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Blaming the Boogie
I’m tucked into a corner booth in a cozy little dive in Echo Park. It’s Monday. A couple times a year I poke my head into the same place, but I always show up early on the last Monday in August–a day this bar dedicates just to Michael for his birthday each year.
I’m enjoying the company of friends. We’re laughing and reciting our favorite lines (all of them) from the charmingly absurd spectacle of Moonwalker projected on a far wall. It reminds me of old times; when we first met, trying in any way to fill the void of Michael’s absence with the closest love we could find–other fans. It felt good…like it’s something he would exactly want to see happen in his honor. Good times and people coming together. Making the best of what we had.
The room fills as the film winds down and familiar beats thrum. Within minutes, we’re shoulder to shoulder with our faces raised and singing loud enough that Michael could hear himself. Three songs in and everyone’s sweating, swaying and stomping along.
Ten hours later, I’m finishing up my second cup of coffee and thinking about what to make for lunch when I see a link to a document on Facebook and four chilling words: “We lost the appeal.”
And then, I’m back in the courtroom from last week. Listening to weak arguments, shaking my head at the circles Sony spun and watching Zia Modabber theatrically squint at the fine print on the back of a copy of Michael, shrug his shoulders, and pretend he didn’t know exactly what the words meant.
There’s no music, or dancing, or smiles. There’s just formality and rapid-fire questions and poor lighting and the reality that people whose job are literally to protect the interest of Michael Jackson’s art, legacy, and business dealings are arguing that they aren’t responsible for it at least in part.
“You can’t be doing this…”
So, what happened?
A big theme I stick to when discussing this lawsuit are facts and actions, not intent. I’ll admit that sometimes it’s difficult to separate the concepts, but being able to do it clarifies many things and simplifies them. If you can do that for the remainder of this essay, hopefully, it will help you too.
There are many discussions about evidence of whose voice is on those songs and lots of head-scratching about what appears to a mountain of evidence that the vocals are forged. It seems so obvious, so how can Sony just march in, claim “free speech,” and walk out?
It is critical to understand the type of complaint Sony and the Estate faced: consumer rights violations. Sony and the Estate are not accused of fraud; Cascio/Porte (Angelikson) are. The very short version of the complaint is that Cascio/Porte forged the art; Sony knowingly sold it and stated it was real. When the question was raised about whether Michael Jackson actually sang the songs, Sony did not remedy the situation as they are required to under the CLRA.
Note this is deliberately oversimplified as Cascio/Porte are also facing CLRA complaints as well. This discussion is specifically about Sony.
Sony knows the evidence against the songs’ validity exists outside the court. They also know they have nothing to contribute to support anything contrary, but neither are they the party that would have to defend the validity of the songs. Remember, Sony did not produce the songs, they bought them from Cascio/Porte.
Sony’s best option was to cite free speech–the First Amendment. That’s where the anti-SLAPP comes in: forcing the courts to decide whether statements, advertisements, and promotions were commercial (non-protected) or non-commercial (protected) speech. Along with that because the statements made by Sony were associated with expressive works of art (The Michael album and Cascio songs included in it), that their statements should be protected regardless.
All of that has to be decided before discovery, which is when the evidence would be investigated properly. A lot of the evidence that exists is about how the songs were created, not how they were sold to consumers, which brings us back to actions and facts, not intent.
In brief terms, Sony states that because they didn’t know at the time they bought the songs that they were fake, that anything they said about their validity and representing them as genuine Michael Jackson music isn’t their fault–and it throws Cascio and Porte under the bus (not that I have any sympathy for them).
Here is the problem that we faced with the timing of the anti-SLAPP: even after Breaking News released and the initial controversy began in 2010, we cannot prove whether or not Sony definitively knew the legitimacy of the songs between Breaking News and the album release–because we have not been able to investigate evidence. That is blocked until the anti-SLAPP is resolved.
That is the grotesque cunning of Sony’s maneuver.
The purpose of the anti-SLAPP had nothing to do with the plaintiff’s complaint of CLRA violations–that consumers were misled–it was to establish whether the speech that misled consumers made by Sony and the Estate is protected or not.
From Vera on MJJCommunity:
“Moreover, the Court of Appeal’s holding is that it doesn’t matter that the consumers were misled. Because the Court found Sony and the Estate’s statements on the CD and in the video ad to be non-commercial speech, their lies are protected. They could say it’s MJ, they could say it’s Frank Sinatra – as long as they didn’t know for sure and it was a matter of public debate, they had the right to say that and cannot be held responsible even if consumers blindly believed them and spent money on something that turned out to be not what was advertised.”
This is where we circle back to my concern about setting a dangerous precedent. Constitutional freedoms still have consequences. Now, Sony faces none from exercising their First Amendment rights, despite the stark reality that their action of engaging in free speech led to not only misleading consumers but actively participating in its fraud.
My concern is that it’s Sony Music–one of the largest music companies–selling Michael Jackson music–arguably the biggest name in the business even almost a decade after his death. That’s not the same thing as an individual or small business owner being duped by a vendor. It is global, it is cultural, and it is flat-out irresponsible. It has a real impact. If the Michael Jackson Estate can shirk responsibility and due diligence simply by claiming First Amendment rights, who else could follow?
Not only will Sony be able to slap the plaintiff with the legal bill, but regardless of the outcome of the fraud complaint against Cascio/Porte, Sony cannot be forced to remedy anything. They can still sell Michael in its current state and profit from it.
Unfortunately, not much. It’s possible to petition the Supreme Court of California to hear the case, but very few cases are granted review (preliminary research suggested about 6% of petitions, I will update soon with the correct source). I do not know if the plaintiff intends to pursue the Supreme Court or to re-hear the appeal.
Sony is off scot-free. But, we do have the Cascio/Porte matter to still handle.
Sony still has a choice in this matter, though. Nothing stops them from voluntarily recalling the three songs. They could choose to reduce or eliminate the legal fees potentially owed by the plaintiff when those decisions are made (hold off on the GoFundMes just yet!). They could still choose to do what’s right by their consumers without being forced by the courts.
Something (that is, every single step of their behavior until now) tells me they won’t. But the option is there.
I think back to the main room at the party yesterday, the one with the spotty air conditioning and whose walls swell and shake with the bass thumps of Who is It. It’s hot and people are spilling drinks, but everyone is smiling or glittering (so many sequins and rhinestones) and we all share the dance space and exchange hugs or yelps of joy when the next song fades in–because we love them all, and it’s someone’s favorite.
I’ve spent many hours on dancefloors across the country and the world, and nothing compares to the energy of these Michael on Monday events. Michael doesn’t have to be physically present; the very same magnetism that attracted the population to him in 1969, in 1971, in 1983, and every milestone after is the same that we share in this room.
It’s the fans that will keep his legacy true and alive. Not in the dank air of courtrooms, but I’ll carry that energy and drive with me into them anyway. It’s not over, not yet. It’s not an easy fight, but it is a worthy one–an example for others to follow.
The Court of Appeals gave Sony and the Estate carte blanche for Michael’s birthday. The fans, instead, are giving Michael the gift of loyalty and the pursuit of truth.
Happy Birthday, Mike.