Quoted below are the opening three paragraphs from a recently-filed legal document in a class action consumer fraud lawsuit regarding the 2010 Michael album:
A teenager walks into a record store before Christmas 2018 and sees what he believes is the perfect gift for his mom (who already owns three Michael Jackson albums): an album whose cover shows images of Michael Jackson’s face next to the word “Michael” and on the flip side states “This album contains 9 previously unreleased vocal tracks performed by Michael Jackson.” He buys the album. At the time, the teenager is not aware that three of the album songs are sung by an impersonator, or that there is any controversy as to whether Jackson actually sang the vocals on all of the album’s songs.
While the teenager is in the record store, his mom is at a supermarket buying peaches with an “organic” label affixed to them. Mom does not know there is a dispute between the two biggest peach growers in California over the labeling of these peaches as organic. However, mom is led to believe by the label that they are in fact “organic”. In actuality, someone in the supply chain stuck “organic” labels on peaches that were not grown organically.
When it is uncovered that three of the album songs are not sung by Michael Jackson, or revealed that the peaches are not organic, the teenager and his mother should be able to bring suits against the music distributor and the supermarket respectively because, as consumers protected by the CLRA, as far as they were concerned, the statements on the album cover and peach label were facts.
The above forms part of a petition that asks the California Supreme Court to take the case regarding the ongoing commercial exploitation of three songs, which have allegedly been falsely attributed to pop star Michael Jackson by his Estate and Sony Music.
A few days ago, on November 7, 2018, plaintiff Vera Serova and her legal team officially completed the process of petitioning the Supreme Court to intervene in this case. The Supreme Court is Serova’s only remaining avenue in her legal pursuit to hold Sony Music and the Estate of Michael Jackson accountable for their part in the release of three allegedly-fake songs on the 2010 Michael album.
Such an intervention is now necessary because the Court of Appeals recently reversed the Superior Court’s original decision that Sony and the Jackson Estate should face the music regarding their commercial representations of forged art as being genuine.
A little bit of backstory, if you’re hearing about this for the first time…
California-based consumer Vera Serova contends in her class action lawsuit that millions of consumers have been defrauded since the Jackson Estate and Sony Music Entertainment released the Michael album, including three songs—“Breaking News,” “Keep Your Head Up” and “Monster”—with fake vocals sung by a Jackson soundalike.
The three songs, known as the ‘Cascio tracks’, were sold to Sony and the Jackson Estate in mid-2010 by music producers James Porte and Eddie Cascio (hence ‘Cascio tracks’) as part of a collection of twelve songs they claim Jackson recorded in their basement in 2007. Serova’s lawsuit contends Jackson did no such thing, instead claiming that Porte and Cascio masterminded the most high-profile art forgery in the history of the music business.
Originally filed in June 2014, the lawsuit alleges that Sony and the Jackson Estate engaged in commercial speech when they claimed in a television commercial and in a written product description on the CD cover that the songs on the album—which included the three forged songs—were sung by Michael Jackson. Serova filed claims against the companies under the Unfair Competition Law and the Consumers Legal Remedies Act.
For the purposes of legal arguments Sony and the Jackson Estate conceded in court, under their admitted facts, that the songs may in fact be forged – sung not by Michael Jackson, but by an impostor. Despite this, Sony and the Estate currently find themselves dismissed from the case, with the Court of Appeals ruling that forged art can be sold as authentic as long as the seller claims they did not know it was fake and failed to properly authenticate it. Unbelievable, right? Well, believe it!
Click here for a complete overview of Sony and the Estate’s concessions that Jackson may not have sung the vocals, and of their dismissal from the case.
Serova’s petition to the Supreme Court argues that the Court of Appeal’s conclusion that knowledge is required for speech to be commercial was not limited to the facts of this case; that their decision has erased the legal difference between facts and opinions; that the publisher of a falsely attributed creative work should be liable; and that if the current decision from the Court of Appeals stands, it sets a dangerous precedent that effectively immunises the sale of art forgeries, allowing the seller to claim it is real even if it is fake and for there to be absolutely no consequences for doing so.
Serova is asking that the Supreme Court step in, rehear the case, and give her another opportunity to demonstrate why Sony and the Jackson Estate should be held accountable for their decision to commercially release and sell a falsely advertised fraudulent product from which they continue to profit.
Stay tuned for further updates on Serova’s Supreme Court of California petition.
Jackson fans launch campaign to have fake songs removed from 2010 album
Meanwhile, for a second consecutive year Michael Jackson fans around the world are engaged in the #RemoveCascioTracksNOW campaign. Aimed at executives and lawyers for Sony Music and the Jackson Estate, the campaign demands that the three allegedly-fake songs at the centre of Serova’s lawsuit be officially removed from the Michael album and Jackson’s discography, effective immediately.
Initiated in November of 2017 by the world’s biggest Michael Jackson podcast, The MJCast, the campaign encourages MJ fans around the world to contact the likes of John Branca and John McClain (co-executors of the Jackson Estate), Howard Weitzman (attorney for the Estate), Rob Stringer (chief of Sony), Sylvia Rhone (chief of Epic Records), and Zia Modabber (attorney for Sony) to express their feelings regarding the ongoing sale of the Cascio tracks, and to demand they be taken off the market and disassociated from Michael Jackson.
The timing of the campaign coincides with two landmark moments in the Cascio tracks saga. The launch of the campaign in early November marks the anniversary of the stream of “Breaking News” on michaeljackson.com, which launched on November 8, 2010 and kickstarted the last eight years of controversy over the matter. The campaign will run until December 14, which is the date that the Michael album was commercially released worldwide in 2010.
In an email to Sony and the Jackson Estate, co-founder and host of The MJCast, Jamon Bull, wrote:
Any member of Michael’s family that has spoken out about this issue has said the songs are fake—including some of his [Estate’s] beneficiaries. Most of Michael’s studio collaborators have confirmed the same […as have] thousands upon thousands of his fans, yet the songs remain for sale.
It concerns me greatly that Sony and Michael’s estate executors continue to defend the people who are responsible for this fraud, instead of defending Michael’s own beneficiaries and Michael’s artistic legacy itself,” adds Bull. “This is an affront to what Michael stood for as an artist. He publicly stated he wanted to immortalise himself through his work. Michael deserves much better than this.
Another fan, in a publicly shared email found here, wrote:
I was shocked and saddened when I found compelling evidence indicating that Michael Jackson, a worldwide artistic and humanitarian icon, in his death, was being used as a commercial commodity to be exploited [and] that his fans, grieving family, the general public and Michael himself were being taken advantage of through the release of these inauthentic materials.
I cannot view Sony or the Michael Jackson Estate as fair, trustworthy or ethical. The question is, that if Sony is willing to sell just one unethical, illegitimate, poorly made product, could there be other products of yours with these attributes that you are also willing to sell? This is an important issue of consumer confidence and corporate ethics.
I ask that you please remove these 3 songs from Michael Jackson’s catalogue now, not because there is a financial incentive to do so, and with these actions apparently showing great contempt for consumers, but because it’s insulting, and frankly a disgusting affront, to Michael Jackson, his legacy, his grieving family and supporters worldwide. Removing these 3 songs is simply the right thing to do.
Please do the right thing.
The time has come to once again raise our voice as one and remind Sony Music and the Estate that we will not stand for such disrespect and vandalism of Michael Jackson’s artistic legacy. Demand change. Demand they #RemoveCascioTracksNOW. We will continue our call to action through December 14th—the eight year anniversary of the Michael album’s release—at which time we will request a formal response from Sony and the Estate.
If an official response from Sony or the Jackson Estate is obtained by either party it will be published as an update.
Faking Michael podcast will shed new light on controversial songs and album.
Also, in-the-works is Faking Michael – an investigative true-crime podcast series chronicling my quest for the truth about the Cascio tracks and the Michael album. The series will take you on a journey to find out once and for all where the songs truly came from, what went on behind the scenes, and how the alleged forgeries ended up on an official Michael Jackson album.
Throughout the course of the podcast series I will detail the findings of my investigation, drawing on hundreds of hours of exclusive interviews with many of those closest to the controversy, thousands of pages of correspondence and official records, and never-before-heard evidence that has lead to shocking breakthrough discoveries.
A trailer for Faking Michael is live on Apple Podcasts, Spotify and YouTube.
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:
“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.”
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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