Two ‘get out of jail free’ cards, used by lawyers for Sony to avoid facing the music in a consumer fraud lawsuit, were ripped to shreds by the California Supreme Court on Thursday last week.
As part of their ruling, the court determined that the description on a posthumous Michael Jackson album cover was indeed commercial speech — not free speech, as lawyers for Sony and Jackson’s estate had argued — and that consumers have a case if false or misleading statements were made in the description.
The unanimous ruling sets an important precedent for the protection of California consumers in cases of alleged fraud moving forward.
This case
The controversy centers around an album titled Michael, released 18 months after Michael Jackson’s death by his estate and Sony Music Entertainment.
Prior to the album’s December 2010 release, members of Jackson’s family claimed that three songs on Michael — “Breaking News,” “Keep Your Head Up” and “Monster” — were fakes, with vocals sung by a Jackson impersonator.
But Sony and Jackson’s estate insisted the songs, which they acquired from the pop star’s friend Eddie Cascio and his collaborative partner James Porte, were the real deal.
The songs are known as the ‘Cascio tracks’.
In response to the controversy, Estate attorney Howard Weitzman said he’d conducted an “exhaustive investigation” during which a host of Jackson’s former producers had listened to the Cascio tracks and confirmed that the vocals were “definitely Michael”.
But several of those producers dispute Weitzman’s version of events. You’ll hear their stories in an upcoming podcast series called Faking Michael.
Nevertheless, based on the purported findings of Weitzman’s investigation, Sony asserted their “complete confidence” in the authenticity of the Cascio tracks.
With the authenticity a matter of conjecture, fan Vera Serova relied on Sony and the Estate’s assurances — that the tracks on Michael were indeed sung by Jackson — when she decided to buy the album.
Further convincing Serova to hand over her money was the product description printed on the reverse side of the album cover. It stipulated that the vocals were “performed by Michael Jackson”.
But as evidence contradicting the official story emerged, Serova began to believe she’d been duped.
And so she hired a world-renowned forensic audiologist, who conducted a groundbreaking scientific examination of the vocals on the Cascio tracks. His opinion: the vocals weren’t Michael’s.
That forensic examination was the catalyst for what became an eight-year David versus Goliath legal battle, culminating in Thursday’s Supreme Court ruling.
Corporations can’t sell fake art as the real deal
“Relief has long been available in California to unwitting purchasers of imitation art who relied on false representations about authenticity” said the court in their 45-page opinion.
“If Sony’s assertion that Jackson contributed lead vocals affects consumers’ experience of Michael, this illustrates how misrepresentations about an artist’s contributions can harm consumers in ways that matter to them.”
Executive director of the Berkeley Center for Consumer Law & Economic Justice, Ted Mermin, who supported Serova in her battle with Sony, said:
“If we are buying an album that is marketed as being the songs of Michael Jackson, it had better have the songs of Michael Jackson.”
As well as setting an important legal precedent protecting California consumers, the court’s ruling inadvertently protects artists.
Based on the ruling, there is no plausible excuse for falsely attributing fake works to famous artists. This puts songs on par with paintings and sculptures when it comes to outlawing art forgery.
The ruling is a huge win for creatives, whose reputation — and therefore livelihood and legacy — could be at stake if corporations were free to commercially exploit pastiches under their name.
“Misleading attributions on a record jacket might not only confuse consumers […] but also harm a performer’s reputation,” the court’s ruling states.
But what happens if a corporation sells a forgery without knowing it’s a forgery? This was also covered in the Supreme Court’s ruling.
Sony’s ‘lack of knowledge’ defense
Sony’s purported ‘lack of knowledge’ was raised by the corporation itself in a 2016 petition to be removed from Serova’s lawsuit.
At the time, lawyers for Sony and the Estate volunteered to argue their case based on the notion that the Cascio tracks were fakes, but that they ‘didn’t know’ at the time they released them back in 2010.
It should be made clear that this wasn’t an ‘admission’ that the Cascio tracks are indeed fake. Rather, it was their way of arguing that ‘even if’ the tracks are fake, they’ve done nothing wrong by selling them to fans as authentic Jackson material.
In a December 2016 trial court hearing, attorney Zia Modabber argued that to be liable for misleading consumers, Sony and the Estate had to know the songs were fake, adding that Cascio and Porte had “failed to disclose to Sony or the Estate that Michael Jackson did not provide the lead vocals.”
But the judge overseeing that hearing didn’t take kindly to Sony’s position, saying:
“I think what [Modabber] is saying here is. ‘We were duped… We didn’t know [Cascio and Porte] were recording stuff in a basement that wasn’t recorded by Michael. [Cascio and Porte] told us it was Michael. We believed it was Michael.’”
The judge accused Sony of throwing Cascio and Porte under the bus before ruling in Serova’s favour, ordering Sony to face the music.
But Sony appealed, and in 2018 the appeals court took Sony’s side, dismissing the corporation from the lawsuit.
Serova then challenged the decision to dismiss Sony, petitioning the California Supreme Court to intervene, which they did.
That, in a nutshell, is how we got to Thursday’s ruling — arguments for which were heard by the court on May 24, 2022.
During that May 24 hearing, Modabber again argued that Sony couldn’t be held accountable because they didn’t know the vocals were bogus when they released them in 2010.
But on Thursday, the court rejected Sony’s lack of knowledge defense once and for all, stating that if ignoring evidence was all a corporation had to do to get away with fraud, false advertising laws would be redundant.
“If ignorance around a product’s authenticity were a legitimate defense against false advertising claims, sellers would be incentivized to know as little as possible about their own products,” said the court in their ruling.
“Sellers making claims about their offerings surely do not avoid false advertising regulation […] by scrupulously declining to verify those claims or to acquire knowledge.”
Jeremy Bollinger, one of the attorneys representing Serova, told the LA Times that the court’s ruling was not only a victory for his client, but for all music and art consumers.
“The decision confirmed that it doesn’t matter whether the seller has personal knowledge of the veracity of its statements about its products,” Bollinger said. “If you’re going to sell something, you’re responsible for those representations.”
If they didn’t know in 2010, they knew by 2018
As we discussed earlier: back in 2010, before the Michael album was released, questions were raised regarding the authenticity of the Cascio tracks.
At that time, several people told Estate attorney Howard Weitzman that they did not believe the vocalist was Michael. They alleged it was another singer, named Jason Malachi.
In response, Estate attorney Howard Weitzman claimed that he spoke to Malachi and confirmed that he wasn’t involved.
But when fans heard the Cascio tracks, many identified Malachi’s voice — not Jackson’s — on the tracks.
Further validating the reaction of fans was Malachi’s longtime producer, Tony Kurtis. In a barrage of comments posted via YouTube, Kurtis stated that he knew “without a doubt” that Malachi was the vocalist.
Even the aforementioned audiologist noted in his forensic report that the dialect and vibrato of the Cascio vocalist were consistent with Malachi, but not with Jackson.
Then, in early 2018, Malachi hired a lawyer.
That lawyer then contacted Vera Serova’s legal team to discuss Malachi’s involvement with the Cascio tracks.
Serova and her lawyers claim that Malachi’s lawyer said that his client wanted to help resolve Serova’s litigation with Sony — and to get paid for his involvement.
A meeting between Malachi’s lawyer, Serova’s lawyers and lawyers for Sony and the Estate was arranged.
But according to Serova’s lawyers, the day before the meeting was set to take place, Sony and the Estate cancelled it, and communications with Malachi’s lawyer came to an abrupt end.
For the four years that followed Malachi’s attempted intervention, Sony and the Estate continued to argue their ‘lack of knowledge’ defense, while also continuing to commercially exploit the Cascio tracks as authentic Jackson recordings.
Calls and emails to Malachi and his lawyer — offering them the right of reply — were not returned.
Why don’t Sony and the Estate sue Cascio and Porte for fraud?
In their 45-page ruling, the California Supreme Court supposed that if the Cascio tracks are indeed fake, Sony and the Estate would want to file a fraud action against Cascio and Porte for duping them, stating:
“Presumably, Sony would seek to invoke any warranties, or assert fraud or other claims, against Cascio and his associates if it believed they peddled fake recordings.”
But in this case, it’s the exact opposite.
In fact, Sony and the Estate have stood firmly behind Cascio and Porte since 2010, regardless of the overwhelming evidence and public outcry against them — something that no one, including Jackson’s family, fans and former collaborators can understand.
Songs removed, case closed
In a somewhat anticlimactic end to their eight-year legal battle, just days before the Supreme Court issued its ruling, Sony and the Estate reached a settlement agreement with Serova.
As part of the settlement, Sony and the Estate were forced to remove the Cascio tracks from digital retailers and streaming platforms around the world.
Based on Serova’s statements over the years, it was clear that no settlement could have been reached without this demand being met.
It should be noted that, according to Serova, she did not receive any money as part of her settlement.
As she has maintained from the beginning of her legal action, Serova’s main objective in filing this lawsuit was justice for Michael Jackson, his art and his fans.
And while Sony hasn’t offered refunds — or an apology — to fans who feel they’ve been duped, the removal of the Cascio tracks from digital platforms worldwide has gone a long way to restoring the integrity of Jackson’s discography.
But despite the Supreme Court’s ruling — that the wording on a CD cover is subject to consumer protection laws — it appears Sony and the Estate have opted against recalling CD copies of Michael from music stores or other retailers around the world.
This is surprising.
The case with Serova is settled only with Serova, meaning anyone else who purchased the album within the statute of limitations — or anyone who might buy the album in the future — would be able to sue Sony and the Estate just like Serova did.
The only difference is that a potential future plaintiff wouldn’t have to argue that the wording on the album cover was commercial speech, or contend with a ‘lack of knowledge’ defense from the corporations.
Now that the case is settled, will the truth regarding the Cascio tracks and the Michael album ever be told?
After selling the Cascio tracks as authentic Jackson recordings for almost 12 years — since December 2010 — Sony and the Estate’s settlement with Serova seems to have absolved Cascio and Porte of liability. At no point were the alleged forgers required to testify under oath, or prove the authenticity of their songs.
And while Sony and the Estate have stated that the recent removal of the Cascio tracks from digital platforms is the “simplest and best way to move beyond the conversation associated with these tracks once and for all,” many of Jackson’s most dedicated fans continue to demand answers.
My forthcoming true crime podcast series Faking Michael will explore those answers, taking listeners behind the scenes to uncover the music industry scandal they were never meant to hear about.
Subscribe via Apple Podcasts, Spotify or wherever you listen to podcasts to be notified when episodes become available.
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.
