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It’s Not Sony’s Fault If It Sold Fake Michael Jackson Songs

Judges say Sony and the Michael Jackson estate can’t be sued for three contested MJ songs — but no ruling yet on whether the songs are real or fake

Michael Jackson fans may be a bit disappointed during this worldwide celebration of the icon’s diamond birthday. A ruling has been issued in the years-long class-action lawsuit alleging that three King of Pop songs were not in fact sung by the King of Pop — but it doesn’t actually give an answer on the authenticity of the songs.

Instead, three appeals court judges ruled on Tuesday that Sony and the Michael Jackson estate cannot be held accountable for the three disputed songs (“Breaking News,” “Keep Your Head Up” and “Monster”) and the two parties have been removed from the case. Sony’s Epic Records released the three songs on the posthumous album Michael in 2010, and they quickly drew skepticism from a number of Jackson fans and relatives who, pointing to stylistic differences and inconsistencies in the way the tracks surfaced, claimed the vocals were actually sung by an impersonator. In 2014, one fan, Vera Serova, brought a class-action lawsuit against Sony, the Jackson estate and the producers involved.

On Tuesday, the panel of judges said that because the two parties did not know for sure whether it was Jackson singing on the songs, the album’s promotional materials and cover were not strictly claims about the contents of a commercial product, and thus are not eligible for the commerce-specific claims that Serova brought against them in the class-action suit.

But there’s no word yet on whether the songs are actually fake or real — despite erroneous news reports last week that Sony had made some sort of admission in court. In 2010, Sony and the Jackson estate both strenuously defended the authenticity of the songs; they have, however, since backed down in vigor, saying in December that it actually might be possible for the vocals to have been sung by an impersonator, but that the label should not be held liable for fraud because it believed the producers’ claims of authenticity.

In court documents, justices did not comment on Sony and the Jackson estate’s actual responsibility for the songs, focusing more on the parties’  eligibility for the terms of the lawsuit. “Because [Sony Music, MJJ Productions and the Jackson estate] lacked actual knowledge of the identity of the lead singer on [“Breaking News,” “Monster” and “Keep Your Head Up”], they could only draw a conclusion about that issue from their own research and the available evidence,” appellate justice Elwood Lui wrote. “Under these circumstances, [Sony and the estate’s] representations about the identity of the singer amounted to a statement of opinion rather than fact.”

He continued: “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. The 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.”

Serova’s case against the producers involved in the three songs is still ongoing.

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