anyone else.’ ” (Kasky, supra, 27
Cal.4th at p. 955.) Second, because profit motivates commercial
speech, that speech is “hardier” — that is, less likely to suffer
the chilling effect of regulation. (Ibid.) Third, prevention of
commercial harm is a traditional and worthy goal of
government. (Ibid.; Cincinnati v. Discovery Network (1993) 507
U.S. 410, 426.)
“[T]he category of commercial speech consists at its core
of ‘ “speech proposing a commercial transaction.” ’ ” (Kasky,
supra, 27 Cal.4th at p. 956, quoting Central Hudson, supra, 447
U.S. at p. 562; see 44 Liquormart, Inc. v. Rhode Island, supra,517 U.S. at p. 499 [commercial speech is speech “ ‘linked
inextricably’ ” with “commercial transactions”].) “[W]hen a
court must decide whether particular speech may be subjected
to laws aimed at preventing false advertising or other forms of
commercial deception, categorizing a particular statement as
commercial or noncommercial speech requires consideration of
three elements: the speaker, the intended audience, and the
content of the message.” (Kasky, at p. 960, italics omitted.)
Serova alleges Sony’s marketing of Michael violated the
CLRA and the UCL. The CLRA (Civ. Code, §§ 1750 et seq.)
prohibits sellers of consumer goods from representing that goods
have “characteristics” they lack. (Civ. Code, § 1770, subd.
(a)(5).) The UCL (Bus. & Prof. Code, §§ 17200 et seq.) proscribes
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any “unlawful, unfair or fraudulent business act or practice and
unfair, deceptive, untrue or misleading advertising.” (Id., §
17200; see Kasky, supra, 27 Cal.4th at pp. 949–950.) These
statutes provide for, and Serova seeks, both injunctive and
monetary relief. (Civ. Code, § 1780, subd. (a); Bus. & Prof. Code,
§ 17203; Zhang v. Superior Court (2013) 57 Cal.4th 364, 371.)
Serova and Sony agree the CLRA and UCL — without
distinguishing between the statutes’ available remedies — can
constitutionally restrict speech properly classified as
commercial. They dispute, however, whether the album
packaging and video for Michael, insofar as they make claims
about Jackson’s contributions to the album, are commercial or
noncommercial speech under First Amendment doctrine.4
B. Sony’s Statements About Michael Are Commercial
Speech
We start with Sony’s promotion of Michael in the video
and on the album’s back as “a brand new album from the
greatest artist of all time” with “9 previously unreleased vocal
tracks performed by Michael Jackson.” For the moment, we
leave aside the other components of the album’s packaging, the
title and imagery.
1. Speaker and Audience
Sony, the speaker here, is promoting its album for sale.
(See Kronemyer v. Internet Movie Database Inc. (2007) 150
Cal.App.4th 941, 948 [contrasting an online purveyor of
4
At times, the parties discuss whether it would be fair to
compel Sony to say the Cascio tracks “might not” contain
Jackson vocals. But the precise issue presented here is whether
the challenged marketing is commercial and can be subject to
specific state law claims if false.
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information about movies with those who sell films].) The
audience for its promotional statements is potential purchasers
of Michael, such as Serova, who will read the album’s packaging
while shopping or will watch the album’s promotional video. So
far, this is quintessential commercial speech. (Kasky, supra, 27
Cal.4th at pp. 960–961, 963; see Benson v. Kwikset Corp. (2007)
152 Cal.App.4th 1254, 1262 [treating product labeling as
commercial speech]; United States v. Edge Broadcasting Co.
(1993) 509 U.S. 418, 421 [treating broadcast advertising as
commercial speech]; Facenda v. N.F.L. Films, Inc. (3d Cir. 2008)
542 F.3d 1007, 1018 [holding long-form promotional video for
video game was commercial speech]; cf. PPX Enters. v.
Audiofidelity Enters. (2d Cir. 1987) 818 F.2d 266, 272 [“A record
album’s cover . . . is one of the primary means of advertisement
for a record album”].)
2. Content
Speech’s content is typically commercial if it makes
“representations of fact about the business operations, products,
or services of the speaker (or the individual or company that the
speaker represents) . . . for the purpose of promoting . . . the
speaker’s products or services.” (Kasky, supra, 27 Cal.4th at p.
961 [noting alcohol content listed on a beer bottle, descriptions
of an attorney’s qualifications, and advertisements showing
prices of prescription drugs were all commercial].) A message
that, for instance, identifies those affiliated with a product or
service might be commercial. (Id. at p. 961; see id. at p. 969
[statement that cherries are picked by union workers would be
commercial].)
Commercial speech routinely “relates to a matter of
significant public interest or controversy.” (Kasky, supra, 27
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Cal.4th at p. 964.) “[M]any, if not most, products may be tied to
public concerns” including “the environment, energy, economic
policy, or individual health and safety.” (Central Hudson, supra,447 U.S. at p. 563, fn. 5.) Further, a “consumer’s interest in the
price, availability, and characteristics of products and services
‘may be as keen, if not keener by far, than his interest in the
day’s most urgent political debate.’ ” (Kasky, at p. 965.)
Yet even when commercial speech touches on important
public issues, “the State retains the power” to ensure
commercial information flows “ ‘cleanly as well as freely.’ ”
(Central Hudson, supra, 447 U.S. at p. 563, fn. 5.) Thus,
“advertising that links a product to a current public debate,”
even an important one, is not immunized from regulation.
(Ibid.; see Kasky, supra, 27 Cal.4th at p. 966; see United States
Healthcare, Inc. v. Blue Cross of Greater Philadelphia (3d Cir.
1990) 898 F.2d 914, 937 [“advertisements for specific health care
products do not escape the commercial speech category” simply
because of the public interest surrounding them].) Further,
consumer advertising does not lose its commercial character
even if the speaker “has a secondary purpose to influence”
discourse beyond the consumer realm. (Kasky, at p. 968.) “A
company has the full panoply of protections available to its
direct comments on public issues, so there is no reason for
providing similar constitutional protection when such
statements are made in the context of commercial transactions.”
(Bolger v. Youngs Drug Products Corp. (1983) 463 U.S. 60, 68,
fn. omitted; see Zauderer v. Office of Disciplinary Counsel,
supra, 471 U.S. at p. 637, fn. 7 [holding otherwise protected
speech about the legal rights of persons injured by a medical
device is commercial speech when included in an
advertisement].)
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The commercial speech we identified in Kasky was a series
of statements Nike made praising working conditions in its
subcontractors’ overseas factories. (Kasky, supra, 27 Cal.4th at
pp. 947–948.) Nike’s press releases, letters to newspapers and
universities, public relations materials, and advertisements
claimed that workers in these factories “are protected from
physical and sexual abuse, that they are paid in accordance with
applicable local laws and regulations governing wages and
hours, that they are paid on average double the applicable local
minimum wage, that they receive a ‘living wage,’ that they
receive free meals and health care, and that their working
conditions are in compliance with applicable local laws and
regulations governing occupational health and safety.” (Id. at
p. 947.)
We concluded these representations, despite not
pertaining to specific products and despite sometimes appearing
outside traditional advertising formats, were commercial.
(Kasky, supra, 27 Cal.4th at pp. 965–966; see id. at p. 976 (dis.
opn. of Chin, J.).) Nike was “describing its own labor policies,
and the practices and working conditions in factories where its
products are made,” which were “factual representations about
its own business operations.” (Id. at p. 963.) We further noted,
“The wages paid to the factories’ employees, the hours they
work, the way they are treated, and whether the environmental
conditions under which they work violate local health and safety
laws, are all matters likely to be within the personal knowledge
of Nike executives, employees, or subcontractors. Thus, Nike
was in a position to readily verify the truth of any factual
assertions it made on these topics.” (Ibid.) Further, Nike’s
message sought to bolster consumer goodwill and shore up
profits, and, if that message misrepresented how Nike’s
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products were being made, it was the sort of speech government
has traditionally been empowered to regulate. (Id. at pp. 963–
964.)
The content of Sony’s statements on Michael’s packaging
and in the video — made in traditional advertising contexts —
strikes us as commercial. The statement on the back of Sony’s
album indicated that Michael “contains 9 previously unreleased
vocal tracks performed by” Jackson; a statement about the
album’s characteristics that would induce purchases by those
wishing to hear new Jackson vocals. The promotional video —
which proclaimed the album as the newest “from the greatest
artist of all time” alongside Jackson’s name and likeness — also,
concededly, conveys Jackson’s vocal contributions and likewise
would foster album sales amongst Jackson followers.
3. Michael, Though an Expressive Work, Is a
Product for Sale.
Sony argues its statements promoting Michael convey
noncommercial content because they pertain to art and identify
an artist, whose identity “can be an important component of
understanding the art itself.” (Serova, supra, 44 Cal.App.5th at
p. 130.) But if Sony’s assertion that Jackson contributed lead
vocals affects consumers’ experience of Michael, this illustrates
how misrepresentations about an artist’s contributions can
harm consumers in ways that matter to them.
“The purchaser of a novel is interested not merely, if at all,
in the identity of the producer of the physical tome (the
publisher), but also, and indeed primarily, in the identity of the
creator of the story it conveys (the author).” (Dastar Corp. v.
Twentieth Century Fox Film Corp. (2003) 539 U.S. 23, 33
(Dastar).) And “[t]he purchaser of a book, like the purchaser of
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a can of peas, has a right not to be misled as to the source of the
product.” (Rogers v. Grimaldi (2d Cir. 1989) 875 F.2d 994, 997
(Rogers); see Dastar, at p. 38 [suggesting misrepresentations
about the content of an artistic work could be false advertising
under the federal Lanham Act];5 Murdock v. Pennsylvania
(1943) 319 U.S. 105, 111 [suggesting retailing and wholesaling
of books via pamphlets, outside of proselytizing, are commercial
enterprises].) “Movies, plays, books, and songs,” though
themselves protected artistic works, “are also sold in the
commercial marketplace like other more utilitarian products,
making the danger of consumer deception a legitimate concern
that warrants some government regulation.” (Rogers, at p. 997.)
Indeed, the dividing line between artistic and utilitarian goods
may sometimes blur. (See Rothman, Was Steve Jobs an Artist?
(Oct. 14, 2015) The New Yorker
5
Dastar initially addressed the Lanham Act’s prohibition,
in section 43(a)(1)(A) (15 U.S.C. § 1125(a)(1)(A)), on confusing
designations of a good’s origin. It held the origin of an artistic
work, under that section, is the origin of the physical
embodiment of the work, not the artist. Thus, there could be no
Lanham Act section 43(a)(1)(A) claim for failure to attribute a
work. But, if an artistic work’s advertiser gave purchasers false
impressions of the work, then there might be “a cause of
action — not . . . under the ‘confusion . . . as to the origin’
provision of § 43(a)(1)(A), but for misrepresentation under the
‘misrepresents the nature, characteristics [or] qualities’
provision of § 43(a)(1)(B).” (Dastar, supra, 539 U.S. at p. 38; see
generally 5 McCarthy on Trademarks and Unfair Competition
(5th ed. June 2022 update) § 27:85 [discussing Dastar]; U.S.
Copyrights Office, Register of Copyrights, Authors, Attribution,
and Integrity: Examining Moral Rights in the United States
(Apr. 2019) p. 55 [same].) Dastar, in interpreting the Lanham
Act’s scope, never suggested a First Amendment concern with
applying that law, or any other consumer protection law, to
expressive works.
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Opinion of the Court by Jenkins, J.
[as of Aug. 18, 2022] [discussing the
intersection of art and technology products].)6
Relief has long been available in California to unwitting
purchasers of imitation art who relied on false representations
about authenticity. (E.g., Smith v. Zimbalist (1934) 2
Cal.App.2d 324, 326, 332–333 [finding unenforceable the sale of
a violin represented as a Stradivarius when buyer and seller
were both mistaken and the violin was a cheap copy].)
Additionally, numerous courts have entertained false
advertising claims premised on statements about creative
contribution. (E.g., Aalmuhammed v. Lee (9th Cir. 2000) 202
F.3d 1227, 1237 [reversing dismissal of a writer’s California
UCL claim accusing another writer of plagiarizing his work];
King v. Innovation Books (2d Cir. 1992) 976 F.2d 824, 829
[allowing Stephen King to enjoin, under the Lanham Act, a film
distributor from describing a film, The Lawnmower Man, as
Stephen King’s The Lawnmower Man, where King had no
involvement in the creative process except for selling his rights
to his short story of the same name]; PPX Enters. v.
Audiofidelity Enters., supra, 818 F.2d at p. 268 [affirming a jury
verdict of Lanham Act false advertising when a record company
marketed “eight albums purporting to contain feature
performances by Jimi Hendrix, but which either did not contain
Hendrix performances at all or contained performances in which
Hendrix was merely a background performer or
undifferentiated session player”]; Benson v. Paul Winley Record
6
All Internet citations in this opinion are archived by year,
docket number, and case name at
.
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Sales Corp. (S.D.N.Y. 1978) 452 F.Supp. 516, 518 [holding that
misleading attributions on a record jacket might not only
confuse consumers under the Lanham Act but also harm a
performer’s reputation7].) The use of an artist’s name in
advertising “should usually qualify as a use ‘in commercial
advertising or promotion’ ” under the Lanham Act. (5 McCarthy
on Trademarks and Unfair Competition, supra, § 27:85; see 1
McKenney & Long, Federal Unfair Competition: Lanham Act
43(a) (Dec. 2021 update) § 7:7, fn. 2 [collecting further cases].)8
Moreover, courts have recognized other causes of action
could be viable where disputes about creative contribution form
the basis of suit. (E.g., Aalmuhammed v. Lee, supra, 202 F.3d
7
As to artistic reputation, if Jackson’s estate believed
another music publisher were selling subpar recordings and
erroneously attributing the lead vocals to Jackson, one could
imagine the estate filing its own false advertising suit and
asserting it was challenging commercial speech. The risk of
such reputational harm “is particularly acute in the arts and
entertainment industries, in which the marketability of a
person's goods or services is in large measure dependent upon
recognition for past achievements.” (Rest.3d Unfair
Competition, § 5, com. c., p. 58.) We have held, moreover, a
celebrity may assert violations of publicity rights if another’s use
of the celebrity’s name or likeness in an expressive work is not
transformative — that is, does not add some sufficient new
meaning or expression. (Comedy III Productions, Inc. v. Gary
Saderup, Inc. (2001) 25 Cal.4th 387, 405 [a T-shirt artist’s use
of an image he created of The Three Stooges]; accord, Hart v.
Elec. Arts, Inc. (3d Cir. 2013) 717 F.3d 141, 170 [a videogame’s
use of an athlete’s name and likeness].)
8
Though the reasoning of some of these Lanham Act cases
may not survive Dastar’s narrowing of what origin-of-goods
claims may entail, many feature false advertising claims still
potentially cognizable under the act or possibly other laws. (See
ante, fn. 5.)
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Opinion of the Court by Jenkins, J.
at pp. 1230–1236 [rejecting claim of joint authorship under
copyright law]; Silverstein v. Penguin Putnam, Inc. (2d Cir.
2004) 368 F.3d 77, 81 [concluding a collector of Dorothy Parker
poems could not credibly assert he exercised, in assessing
whether poems were written by Parker, originality sufficient to
merit copyright protection].)
None of these cases hints that product-touting statements
about artistic contribution are, by their nature, noncommercial
or otherwise beyond traditional consumer protection regulations
on constitutional grounds. In contrast, Rogers, supra, 875 F.2d
994 and its progeny have considered the First Amendment and
applied the federal false advertising statute not to mere
promotional materials for expressive works but to their titles.
Ginger Rogers, one of those rare entertainers “readily called to
mind by just their first names,” sued film producers over Ginger
and Fred, a film about a fictious cabaret duo in Italy who earned
the nickname Ginger and Fred. (Rogers, at p. 996.) Rogers
invoked the Lanham Act, claiming the film title falsely implied
it was about her or that “she sponsored, endorsed, or was
otherwise involved in the film.” (Id. at p. 997.) Though the
Second Circuit rejected liability against the film’s producers, it
concluded titles of expressive works have a commercial
component, and the First Amendment would, in some cases,
pose no barrier to regulating them. (Id. at p. 998.) For instance,
Rogers reasoned if a title has no artistic relevance to its work, or
if an artistically relevant title nonetheless explicitly misleads as
to the work’s source or content, regulation could ensue. (Id. at
pp. 997–999.) Thus, said the court, a title that falsely conveyed
someone authored a work had a sufficient commercial aspect
and could be prohibited. (Id. at p. 999 [suggesting “ ‘Nimmer on
Copyright’ ” or “ ‘Jane Fonda’s Workout Book’ ” conveyed
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representations to consumers].) At least one precept from
Rogers — the regulability of explicitly misleading titles —
appears to have met acceptance amongst California appellate
courts. (Winchester Mystery House, LLC v. Global Asylum, Inc.
(2012) 210 Cal.App.4th 579, 588, 590; see No Doubt v. Activision
Publishing, Inc. (2011) 192 Cal.App.4th 1018, 1039, fn. 8.)
The reasons commonly given for why commercial speech
is subjected to greater regulation — a commercial speaker’s
close relationship to a product or service, profit motive, and the
government’s traditional role in preventing commercial harm
(Kasky, supra, 27 Cal.4th at p. 955) — still have relevance when
an artistic product is marketed. We would not want false
advertising laws to stifle the next great album or medical
advance. But consumer protection remains important in both
arenas, as it does in others. Indeed, the United States Supreme
Court has allowed prohibition of false commercial speech in
categorical terms, never embracing a wholesale exemption for
entire classes of goods or services. (See Kasky, supra, 27 Cal.4th
at pp. 953–954 [citing cases].) And despite the long history of
cases entertaining false advertising claims premised on
representations about artistic contribution, we have been
presented no evidence of a chilling effect on the for-profit
creative industry.
There may be instances where statements about artistic
contribution, or artistic works more generally, are not offered to
convey product information but are themselves part of an
expressive enterprise, possibly parody or satire. (See, e.g.,
Hustler Magazine v. Falwell (1988) 485 U.S. 46, 57 [attributing
a made-up, salacious interview to a nationally known minister
was protected parody]; Mattel Inc. v. Walking Mt. Prods. (9th
Cir. 2003) 353 F.3d 792, 812 [concluding “[p]arody is a form of
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noncommercial expression if it does more than propose a
commercial transaction”].) And it is conceivable that an album
seller might include, in liner notes, an essay theorizing about
artistic contributions that is itself an expressive work. (See
Armstrong v. Eagle Rock Entm’t, Inc. (E.D.Mich. 2009) 655
F.Supp.2d 779, 787 [extending 1st Amend. protection to a liner-
note essay about the history of a jazz festival].) And artists
might choose to obscure their identities for expressive reasons
through pen names or pseudonyms. But the case before us does
not raise these or other like scenarios. Instead, having put
Michael’s title and artwork aside for the moment, this case
concerns an explicit promise of a superstar’s vocal contributions
to a product. We, again, view this as commercial content.
4. Sony’s Speech Is Not Inextricably Intertwined
with or Adjunct to an Expressive Work.
Sony alternatively contends that if its representations
about Michael seem commercial, they are nonetheless so
connected with fully protected, noncommercial speech —
Michael’s musical content — that they must be treated as, and
receive the heightened protection due, noncommercial speech.
But, like the Court of Appeal below (Serova, supra, 44
Cal.App.5th at p. 131, fn. 19), we do not see the requisite
connection.
Sometimes speech will have commercial and
noncommercial components. If a legal command or law of
nature makes it “impossible” to separate the commercial
components from the noncommercial, the two are “ ‘inextricably
intertwined,’ ” and we bestow noncommercial status on both
components. (Board of Trustees, State Univ. of N. Y. v. Fox
(1989) 492 U.S. 469, 474.) This principle derives from Riley v.
National Federation of Blind (1988) 487 U.S. 781, in which a
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Opinion of the Court by Jenkins, J.
state had required conceded noncommercial speech (charitable
solicitations by professional fundraisers) to include assumed
commercial speech (a disclosure of the percentage of
contributions retained by those professionals). Because state
law required the commercial disclosure, that disclosure, held the
high court, was “inextricably intertwined” with the
noncommercial solicitation and lost “its commercial character,”
such that the disclosure requirement was subject to “exacting
First Amendment scrutiny.” (Riley, at pp. 796, 798; see Fox, at
p. 474.)
We considered entwinement in Kasky but found none. “No
law required Nike to combine factual representations about its
own labor practices with expressions of opinion about economic
globalization, nor was it impossible for Nike to address those
subjects separately.” (Kasky, supra, 27 Cal.4th at p. 967.) We
further held, “Nike may not ‘immunize false or misleading
product information from government regulation simply by
including references to public issues.’ ” (Id. at p. 966.) The
“alleged false and misleading statements” conveyed a
commercial message about how Nike’s products were made.
(Ibid.)
Apart from the entwinement concept is the notion that
advertising adjunct to an expressive work should at times enjoy
the same protected status as that work. Several Courts of
Appeal have held the truthful use of a name and likeness to
promote an expressive work cannot support a claim for violation
of the right of publicity. (E.g., De Havilland v. FX Networks,
LLC (2018) 21 Cal.App.5th 845, 862 [name of Olivia De
Havilland to promote a program about her]; Polydoros v.
Twentieth Century Fox Film Corp. (1997) 67 Cal.App.4th 318,
325 [“photographs of an actor resembling an actual personage to
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Opinion of the Court by Jenkins, J.
promote a fictional work” about that personage]; Montana v.
San Jose Mercury News, Inc. (1995) 34 Cal.App.4th 790, 797 [“a
newspaper has a constitutional right to promote itself by
reproducing its originally protected articles or photographs”].)
But another court has held where advertisements “did not
reflect any character or portion of” an expressive work and
instead “contained a fictitious critic’s favorable opinion,” the
advertisements were not entitled to heightened protection as
adjuncts to an expressive work and were instead subject to
consumer protection laws. (Rezec v. Sony Pictures
Entertainment, Inc. (2004) 116 Cal.App.4th 135, 142–143
[rejecting a regime in which film advertisements would evade
consumer protection laws when traditionally utilitarian
products would not]; cf. Keimer v. Buena Vista Books, Inc. (1999)
75 Cal.App.4th 1220, 1229 (Keimer) [holding that even
promotional materials on book cover reflecting false claims of
book could be commercial speech].)9
The Ninth Circuit addressed both entwinement and
advertising adjunct to expressive works in Charles, supra,
697 F.3d 1146. It held that although a television program was
itself noncommercial, expressive speech, a billboard advertising
9
Keimer, which involved advertising material on a book
cover excerpted directly from the book’s text (Keimer, supra, 75
Cal.App.4th at pp. 1225, 1233), has been criticized as
insufficiently protective of free speech (e.g., Lacoff v. Buena
Vista Publ’g, Inc. (2000) 705 N.Y.S.2d 183, 191 [183 Misc.2d 600,
610] [classifying the identical advertising material as
noncommercial and expressly rejecting Keimer]). Given Sony’s
advertising does not reproduce the music on Michael, we need
not address this criticism of Keimer, or, for that matter, address
the full contours of a doctrine governing the promotion of
expressive works. (See Charles v. City of Los Angeles (9th Cir.
2012) 697 F.3d 1146, 1155 (Charles) [noting the conflict].)
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Opinion of the Court by Jenkins, J.
the program was commercial speech and did “not present
intertwined speech.” (Id. at p. 1152.) The program’s protected
status did “not cloak all advertisements for the program with
noncommercial status,” because “speech inviting the public to
watch” a program “is not inherently identical to the speech that
constitutes the program itself.” (Ibid.) The Ninth Circuit
separately observed that the principle motivating California’s
protection of advertisements adjunct to expressive works “is the
need to protect advertisers from tort actions that would
otherwise threaten the ability of publishers to truthfully
promote particular works” by accurately conveying the content
of those works, even when that content is itself false. (Id. at p.
1155.) An adjunct advertisement doctrine, it asserted, would be
“justified only to the extent necessary” to achieve this purpose.
(Id. at p. 1156; see Cher v. Forum Int’l, LTD (9th Cir. 1982)
692 F.2d 634, 639 [viewing tabloid magazine headlines, cover
content, and advertising inserts as potentially “adjunct” to an
article within the magazine but refusing to protect “patently
false” representations].)
We conclude Sony’s identification of Jackson as lead
vocalist is not inextricably intertwined with the music on
Michael or any of the album’s arguably expressive elements. No
legal command nor law of nature compelled Sony to include
what, for present purposes, it concedes are false claims about
the Cascio tracks or to market the album with a video
commercial. It was hardly “impossible” (Kasky, supra, 27
Cal.4th at p. 967) for Sony to market Michael without these
statements. Additionally, Sony’s alleged false representations
are distinct from, rather than adjunct to or reflective of, any
artistic expression on Michael. Serova is not suing because
Michael’s artistic expression has spilled over into promotional
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Opinion of the Court by Jenkins, J.
advertising, but because she believes Sony falsely advertised the
lead vocalist. (See Charles, supra, 697 F.3d at pp. 1154–1155.)
Thus, even if we fully embraced the proposal to limit claims
premised on the truthful advertising of expressive works, that
limit would not apply to Serova’s claims. To invoke the
entwinement or adjunct advertising doctrines here would, in our
view, strike the wrong balance between the interests of
consumers and those of sellers advertising expressive works.
5. Sony’s Lack of Knowledge Does Not
Decommercialize Its Speech.
Sony offers a broader argument why its statements about
Jackson’s artistic contributions should not be viewed as
containing commercial content. Sony argues the truth of its
statements was not readily verifiable and thus Sony, though it
knew of the controversy over the Cascio tracks, lacked
knowledge of falsity. The Court of Appeal embraced this
argument, concluding Sony’s statements were not commercial
because they “lacked the critical element of personal knowledge
under the Kasky standard.” (Serova, supra, 44 Cal.App.5th at
p. 127; see id. at pp. 128–129 & fn. 12.) We disagree.
“Apart from . . . the identities of the speaker and the
audience, and the contents of the speech,” Kasky found “nothing
in the United States Supreme Court’s commercial speech
decisions that is essential to a determination that particular
speech is commercial in character in the context of a consumer
protection law intended to suppress false or deceptive
commercial messages.” (Kasky, supra, 27 Cal.4th at p. 962.)
Nor does Kasky’s definition of commercial content —
“representations of fact about the business operations, products,
or services of the speaker (or the individual or company that the
speaker represents) . . . for the purpose of promoting . . . the
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speaker’s products or services” (id. at p. 961) — mention a
requirement that particular representations be made with
personal knowledge or be readily verifiable.
Kasky, in more expansively viewing commercial speech as
potentially including letters and press releases, saw its
“understanding of the content element of commercial speech” as
“consistent” with the traditional explanations for “denying First
Amendment protection to false or misleading commercial
speech.” (Kasky, supra, 27 Cal.4th at p. 962.) One such
explanation is that “ ‘truth of commercial speech . . . may be
more easily verifiable by its disseminator . . . in that ordinarily
the advertiser seeks to disseminate information about a specific
product or service that he himself provides and presumably
knows more about than anyone else.’ ” (Id. at p. 955, italics
added & omitted, quoting Va. Pharmacy Bd. v. Va. Consumer
Council (1976) 425 U.S. at p. 772, fn. 24.) “This explanation,”
continued Kasky, “assumes that commercial speech consists of
factual statements and that those statements describe matters
within the personal knowledge of the speaker or the person
whom the speaker is representing.” (Kasky, supra, 27 Cal.4th
at p. 962.)
Undoubtedly, commercial statements are sometimes
made with personal knowledge. But a “may be more easily
verifiable” rationale does not, with words such as “may,”
“ordinarily,” and “presumably,” impose either a personal
knowledge requirement or a requirement that a particular
statement be readily verifiable. (See Kasky, supra, 27 Cal.4th
at p. 955.) To the contrary, the rationale presumes that
sometimes commercial speech may not be more easily verifiable
or may not be known to the speaker as true or false. In all
events, the rationale, in offering a justification for greater
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regulation of commercial speech generally, does not serve as a
litmus test for classifying speech in a particular instance. (See
id. at p. 957 [highlighting the flexible nature of the commercial
speech inquiry].)
Thus, while Kasky identified the scenario in which
commercial speech is within the speaker’s personal knowledge,
Kasky went on to say the “may be more easily verifiable”
explanation implied the very definition of commercial content
just announced — that is, promotional representations of fact
about the business, products, or services of a speaker or whoever
the speaker represents. (Kasky, supra, 27 Cal.4th at pp. 955,
961–962.) Consistent with this, our primary basis for
concluding Nike’s speech had commercial content was its
connection to Nike’s “own business operations.” (Id. at pp. 963,
964.) This was so even though Nike’s representations addressed
factories run not by its employees, but its subcontractors (id. at
pp. 955, 962–963), and matters only “likely to be within the
personal knowledge” of those subcontractors, which suggested
only that “Nike was in a position to readily verify” its assertions
(id. at p. 963, italics added). By alluding to likely knowledge and
potential verifiability to bolster its conclusion that Nike’s speech
was commercial, Kasky did not establish a knowledge or
verifiability requirement. (See Rosen v. State Farm General Ins.
Co. (2003) 30 Cal.4th 1070, 1076 [“ ‘an opinion is only authority
for those issues actually considered or decided’ ”].) Nor has this
court or the high court otherwise imposed such requirements.
Moreover, it seems problematic to assess the commercial
or noncommercial content of speech by measuring a speaker’s
level of personal knowledge. For example, if we correlate
knowledge with commercial speech, then two identical
promotional statements might face differing regulations
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because of something invisible to consumers: the speaker’s
mental state. (People v. Superior Court (Olson) (1979) 96
Cal.App.3d 181, 191, 195 [injury to consumers is the same
regardless of what an advertiser knows]; accord P&G v. Amway
Corp. (5th Cir. 2001) 242 F.3d 539, 552, fn. 26 [speech’s
commercial status is established “regardless of [a speaker’s]
knowledge of falsity”].) Also, if actual knowledge were the
standard, that knowledge could be easily avoided. Sellers
making claims about their offerings surely do not avoid false
advertising regulation, or have their claims treated as
noncommercial speech, by scrupulously declining to verify those
claims or to acquire knowledge. A knowledge test would
undermine false advertising law and reward turning a blind eye.
Correlating commercial speech with a statement’s
verifiability presents similar problems. Illustrating the tenuous
correlation, at least one Court of Appeal employing Kasky has
classified advertising claims that appear unverifiable or difficult
to verify as commercial speech, reasoning claims that
professionals had “ ‘ “the highest ethical and moral
standards” ’ ” or were “ ‘ “dedicated to neutrality, integrity,
honesty” ’ ” were meant to influence consumers about services
for sale. (JAMS, Inc. v. Superior Court (2016) 1 Cal.App.5th
984, 995 (JAMS) [but stating whether that speech, puffery in
the eyes of the speaker, was actionable was a separate
question].)10 At the same time, consumer protection laws “serve
the purpose of commercial speech protection” by encouraging a
10
In JAMS, the Court of Appeal concluded the speech was
commercial under section 425.17, which, as explained above,
exempts certain claims arising from commercial speech from the
reach of the anti-SLAPP statute. In doing so, it employed
Kasky’s framework. (JAMS, supra, 1 Cal.App.5th at p. 994.)
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seller “to make greater efforts to verify the truth of its
statements.” (Kasky, supra, 27 Cal.4th at pp. 963–964.) And it
is when statements about products or services are hard to verify
that the need for consumer protection may be strongest. (See
Bates v. State Bar of Arizona (1977) 433 U.S. 350, 366
[advertising claims “not susceptible of precise measurement or
verification . . . might well be deceptive or misleading to the
public, or even false”]; see also California Dental Assn. v. FTC
(1999) 526 U.S. 756, 773–774 [noting the possible goal of
“promoting competition by reducing the occurrence of
unverifiable and misleading across-the-board discount
advertising”].) Indeed, the high court has not deployed
verifiability to distinguish between commercial and
noncommercial speech but to discuss whether truthful
commercial speech is nonetheless sufficiently misleading to
warrant a state’s “categorical ban.” (Peel v. Attorney
Disciplinary Comm’n of Ill. (1990) 496 U.S. 91, 100.)
Ultimately, then, otherwise commercial speech does not
lose its commercial nature simply because a seller makes a
statement without knowledge or that is hard to verify.
Even assessing the potential verifiability of Sony’s claims
in line with the verifiability justification for regulation of
commercial speech, whether Jackson sang lead vocals on the
Cascio tracks “may be more easily verifiable” (Kasky, supra, 27
Cal.4th at p. 955, italics omitted) by Sony in exactly the sense
that justifies commercial speech regulation more broadly.
Sony’s claims relate directly to its product. Few were likely
better positioned to identify the Cascio tracks’ singer than
Michael’s producers and sellers, who had not only profit motive,
but also access to and business dealings with the album’s
primary creators. Further, Sony had the incentive to secure any
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necessary licenses or rights, and, as prudent, warranties of
authenticity.11 (Cf. Kasky, supra, 27 Cal.4th at p. 963 [noting
“Nike was in a position to readily verify” those things its
contractors “likely” knew].) Sony, before releasing Michael,
conducted research and allegedly had “complete confidence” in,
and indeed noted “overwhelming objective evidence” of, the
authenticity of Jackson’s vocals, a message at least in tension
with its present claim that verifiability was unattainable.
Notwithstanding Sony’s temporary concession that its
statements about Jackson’s contributions turned out to be false,
it remains that experts allegedly disagree on who sang the
Cascio tracks. But expert disagreement about the
characteristics of a product does not change the fact that a seller
“ ‘presumably knows more about’ ” its product “ ‘than anyone
else.’ ” (Kasky, supra, 27 Cal.4th at p. 955.) Such expert
disagreements, even if they portend verifiability or knowledge
issues and possibly difficulties of proof at trial, do not render a
seller’s promotional speech noncommercial and, for that reason,
constitutionally insulated from false advertising laws. And as
discussed above, advertising does not shed its commercial status
though it touches or links a product to an important public
debate. (Central Hudson, supra, 447 U.S. at p. 562, fn. 5; Kasky,
supra, 27 Cal.4th at p. 966; Eastman Chem. Co. v. PlastiPure,
Inc. (5th Cir. 2014) 775 F.3d 230, 236 [“Advertisements do not
11
Presumably, Sony would seek to invoke any warranties, or
assert fraud or other claims, against Cascio and his associates if
it believed they peddled fake recordings.
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become immune from . . . scrutiny simply because their claims
are open to scientific or public debate”].)12
Our conclusion would not foreclose Sony, despite its
present willingness to concede falsity, from later attempting to
argue its statements are insufficiently false or misleading
statements of fact to be regulable under the CLRA or UCL. But
the separate inquiry into liability, on which we express no
opinion, is different from the speech classification issue before
us now. (See Kasky, supra, 27 Cal.4th at p. 970 [noting the
falsity inquiry is separate]; id. at p. 974, fn. 2 (dis. opn. of Chin,
J.) [“Whether a company’s statements are allegedly false or
misleading does not determine the threshold question” of
“whether the speech is commercial or noncommercial”]; JAMS,
supra, 1 Cal.App.5th at p. 995 [whether statements are true
“goes to the issue of whether or not [plaintiff] can prevail on his
claim, not to whether the statements qualify as commercial
speech” as that term is understood].)
6. Strict Liability Regulation of Commercial
Speech Is Common.
Offering a variation on its verifiability and knowledge
argument, Sony argues we should classify its alleged
misrepresentations about Michael as noncommercial because
regulating them on a strict liability basis, as Serova seeks to do
12
We caution that our discussion of potential verifiability is
not based on a developed factual record, and we express no
opinion on whether Sony could have actually verified the Cascio
tracks’ vocals. Verifiability as a potential requirement for
commercial speech only factored into the Court of Appeal’s
decision, not the superior court’s, and the parties, as evidenced
by their issue-limiting stipulation, saw no need to conduct
discovery concerning verifiability or any other matters related
to Sony’s motion. (See ante, fn. 2.)
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under the CLRA and UCL, 13 would unduly “chill expression” in
a way inconsistent with traditional government regulation.
Yet “[s]trict liability regimes regulating commercial
speech” are not anomalous but consistent with traditional
notions of government’s regulatory role. (American-Arab Anti-
Discrimination Comm. v. City of Dearborn (6th Cir. 2005) 418
F.3d 600, 611, fn. 7.) A hundred years ago, states, in their early
efforts to curtail false advertising, enacted variants of a model
statute criminalizing “ ‘untrue, deceptive or misleading’ ”
advertisements. (Comment, Untrue Advertising (1927) 36 Yale
L.J. 1155, 1156, fn. 6 (Untrue Advertising).) This Printer’s Ink
Model Statute,14 and a majority of the states implementing it,
imposed “absolute responsibility,” even absent “knowledge or
intent to deceive.” (Untrue Advertising, at p. 1157 & fn. 12; see
Nationwide Biweekly Administration, Inc. v. Superior Court
(2020) 9 Cal.5th 279, 305, fn. 11 [discussing the model statute
in relation to California’s UCL and the state’s other, more
modern consumer protection laws, but noting California’s 1915
version of the model statute required negligence regarding
falsity].)
We have already explained why Kasky does not make a
speaker’s knowledge of truth or falsity the determiner of
speech’s commercial status. Additionally, the disagreement in
Kasky between the majority, which found Nike’s speech
13
Neither party, nor any of the amici curiae, contends the
CLRA or UCL, when applied to alleged false advertising,
requires proof of a defendant’s knowledge.
14
The model statute was “drawn up in 1911 by Mr. Harry D.
Nims at the instance of Printer’s Ink, a magazine published for
advertisers.” (Untrue Advertising, supra, 36 Yale L.J. at p.
1157.)
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SEROVA v. SONY MUSIC ENTERTAINMENT
Opinion of the Court by Jenkins, J.
regulable, and the dissents was, as the dissenters framed it, not
whether the First Amendment permitted strict liability for false
advertising, but what kind of corporate speech should be deemed
“commercial” and therefore subject to such regulation. (Kasky,
supra, 27 Cal.4th at pp. 983–984, 996 & fn. 8. (dis. opn. of
Brown, J.); id. at pp. 979–980 (dis. opn. of Brown, J.) [“If Nike’s
press releases, letters and other documents are commercial
speech, then the application of . . . strict liability for false and
misleading ads — is constitutional”]; id. at p. 971 (dis. opn. of
Chin, J.) [warning strict liability would apply to Nike if its
speech were commercial].)
Further, the CLRA and UCL provisions that Serova
invokes have kinship with section 43(a) of the Lanham Act,
which prohibits, on a strict liability basis, false designations of
the origin of goods, services, or commercial activities as well as
false advertising. A Lanham Act false advertising claim, which
must target “commercial advertising or promotion” (15 U.S.C. §
1125(a)(1)(B), “exists regardless of whether . . . the defendant
acted willfully or with intent to deceive” (2 Callmann on Unfair
Competition, Trademarks, and Monopolies (4th ed., June 2022
update) § 5:3). “The deceptive or misleading quality of an
advertisement is not vitiated by the advertiser’s good faith and,
accordingly, intent to deceive is not an element of the violation.
An innocent state of mind does not diminish the false
advertiser’s unfair advantage over competitors.” (Ibid., fns.
omitted; see Romag Fasteners, Inc. v. Fossil, Inc. (2020) __ U.S.
__, __ [140 S.Ct. 1492, 1495] [the Lanham Act’s “language has
never required a showing of willfulness to win a defendant’s
profits,” and its silence regarding a mental state is striking in a
statute that, elsewhere, “often and expressly” incorporates
them].)
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SEROVA v. SONY MUSIC ENTERTAINMENT
Opinion of the Court by Jenkins, J.
Strict liability under the Lanham Act has been held
consistent with the First Amendment. (E.g., United States
Healthcare, Inc. v. Blue Cross of Greater Philadelphia, supra,
898 F.2d at p. 937 [“the First Amendment requires no higher
standard of liability than that mandated by the substantive
law,” namely the Lanham Act, such that a heightened “actual
malice” standard would not apply]; P&G v. Amway Corp., supra,
242 F.3d at p. 557 [“false commercial speech cannot qualify for
the heightened protection of the First Amendment,” and neither
actual malice nor negligence must be shown to prove a Lanham
Act claim]; see Stewart v. Rolling Stone LLC (2010) 181
Cal.App.4th 664, 683 [citing P&G].)
Similarly, the Federal Trade Commission Act (15 U.S.C.
§§ 43, 52) has widely been held to prohibit an advertiser’s
deceptive acts regardless of good faith. (Fed. Trade Comm’n v.
Algoma Co. (1934) 291 U.S. 67, 81 [the act applies to
representations “however innocently made”]; Curtis Lumber Co.
v. La. Pac. Corp. (8th Cir. 2010) 618 F.3d 762, 779 & fn. 14
[collecting cases]; see generally Pridgen & Alderman, Consumer
Protection and the Law (Nov. 2021) § 10:2 [“the Commission and
the courts have concluded that the seller's intent is irrelevant to
a finding that a deceptive trade practice has been committed”].)
In contrast to these regulations of commercial speech, the
First Amendment requires state laws impinging on certain
noncommercial speech to include fault-based liability. (Gertz v.
Robert Welch, Inc. (1974) 418 U.S. 323, 347 [defamation of
private individuals requires “fault”]; New York Times Co. v.
Sullivan (1964) 376 U.S. 254, 279–280 [defamation of a public
official requires actual malice]; Smith v. California (1959) 361
U.S. 147, 154 [banning the mere possession for sale of obscene
books limits the nonobscene books a bookseller will review and
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SEROVA v. SONY MUSIC ENTERTAINMENT
Opinion of the Court by Jenkins, J.
sell, and thus the government must insist on some “mental
element” for criminal liability].)
But “the leeway for untruthful or misleading expression
that has been allowed in [these] other contexts has little force in
the commercial arena.” (Bates v. State Bar of Arizona, supra,
433 U.S. at p. 383; see Kasky, supra, 27 Cal.4th at pp. 953–954
[quoting Bates].) “Since the advertiser knows his product and
has a commercial interest in its dissemination, we have little
worry that regulation to assure truthfulness will discourage
protected speech. [Citation.] And any concern that strict
requirements for truthfulness will undesirably inhibit
spontaneity seems inapplicable because commercial speech
generally is calculated. Indeed, the public and private benefits
from commercial speech derive from confidence in its accuracy
and reliability.” (Bates, at p. 383.)
In line with these principles, the numerous cases
described ante at pages 18 through 21 have long applied the
UCL and Lanham Act to representations about contributions to
artistic works and did so without assessing scienter. (See, e.g.,
King v. Innovation Books, supra, 976 F.2d at p. 829; PPX Enters.
v. Audiofidelity Enters., supra, 818 F.2d at pp. 268, 273; Rogers,
supra, 875 F.2d 994.) If the CLRA and UCL lack a scienter
requirement, we still classify Sony’s speech as commercial.
C. Sony’s Album Title and Artwork
Serova has sufficiently established, in connection with the
anti-SLAPP inquiry into the merits of her claims, that Sony’s
promise of “9 previously unreleased vocal tracks performed by
Michael Jackson” and its promotional video are commercial
speech regulable under the CLRA and UCL. We turn briefly to
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SEROVA v. SONY MUSIC ENTERTAINMENT
Opinion of the Court by Jenkins, J.
address the album’s title, Michael, and its artwork, containing
images of Jackson.
As already noted, some courts view titles as integral to
“expression as well as a significant means of marketing.”
(Rogers, supra, 875 F.2d 994, 998 [“The artistic and commercial
elements of titles are inextricably intertwined”].) Album art
might also be expressive. (Compare Winchester Mystery House,
LLC v. Global Asylum, Inc., supra, 210 Cal.App.4th at p. 592
[applying heightened scrutiny to trademark claims targeting
artwork on DVD packaging] with No Doubt v. Activision
Publishing, Inc., supra, 192 Cal.App.4th at p. 1039, fn. 8
[doubting whether such heightened scrutiny should apply to a
claim that use of a celebrity’s likeness in a video game was
actionable as a misappropriation].)
Given the framing of Sony’s anti-SLAPP motion, however,
and the conclusions we have reached so far, we do not address
whether Michael’s artwork and title are commercial speech or
possess expressiveness that might impact their classification or
otherwise limit their regulability under state law.
Sony’s initial memorandum of points and authorities
supporting its motion did not address the artwork and title, even
though Serova’s complaint noted these items as relevant to her
claims. Sony, discussing what it called its “attributional
statements,” analyzed only the album-back statement and
video. Serova, in opposition, referred to the album’s artwork
and title and asserted those items were misleading, but grouped
them with the album-back statement for the commercial speech
analysis. Consistent with this, Serova argued elsewhere that all
components of the album’s packaging should, in evaluating its
claims, be “taken together” and viewed “as a whole.” Sony,
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SEROVA v. SONY MUSIC ENTERTAINMENT
Opinion of the Court by Jenkins, J.
replying on the commercial speech issue, followed suit and
discussed the album’s “CD case” as a whole, not singling out the
artwork or title for separate treatment. It instead asserted
“what the court must decide” is whether a statement of artistic
contribution is commercial speech and argued, “Naming
Jackson the performer of the tracks at issue is noncommercial.”
The parties’ issue-limiting stipulation, meanwhile, while
acknowledging Serova’s claims arose from “various
representations,” only sought a determination of whether
Serova could “allege facts sufficient to constitute a cause of
action under” the CLRA or UCL. When the superior and
appellate courts below ruled on Sony’s motion and the
commercial speech issue, neither considered possible doctrinal
wrinkles related to artwork or titles for expressive works and
neither applied a unique analysis to them. (See Serova, supra,
44 Cal.App.5th at pp. 126–132.)
Sony’s motion, then, as limited by the parties’ stipulation,
does not now require a stand-alone assessment of the
commercial nature of Michael’s artwork and title, especially in
light of Serova’s showing that the album packaging contains
speech “naming Jackson the performer” of the Cascio tracks that
is commercial and can thus support a cause of action under the
CLRA and UCL. Consistent with our long-standing preference
for narrower resolutions of constitutional questions (see People
v. Hoyt (2020) 8 Cal.5th 892, 949; cf. Cal. Rules of Court, rule
8.516(b)(3) [this court retains discretion over the issues to
decide]), we do not consider how to address the artwork and title
consistent with First Amendment dictates.
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SEROVA v. SONY MUSIC ENTERTAINMENT
Opinion of the Court by Jenkins, J.
D. Copyright Preemption
There is one final matter, however, to address regarding
the merits of Serova’s claims. In its answering brief in this
court, Sony argues, for the first time, that Serova’s consumer
deception claims are meritless because federal copyright law
preempts them and deprives California courts of subject matter
jurisdiction. Sony believes it can argue preemption now, despite
the parties’ issue-limiting stipulation and the preliminary
nature of an anti-SLAPP motion, because challenges to a court’s
subject matter jurisdiction can be raised at any time and
because subject matter jurisdiction “ ‘ “cannot be conferred by
waiver, estoppel, or consent.” ’ ” (See Kabran v. Sharp Memorial
Hospital (2017) 2 Cal.5th 330, 339.) Serova does not dispute
Sony’s framing of its preemption argument as jurisdictional.
She has, in fact, briefed the issue without objecting to us
considering it. Whether or not Sony’s preemption claim tests
our fundamental jurisdiction, we, out of an abundance of
caution, choose to consider it, and we reject it.
Copyright law is held to preempt state claims when state
claims vindicate rights equivalent to those copyright law
protects. (17 U.S.C. § 301(b)(3); see Kodadek v. MTV Networks,
Inc. (9th Cir. 1998) 152 F.3d 1209, 1212.) Copyright law protects
copyright owners against unauthorized reproduction,
distribution, and other uses of their works (17 U.S.C. § 106) but
does not speak to false advertising and consumer confusion as
the CLRA and UCL do (Civ. Code, § 1770, subd. (a)(5)
[prohibiting misrepresentations about goods’ characteristics];
Bus. & Prof. Code, § 17200 [prohibiting “deceptive, untrue or
misleading advertising”]). When a consumer brings a CLRA or
UCL claim requiring proof of false or misleading advertising, the
claim requires something a copyright claim does not. (See
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SEROVA v. SONY MUSIC ENTERTAINMENT
Opinion of the Court by Jenkins, J.
Kabehie v. Zoland (2002) 102 Cal.App.4th 513, 530 [noting the
“ ‘ “extra element of misrepresentation” ’ ” distinguishes a fraud
claim from a copyright claim]; Gladstone v. Hillel (1988) 203
Cal.App.3d 977, 987 [same]; accord, Computer Mgmt. Assistance
Co. v. Robert F. DeCastro, Inc. (5th Cir. 2000) 220 F.3d 396, 404
[Louisiana Unfair Trade Practices Act requires proof of
misrepresentation, an “ ‘extra element’ ”]; Samara Bros. v. Wal-
Mart Stores, Inc. (2d Cir. 1998) 165 F.3d 120, 131 [New York
consumer claim requiring consumer confusion and “deceptive
acts,” even if unintentional, was not preempted]; Valente-Kritzer
Video v. Pinckney (9th Cir. 1989) 881 F.2d 772, 776 [“the
element of misrepresentation . . . distinguishes [a California
fraud] claim from one based on copyright”]; Meyers v. Fabrics
(1985) 65 N.Y.2d 75, 78 [479 N.E.2d 236, 238] [a New York
“cause of action for false labeling” was not preempted].) In fact,
state laws that “prevent consumer confusion” and prohibit “false
descriptions” of products have long “coexisted harmoniously”
with federal intellectual property law. (Bonito Boats, Inc. v.
Thunder Craft Boats, Inc. (1989) 489 U.S. 141, 165–166 [noting
the coexistence of patent law with state unfair competition laws
similar to the Lanham Act].)
Serova is plainly not asserting ownership in copyrightable
material associated with Michael. She sues as a consumer, not
a purported rights holder claiming infringement. More than
that, Serova’s claims do not depend on who owns such rights. In
fact, as Sony itself noted in its answering brief, there appears to
be no dispute in this lawsuit that those rights belong to MJJ
Productions, Inc., regardless of who provided lead vocals for the
Cascio tracks. Finally, Serova is not seeking to enjoin
reproduction or distribution of the sound recordings on Michael,
but rather contests the album’s marketing claims. (See
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SEROVA v. SONY MUSIC ENTERTAINMENT
Opinion of the Court by Jenkins, J.
Sybersound Records, Inc. v. UAV Corp. (9th Cir. 2008) 517 F.3d
1137, 1152 [a UCL claim insofar as it was “based on copyright
infringement” was preempted, but a UCL claim based on
“alleged misrepresentations” remained].) Federal copyright
law, then, and Serova’s consumer deception claims — at least as
they have taken shape here on Sony’s anti-SLAPP motion — can
coexist harmoniously.
IV. CONCLUSION
Serova has sufficiently demonstrated, for purposes of the
anti-SLAPP proceedings before us, that her CLRA and UCL
claims related to Michael’s packaging and promotional video
have sufficient merit. Perhaps in another context the First
Amendment would limit the reach of our consumer protection
laws, but Sony’s album-back promise and video are commercial
advertising making claims about a product, and we will not
place them beyond the reach of state regulation. We therefore
reverse the judgment of the Court of Appeal insofar as it ordered
struck, per the anti-SLAPP statute, those claims of Serova
against Sony that remained after the trial court’s order, and we
remand for further proceedings consistent with this opinion,
including any dismissal proceedings contemplated by the
parties’ settlement agreement.
JENKINS, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
LIU, J.
KRUGER, J.
GROBAN, J.
GUERRERO, J.
41
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.
Name of Opinion Serova v. Sony Music Entertainment
__________________________________________________________
Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published) XX 44 Cal.App.5th 103Review Granted (unpublished)
Rehearing Granted
__________________________________________________________
Opinion No. S260736
Date Filed: August 18, 2022
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Ann I. Jones
__________________________________________________________
Counsel:
Katten Muchin Rosenman, Zia F. Modabber, Andrew J. Demko, Tami
Kameda Sims, Shelby A. Palmer, Charlotte S. Wasserstein, Leah E.A.
Solomon; Kinsella Weitzman Iser Kump & Aldisert, Kinsella
Weitzman Iser Kump, Jonathan P. Steinsapir, Howard Weitzman and
Suann C. Macisaac for Defendants and Appellants.
Davis Wright Tremaine, Thomas R. Burke, Rochelle L. Wilcox and Dan
Laidman for First Amendment Coalition as Amicus Curiae on behalf of
Defendants and Appellants.
Moss Bollinger, Jeremy F. Bollinger, Ari E. Moss and Dennis F. Moss
for Plaintiff and Respondent.
Seth E. Mermin and Eliza J. Duggan for UC Berkeley Center for
Consumer Law and Economic Justice, Truth in Advertising, Inc.,
Public Counsel, Legal Aid Society of San Diego, Housing & Economic
Rights Advocates, East Bay Community Law Center, Consumers for
Auto Reliability and Safety, Consumer Action and Bay Area Legal Aid
as Amici Curiae on behalf of Plaintiff and Respondent.
Arbogast Law, David M. Arbogast; and Micha Star Liberty for
Consumer Attorneys of California as Amicus Curiae on behalf of
Plaintiff and Respondent.
Xavier Becerra and Rob Bonta, Attorneys General, Michael J. Mongan,
State Solicitor General, Janill L. Richards, Principal Deputy State
Solicitor General, Samuel T. Harbourt and Amari L. Hammonds,
Deputy State Solicitors General, for the Attorney General as Amicus
Curiae on behalf of Plaintiff and Respondent.
Michael N. Feuer, City Attorney (Los Angeles), Wilfredo R. Rivera,
Deputy Chief City Attorney, Christina V. Tusan, William R. Pletcher
and Miguel J. Ruiz, Deputy City Attorneys, for the Los Angeles City
Attorney as Amicus Curiae on behalf of Plaintiff and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):
Zia F. Modabber
Katten Muchin Rosenman LLP
2029 Century Park East, Suite 2600
Los Angeles, California 90067
(310) 788-4627
Dennis F. Moss
Moss Bollinger LLP
15300 Ventura Boulevard, Suite 207
Sherman Oaks, CA 91403
(310) 985-0555
Samuel T. Harbourt
Deputy State Solicitor General
455 Golden Gate Avenue, Suite 11000
San Francisco, CA 94102-7004
(415) 510-3919