Serova v. Sony Music Entertainment

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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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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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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<https://www.newyorker.com/culture/cultural-comment/was-

steve-jobs-an-artist> [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

<http://www.courts.ca.gov/38324.htm>.

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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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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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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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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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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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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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SEROVA v. SONY MUSIC ENTERTAINMENT

Opinion of the Court by Jenkins, J.

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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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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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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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

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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

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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 103

Review 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