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The world may never know whether Michael Jackson really sang on all of the tracks released on the posthumous album Michael, but it doesn’t matter in terms of the law because the Michael Jackson estate and Sony Music on Tuesday emerged victorious at a California appeals court examining a putative class action.
Vera Serova attempted to lead the class action with the allegation that Michael amounted to a misrepresentation that was punishable under California’s Unfair Competition Law and the Consumers Legal Remedies Act. He insists that the King of Pop wasn’t the lead singer on three of the tracks.
The trial court partially denied an anti-SLAPP motion brought by the defendants aiming to stop the lawsuit. The judge concluded that statements on the album cover and the promotional video for the album amounted to commercial speech subject to regulation.
Upon appeal, the case picked up widespread attention in the media thanks to some misinterpretation about what happened at a hearing. Afterward, Sony had to issue a statement clarifying that it had not really conceded that Jackson didn’t author the vocals in dispute.
Today, the California appeals court issued its decision, reversing that of the trial court.
“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,” writes California Appellate Justice Elwood Lui. “[T]he 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 the case.”
Here, the appeals court doesn’t really address the misreporting about what happened in the aftermath of the hearing in the media, although that probably bolsters the position that this is an issue of public interest.
But that noted, since personal knowledge was one of the elements under which the appellate court considered the speech at issue, there was at least some nod to the slippery nature of truth. Tuesday’s decision notes that the administrators of the Michael Jackson estate and Sony didn’t themselves record the songs so they could only stake out a position on who did.
“The absence of the element of personal knowledge is highly significant here,” writes Lui. “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. 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.’”
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