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Californian Supreme Court rules on free speech claims in Michael Jackson fake vocals dispute

By | Published on Monday 22 August 2022

Michael Jackson

The Californian Supreme Court has ruled against Sony Music and the Michael Jackson estate in regard to a free speech question that was raised after it was alleged that three tracks on the posthumous Michael Jackson album ‘Michael’ did not in fact feature the star’s vocals.

The lawsuit that sparked that question has already been settled and the three disputed tracks removed from the streaming services, so the Californian court’s ruling could be seen as irrelevant. But it possibly sets a precedent of relevance to future music marketing. Although, what it doesn’t do is offer any conclusion on whether or not Jackson does indeed appear on those three tracks.

Released by Sony’s Epic label in 2010, ‘Michael‘ featured ten songs that Jackson had started but not finished over his long career in music. Work on each track was completed by one of a team of producers, all led by Timbaland. The three tracks that caused the controversy – ‘Breaking News’, ‘Monster’ and ‘Keep Your Head Up’ – all originated from one recording session with producer Eddie Casci.

Numerous people – including several members of the Jackson family – argued that the vocals on the final versions of those three tracks were not Jackson’s. However, the Jackson estate insisted that it was confident that it was Jackson singing on those tracks, publishing a summary of the efforts it went to in order to confirm the authenticity of the music on the ‘Michael’ album.

But none of that placated one fan in particular, Vera Serova, who filed a lawsuit over the alleged fake vocals in 2014, naming Sony Music, the estate, and Casci and his company as defendants. As that case worked its way through the motions, it was Sony and the estate that posed the free speech question that the Californian Supreme Court has just answered.

They basically argued that the marketing and liner note copy stating that Jackson appeared on the three disputed tracks was protected by the free speech rights contained in the US First Amendment, and therefore Serova couldn’t make a legal claim in relation to that copy under Californian competition or consumer rights laws.

A Californian appeals court accepted those arguments in 2018 and dismissed the case against Sony and the estate, but then the matter progressed to the state’s Supreme Court.

Summarising that earlier decision in its ruling week last week, the Supreme Court stated: “The court of appeal concluded the motion to strike should be granted, reasoning the First Amendment shields the album marketers from liability”.

“Even if the statements about Jackson’s contributions were false, said the court, the First Amendment requires classifying them as non-commercial speech, a classification that would offer the statements greater protection from government regulation and, per the parties’ agreement, put them beyond the reach of the consumer protection laws Serova invokes”.

“The album marketers’ statements were, in the [appeal] court’s view, non-commercial, because they ‘were directly connected to music that itself enjoyed full protection under the First Amendment’ and ‘concerned a publicly disputed issue about which [the speaker] had no personal knowledge'”.

However, the Supreme Court then stated: “We disagree and reverse”. Citing earlier precedent, the Supreme Court said that the marketing and liner note copy was “commercial advertising meant to sell a product” and that generally there “can be no constitutional objection to the suppression of commercial messages that do not accurately inform the public”.

“We recognise artistic works such as albums, in some instances, enjoy robust First Amendment protections, but that does not turn all marketing of such works into non-commercial speech”, the new judgement added, “and it does not do so in this case”.

Not only that, but “a seller’s purported lack of knowledge of falsity does not tell us whether that seller’s speech is commercial or non-commercial, and commercial speech does not shed its commercial nature simply because a seller makes a statement without knowledge or that is hard to verify. The First Amendment has long coexisted with no-fault false advertising laws”.

So there you go, Sony and the estate can’t get out of this litigation on free speech grounds. Except, of course, they don’t need to get out of this litigation at all any more having settled with Serova last month shortly after removing the three disputed tracks from digital music platforms.

On removing the tracks, a spokesperson for Sony and the estate said at the time: “The removal of these three songs has nothing to do with their authenticity. The estate and Sony Music believe the continuing conversation about the tracks is distracting the fan community and casual Michael Jackson listeners from focusing their attention where it should be – on Michael’s legendary and deep music catalogue”.

Meanwhile, on settling Serova’s lawsuit, a spokesperson told Billboard earlier this month: “Regardless of how the Supreme Court may rule, the parties to the lawsuit mutually decided to end the litigation, which would have potentially included additional appeals and a lengthy trial court process”.

So, that’s that then. Though, just in case it comes up in the future, please note that you can’t circumvent legal claims under Californian law over allegedly dodgy marketing copy and liner notes on free speech grounds. We may not know who sang on those three ‘Michael’ tracks, but we do know that.