Sony can’t squelch Michael Jackson album authenticity suit

Sony Music Entertainment can’t use California free speech protections to avoid a consumer lawsuit over questions about the authenticity of songs on a Michael Jackson album released after the singer’s death, the California Supreme Court ruled on Thursday.

The controversy is over a disc released after Jackson’s 2009 death following some Jackson family members disputing whether he was the singer on three of the album’s nine tracks.

The justices reversed the appeals court, holding a consumer had demonstrated her claims related to Michael Jackson’s packaging and promotional video have sufficient merit, and rejected Sony’s commercial speech arguments.

“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,” Associate Justice Martin Jenkins wrote for the court.

Sony argued the tracks were sung by the self-proclaimed “King of Pop”. A lawsuit purporting to represent “thousands” of fans alleged Sony’s statements misled consumers into purchasing the album, in violation of California’s Unfair Competition Law and Consumer Legal Remedies Act.

“We recognise 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,” the court said.

Sony argued that forcing it to include statements on the disc about the tracks’ authenticity to express a belief it doesn’t hold — that the tracks might not be sung by Jackson — isn’t permitted under the First Amendment.

“The First Amendment has long coexisted with no-fault false advertising laws,” the court said.

The question before the court was whether the consumer’s claims were subject to strike under a California law allowing early dismissal of meritless lawsuits if they’re seen as intended to burden free speech rights in connection with a public issue, not whether Sony must withdraw or label the work.

Sony told the court after full briefing and oral arguments that the parties had settled independent of the outcome of the issue before the justices, subject to the trial court’s approving its dismissal. Attorneys for lead plaintiff Vera Serova asked the court to decide the matter because the settlement isn’t yet approved and because of the importance of the issues.

“The ruling was a win for California consumers. The Court rejected the erosion of consumer protection laws as to buyers of art that the Court of Appeal decision represented,” Jeremy Bollinger, Moss Bollinger LP partner who represented Serova, said in an email. “Given the settlement was reached before the decision was issued, the decision will not have an impact on the settlement.”

Bollinger declined to discuss settlement specifics. Sony counsel and a company spokesperson didn’t immediately respond to emails seeking comment.

The high court also rejected the Sony’s “tardily raised argument that federal copyright law preempts Serova’s consumer deception claims and deprives California courts of subject matter jurisdiction”. — Bloomberg