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 document, obtained exclusively by DamienShields.com, was compiled by forensic audiologist Dr. George Papcun, PhD, who put the tracks under the microscope and reached the disturbing conclusion that the songs were fakes, ultimately laying the foundation for a class action consumer fraud lawsuit.
The 2014 lawsuit was filed by fan Vera Serova who alleged that three songs – “Breaking News,” “Monster,” and “Keep Your Head Up” – released by Sony Music and the Michael Jackson Estate executors on Jackson’s first posthumous album, Michael, were forgeries. The three songs, known as the ‘Cascio tracks’, have long been a sore spot for both sides. Sony and the Estate initially defended the authenticity of the songs, while members of the Jackson family and thousands of fans and claimed the songs were fakes – sung by an impostor.
The 41-page report detailing Dr. Papcun’s findings, revealed for the first time today, was the result of several months of careful scientific comparison of the Cascio tracks with Jackson’s legitimate recordings. The goal: to determine whether or not 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 she wanted his honest expert opinion in her quest for the truth.
A closer look at Dr. Papcun’s report reveals a combination of three analytical approaches. First, the expert looked at the dialect of the vocalist on the Cascio tracks, comparing his pronunciation of certain words with audio of Jackson repeatedly 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 long believed to be the real 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. Dr. Papcun gave the example of the Cascio track vocalist singing the word “waiting” as “wai’in” – something he said Jackson never did. Dr. Papcun wrote:
“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.”
Ironically, according to the report, the vocalist on the songs, who Cascio and Porte insist is Jackson, 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 Cascio track “Breaking News,” demonstrating its differences from the vibrato in known Jackson recordings. In singing, vibrato is the pulsating change of pitch that occurs at the end of a note through variations in the larynx. Again, Dr. Papcun found no consistencies between the vibrato on the Cascio tracks and known Jackson recordings. He did however note that – as with the dialect – 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.”
Jason Malachi did not respond to my request for comment on this matter.
Dr. Papcun focuses in on Jackson’s vibrato in “Speechless” (Invincible, 2001) noting that the curves are “dramatically smoother” than those in “Breaking News,” and “much better and more consistently sustained.” According to Dr. Papcun, 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 in the verses 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.
Dr Papcun’s resume certainly looks impressive – he has worked for the CIA, the National Security Agency and the US Secret Service, and 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. But of course, Dr. Papcun’s conclusions remain his expert opinion.
When concerns were first raised about the authenticity of the Cascio tracks in 2010, the Jackson Estate’s attorney Howard Weitzman claimed the Estate and Sony Music had hired their own forensic experts, one of whom had supposedly performed ‘waveform analysis’ and concluded that the voice was Jackson’s. However neither the names or credentials of their experts, nor their written conclusions have ever been made public.
Mr. Weitzman did not respond to my request to provide their expert report.
In any event, Dr. Papcun claims in his report that the analyses he has performed “are very much more detailed and accurate than waveform analysis.” It certainly looks convincing.
Click here to check out Dr. Papcun’s report for yourself.
The lawsuit regarding the Cascio tracks and Michael album made media headlines recently when it was reported that Sony and the Estate had conceded in court that the three songs in question may be fakes after all. Sony responded with a statement denying such a concession had been made, however one of Sony’s lawyers, Andrew Demko, stated the following in a December 2016 court hearing:
“We are submitting now it may have turned out not to be [Michael Jackson].”
Zia Modabber, also representing the corporations, stated that Sony and the Estate had become innocent victims of the fraud themselves when they were duped by Eddie Cascio and James Porte – the little-known producers who sold the songs to them as Jackson’s. However, Modabber also insisted that even if the vocals were not Jackson’s, Sony and the Estate had done nothing wrong by saying they were.
Judge Ann I. Jones of the Los Angeles Superior Court took issue with this position, stating:
“What is problematic is that you are ripping people off under your admitted facts.”
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.”
Judge Jones ruled in favour of plaintiff Serova and ordered the corporations to face the music, which they appealed.
Then, in a surprising development just last week (Aug 28, 2018), the California Court of Appeal agreed with Sony and the Jackson Estate and removed them from the case, ruling that naming Michael Jackson as the vocalist on the album cover and in a video advertisement was not misleading to consumers. Rather, the court ruled, it was merely their contribution to a public debate, making it ‘non-commercial’ artistic free speech, protected by the First Amendment.
The fraud lawsuit continues against the producers of the songs, Eddie Cascio and James Porte. On top of the “comprehensive assessment” by Dr. Papcun, which concludes the songs are fake, Serova’s complaint lists several other discoveries supporting her position, including the inconsistent timeline of the recording, lack of Jackson’s signature hand claps, finger snaps and foot stomps in the raw isolated vocal tracks, and Cascio’s incredible claim that all evidence of the origins of the songs had been destroyed.
Regarding Sony and the Estate’s dismissal from the case, Serova has a few options. She can leave Sony and the Estate alone and continue the fraud case against Cascio and Porte. In this case Sony can continue selling the songs as ‘Michael Jackson’ regardless of the outcome of the fraud case. 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.
Stay tuned for further updates on the case. I will provide more information as it becomes available.
You can also listen to the trailer for my upcoming podcast series, called Faking Michael, about the Cascio tracks and this case. A release date for the podcast has not yet been set, but you can subscribe to have episodes delivered when they become available.
Supreme Court Judge Grills Sony Lawyer Over ‘Contradictory’ Arguments in Alleged Michael Jackson Fraud
A lawyer defending Sony Music and the Estate of Michael Jackson in a consumer fraud lawsuit has today argued that the billion-dollar corporations should be able to sell forgeries to unwitting consumers – without being held liable for doing so.
During the California Supreme Court hearing, which was streamed live around the world, Sony attorney Zia Modabber was pulled up for presenting contradictory arguments when attempting to justify the record company’s false attribution of three songs to Jackson on the 2010 Michael album.
The hearing centred around a class action lawsuit filed by Californian consumer Vera Serova – a Michael Jackson fan who purchased the Michael album under the premise that it was a collection of unreleased songs performed by the King of Pop.
In her lawsuit, Serova contends that three of the songs on Michael – “Breaking News,” “Monster” and “Keep Your Head Up” – are forgeries, and that Jackson’s estate and Sony misled her and millions of consumers around the world by falsely representing those forgeries as authentic Jackson material.
Today’s Supreme Court hearing focused specifically on Sony and the Estate’s culpability in the matter.
The corporations argue that the First Amendment (free speech) gives them the constitutional right to lie to consumers without remedy, and that they should be removed from the lawsuit because of this.
In fact, Sony and the Estate have been petitioning to be removed from this case for 6 years, alleging that plaintiff Serova strategically filed her lawsuit to prevent the record company from exercising their First Amendment rights by participating in the public dialogue regarding the authenticity of the songs.
The dialogue in question is the wording on the reverse side of the album cover, which stipulates that the vocals on the album were “performed by Michael Jackson” (see below).
In a 2016 hearing regarding this matter, attorney Zia Modabber argued on behalf of Sony and the Estate that if anyone were to be held liable for the fraud it should be the original producers of the songs – Eddie Cascio and James Porte – because they provided them under the false pretence that they were authentic.
Today, in front of seven Supreme Court Justices, Mr. Modabber made the same argument on behalf of Sony and the Estate.
In what was a rollercoaster hearing, Modabber told the court that Sony and the Estate were “100%” certain that the vocals on the songs in question were authentic based on an investigation conducted by former Estate attorney Howard Weitzman in November 2010.
A few minutes later, in a complete about-face, Modabber claimed that neither Sony nor the Estate were in a position to know who sang the vocals – a backflip which Justice Groban took issue with:
“How can it be both? Why is Sony saying with 100% certainty that Michael is the singer if you weren’t certain? Which is essentially what I hear you saying now.”
Mr. Modabber also made a number of arguments throughout his 30-minute presentation which seemed only to benefit plaintiff Serova’s side.
At one point, Modabber explained the identity of the artist is what gives art its meaning and value. In other words, if Michael Jackson wasn’t singing on the songs in question, they’d be irrelevant and worthless:
“The identity of the artist is part and parcel of the art. It imparts meaning to the art.”
The attorney, on behalf of Sony and the Estate, went on to give an example:
“There’s a song that Michael wrote called ‘Leave Me Alone‘, and it’s about being persecuted by the press. When Michael Jackson sings that song – because it’s Michael Jackson singing it – it gives a certain meaning to that song. If I sang that song – nobody cares about me – it doesn’t have the same meaning as if Michael Jackson sings that song. And that’s why authors and the source of the art are part of – and intimately connected to – the art itself… It undeniably adds to the meaning of the art.”
Without Michael Jackson’s name on the songs in question, they couldn’t commercially exploit them.
Therefore, according to Sony’s logic, the company had no choice other than to falsely attribute the authorship to Jackson in order to give them meaning and value in the eyes of consumers.
In what can only be described and an own goal, Modabber continued by asserting that the consumers of art want to know who the artist is, and that he cannot think of a scenario in which the identity of the artist doesn’t matter:
“Imagine art, out in the world, with no attribution of authorship. Imagine you just didn’t know who it came from or what the source was. It’s not the same. There is a character and a quality and an impact and a curiosity by those who consume the art about where it came from and what the source was. It adds meaning to it. We want to know who it is. We want to know where it came from. We want to know what inspired it. And part of that is the identity of the artist. And so I can’t think of a situation where the identity of the artist doesn’t matter.”
More to come when the California Supreme Court hands down their ruling on this matter.
For those of you who are interested, a podcast series detailing my investigation of this case, called Faking Michael, is currently in production. Subscribe to Faking Michael on Apple Podcasts, Spotify or YouTube to be notified when episodes are released.
Court Date Set in Supreme Court Battle Over Legal Right to Sell Alleged Michael Jackson Forgeries
Sony Music and the Estate of Michael Jackson will again fight for their right to sell alleged forgeries as authentic Jackson songs in an oral argument set to be heard by the Supreme Court of California on Tuesday, May 24, 2022.
The hearing centres around a class action lawsuit filed by Californian consumer Vera Serova, who purchased the Michael album – released by Sony and Jackson’s estate in 2010 – under the premise that it was a collection of unreleased songs recorded by pop star Michael Jackson.
In her lawsuit, Serova alleges that three of the songs on Michael are forgeries – sung by an impostor vocalist – and that she, along with millions of fans around the world, were misled when the pop star’s estate and record company falsely represented the tracks as authentic Jackson material in the album’s product labelling and advertising.
The three songs in question – “Breaking News,” “Monster” and “Keep Your Head Up” – were produced by Jackson associates Eddie Cascio and James Porte and are known as the ‘Cascio tracks’.
Cascio, Porte and their production company are also included in the lawsuit – sued by Serova for fraud. The May 24 hearing will not deal with their culpability.
The lawsuit has been in the California court system for almost eight years, since June 2014. For six of those years, Sony and the Estate have argued that it is their constitutional right to sell forgeries under the First Amendment – the right to free speech – and they should therefore not be liable in this case.
In a 2016 hearing, Sony lawyer Zia Modabber argued that if anyone were to be held liable, it should be Cascio and Porte, because they sold the songs to Sony and the Estate under the premise that they were authentic.
After several rulings and subsequent appeals from both sides in the lower courts, the Supreme Court of California will finally decide whether Sony and the Estate should face the music in this case.
If Sony and the Estate can successfully convince the Supreme Court that they should indeed be able to sell forgeries as authentic Jackson material, they will be removed from the case – once and for all.
And if plaintiff Serova prevails, the corporations may be forced to decide between settling the case – which would involve dissociating Jackson from the songs and removing them from record stores and streaming platforms around the world – or defending their actions at trial.
Serova’s position is supported by several consumer advocacy groups and government branches, including the California Attorney General.
In a press release issued on January 29, 2021, the AG said:
Sony is supported by the First Amendment Coalition.
Counsel for both sides will present their oral arguments remotely via video link, while the public will be able to stream the hearing live via the judicial branch website.
Regardless of the Supreme Court’s ruling regarding Sony and the Estate’s liability, the fraud component of Serova’s lawsuit against Cascio, Porte and their production company will move forward.
At that time, Serova will finally be able to add the alleged singer of the forgeries, Jason Cupeta, as a defendant to her lawsuit.
Cupeta is Deputy Sheriff at the Montgomery County Sheriff’s Office who goes by the artistic pseudonym Jason Malachi.
Serova first informed the court of her intention to add Cupeta in a March 2018 filing, but has been unable to complete this process due to the case being stayed pending the outcome of the oral arguments set to be heard by the Supreme Court on May 24.
A podcast series detailing my investigation of this case, called Faking Michael, is currently in production. Subscribe to Faking Michael on Apple Podcasts, Spotify or YouTube to be notified when episodes are released.
First Amendment Coalition to Support Sony and the Jackson Estate in Fake Songs Lawsuit
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:
More to come when FAC files their amicus brief.
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