Michael Jackson was one of the biggest megastars of all time. After his tragic death in 2009, music giant Sony released a posthumous album of his songs, entitled “Michael.” Prior to the album’s release, however, various members of Michael Jackson’s family and others familiar with his recordings disputed whether he was the lead singer on all tracks on the new album. In response to those concerns, Sony publicly issued statements confirming their belief that Jackson was the singer. The album cover for “Michael” included a statement that “‘[t]his album contains 9 previously unreleased vocal tracks performed by Michael Jackson.’” A video released before the album described “Michael” as “a brand new album from the greatest artist of all time.”
In 2014, a skeptical fan who doubted these claims brought a class action suit under California’s main consumer protection laws, the Unfair Competition Law and the Consumer Legal Remedies Act. The UCL and CLRA are powerful tools for consumers to obtain relief for false advertising.
Early in the case, Sony brought a special motion to strike the plaintiff’s complaint under California’s anti-SLAPP law. It argued that its statements about “Michael” were not ordinary commercial speech but, considering the topic which they addressed, were instead comments on a public controversy. As such, they were privileged under the First Amendment, and could not be attacked by the UCL and CLRA. The rub of course is that the comments were made in the course of promoting a product for sale—a classic example of commercial speech and exactly the sort of thing properly targeted by consumer protection statutes.
After a victory for Sony in the Court of Appeal, the California Supreme Court decided in favor of the consumer:
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.