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Free Speech Doesn’t Shield Sony In Michael Jackson Fake Vocals Case, Court Says

California's top court says free speech doesn't trump consumer protection when it comes to "an explicit promise of a superstar's vocal contributions to a product."

The California Supreme Court on Thursday ruled against Michael Jackson’s estate and Sony Music in a now-settled lawsuit over three songs that allegedly featured a “Jackson imitator” instead of the star himself.

Siding with a fan who claimed the 2010 posthumous album Michael violated state consumer protection laws by falsely labeling the disputed songs as performed by Jackson, the high court ruled that the First Amendment did not shield the estate and Sony from such a case.

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“Perhaps in another context the First Amendment would limit the reach of our consumer protection laws, but Sony’s album-back promise and video are commercial advertising making claims about a product, and we will not place them beyond the reach of state regulation,” Justice Martin J. Jenkins wrote for a unanimous court.

The ruling won’t have much quick impact, since the estate and Sony pulled the disputed songs from streamers last month and reached an undisclosed settlement to end the lawsuit last week. In a statement at the time, they said both sides had decided to end the fight “regardless of how the Supreme Court may rule.”

But it’s still an important precedent on how California advertising laws apply to music and other “expressive works.” The court said those types of products would continue to “enjoy robust First Amendment protections,” but that free speech should not simply exempt “all marketing of such works” from consumer protections.

A spokesman for the estate and Sony did not immediately return a request for comment on the decision.

Fans have long questioned whether three of Michael’s tracks — “Monster,” “Keep Your Head Up” and “Breaking News” — were actually sung by the King of Pop himself. The songs were recorded by Jackson’s friend Eddie Cascio, who made assurances that it was Jackson behind the microphone.

That controversy turned into a lawsuit in 2014, when a woman named Vera Serova filed a proposed class action claiming the estate and Sony had violated California state consumer protection laws by labeling the songs as “Michael Jackson” tracks when they had really been performed by someone else.

After years of litigation, the case reached the California Supreme Court on a narrow, legally-defined issue: Whether the estate and Sony were shielded by the First Amendment, regardless of whether the songs were actually sung by Jackson.

Although the album’s back cover promised “9 previously unreleased vocal tracks performed by” Jackson, a lower court ruled in 2018 that such an assurance was shielded from consumer protection laws because it was “directly connected to music that itself enjoyed full protection under the First Amendment.”

Thursday’s decision reversed that ruling, saying that while the album was “an expressive work,” it was also still a “product for sale” — and one that had made “an explicit promise of a superstar’s vocal contributions to a product” on the back cover.

“The reasons commonly given for why commercial speech is subjected to greater regulation … still have relevance when an artistic product is marketed,” Justice Jenkins wrote. “We would not want false advertising laws to stifle the next great album or medical advance. But consumer protection remains important in both arenas, as it does in others.”

The court also rejected various other arguments from the estate and Sony, like their claim that they could not directly verify whether the songs were actually sung by Jackson. The court said that approach would set a dangerous precedent that “could be easily avoided.”

“Sellers making claims about their offerings surely do not avoid false advertising regulation, or have their claims treated as noncommercial speech, by scrupulously declining to verify those claims or to acquire knowledge,” Justice Jenkins wrote, adding that it would “undermine false advertising law and reward turning a blind eye.”

Notably, Thursday’s ruling dealt only with the promise on the back of the album about “vocal tracks performed by” Jackson and a video touting the album, and not with the album’s title or artwork. The lawsuit originally claimed that those aspects of the album were also misleading, but the Supreme Court said it could decide the case without delving into them.

In the wake of the settlement and the ruling, it’s unclear what will happen to the three disputed songs, which are currently unavailable on any digital platform.

Read the California Supreme Court’s entire decision here: