Beat It: Sony's Claims King of Pop Sang on Disputed Tracks Is Protected, Non-Commercial Speech, Court Says
California's Second District Court of Appeal found that representations that the King of Pop sang on all the tracks on the posthumous album "Michael" were statements of opinion rather than fact since only producers—a co-defendant in the suit alongside the label and the estate—actually knew the singer's true identity.
August 29, 2018 at 06:04 PM
3 minute read
A state appellate court in California has tossed consumer protection and unfair competition claims against Sony Music Entertainment and the Estate of Michael Jackson over representations that the “King of Pop” was the lead singer on all the original songs released on the posthumous album “Michael.”
The ruling, issued Tuesday by the Second District Court of Appeal, is a win for the music label, the estate, and their lawyers at Katten Muchin Rosenman and Kinsella Weitzman Iser Kump & Aldisert.
Katten's Zia Modabber, lead defense attorney, didn't respond to a request for comment Tuesday.
Plaintiffs represented by Moss Bollinger in Sherman Oaks, California, filed a class action lawsuit in 2014 claiming that defendants misleadingly represented that Jackson was the lead singer on each of the vocal tracks, when a soundalike sang on three of those tracks. Members of Jackson's family, including his mother, have questioned whether it is actually his voice on the songs “Breaking News,” “Monster” and “Keep Your Head Up.” The plaintiffs further claim that the songs' producers—co-defendants in the case who are not involved in the appeal—failed to produce requested outtakes and demos that could help show whether Jackson was the singer or not.
Los Angeles County Superior Court Judge Ann Jones previously sided with the plaintiffs in finding that representations on the album cover and a promotional video pointing to Jackson as the singer were commercial speech subject to regulation.
But the Second District Court of Appeal disagreed and overturned that portion of her ruling on Tuesday. Justice Elwood Lui wrote that the identity of the artist on the three disputed tracks was a controversial issue of interest to Michael Jackson fans, and that the identity of the lead singer was “integral” to the artistic significance of the songs. “Under these circumstances, appellants' statements about the identity of the artist were not simply commercial speech but were subject to full First Amendment protection,” Lui wrote. “They are therefore outside the scope of an actionable unfair competition or consumer protection claim in this case.”
At the trial court, Jones had previously found that representations by one of Sony's lawyers—Kinsella Weitzman name partner Howard Weitzman—about the company's investigations and conclusions that Jackson was the singer were protected speech. Likewise, Jones previously found that statements by producer Edward Joseph Cascio on “The Oprah Winfrey Show” that Jackson performed the lead vocals were protected under the First Amendment.
At the Second District, Lui wrote that the entire controversy was “a matter of significant public interest” and that the album cover and promotion video “staked out a position in that controversy by identifying the singer as Michael Jackson.”
“Because appellants lacked actual knowledge of the identity of the lead singer on the disputed tracks, they could only draw a conclusion about that issue from their own research and the available evidence,” Lui wrote. “Under these circumstances, appellant's representations about the identity of the singer amounted to a statement of opinion rather than fact.”
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