Issue of “fake” Michael Jackson tracks squashed by court

The question of whether a Michael Jackson impersonator really sang on three tracks on his 2010 posthumous album Michael will probably never be known.

An appeals court has squashed a class action filed by a fan that he had been hoaxed by claims on the album cover.

It all began in 2011 when MJ impersonator Jason Malachi claimed on social media, “Sheesh guys, I guess it’s time to confess. I’ve lied to many people, including someone today, but… it was me.

“It was me who sang Breaking News, Keep Your Head Up, Monster and Stay.

In 2014, Jackson fan Vera Serova lead an action based on that it was a misrepresentation that was punishable under California’s Unfair Competition Law and the Consumers Legal Remedies Act.

Serova’s action was against the Jackson estate, his record company Sony Music and various producers on Michael who included Lenny Kravitz and Neff-U.

Last week as the case went through the judicial system, Katten Muchin Rosenman LLP’s Zia Modabber, representing Sony and the Jackson estate, issued a statement to Variety.

“No one has conceded that Michael Jackson did not sing on the songs,” it said.

“The hearing (on) Tuesday was about whether the First Amendment protects Sony Music and the Estate and there has been no ruling on the issue of whose voice is on the recordings.”

This was not exactly a denial, the media noted.

Yesterday, a California appeals court held that statements on the Michael album cover did not constitute commercial speech and had to be protected under the First Amendment.

This was a reverse of the original trial’s judge who said it was a commercial statement and therefore subject to regulation.

Appeals judge Justice Elwood Lui stated, “We conclude that the challenged representation — that Michael Jackson was the lead singer on the three disputed tracks — did not simply promote sale of the album, but also stated a position on a disputed issue of public interest.

“[T]he identity of the artist on the three disputed tracks was a controversial issue of interest to Michael Jackson fans and others who care about his musical legacy.

“The identity of the lead singer was also integral to the artistic significance of the songs themselves.

Under these circumstances, Appellants’ statements about the identity of the artist were not simply commercial speech but were subject to full First Amendment protection.

“They are therefore outside the scope of an actionable unfair competition or consumer protection claim in the case.”

The case was a win for the Jackson estate and Sony, which had earlier tried to stop the case from going forward.

In addition, the appeals judge also made the point that neither the estate nor Sony had done the recording themselves.

Therefore they could not be 100% sure who actually sang on the disputed tracks.

The judge wrote, “(They) lacked actual knowledge of the identity of the lead singer on the disputed tracks, they could only draw a conclusion about that issue from their own research and the available evidence.”

Sony, right from the start, had taken the legal path that it would never have known if an impersonator had been used because it received the recordings in good faith from the production unit.

In this case, it was Angelikson Productions LLC, owned by Jackson’s longtime friend Eddie Cascio who was also named in the action.