There has been yet another twist in the class action lawsuit filed by Californian consumer Vera Serova against Sony Music and the Estate of Michael Jackson regarding three allegedly fake songs commercially released on the 2010 Michael album.

In documents filed with the California Supreme Court yesterday, an organisation called The First Amendment Coalition has requested permission to file an amicus brief in support of Sony and the Estate’s purported constitutional right to sell fake songs as authentic Michael Jackson material.

FAC’s request comes after four separate amici were filed in support of plaintiff Serova by several consumer protection groups along with the California Attorney General’s Office.

All previously filed briefs support Serova’s assertion that this is a straightforward case of false advertising, and that billion-dollar corporations should not be able to commercially label fake art as authentic.

They also assert that by filing an anti-SLAPP motion against Serova, Sony and the Estate misappropriated a statute which is supposed to protect the general public against the limitless resources of wealthy corporations, and to prevent those corporations from intimidating the public into abandoning legal action against them.

Nine consumer protection organisations stated in a joint filing that Sony and the Estate have misused the anti-SLAPP statute to achieve the exact opposite of its intended purpose.

But according to documents filed yesterday, The First Amendment Coalition believes that if the Supreme Court rules in plaintiff Serova’s favour, and if a precedent is set that Sony and the Estate cannot sell fake songs as authentic Jackson material, it could have “significant implications for many different First Amendment contexts beyond the particular circumstances of this case.”

In this case, Sony asserts that they should not be held accountable for the statements made on the Michael album cover and in their television commercial, because those statements were “noncommercial” in nature. Rather, they argue, those statements are merely their contribution to the ongoing public debate about whether the vocals on three of the songs were authentic or fake, and that this makes it free speech under the First Amendment.

FAC has indicated that they will stand with Sony on this matter.

According to the mission statement published on their website, FAC is a nonprofit public interest organisation dedicated to “advancing free speech” and “public participation in civic affairs.”

By definition, public participation in civic affairs is a process in which members of society take collective action to address issues of public concern.

This begs the question: Is the definition of FAC’s mission more appropriately applied to a multi-billion dollar corporation’s purported right to claim that a commercial product is legit, when in fact it is fake? Or to a member of the public who seeks to take collective action to address the issue of that multi-billion dollar corporation falsely advertising that same product to millions of unwitting consumers?

Despite Sony and the Estate’s best efforts to stop her, the plaintiff in this case (Miss Serova) is a member of society who is attempting to take collective action (by filing a class action lawsuit) to address an issue of public concern (that a corporation may be defrauding consumers).

Moreover, FAC’s mission statement also claims to advocate for a “more open and accountable government” and “the people’s right to know”.

It should be noted that the Californian government is in fact advocating for openness and accountability and for the public’s right to know in this case – on behalf of the plaintiff, against the billion-dollar corporation that has conceded in its legal arguments to have ripped her off.

For the purposes of this proceeding, defendants Sony and the Estate have stipulated that the songs in question are indeed fake. And while their exact arguments aren’t due to be filed with the court until March 10, 2021, in the context of the defendants’ concessions, FAC could, in theory, be perceived to be advocating in favour of fraudulent representation of forged art, rather than for openness and accountability and the people’s right to know.

In a press release issued on January 29, 2021, the California Attorney General said:

“Products must deliver on their claims. If someone buys an album from a recording artist, they should expect that the songs on the album were made by that artist unless noted otherwise… We must hold companies accountable to stand by their products. Companies have a First Amendment right to communicate, but their claims must be informed and accurate.”

More to come when FAC files their amicus brief.

A podcast series called Faking Michael is in the works, detailing a decade-long investigation of this case. You can subscribe to Faking Michael on Apple Podcasts, Spotify and YouTube.

Damien Shields is the author of the book Michael Jackson: Songs & Stories From The Vault examining the King of Pop’s creative process, and the producer of the podcast The Genesis of Thriller which takes you inside the recording studio as Jackson and his team create the biggest selling album in music history.

The California state government has officially joined a class action lawsuit against Michael Jackson’s estate and record company.

In a press release issued yesterday, the state’s Attorney General, Xavier Becerra, accuses Sony of “shirking responsibility” for making “false and misleading claims” about a posthumously released Michael Jackson album, and then declaring ignorance of their misrepresentation.

The Attorney General also filed an amicus brief with the California Supreme Court, urging them to intervene in the case of Serova vs Sony Music Entertainment, et al., for fear that “broad, destabilising consequences for well-established false advertising principles,” could be felt if it did not take action and rectify a problematic Appeals Court decision in the case.

The lawsuit at the centre of the amicus brief was filed almost 7 years ago. The suit alleges that Sony Music and the Jackson Estate misled consumers when they commercially released the Michael album, comprising 10 tracks, in December 2010.

The plaintiff in the case, Vera Serova, insists that three of the 10 tracks on Michael are part of an elaborate artistic fraud masterminded by co-defendants Eddie Cascio and James Porte, who sold the tracks to Jackson’s Estate for millions of dollars after the superstar’s death. 

Serova alleges that those three tracks, known as the Cascio tracks, are fakes sung by an impostor. And she’s not alone.

Months before the album was released, members of the Jackson family warned Sony and the Estate regarding the Cascio tracks, insisting that they were fakes and should not be released. One of the Estate’s co-executors, John McClain, agreed with the Jackson family.

In response, Sony issued a press release stating that they had “complete confidence in the results of their extensive research” that the vocals were authentic. The company then released the album, including three Cascio tracks, against the family’s wishes.

Sony even went as far as to explicitly inscribe on the album cover that the vocals on all the album’s tracks were “performed by Michael Jackson.”

But despite Sony’s repeated assurances that the vocals were legit, when Jackson’s fans got their hands on the album and heard the Cascio tracks for themselves, a huge controversy ensued. Thousands upon thousands of fans around the world instantly rejected them as fakes.

Ironically, this very controversy – which Sony itself created by releasing the Cascio tracks – is one of the many points the company has since tried to raise as a get-out-of-jail-free card.

Sony says that because thousands of people were questioning the authenticity of the vocals, the company’s claim that Jackson sang them was not commercial in nature, but merely their non-commercial contribution to the ongoing authenticity debate.

But the Attorney General argues that Sony’s logic is absurd. The fact that there were questions over the vocals, the AG says, only increased Sony’s need be sure that the songs were indeed authentic if they intended on claiming they were:

“Questions about the authenticity of songs allegedly recorded by Michael Jackson shortly before his death naturally led to significant interest and debate among fans, members of the media, and the public more generally. That level of interest made it all the more important for Sony to provide accurate information about the songs to consumers.”

The AG added: “It would seriously frustrate the State’s interest in combating false or misleading advertising to immunise a seller from liability merely because its claims bear some relation to a matter of public interest or a public figure.”

Moreover, the Attorney General completely rejects Sony’s claims that their speech wasn’t commercial in nature.

Because the album cover explicitly stated that the songs were “performed by Michael Jackson,” Sony was bound to that statement as being the truth, and could be held liable under consumer protection laws if it were proven otherwise.

“A seller’s description of a product on a label or in an advertisement is a classic form of commercial speech. Thus, assuming Serova’s allegations are true, application of California’s false advertising statutes fully comports with the First Amendment.”

In the press release issued yesterday to alert the media of the California state government’s support of Serova’s lawsuit, Attorney General Becerra said: 

“Products must deliver on their claims. If someone buys an album from a recording artist, they should expect that the songs on the album were made by that artist unless noted otherwise… We must hold companies accountable to stand by their products. Companies have a First Amendment right to communicate, but their claims must be informed and accurate.”

Sometime in mid-February the Los Angeles City Attorney’s Office is due to join the California Attorney General and the nine other consumer protection groups already supporting Serova’s case. No amicus brief has been filed in support of Sony or the Jackson Estate.

A date for the oral hearing of these briefs is yet to be set.

A podcast series called Faking Michael is in the works, detailing a decade-long investigation of this case. You can subscribe to Faking Michael on Apple Podcasts, Spotify and YouTube.

Damien Shields is the author of the book Michael Jackson: Songs & Stories From The Vault examining the King of Pop’s creative process, and the producer of the podcast The Genesis of Thriller which takes you inside the recording studio as Jackson and his team create the biggest selling album in music history.

The vocalist on three allegedly fake Michael Jackson tracks sang in the wrong dialect, was unable to control fundamental aspects of his singing voice including vibrato, and even mispronounced Jackson’s name according to a bombshell expert report.

The 41-page report, obtained exclusively by DamienShields.com, was compiled by forensic audiologist Dr. George Papcun, who put the vocals under the microscope and reached the disturbing conclusion that the tracks were fakes, sung by an impostor – a conclusion which laid the foundation for a class action consumer fraud lawsuit.

The lawsuit, filed by Jackson fan Vera Serova in June 2014, alleges that three songs released on the Michael album in December 2010  – “Breaking News,” “Monster,” and “Keep Your Head Up” – are forgeries.

The Estate of Michael Jackson acquired the tracks in question – known as the ‘Cascio tracks’ – as part of a collection of 12 unreleased songs produced by the pop star’s longtime friend Eddie Cascio and his collaborative partner James Porte. The two men claim Jackson recorded the tracks in Cascio’s basement in the fall of 2007.

Prior to their release in 2010, several members of the Jackson family warned Sony and the Estate that the vocals on the Cascio tracks weren’t Michael’s. Upon their release, thousands of Jackson’s fans agreed, rejecting the tracks as fakes.

In response, Sony and the Estate asserted and reiterated their “complete confidence” in the authenticity of the vocals. The matter remains a point of contention.

Dr. Papcun’s 41-page report was the result of several months of careful scientific comparison between Jackson’s known and undisputed recordings and the Cascio tracks.

Papcun’s goal: to accept or reject the hypothesis the Cascio tracks were sung by Jackson.

When engaging Dr. Papcun, Serova did not specify which side of the fence she was on – just that questions had been raised regarding the vocal authenticity, and that she wanted his expert opinion in her quest for the truth.

Papcun’s report uses a combination of three analytical approaches.

Firstly, the expert looked at the dialect of the vocalist on the Cascio tracks, comparing the pronunciation of certain words with audio of Jackson singing the same words throughout four decades of legitimate recordings. Interestingly, Dr. Papcun found the dialect in the Cascio tracks to be more consistent with Jason Malachi – the sound-alike alleged by many to be the actual singer of the Cascio songs – than with Jackson.

Dr. Papcun identified that the vocalist on the Cascio tracks had a ‘glottal stop’ – meaning they did not pronounce Ts in the middle of some words. In his report, Dr. Papcun showed that the vocalist of the Cascio track vocalist sings the word “waiting” as “wai’in” – something Papcun said Jackson never did:

“A review of Jackson’s recordings over his entire career, spanning 39 years, shows that he does not use the glottal stop allophone in this position. By contrast, the singer Jason Malachi uses the glottal stop routinely in this position. The glottal stop allophone in this position is characteristic of the speech of Brooklyn, New York. Quoting Malachi’s bio: “I was born in Silver Spring, Maryland; however, my family is originally from Brooklyn, New York.” Assuming he learned to talk from his parents, or at least was influenced by them, the glottal stop in this position would be expected from him. However that may be, the fact is he uses it, whereas Michael Jackson does not.”

According to the report, the vocalist of the Cascio tracks also fails to pronounce the name “Jackson” correctly.

In “Breaking News,” the vocalist repeatedly sings the name ‘Michael Jackson’ – but Dr Papcun compared the recording with Jackson’s pronunciation of his own name in clips spanning 20 years, from 1983 to 2003, and found no match:

“The pronunciation of the name “Jackson” in Breaking News (as [sEn]) differs from the pronunciations of “Jackson” as spoken by Michael Jackson in interviews over many years.”

Next, Dr. Papcun’s report examines vibrato characteristics. In singing, vibrato is the pulsating change of pitch that occurs at the end of a note through variations in the larynx.

Using the Cascio track “Breaking News” in visual demonstrations, Dr. Papcun compares vibrato on the Cascio tracks to known Jackson recordings.

Again, Dr. Papcun found no consistencies between the vibrato on the Cascio tracks and known Jackson recordings. But as with the dialect, Papcun did note that the vibrato frequency in the Cascio tracks is more consistent with that of Jason Malachi. He states:

“Acoustic analysis shows that the vibrato in Breaking News is faster than the vibrato in a sample of Jackson recordings. Moreover, the vibrato in a sample of known Jackson recordings is smoother and more closely adheres to the note being sung. The vibrato in a sample of Malachi recordings as well as the vibrato in Breaking News is more frequent than the vibrato in known Jackson recordings.”

While Jason Malachi did not respond to my request for comment on this matter, it should be noted that earlier this year his involvement was confirmed by his own lawyer.

In his report, Dr. Papcun notes that the curves in Jackson’s vibrato are “dramatically smoother” than the curves in the Cascio tracks. He also notes that they are “much better and more consistently sustained,” adding that Jackson’s vibrato rate is “essentially what is regarded as ideal according to prior music commentary.”

Finally, the report highlights significant statistical difference of vibrato usage in the middle of the song lines and on line endings between undisputed Jackson recordings and the Cascio tracks.

Additional key statistic drawn from this analysis include:

• The singer of the Cascio tracks uses vibrato 100% the time, on each and every song. However, in 22% of the Jackson recordings analysed, the King of Pop does do NOT use vibrato at all during verses.
• The singer of the Cascio tracks changes his vibrato pattern a whopping 83% of the time, while Jackson’s vibrato pattern changes only 9% of the time.
• The singer of the Cascio tracks uses vibrato in the middle of a line 58% of the time. Again, Jackson only does this in 9% of the known and undisputed recordings that were analysed.

Citing the differences in dialect, vibrato, tremolo and vocal control on the Cascio tracks, Dr. Papcun rejected the hypothesis that Jackson was the vocalist.

It should be noted that when the Jackson family first raised concerns regarding the vocals on the Cascio tracks back in 2010, attorney Howard Weitzman claimed that both the Estate of Michael Jackson and Sony Music had hired their own independent forensic experts to authenticate the vocals.

However, neither the names nor credentials of their experts – or their written conclusions – have ever been made public. Mr. Weitzman did not respond to my request for a copy of the Estate’s expert report, which I had hoped to publish in this article.

In a written statement published on the 11th of November 2010, Weitzman said that one of those forensic experts had performed ‘waveform analysis’ during their authentication, and had concluded that the vocals were indeed Michael’s.

In response, Dr. Papcun asserted that the analyses he performed were “much more detailed and accurate than waveform analysis.”

Click here to check out Dr. Papcun’s report for yourself.

Dr Papcun has worked for the CIA, the National Security Agency and the US Secret Service. He also served as an audio expert in high profile cases including the Rodney King beating, the murder of Jon Benet Ramsey and the Patty Hearst kidnapping.

His specialisms include checking whether audio has been manipulated, proving the identities of suspects through speech analysis, and helping to organise ‘voice line-ups’ in criminal cases.

Damien Shields is the author of the book Michael Jackson: Songs & Stories From The Vault examining the King of Pop’s creative process, and the producer of the podcast The Genesis of Thriller which takes you inside the recording studio as Jackson and his team create the biggest selling album in music history.