In 2014, Michael Jackson fan Vera Serova brought a class action lawsuit against Sony Music, the Jackson estate, and several songwriters/producers alleging that they created three fake songs recorded by a Michael Jackson impersonator to include on a 2010 posthumous album, Michael. The case moved forward last week in a court hearing about the songs in question: “Breaking News,” “Monster,” and “Keep Your Head Up.”
Sony and the Jackson estate sought to dismiss the lawsuit based on California’s anti-SLAPP (Strategic Lawsuit Against Public Participation) statute, which protects speech on matters of public interest. A trial court judge denied the motion, prompting Sony and the estate to appeal. On August 21, 2018, arguments were heard by a three-judge panel of the 2nd District Court of Appeal. The appeal centers around the question of whether Sony Music and the Jackson estate are liable for misrepresenting the contents of Michael to consumers by depicting Jackson on its cover and by promoting the album’s release in a particular YouTube video.
In order to make the case that they should be removed from Serova’s putative class action, both Sony Music and Jackson’s estate hypothetically “admitted” that the songs were not sung by the late legend. Media outlets were quick to report that such statements meant that the songs did indeed contain lead vocals sung by someone other than Michael Jackson, but a representative for Sony Music and the Jackson estate has since asserted otherwise. “No one has conceded that Michael Jackson did not sing on the songs,” said Zia Modabber of Katten Muchin Rosenman LLP. “The hearing [last] Tuesday was about whether the First Amendment protects Sony Music and the Estate and there has been no ruling on the issue of whose voice is on the recordings.”
Sony Music and Jackson’s estate argue that the album’s cover art and the YouTube video in question are both First Amendment speech, not “commercial speech,” so the way that the appeals court judges rule on that notion will determine whether the defendants are liable for misrepresenting the album’s contents to consumers. The appeals court judges have until November 1, 2018 to file their decision.
Additional Reading
The Strange Story Of Those Supposedly Fake Michael Jackson Songs, NPR August 27, 2018
Sony Music Has Not Conceded That Vocals on Michael Jackson Album Are Fake, Variety August 24, 2018
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