The Volokh Conspiracy

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False Advertising Claim Over Allegations That "Michael" Included Tracks by Jackson Imitator Can Proceed

Commercial advertising for fully protected speech is treated as "commercial speech," and can be restricted on a strict liability basis if it misleads consumers (at least in this sort of situation).


From today's unanimous decision of the California Supreme Court in Serova v. Sony Music Entm't, written by Justice Martin Jenkins:

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 lower court held that, e]ven if the statements about Jackson's contributions were false, …. the First Amendment requires classifying them as noncommercial speech, a classification that would offer the statements greater protection from government regulation and, per the parties' agreement, put them beyond the reach of the consumer protection laws Serova invokes. 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."

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." 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….

To be sure, sometimes commercial advertising for noncommercial speech—"noncommercial speech" here meaning speech such as books, films, or music, which isn't "commercial speech" for First Amendment purposes even though it's sold in commerce—is indeed assimilated to noncommercial speech. For instance, the First Amendment protects, notwithstanding state "right of publicity" laws, an author's right to publish and sell an unauthorized biography, and that includes the right to use the subject's name in ads or covers for the biography. But the court distinguished that situation thus:

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, … we do not see the requisite connection.

[A]dvertising 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 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].) {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].)}

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 the program was commercial speech and did "not present intertwined speech." 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."

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. An adjunct advertisement doctrine, it asserted, would be "justified only to the extent necessary" to achieve this purpose. (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" 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 advertising, but because she believes Sony falsely advertised the lead vocalist. 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.

Congratulations to Jeremy Bollinger, Ari Moss, and Dennis Moss of Moss Bollinger, who represented plaintiff. (Note that plaintiff is a former law student of mine, though I do not know her well.) Thanks to Bruce Wessel for the pointer.