Michael Joseph Jackson. The King of Pop. A legend with a fan base that rivals that of the Holy Trinity in sheer numbers. More famous than the Mona Lisa. A voice recognized worldwide…maybe some liberties are being taken here, but you get the point. Despite his many foibles, Michael is culturally enshrined. Tarnish that shrine and the wrath of the Moonwalkers, or the Soldiers of Love as MJ referred to his fans, will be felt.
In a recent thriller, if you will, the California Supreme Court, in Serova v. Sony Music Entertainment et al., reviewed a class action lawsuit brought by purchasers of a Michael Jackson album that allegedly includes songs performed by someone other than Michael. Intrigued? “Don’t stop ‘til you get enough.”
Michael Jackson died in 2009. This is a fact. Or perhaps it is rumor. MJ sightings abound to this day, and for many, the man lives on through his music. But, on the assumption Michael did, in fact, depart this earthly world in 2009, the release of a 2010 posthumous album titled, “Michael,” caused quite the furor world round. The album, released by Sony Music Entertainment, promised on the back cover, “9 previously unreleased vocal tracks performed by Michael Jackson.” An ecstatic one-glove-wearing fanbase performed a collective crotch grab.
But there were detractors. Even before the album’s release, seeds of doubt were sown as to the authenticity of three tracks: “Breaking News,” “Monster,” and “Keep Your Head Up.” The three songs, collectively referred to as the “Cascio tracks,” were allegedly recorded by Michael in the basement of the New Jersey home of Edward Cascio, a family friend. The Holy Grail unearthed in the Garden State.
MJ aficionados and Michael’s own family, including his mother and two of his children, doubted he actually performed on the tracks. But Sony and a lawyer for the Jackson estate assured the public that “extensive research” by forensic musicologists and former Jackson producers bestowed “complete confidence” the lead vocals were authentic Michael. Sony then issued a promotional video announcing, “Michael, the brand new album from the greatest artist of all time,” and ultimately distributed the album with the “9 unreleased tracks” language on the back cover.
Vera Serova purchased “Michael” relying on the representations from Sony and the Jackson estate, but as whispers about the Cascio tracks grew louder, Ms. Serova began to have doubts. She hired an audio expert who concluded Michael was “very likely” not the lead singer on the Cascio tracks, and she came to suspect Mr. Cascio actively concealed the ruse from Sony.
To imitate Michael is not to pay the highest form of flattery, but to commit the gravest sin. In the words of The Gloved One himself, “be careful of what you do, and don’t go around breaking young girls’ hearts.” Aggrieved, Ms. Serova filed a class action lawsuit against Sony and other defendants alleging violations of various California consumer protection statutes. Sony filed a special motion to strike a number of Ms. Serova’s claims on the ground the back-of-album statement and video were non-commercial, expressive speech shielded by the First Amendment from regulation. The dispute moonwalked itself all the way to the California Supreme Court.
In a lengthy opinion, the Supreme Court concluded that Sony’s statements were commercial speech – i.e., promotion of an album to foster sales to an audience of potential purchasers wishing to hear new MJ vocals – and thus subject to government regulation for deceptive or misleading advertising. The Supreme Court noted that because “erroneous statement is inevitable in free debate…[w]e therefore tolerate some falsehoods, even if they do not directly advance society’s interests…[b]ut under First Amendment doctrine, commercial speech that is false or misleading…may be prohibited entirely.”
The decision paves the way for Ms. Serova and the class plaintiffs to pursue consumer protection claims against Sony, but indications are that settlement may be imminent. Google informs that most digital music platforms have recently removed the Cascio tracks from the “Michael” album, and that the general consensus is the tracks are illegitimate. With her Supreme Court victory in hand, Ms. Serova, who is now an attorney, will maybe, just maybe, send Sony a two-sentence email: “Beat it. No one wants to be defeated.”
Ravn R. Whitington is a partner at Porter Simon licensed in California and Nevada. Ravn is a member of the firm’s Trial Practice Group where he focuses on all aspects of civil litigation. He has a diverse background in trial practice ranging from complex business disputes to personal injury to construction law, and all matters in between. He may be reached at firstname.lastname@example.org or www.portersimon.com. ©2022