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.
