It’s Not Betrayal If We Never Trusted You: What Sony Gets Wrong

So, it looks as though the news caught wind of the story. I am not authorized to speak on the plaintiff’s behalf. You may contact her lawyer with questions. I am willing to speak on my personal experience and views regarding the case, but I cannot confirm or deny any private legal matters. You may quote my tweets at @reidunsaxerud or this essay with attribution. Please direct any further questions via the contact form on my site. Thank you.

Talking in Circles

By some miracle, I made to the hearing on time. My friend had supplied the correct address but I simply never double-checked it. At 8:57 am my heart raced, realizing I was in Koreatown and would have to double-back to downtown. At 9:52 I arrived, sweating and swearing under my breath, but still in one piece–just minutes before her case was called.450px-ronaldreaganstatebuilding

Neither party in the appeal said anything particularly surprising or new, as it mostly been the same circular argument for the past two years.

The thing that caught my attention–and ire–was a backhanded comment by the appellant: “I can understand that the fans feel betrayed,” he began, with a flippant wave of his hand toward us, “…but that doesn’t mean there was any wrongdoing on our behalf.”

The friend I’m sitting next to is Vera Serova. In 2014, she filed a class action lawsuit against Sony Music, The Michael Jackson Estate, and Eddie Cascio and James Porte (known as Angelikson Productions). The hearing we are attending is the last appeal in a long, drawn-out and grandiose anti-SLAPP motion filed by Sony in 2016. This was Sony’s last chance to, in Vera’s words: “Argue that they have a First Amendment right to lie to fans.”

If it seems strange that Michael Jackson fans would sue his own Estate for his benefit, and its potential impact on current and future legacy artists…hear me out:

The Very Short Story

In 2010, Sony and the Estate announced plans to release the first posthumous album, Michael. To promote it, the lead single, Breaking News, was streamed in the weeks leading up to the album release.

Backlash roiled immediately: fans were in an uproar over whether the vocals on the song were genuinely Michael Jackson’s. Sony acknowledged the concern, wrung their hands, did some slap-dash homework (a “listening session” with close associates of Michael’s and some grumblings about an audio analysis) and swore up and down the vocals were genuinely his.

The album was released as planned, and, despite continued protests and concerns over additional album tracks Keep Your Head Up and Monster, nothing else ever came of it. That is, until, Vera Serova decided to get to the bottom of it once and for all.

The appellant speaking was Zia Modabber, counsel for Sony Music. His statement couldn’t be any more wrong about his belief that fans felt betrayed by Sony’s actions to release fraudulent music. At the same time, he managed to summarize a core issue between the way Sony (and subsequently, the Estate) relates to Michael Jackson fans, and the effect this could have on other legacy artists.

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Zia Modabber, Lead Counsel for Sony Music Entertainment

What Mr. Modabber and a number of other names among the defendants do not understand is that betrayal requires that trust is established and then subsequently broken. That one party believes the other will uphold their word, whatever the terms may be–and then the other party deceives the first.  Betrayal happens between friends, lovers, government bodies and citizens, service providers and customers.  It doesn’t happen between estates of beloved public figures and fans–unless the intention all along was to deceive them.

While I don’t believe that was their intention at the outset, it was an interesting word choice that spoke volumes to me.

Passing Notes

In the nine years since Michael’s death, relations between Sony Music, The Michael Jackson Estate, and fans has been civil at best, but most often tense. This, of course, depends on which fan you speak to–I am by no means representative of the millions of them as a whole. Michael Jackson fans are as diverse as they come in most any attribute you can think of–and most especially their opinion of how the Estate and Sony uphold Michael’s image and brand. The fact that Sony Music is the company that partners with the Estate, a company that Michael famously despised and distrusted, and then turned around and liquidated Michael’s stake in the ATV Catalog, is enough to leave a bad taste in many fans’ mouths.

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John Branca, Co-Executor of the Michael Jackson Estate

There have been a number of projects, events, and releases that receive mixed reactions from superfans like Vera and I. In the end, however, it isn’t about keeping the interest (or approval) of fans like us, but rather encouraging new ones to join the fold and expose new generations to Michael Jackson.

Here’s the open secret that no one in the Estate or at Sony has ever understood: the strength of the relationship between Michael and his fans during his life, and more importantly, why it was so unique.

Throughout his life and especially after it ended, Michael was constantly disserved by those assigned specifically to protect his interests (and in turn, their own hides and jobs). Entire books have been written about specific events, and so for the purposes of this, I cannot detail them all–any big fan near you will be happy to fill you in.

During all of these hardships, there was one group who never left his side: the fans. Sometimes it was a throng of thousands standing guard at a tiny courthouse, and others it was just a few hanging around quietly at a stage door. But we were always there with encouragement and an open ear. There was a lot of love shared in those moments. It is where “I love you more” was born. Countless images of people crying and mutual bear hugs are easily found, but there was more to it than that.

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A simple Google or YouTube search of “Michael Jackson fans” or “Michael Jackson hugs” will return many images like this.

Michael Jackson was incredibly intelligent and observant. Not only did he see the fans much more consistently than some of the closest people in his life, but he saw what we did in his name when he wasn’t around; namely, social justice and philanthropy. He understood the power he wielded over us and he didn’t abuse it. He knew we would do what he asked because we trusted and believed him, and he, in turn, trusted us.

Because we were numbered in the millions, the potential of our power as an unstoppable united front, Michael knew that our intentions were the purest. We couldn’t sneak behind his back and cook the books, or create deals that screwed him over or conspire anything else.

Those in his circle never saw what was right in front of them. Like teenagers sneaking notes in class, the powers that be around Michael only saw saccharine affection and rolled their eyes. If they’d listened in to the whispers we left in each other’s ears and paid attention to the letters and packages we sent back and forth, well…we’d be in a very different position.

In his later years as the vice grips grew tighter on his life, Michael leaned on us more for support, and in several instances told us point-blank what was going on. He trusted we would do the right thing. He kept that relationship strong until the very end, both out of the love in his own heart and because he knew that when the hammer fell and he was gone, that the fans would protect his interests better than anyone else.

So far, I don’t think we have failed him.

The Gold Standard

Arguments conclude within the hour. In this dark and cool courtroom in 2018, the justices have heard the case, muttered about how “difficult” it is, and thanked us for our time. We filed out and heaved sighs of relief–despite the redundancy of the arguments and the intensity of the situation, at least it was over. Now, all we could do is wait.

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1993 Super Bowl Halftime

Something heavy hung over Vera and I. Since I moved to California in late 2014, I have attended every public hearing with her. So far, with a few minor setbacks, this case has gone the way it should: not because we want Sony, the Estate, or Angelikson to suffer due to some vendetta, but because we want the right thing done by Michael and his work.

Michael Jackson fans, as passionate as we are, are not dumb. We know, as does the entire music industry, that even nine years on after his death and 17 years after his last studio album, that Michael Jackson is still the standard in the business. If Michael Jackson has done or could do something, it is the example most others will follow or at least take inspiration from. That effect hasn’t waned since 2009 and it’s unlikely to end anytime soon.

We know that by protecting Michael’s interests, his work, and his legacy, that we are maintaining that standard for others.

Today, we’re not so confident that might happen.

Now, the justices in the appeals court aren’t wrong: this lawsuit is complicated, mostly because of this anti-SLAPP motion that we have fought for so long. But in the context of this hearing, and what Sony wants to do, we can boil it down to this simple concept:

Sony claims that the Michael album and all inclusive artwork and music are protected by the First Amendment and as such, it does not matter who performed the songs (Sony conceded that Michael didn’t sing them, possibly to avoid the plaintiff presenting evidence and having plaintiff deposing witnesses*) but that they are presented as an overall Michael Jackson-branded product, which is art, and therefore protected as non-commercial speech. Because Sony didn’t know at the time they planned and produced the album that the songs were fake, which is likely true, that they are entirely innocent and should be dropped from the case–so they can continue selling Michael as a whole album and profit off the songs that they are now fully aware may not be legitimate.

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The songs in question are “Breaking News”, “Keep Your Head Up”, and “Monster.” Listen and decide for yourself.

If the appeals court weighs in Sony’s favor, it sets a dangerous precedent that others may be all too happy to follow as our beloved artists pass on and others are left behind to handle their business. This case has exposed a wide loophole that is going to raise questions in the future: if a seller and distributor of art for deceased creators isn’t liable for the authenticity of the art, who is? If we don’t regulate a baseline of due diligence to ensure the art is legitimate, then potentially anyone can come forward after an artist dies and claim that the material they possess was created by the decedent, package it, and sell it–regardless who actually created it.

Many fields do have their own independent authentification standard. But if this loophole isn’t closed, many more questions of credibility over art that hasn’t been examined and verified as legitimate can cause a lot of heartache for fans and consumers, and a huge backlog for the courts. And as we have discovered, the music industry doesn’t have any official or regulated way of verifying material left behind by a performer.

Interestingly enough, this isn’t even the first time Sony and the Michael Jackson Estate bungled releasing unheard material. In 2009 during the lead-up to the theatrical release of This is It, Sony released a song they had discovered on a tape in a box with the same title. Only after the song released did they discover that Michael wasn’t the only songwriter, and had previously been produced and released by singer Safire in 1991.

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No one believes that the three fake songs on Michael aren’t art as individual pieces and are therefore protected under First Amendment. But that they were advertised and credited as Michael Jackson songs, performed by Michael Jackson, and have now come into question as valid and that those gaining the most profit from it have argued they have no responsibility for it is a big problem, a problem much bigger than the Michael Jackson brand and fanbase combined.

That is why we show up and fight. I’m not under any delusion or emotional load that is simply trying to hang on to any memory of Michael. Although I am still not over his death, that’s not what this is about. It isn’t about “betrayal,” it’s about the fact that Sony wasn’t trustworthy at the outset, that we want the truth written in the books of Michael’s history, and that we don’t want artists’ future legacies to suffer this way.

We’re upholding the standard he established because as history has demonstrated, few others will.


*CORRECTION AUGUST 24: As satisfying as it was to hear those words come out of Mr. Modabber’s mouth, please remember that in the court it is not an official admission to fraud, nor is Sony being accused of fraud (Cascio and Porte are). It’s possible that Sony’s goal to admit this in court when it is not required is to avoid plaintiff having to depose witnesses. It was my own misunderstanding that in the context of the 8/21 hearing they were required to admit it; and that is not the case. Please do not deduce more than I have explained above. Thank you.
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