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Pictured: Late pop superstar Michael Jackson speaks out against Sony Music at public event in 2002.
THE Los Angeles Second District Court of Appeal has today ruled that Sony Music and the Michael Jackson Estate will no longer have to face the music in a lawsuit that alleges they released and advertised an album containing three fake songs attributed to the King of Pop.
The court dismissed the corporations from the lawsuit not because it felt the songs were real, but because it decided that they had a right to sell them under Jackson’s name even if they were fake. The court has certified this decision for publication, which means it becomes a precedent on which every subsequent record label, art dealer, or publisher can rely in arguing that they may attribute work to, let’s say, Prince, Picasso, or Mark Twain when they don’t know for sure who the singer, painter, or author is.
A little bit of backstory, if you’re hearing about this for the first time…
California-based consumer Vera Serova contends in her class action lawsuit that millions of consumers have been defrauded since the Jackson Estate and Sony Music Entertainment released the Michael album, including three songs—“Breaking News,” “Keep Your Head Up” and “Monster”—with fake vocals sung by a Jackson soundalike.
In December 2010, co-defendant in Serova’s lawsuit, Eddie Cascio, appeared on The Oprah Winfrey Show to defend the authenticity of the songs after several members of the Jackson family, a number of Michael’s former collaborators, thousands of fans around the world, and even one of the two Co-Executors of Jackson’s Estate claimed the songs were fakes.
Cascio and his collaborative partner James Porte, also a co-defendant, provided the songs to Sony in a lucrative deal between the label and their production company—Angelikson Productions—in mid 2010. When asked to respond to accusations that the voice on his songs was not Jackson’s, Cascio simply told Winfrey: “I can tell you that it is Michael’s voice.” Unchallenged by the talk show host for any kind of evidence beyond his word, Cascio added that Jackson had recorded the three songs—along with nine others that remain unreleased—in his New Jersey basement home studio in 2007. Serova contended Jackson did no such thing, subsequently slapping Cascio, Porte, and Angelikson Productions with an explosive fraud lawsuit.
Filed more than four years ago, the lawsuit also charged that Sony and the Jackson Estate engaged in commercial speech, falsely representing the three allegedly-fake songs as being sung by Michael Jackson. Serova filed claims against the companies under the Unfair Competition Law and the Consumers Legal Remedies Act.
So it’s been in court for four years? What have I missed?
In December 2016, lawyers for Sony Music and the Estate conceded that the songs might actually be forgeries.
“We are submitting now it may have turned out not to be [Michael Jackson], but there is no stipulation that at the time we made the statements we knew,” conceded one of Sony’s lawyers, Andrew Demko, in court.
Zia Modabber, also representing the corporations, argued Sony and the Estate had taken the songs original producers—James Porte and Eddie Cascio—at their word. He insisted that even if the vocals were not Jackson’s, Sony and the Estate had done nothing wrong by saying they were. This was noncommercial speech protected by the First Amendment, Modabber claimed.
“What is problematic is that you are ripping people off under your admitted facts,” said Judge Ann I. Jones of the Los Angeles Superior Court. Modabber insisted the Constitution allowed Sony and the Estate to lie to consumers: “If we ripped people off and it’s noncommercial speech, they lose under the statutes; that is just the law.”
To be culpable, Modabber told the court, the seller of the product should be ‘in a position to know what it is they are selling’. “In this case, that is not what has gone on,” he argued, adding that co-defendants Porte and Cascio “failed to disclose to Sony or the Estate that Michael Jackson did not provide the lead vocals.”
Judge Jones summarized Modabber’s argument as follows: “I think what he is saying here is. ‘We were duped… We didn’t know you guys were recording stuff in a basement that wasn’t recorded by Michael. You told us it was Michael. We believed it was Michael. And if there is a bad guy here, who was engaging in false commercial speech, it’s not us.’”
At the time, the trial court concluded that the album cover, including statements about the contents of the album, and a promotional video for the album were indeed commercial speech, and that the case against Sony and the Estate should move forward.
Okay, got it. That’s crazy! But today the court changed its mind and let Sony and the Estate off the hook… How and why?
Sony and the Estate appealed the trial court’s previous ruling. Last Tuesday, August 21, 2018, they appeared in the Second District Appeal Court to argue—just as they did, unsuccessfully, in December 2016—that regardless of the fact that Michael Jackson may not be the singer, their sale and promotion of the album is noncommercial artistic free speech, protected by the First Amendment.
Earlier today, Tuesday August 28, 2018, the Court of Appeal ruled in Sony and the Estate’s favour, stating that the wording on the Michael album cover (which says: “This album contains 9 previously unreleased vocal tracks performed by Michael Jackson”) is not a ‘commercial’ statement by Sony that the vocals are performed by Michael Jackson. Instead, the court stated, these words represented the multi-billion dollar corporation’s “stated a position on a disputed issue of public interest.” The court ruled that because the songs were a “controversial issue of interest” for fans, Sony’s false statements are “subject to full First Amendment protection. They are therefore outside the scope of an actionable unfair competition or consumer protection claim in this case.”
You can access the courts written ruling here: http://www.courts.ca.gov/opinions/documents/B280526.PDF
Adding further insult to injury, the court’s ruling stated: “The identity of the lead singer was also integral to the artistic significance of the songs themselves,” meaning that if Sony did not attribute the songs Michael Jackson, they’d be worthless—essentially implying that Sony are allowed to tell its consumers that fake songs are real, because otherwise they wouldn’t be able to convince innocent consumers to buy them!
So where to from here?
Serova has a few options. She can leave Sony and the Estate alone and continue the fraud case against Cascio, Porte, and Angelikson. In this case Sony can continue selling the songs as ‘Michael Jackson’ regardless of the outcome of the fraud case, and in addition to revenues from the songs, demand their legal fees from Serova. Alternatively, Serova can petition the Court of Appeal for rehearing. The petition for rehearing is granted or denied within 30 days of the court’s opinion, after which time it becomes final and can be appealed to the California Supreme Court, California’s highest authority. The Supreme Court grants review to a very small percentage of cases, but in important matters like this it’s not impossible.
Also, in the coming weeks and months I will be releasing Faking Michael—an investigative podcast series chronicling my eight-year quest for the truth about the Cascio tracks and the Michael album as I embarked on a personal mission to find out once and for all where the songs truly came from, and how they ended up on an official Michael Jackson album.
Throughout the course of the podcast series I will detail the findings of my investigation, drawing on hundreds of hours of exclusive interviews with many of those closest to the controversy, thousands of pages of correspondence and official records, and never-before-heard evidence that has lead to shocking breakthrough discoveries, I will endeavour to put the countless of pieces of this puzzle into place, and reveal the complete picture for the very first time.
A trailer for Faking Michael is live on iTunes Apple Podcasts, Spotify, SoundCloud, and YouTube.
LISTEN AND SUBSCRIBE NOW:
Apple Podcasts: https://itunes.apple.com/au/podcast/faking-michael/id1434372710?mt=2
Android: http://subscribeonandroid.com/fakingmichael.blubrry.net/feed/podcast
Spotify: https://open.spotify.com/episode/0J39NHdSutCMEHbURXC9nS?nd=1
YouTube: https://www.youtube.com/watch?v=NF8LLcUSMWA
Soundcloud: https://soundcloud.com/user-572776729/trailer
Damien Shields is the author of Michael Jackson: Songs & Stories From The Vault—a book about the anatomy of the King of Pop’s craftsmanship—available now in both physical and digital editions via Amazon.
