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 right to participate 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.
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.
