A legal quest for justice over a posthumous Michael Jackson album including 3 allegedly-fake songs has received a serendipitous boost on the 10th anniversary of the album’s release.
On Friday, December 11, 2020, the Berkeley Center for Consumer Law and Economic Justice filed an amicus curiae brief with the California Supreme Court in support of plaintiff Vera Serova’s ongoing class action consumer fraud lawsuit against Sony Music and the Estate of Michael Jackson.
The powerfully-worded brief was co-signed by 8 additional consumer protection organisations. Click here to read it in full.
Serova’s lawsuit, filed in 2014, alleges that Sony and the Estate misled her and millions of consumers when they commercially released the Michael album on December 14, 2010 – exactly ten years ago today.
The lawsuit alleges that three songs on the album are forgeries sung by an impostor vocalist, and that Sony and the Estate falsely advertised those songs to consumers as authentic Jackson material.
The three songs at the centre of the lawsuit – Breaking News, Monster and Keep Your Head Up – were originally co-written and produced by Eddie Cascio and James Porte, who are co-defendants in the fraud component of the case.
The consumer protection organisations wrote in their joint filing on Friday that Serova’s is a “straightforward case of deceptive advertising.”
Yet the case has been in legal limbo for more than four years.
Back in 2016, Sony and the Estate filed an anti-SLAPP motion against Serova, claiming that her lawsuit was a ‘strategic lawsuit against public participation’ (SLAPP) intended to deny the billion-dollar corporations their purported constitutional right to sell fake songs as authentic Jackson material.
For the purposes of their legal arguments, Sony and the Estate conceded that Jackson was not the singer of the three songs in question. To be clear, this was not an outright admission that Jackson was not singing – after 6 years in court, that issue hasn’t even been addressed yet.
Rather, their concession was made in order to prevent Serova from presenting evidence that the songs are fakes. Under normal circumstances, Serova would have been required to demonstrate that her case wasn’t a shakedown, and that she could substantiate her claims with supporting evidence.
But Sony and the Estate said that it didn’t matter if they were fake, arguing that the law allows them to lie to consumers regardless.
Their argument centres around their assertion that the statements made as part of the album’s promotional material – including on the album cover and in a TV commercial – are not commercial in nature. Yes, they’re arguing that the speech in a commercial isn’t commercial speech.
“If we ripped people off and it’s noncommercial speech, they lose under the statutes,” said Sony lawyer Zia Modabber in court. “That is just the law.”
In August 2018, the corporations succeeded in their bid to be dismissed from the case. Serova fought back, petitioning the California Supreme Court to intervene, which they did. But when the case was sent back to the Appeals Court in January 2020, Sony and the Estate were yet again dismissed.
Shockingly, the Appeals Court ruled that Sony and the Estate should be allowed to lie to consumers by selling fake songs as authentic Jackson material. And so Serova petitioned the California Supreme Court a second time, seeking a review of the Appeals Court’s bizarre ruling.
As reported here in April, the Supreme Court found that the Appeals Court’s ruling was legally problematic and granted Serova’s petition for review.
In their filing on Friday, the consumer protection organisations supporting Serova’s case took aim at Sony and the Estate’s application of the anti-SLAPP statute, writing that it “does not provide a get-out-of-jail-free card to forgers.”
Under the stipulation governing this proceeding, Sony’s promotion of Michael plainly violates California’s statutes protecting consumers from false and misleading advertising. Sony marketed Michael as “a brand new album from the greatest artist of all time,” with “9 previously unreleased vocal tracks performed by Michael Jackson.” Because, as the parties have agreed for purposes of this appeal, three of the nine songs were not sung by Michael Jackson, Sony has made advertising statements that were untrue and misleading and has therefore violated California’s basic consumer protection laws.
Amicus curiae brief, Berkeley Center for Consumer Law and Economic Justice et al., December 11, 2020.
The anti-SLAPP statute is intended to protect David from Goliath – to shield the general public against the limitless funds and resources of wealthy corporations, and to prevent those corporations from intimidating the public into abandoning legal action against them.
The consumer protection organisations state in their filing that Sony and the Estate have misused the anti-SLAPP statute to achieve the exact opposite of its intended purpose:
What the present proceeding entails is the misuse of the anti-SLAPP statute by a well-funded corporation to try to silence individual consumer claims arising from what are conceded to be, for purposes of this appeal, the corporation’s misleading commercial statements. In other words, this action embodies precisely the reverse of what the anti-SLAPP statute is intended to accomplish.
The consumer protection organisations concluded their 47-page filing with the following:
The anti-SLAPP statute must not be misused to undermine California’s consumer protection laws. When Sony promoted Michael, it engaged in misleading or deceptive advertising. Sony has no free speech right to deceive consumers. Ms. Serova’s claim for misleading advertising is not a “strategic lawsuit against public participation.” To the contrary: it is a straightforward deceptive advertising action brought to vindicate precisely the individual rights that both California’s consumer protection laws and its anti-SLAPP statute are designed to protect.
The California Attorney General’s Office has also stepped in, requesting an extension to file their own amicus brief in support of Serova.
This means that when the California Supreme Court hears Serova’s case sometime next year, she will not only have the support of at least 9 independent consumer protection organisations, but also the backing of the California state government.
UPDATE: The Los Angeles City Attorney’s office has also joined the chorus of support behind Serova’s case, formally requesting an extension to file an amicus brief on December 14, 2020.
Stay tuned for further updates on the case. This website will continue to provide information as it becomes available.
You can also subscribe to the upcoming Faking Michael podcast series about this matter. A release date has not yet been set, but subscribers will have episodes delivered to them when they do become available.
The trailer for Faking Michael is available 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.
