Serova v. Sony Music Entertainment ( 2018 )


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  • Filed 9/13/18 (unmodified opinion attached)
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    VERA SEROVA,                                    B280526
    Plaintiff and Respondent,                (Los Angeles County
    Super. Ct. No. BC548468)
    v.
    ORDER MODIFYING OPINION
    SONY MUSIC ENTERTAINMENT                        AND DENYING REHEARING
    et al.,                                         [NO CHANGE IN JUDGMENT]
    Defendants and Appellants.
    THE COURT:
    It is ordered that the opinion filed herein on August 28, 2018, be
    modified as follows:
    On page 23, first full paragraph, after the third sentence ending
    “statement of opinion rather than fact,” add as footnote 8 the following
    footnote, which will require renumbering of all subsequent footnotes:
    [Fn. 8:] In her petition for rehearing, Serova argues that
    Appellants’ challenged statements on the Album Cover and in the
    Promotional Video were statements of fact, not opinion, because
    consumers would have understood them to be factual assertions
    about the identity of the lead singer of the songs in the album.
    This argument misunderstands the issue. The question here is
    not whether Appellants have a defense to Serova’s claims because
    their challenged statements were truthful assertions of opinion
    rather than alleged false statements of fact. In that context,
    focus on the listener’s understanding is appropriate. (See, e.g.,
    Baker v. Los Angeles Herald Examiner (1986) 
    42 Cal. 3d 254
    , 260–
    261 [applying a “ ‘totality of the circumstances’ ” test in a libel
    action to determine whether a statement was one of fact or
    opinion].) Rather, the question here is whether Appellants’
    challenged speech was commercial. Under the court’s analysis in
    Kasky, the speaker’s knowledge about the content of the speech is
    the important feature in answering that question. Nike’s
    challenged speech in that case concerned its own business
    operations which were within its personal knowledge. 
    (Kasky, supra
    , 27 Cal.4th at p. 963.) That is not the case here, as
    Appellants were not involved in the initial recordings of the
    Disputed Tracks. From Appellants’ perspective, their challenged
    statements about the identity of the lead singer were therefore
    necessarily opinion. [End of fn. 8.]
    There is no change in the judgment.
    Serova’s petition for rehearing is denied.
    ________________________________________________________________________
    LUI, P. J.                        CHAVEZ, J.                     HOFFSTADT, J.
    2
    Filed 8/28/18 (unmodified version)
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION TWO
    VERA SEROVA,                                   B280526
    Plaintiff and Respondent,               (Los Angeles County
    Super. Ct. No. BC548468)
    v.
    SONY MUSIC ENTERTAINMENT
    et al.,
    Defendants and Appellants.
    APPEAL from an order of the Superior Court of
    Los Angeles County. Ann I. Jones, Judge. Affirmed in part and
    reversed in part.
    Katten Muchin Rosenman, Zia F. Modabber, Andrew J.
    Demko, Charlotte S. Wasserstein; Kinsella Weitzman Iser Kump
    & Aldisert, Howard Weitzman and Suann C. Macisaac for
    Defendants and Appellants.
    Moss Bollinger, Ari E. Moss and Jeremy F. Bollinger for
    Plaintiff and Respondent.
    _________________________________
    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) appeal from an order of the superior court partially
    denying their motion to strike under the anti-SLAPP statute.
    (Code Civ. Proc., § 425.16.)1 Plaintiff and respondent Vera
    Serova (Serova) filed this putative class action against Appellants
    and other defendants for marketing a posthumous Michael
    Jackson album entitled simply Michael. Serova claims that the
    album cover and a promotional video misleadingly 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; Bus.& Prof. Code, § 17200 et seq.) and the Consumers
    Legal Remedies Act (CLRA; Civ. Code, § 1750 et seq.). Serova
    also brought a fraud claim against defendants Edward Joseph
    Cascio, James Victor Porte, and Cascio’s production company,
    Angelikson Productions, LLC (collectively, the Cascio
    Defendants), alleging that those defendants knowingly
    misrepresented to Appellants that Jackson was the lead singer on
    the three tracks at issue (the Disputed Tracks).2
    1Subsequent undesignated statutory references are to the
    Code of Civil Procedure. “SLAPP” is an acronym for “[s]trategic
    lawsuit against public participation.” (Briggs v. Eden Council for
    Hope & Opportunity (1999) 
    19 Cal. 4th 1106
    , 1109, fn. 1.)
    2   The Cascio Defendants are not parties to this appeal.
    2
    Appellants brought an anti-SLAPP motion, which the trial
    court granted in part but denied with respect to the two
    communications at issue in this appeal. The trial court concluded
    that the album cover, including statements about the contents of
    the album, and a promotional video for the album were
    commercial speech that was subject to regulation under the UCL
    and the CLRA.
    We reverse this portion of the trial court’s order. We
    conclude that the challenged representation―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. The identity
    of the lead singer was also integral to the artistic significance of
    the songs themselves. Under these circumstances, Appellants’
    statements about the identity of the artist were not simply
    commercial speech but were subject to full First Amendment
    protection. They are therefore outside the scope of an actionable
    unfair competition or consumer protection claim in this case.
    3
    BACKGROUND
    1.     The Anti-SLAPP Procedure
    Section 425.16 provides for a “special motion to strike”
    when a plaintiff asserts claims 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.”
    (§ 425.16, subd. (b)(1).) Such claims must be stricken “unless the
    court determines that the plaintiff has established that there is a
    probability that the plaintiff will prevail on the claim.” (Ibid.)
    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; 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.)
    Section 425.16, subdivision (e) defines the categories of acts
    that are in “ ‘furtherance of a person’s right of petition or free
    speech.’ ” Those categories include “any written or oral statement
    or writing made in a place open to the public or a public forum in
    connection with an issue of public interest,” and “any other
    conduct in furtherance of the exercise of the constitutional right
    of petition or the constitutional right of free speech in connection
    with a public issue or an issue of public interest.” (§ 425.16, subd.
    (e)(3) & (4).)
    4
    In 2003 the Legislature enacted section 425.17 to curb “a
    disturbing abuse of Section 425.16 . . . which has undermined the
    exercise of the constitutional rights of freedom of speech and
    petition for the redress of grievances, contrary to the purpose and
    intent of Section 425.16.” (§ 425.17, subd. (a).) Section 425.17
    seeks to accomplish that goal by expressly excluding several
    categories of claims from the scope of section 425.16.
    Section 425.17, subdivision (c) establishes such an exclusion
    for claims concerning commercial speech. That subdivision
    provides that section 425.16 does not apply to “any cause of action
    brought against a person primarily engaged in the business of
    selling or leasing goods or services” if certain conditions exist,
    including that: (1) the statement at issue “consists of
    representations of fact about that person’s or a business
    competitor’s business operations, goods, or services” that was
    made to promote commercial transactions or was made “in the
    course of delivering the person’s goods or services;” and (2) the
    intended audience is an actual or potential customer or a person
    likely to influence a customer. (§ 425.17, subd. (c)(1) & (2).)
    Section 425.17 contains certain specifically defined
    exceptions. One of those exceptions states that the commercial
    speech provision in section 425.17, subdivision (c) does not apply
    to “[a]ny action against any person or entity based upon the
    creation, dissemination, exhibition, advertisement, or other
    similar promotion of any dramatic, literary, musical, political, or
    artistic work.” (§ 425.17, subd. (d)(2).)
    5
    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.
    In his statement (the Weitzman Statement), Weitzman
    explained that many persons who were familiar with Jackson’s
    work had confirmed that he was the lead singer on the Disputed
    3 As explained below, the trial court ruled on Appellant’s
    anti-SLAPP motion based upon the allegations in Serova’s First
    Amended Complaint (Complaint) and a stipulation that
    established certain background facts for purposes of the motion
    only. Thus, the relevant facts are primarily those alleged in the
    Complaint.
    6
    Tracks, including former producers, engineers, performers, and
    directors who had worked with Jackson. He stated that the
    Estate and Sony had also retained forensic musicologists who
    examined the Disputed Tracks and concluded that the lead singer
    was actually Jackson. He also stated that he had spoken to the
    singer whom some persons had “wrongfully alleged was a
    ‘soundalike’ singer that was hired to sing” on the Disputed
    Tracks, and that the singer had denied any involvement with the
    project. Weitzman explained that, “given the overwhelming
    objective evidence resulting from the exhaustive investigations,”
    Sony decided to include the Disputed Tracks on the album
    “because they believed, without reservation, that the lead vocal[s]
    on all of those tracks were sung by Michael Jackson.”
    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,
    4One of the tracks on the album had been previously
    recorded.
    7
    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 Complaint claims that thousands of
    putative class members purchased Michael and lost “money or
    property” as a result of the alleged misleading representations.
    3.     Appellants’ Anti-SLAPP Motion
    Appellants and the Cascio Defendants filed motions to
    strike under section 425.16. Appellants argued that Serova’s
    claims arose from protected speech under prong one of the anti-
    SLAPP procedure. With respect to prong two, Appellants argued
    that Serova could not succeed on her claims against them because
    their challenged statements about the identity of the lead singer
    on the Disputed Tracks were noncommercial speech as a matter
    of law and no reasonable consumer could find the statements
    misleading.
    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).
    8
    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.”
    With respect to prong two, the trial court found that the
    Weitzman Statement and Cascio’s statements on the Oprah
    9
    Winfrey show were noncommercial speech. The court concluded
    that those statements were not made to promote or sell the
    album, but addressed “a controversy regarding the veracity of the
    claims surrounding the release of the 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. Nat’l Fed’n 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
    10
    (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
    We apply a de novo standard of review to the trial court’s
    rulings on the anti-SLAPP motion. (Soukup v. Law Offices of
    Herbert Hafif (2006) 
    39 Cal. 4th 260
    , 269, fn. 3.)
    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
    their challenged conduct 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
    section 425.17, subdivision (d)(2) shows a legislative intent that
    such speech “is eligible for anti-SLAPP protection,” which is
    5Serova did not appeal from the trial court’s ruling
    granting the defendants’ anti-SLAPP motion with respect to the
    Weitzman e-mail and Cascio’s statement during the Oprah
    Winfrey interview. Thus, the only claims at issue in this appeal
    concern the representations in the Promotional Video and the
    Album Cover.
    11
    “essentially dispositive of step one of the anti-SLAPP analysis.”
    We first consider that argument.
    a.     The significance of the Legislature’s exclusion of
    music advertisements from the scope of section
    425.17
    As mentioned, section 425.17, subdivision (d)(2) provides
    that the “creation, dissemination, exhibition, advertisement, or
    other similar promotion of any dramatic, literary, musical,
    political, or artistic work” is outside the scope of the commercial
    speech provision in section 425.17, subdivision (c). The exception
    in section 425.17, subdivision (d)(2) certainly means that the
    promotion of a musical work is not included within the categories
    of conduct that the Legislature specifically stated were not
    subject to anti-SLAPP relief. However, the Legislature’s decision
    to exclude the advertising of musical works from section 425.17
    does not mean that it also intended to afford anti-SLAPP
    protection to such conduct in every circumstance, regardless of
    the requirements of section 425.16.
    Such a conclusion would be inconsistent with the
    Legislature’s stated intent. The Legislature specifically stated
    that it enacted section 425.17 to curb abuses of the anti-SLAPP
    law that were “contrary to the purpose and intent of Section
    425.16.” (§ 425.17, subd. (a).) That statement suggests that our
    Legislature was concerned that the courts were granting too
    broad a reading to what constitutes “protected” conduct under
    section 425.16, subdivision (e). Appellants’ argument, if accepted,
    would commit that very same sin because it would require courts
    to treat the types of speech delineated in section 425.17,
    subdivision (d)(2) as subject to the anti-SLAPP law without any
    showing that such speech meets the definition of “protected”
    conduct under section 425.16, subdivision (e).
    12
    The interpretation that Appellants suggest would also be
    inconsistent with the definitions of protected conduct under
    section 425.16. Section 425.16, subdivision (e)(3) and (4) each
    require that protected conduct must have some connection to a
    “public issue” or an “issue of public interest.” Appellants’
    interpretation of section 425.17, subdivision (d)(2) ignores that
    requirement. For example, an action challenging an
    advertisement falsely claiming that a musical album contains a
    particular song would be an action “based upon the . . .
    advertisement” of a musical work. (§ 425.17, subd. (d)(2).)
    Appellants do not provide any reason to believe that the
    Legislature intended to provide automatic anti-SLAPP protection
    to such a mundane commercial misrepresentation simply because
    the statement was made in connection with the advertisement of
    a musical work. (Cf. Rezec v. Sony Pictures Entertainment, Inc.
    (2004) 
    116 Cal. App. 4th 135
    , 143–144 (Rezec) [advertisement
    referring to a purported movie endorsement by a fictional music
    critic did not concern an issue of public interest just “because the
    public is interested in films”].)
    The court in Dyer v. Childress (2007) 
    147 Cal. App. 4th 1273
    rejected a similar argument. After reviewing the legislative
    history concerning section 425.17, subdivision (d)(2), the court
    rejected the defendant’s claim that “by expressly exempting
    motion pictures from the anti-SLAPP limitations imposed in
    section 425.17, subdivisions (b) and (c), the Legislature
    acknowledged that motion pictures are more deserving of
    protection than other forms of expression not enumerated.” (Id.
    at pp. 1283–1284.) The court concluded that “[t]he exclusion of
    motion pictures from the exemptions to the limitations set forth
    in section 425.17, subdivisions (b) and (c) means only that anti-
    SLAPP motions remain available to defendants who are creators
    13
    and distributors of motion pictures . . . . [¶] The exception of
    section 425.17, subdivision (d)(2) does not eliminate the need to
    show significant public interest in the conduct at the heart of the
    plaintiff’s complaint or expand the scope of the anti-SLAPP law to
    provide protection to motion picture defendants in every context.”
    (Id. at p. 1284.)
    Similarly, the exception of section 425.17, subdivision (d)(2)
    does not provide anti-SLAPP protection to sellers of music in
    every context. We therefore must consider whether Appellants’
    challenged statements were made “in connection with a public
    issue or an issue of public interest.” (§ 425.16, subd. (e).)
    b.     The challenged promotional statements in this
    case
    Serova claims that Appellants’ statements about the
    identity of the lead singer on the Disputed Tracks were simply
    claims about the contents of a commercial product that
    Appellants offered for sale. We disagree that the representation
    at issue was so limited. Serova’s own allegations describe the
    public controversy concerning the Disputed Tracks. Moreover, a
    significant body of case law holds that prominent entertainers
    and their accomplishments can be the subjects of public interest
    for purposes of the anti-SLAPP statute.
    The Complaint alleges that, “[b]efore Michael’s release,
    numerous people familiar with Michael Jackson’s voice disputed
    the authenticity” of the Disputed Tracks. As discussed above,
    Sony and the Estate released public statements in response,
    including the detailed Weitzman Statement. Serova further
    alleges that, “[s]ince Michael’s inception, controversy has
    surrounded three of the album’s ten songs.”
    Public interest in the life and work of entertainers and
    other celebrities can create an “issue of public interest” for
    14
    purposes of section 425.16, subdivision (e). “ ‘ “[T]here 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.” ’ ”
    (Stewart v. Rolling Stone LLC (2010) 
    181 Cal. App. 4th 664
    , 677–
    678 (Stewart), quoting Eastwood v. Superior Court (1983) 
    149 Cal. App. 3d 409
    , 422; see also 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].) It is beyond dispute that Michael
    Jackson was a famous entertainer.
    Facts concerning the creation of works of art and
    entertainment can also be an issue of public interest for purposes
    of the anti-SLAPP statute. 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 website.
    (Id. at p. 944.) The court concluded that the movie “was a topic of
    widespread public interest,” and the website 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 also 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].)
    Similarly, here, there was significant interest in the release
    of the posthumous album Michael. Whether or not the lead
    singer on the Disputed Tracks was actually Michael Jackson was
    15
    therefore also a matter of significant public interest, as confirmed
    by Serova’s own allegations.
    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
    section 425.16, subdivision (e)(3) and (4).
    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 only apply to
    commercial speech. They claim that their challenged statements
    about the lead singer on the Disputed Tracks were not
    16
    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, supra
    , 116 Cal.App.4th at p. 140 [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) [Bus. & Prof. Code, §§ 17200
    et seq. and 17500 et seq. do not “seek to restrict noncommercial
    speech in any manner”]; O’Connor v. Superior Court (1986) 
    177 Cal. App. 3d 1013
    , 1019.) Serova does not dispute this. Moreover,
    she did not argue below and does not argue on appeal that
    Appellants’ challenged statements are actionable even if they are
    noncommercial speech. Thus, if Appellant’s challenged
    statements are noncommercial speech Serova’s claims against
    them must be stricken.
    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.’ ” 
    (Kasky, supra
    , 27 Cal.4th at
    p. 952, quoting Bolger v. Youngs Drug Products Corp. (1983) 
    463 U.S. 60
    , 64–65 (Bolger).) Moreover, “commercial speech that is
    false or misleading is not entitled to First Amendment protection
    and ‘may be prohibited entirely.’ ” (Kasky, at p. 953, quoting In re
    R.M.J. (1982) 
    455 U.S. 191
    , 203.)
    17
    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, supra
    , the court held that materials distributed
    by a manufacturer of contraceptives, including both promotional
    flyers and informational pamphlets about contraceptives, were
    commercial speech. (463 U.S. at pp. 62, 66–68.) Most of the
    mailings at issue fell “within the core notion of commercial
    speech—‘speech which does “no more than propose a commercial
    transaction.” ’ ” (Id. at p. 66, quoting Virginia State Bd. of
    Pharmacy v. Virginia Citizens 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
    18
    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. 960.) The court directed that a court
    faced with such a decision should consider “three elements: the
    speaker, the intended audience, and the content of the message.”
    (Ibid.)
    The court in Kasky applied those factors to the allegations
    that the defendant, Nike, made false statements about labor
    practices in its own business operations. (27 Cal.4th at pp. 969–
    970.) The court held that these alleged statements constituted
    commercial speech that was actionable under California’s
    consumer protection laws. (Ibid.)
    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.
    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.
    19
    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.” (27 Cal.4th at p. 962.) This
    requirement relates directly to the reasons for denying First
    Amendment protection to false or misleading commercial speech.
    As the court explained, the United States Supreme Court “has
    stated that false or misleading commercial speech may be
    prohibited because the truth of commercial speech is ‘more easily
    verifiable by its disseminator’ and because commercial speech,
    being motivated by the desire for economic profit, is less likely
    than noncommercial speech to be chilled by proper regulation.”
    (Ibid., 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 policies, and the practices and working
    conditions in factories where its products are made, Nike was
    making factual representations about its own business
    operations.” (27 Cal.4th at p. 963, italics added.) The court
    concluded that “Nike was in a position to readily verify the truth
    of any factual assertions it made on these topics,” and that
    commercial regulation was “unlikely to deter Nike from speaking
    truthfully or at all about the conditions in its factories.” (Ibid.)
    20
    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.)6
    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.
    6 As mentioned above, the parties stipulated below for
    purposes of the anti-SLAPP motions that Michael Jackson did not
    sing the lead vocals on the three Disputed Tracks. Accordingly,
    for purposes of their appeal, Appellants state that they accept
    “that Jackson did not sing the lead vocals” on the Disputed
    Tracks. However, Appellants did not stipulate that they knew the
    identity of the singer.
    21
    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, supra
    , 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 speech less
    constitutional protection. (27 Cal.4th at pp. 958, 965.) The court
    in Kasky recognized that the speech at issue in that case—Nike’s
    statements about labor practices in the factories that
    manufactured its products—addressed an issue of public interest.
    The reason that Nike’s speech could be subject to regulation
    under the state’s unfair competition and false advertising laws
    was that it concerned facts about Nike’s own business operations,
    which were “ ‘more easily verifiable’ ” and “ ‘less likely to be
    chilled by proper regulation’ ” than other speech about the
    publicly-debated issue of international labor practices. (Id. at pp.
    965, 967, quoting Virginia 
    Pharmacy, supra
    , 425 U.S. at p. 772,
    fn. 24.) The court cautioned that it did not purport to decide
    whether speech should be considered commercial if all of the
    factors that the court identified—including the element of
    22
    personal knowledge about one’s own business operations—were
    not present. (Kasky, at p. 964.)7
    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. (Cf.
    Bernardo v. Planned Parenthood Federation of America (2004)
    
    115 Cal. App. 4th 322
    , 348 [statements of opinion on Planned
    Parenthood’s website concerning scientific research about
    abortion and breast cancer were not commercial speech].)
    The lack of personal knowledge here also means that
    Appellants’ challenged statements do not fit the definition of
    speech that is “ ‘less likely to be chilled by proper regulation.’ ”
    
    (Kasky, supra
    , 27 Cal.4th at p. 965, quoting Virginia 
    Pharmacy, supra
    , 425 U.S. at p. 772, fn. 24.) The “regulation” at issue here
    is the UCL and the CLRA. Serova could obtain relief under these
    consumer protection statutes without proof of intentional or
    willful conduct. (See Kasky, at pp. 980–981 (dis. opn. of
    7  For example, the court might well have reached a
    different conclusion in Kasky if the statements at issue concerned
    the labor practices of an independent commercial supplier who
    simply sold products to Nike for resale. The court specifically
    noted that Nike had entered into a memorandum of
    understanding assuming responsibility for its subcontractors’
    compliance with local labor laws. 
    (Kasky, supra
    , 27 Cal.4th at
    p. 947.)
    23
    Brown, J.; Podolsky v. First Healthcare Corp. (1996) 
    50 Cal. App. 4th 632
    , 647 [violation of the UCL is a “strict liability
    offense”].)8 Thus, to avoid possible liability for a mistaken
    judgment about the lead singer on the Disputed Tracks,
    Appellants would have needed to either: (1) provide disclaimers
    about the singer’s identity in its marketing materials; or (2) omit
    the Disputed Tracks from the album.9
    The chilling effect of the second option is obvious. But the
    first option also has First Amendment implications. The United
    States Supreme Court recently emphasized the potentially
    problematic nature of regulations that compel speech, even in a
    commercial context. In Nat’l Inst. of Family & Life Advocates v.
    Becerra (2018) ___ U.S. ___, 
    201 L. Ed. 2d 835
    (Life Advocates), the
    court held that a California law requiring notices in health care
    clinics concerning available health care services, including
    8 The CLRA does provide for a good faith defense to an
    action for damages, but the defense requires proof of “appropriate
    correction, repair or replacement or other remedy of the goods
    and services.” (See Civ. Code, §§ 1782, subds. (b) & (c), and 1784.)
    In contrast to the consumer claims asserted against Appellants,
    Serova’s fraud claim against the Cascio Defendants of course does
    include a scienter element. That claim is still pending in the trial
    court.
    9 The record illustrates this dilemma. During oral
    argument, the trial court suggested that Appellants could have
    avoided legal challenge by leaving the songs at issue off of the
    album entirely. The trial court’s written ruling also observes that
    Appellants could have given the album “a different title and look”
    or elected “not to attest to the authenticity of the recordings on
    the cover or in a commercial.”
    24
    abortion, likely violated the First Amendment. The court
    declined to recognize an exception to strict scrutiny review under
    the First Amendment for “professional speech,” noting that the
    court has permitted compelled disclosures only in the context of
    professionals’ “commercial advertising” concerning “ ‘purely
    factual and uncontroversial information about the terms under
    which . . . services will be available.’ ” (Id. at p. 848.) By
    compelling a particular disclosure, the law at issue amounted to
    an impermissible “content-based regulation of speech.” (Id. at
    p. 846.)10
    By compelling disclosure of the controversy over the
    Disputed Tracks to avoid liability, the UCL and CLRA would, in
    effect, require Appellants to present views in their marketing
    materials with which they do not agree. The possibility that
    applying these unfair competition and consumer protection laws
    10  That the court’s reasoning in Life Advocates has
    implications beyond just professional disclosures is shown by
    Justice Breyer’s dissent, which cautions that “the majority’s view,
    if taken literally, could radically change prior law, perhaps
    placing much securities law or consumer protection law at
    constitutional risk, depending on how broadly its exceptions are
    interpreted.” (Life 
    Advocates, supra
    , 201 L.Ed.2d at p. 857, dis.
    opn. of Breyer, J.) The majority countered by stating that it does
    not “question the legality of . . . purely factual and
    uncontroversial disclosures about commercial products.” (Id. at
    p. 852, italics added.) Here, any compelled disclosure would not
    be “uncontroversial”; Serova herself alleges that “controversy has
    surrounded” the three Disputed Tracks. Nor would it be “purely
    factual” from Appellants’ perspective, as they had no personal
    knowledge of the facts.
    25
    to Appellants’ speech would have the effect of chilling the content
    of that speech—whether by preventing the sale of particular
    musical works or by regulating the expression of a point of view
    on a public controversy about those works—is a further reason to
    conclude that the speech at issue was noncommercial.
    ii.    The relationship between the
    challenged statements and the art
    that they promoted
    Appellants’ statements in the Promotional Video and on the
    Album Cover described and promoted the album, of which the
    Disputed Tracks were a part. The music on the album itself is
    entitled to full protection under the First Amendment. 
    (Stewart, supra
    , 181 Cal.App.4th at p. 682.) The challenged statements
    therefore related directly to a piece of art that has independent
    significance under the First Amendment.
    The identity of a singer, composer, or artist can be an
    important component of understanding the art itself. No one
    could reasonably dispute that knowing whether a piece of music
    was composed by Johann Sebastian Bach or a picture was painted
    by Leonardo Da Vinci informs the historical understanding of the
    26
    work.11 Similarly, although the art at issue is contemporary and
    in a different genre, whether Michael Jackson was actually the
    lead singer of the songs on the Disputed Tracks certainly affects
    the listener’s understanding of their significance. Thus, the
    marketing statements at issue here are unlike the purely factual
    product or service descriptions constituting commercial speech in
    cases that Serova cites. (See Benson v. Kwikset Corp. (2007) 
    152 Cal. App. 4th 1254
    , 1268 [representation that products were
    manufactured in the United States]; Peel v. Atty. Registration &
    Disciplinary Comm’n (1990) 
    496 U.S. 91
    , 99–100 [advertisement
    concerning attorney’s certification as an expert]; Rubin v. Coors
    Brewing Co. (1995) 
    514 U.S. 476
    , 481 [descriptions of alcohol
    content on beer labels].)
    We do not suggest that the challenged statements here are
    noncommercial speech only because they promoted an art work.
    We agree with the court in 
    Rezec, supra
    , 
    116 Cal. App. 4th 135
    ,
    that advertising is not necessarily excluded from the category of
    commercial speech simply because it promotes a product that is
    11  While these examples are only illustrative, they are not
    purely hypothetical. (See Dutter & Nikkhah, Bach works were
    written by his second wife, claims academic, The Telegraph
    (Apr. 23, 2006)
     [as of
    Aug. 23, 2018]; Sayej, Artistic License? Experts doubt Leonardo
    da Vinci painted $450m Salvator Mundi, The Guardian (Nov. 20,
    2017)
     [as of Aug. 23, 2018].)
    27
    itself subject to full First Amendment protection. In Rezec, the
    court held that film advertisements that featured fictional
    endorsements from a nonexistent critic was commercial speech.
    The court rejected the “absolutist approach” that “because the
    films themselves are noncommercial speech, so are the
    advertisements.” (Id. at p. 142.)12
    Such an approach would ascribe full First Amendment
    significance to any commercial representation about a piece of
    art, no matter how mundane or willfully misleading. For
    example, returning to the hypothetical advertisement mentioned
    above, there is no apparent reason why a statement falsely
    stating that a particular song is included in an album should be
    subject to full First Amendment protection simply because the
    statement promotes the sale of music.13 However, where, as
    12 In 
    Keimer, supra
    , the court concluded that
    advertisements repeating “verifiably false or misleading”
    statements about investment returns contained in a book were
    commercial speech despite the fully protected status of the books
    themselves under the First Amendment. (75 Cal.App.4th at
    p. 1231.) The statements at issue here were not “verifiably false”
    based upon the information available to Appellants, so we need
    not consider this holding.
    13 Thus, we do not accept Appellants’ suggestion that an
    advertisement promoting a particular piece of art is necessarily
    “inextricably intertwined” with the First Amendment content of
    the art itself simply because it makes a representation about the
    identity of the artist. (See 
    Riley, supra
    , 487 U.S. at p. 796.) The
    distinguishing features here are that: (1) the identity of the artist
    was itself an issue of public discussion and interest; and (2)
    Appellants had no personal knowledge of the issue.
    28
    here, a challenged statement in an advertisement relates to a
    public controversy about the identity of an artist responsible for a
    particular work, and the advertiser has no personal knowledge of
    the artist’s identity, it is appropriate to take account of the First
    Amendment significance of the work itself in assessing whether
    the content of the statement was purely commercial.
    This conclusion is consistent with the flexible approach that
    the United States Supreme Court has adopted for identifying
    commercial speech. In 
    Bolger, supra
    , the court explained that no
    single factor that it identified as a marker of commercial speech is
    sufficient in itself to classify particular speech as commercial, nor
    must each factor “necessarily be present in order for speech to be
    commercial.” (463 U.S. at pp. 66–67 and fn. 14.) The court
    concluded that the presence of all three factors in that case
    “provides strong support” for the conclusion that the
    informational pamphlets at issue were commercial. (Id. at p. 67.)
    However, citing a prior opinion involving the advertising of
    religious books, the court also cautioned that “a different
    conclusion may be appropriate in a case where the pamphlet
    advertises an activity itself protected by the First Amendment.”
    (Id. at p. 67, fn. 14.)
    That is the situation here. The challenged statements in
    the Promotional Video and on the Album Cover concerned music
    that is “itself protected by the First Amendment.” (
    Bolger, supra
    ,
    463 U.S. at p. 67, fn. 14.) While not itself dispositive, the fact
    that the challenged statements promoted a piece of art is
    appropriate to consider in assessing the content of the speech
    under the Kasky guidelines. 
    (Kasky, supra
    , 27 Cal.4th at p. 961.)
    3.     Conclusion
    Appellant’s challenged statements on the Album Cover and
    in the Promotional Video were noncommercial speech outside the
    29
    scope of the consumer protection claims that Serova asserts
    against Appellants. As a matter of law Serova therefore cannot
    show a likelihood that she will prevail on her claims under prong
    two of the anti-SLAPP procedure, and her claims against
    Appellants must be stricken. We therefore need not reach the
    issue of whether the challenged statements would be misleading
    to a reasonable consumer.
    We emphasize that this holding is based on the record in
    this case and the issues that have been appealed. The Cascio
    Defendants have not appealed, and our holding therefore does not
    reach any portion of the trial court’s order with respect to them.
    Nor do we purport to decide whether statements in another
    context concerning the marketing of creative works might
    constitute commercial speech.
    30
    DISPOSITION
    The trial court’s order is affirmed in part and reversed in
    part. The portions of the Complaint alleging claims against
    Appellants are ordered stricken. In all other respects the trial
    court’s order is affirmed. Appellants are entitled to their costs on
    appeal.
    CERTIFIED FOR PUBLICATION.
    LUI, P. J.
    We concur:
    CHAVEZ, J.
    HOFFSTADT, J.
    31