The King of Pop may have died a decade ago but his legacy of litigation lives on, as a California appeals court has just reminded.

And while the state appellate judges may have put a curious coda on free speech protections of the works of Michael Jackson from beyond the grave, they didn’t try to answer fans’ questions about a disputed album’s performance or compositional authenticity in their late August ruling.

It came even as the death of another popular music icon — the irreplaceable Aretha Franklin — underscored why, for Entertainment Law practitioners, artists’ posthumous legal state may be rising as an ever-important concern.

The Jackson case dates to 2010 and the release of Michael, an album that rocked the worlds of fans and the late superstar’s family, to start, simply because it was an issue by a recently deceased artist.

The album raised controversy in and out of the courtroom. Musicians like Will.I.Am publicly denounced the work as “disrespectful.” Rumors spread that the album included three “fake” songs.

Fans asked if these songs were anything that Jackson himself would have deemed suitable for issue. As a music critic for The New Yorker magazine recently described the posthumous collection: “It had the bionic schmaltziness of a Jackson album, but it didn’t seem to possess the right blend of the man’s fury and guilelessness. It just sounded off.

In fact, not only was the public confused as to its authenticity, the Jackson family was dazed, too, about the album. Taryll Jackson, the son of the late pop king’s brother, tweeted: “I know my Uncle’s voice and something’s seriously wrong when you have immediate family saying it’s not him.”

Then, in June, 2014, Vera Serova, a Michael Jackson super-fan and then UCLA law student, filed a class-action lawsuit against Sony Music and Jackson’s estate for misrepresenting that Michael consisted of entirely original songs by Jackson with him as the lead singer. Serova asserted that three songs were not actually Jackson’s voice but rather that of impersonator Jason Malachi. The suit asserted that the defendants, with the album’s release, violated the Consumers Legal Remedies Act and Unfair Competition Law.

A trial court ruled in Serova’s favor, finding that album representations, such as its cover (shown above) and a promotional video for it (click on photo to play) pointing to Jackson as its creator and singer, were commercial speech subject to regulation.

But, years later now, judges for the Second District Court of Appeals for the state of California  disagreed, overturning the lower court ruling. The appellate judges found that the contested statements on the album cover and in the promotional video were non-commercial speech, outside the scope of the consumer protection claims asserted by Serova.

Instead, the higher court judges, found they are protected by the First Amendment, as they addressed the public controversy over the album and its main artist. Administrative Presiding Justice Elwood Lui explained: “Because appellants 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. Under these circumstances, appellant’s representations about the identity of the singer amounted to a statement of opinion rather than fact.”

Without actual knowledge of fraud, the album, its cover and promotional video are protected by the First Amendment because the parties could not prove Jackson was not the lead singer, and, therefore, the defendants apparently had not misled the public as to Michael’s authenticity.

The appellate court explicitly said its ruling addressed only issues raised as to commercial versus protected speech in the matter presented to it by defendants, using anti-SLAPP procedures aimed at safeguarding free speech rights in California. The appellate judges did not wade into the still undecided and burning question: Did Jackson perform the disputed works or not?

Post-mortem rights and performances have become a rising issue in Entertainment Law, as legal legend Bert Fields discussed in prescient fashion three years ago with the Biederman Blog.  Since then, a Hollywood theater has opened, specializing in holographic posthumous performers, and the state of New York has mulled following California in dealing with post-mortem artistic protections in a still pending legislative measure.

However, the recent passing of Franklin, the Queen of Soul, has underscored the potential legal challenges of artists’ survivors and estates in dealing with posthumous protections for creatives who die intestate. Franklin, her lawyer has said, demurred repeatedly from deciding what would happen to her estate estimated at $80 million. The purple reign of superstar Prince also ended without his drawing up and filing a will, creating a long legal mess that still continues. The cases are prominent and frequent enough that, word to the wise, wouldn’t it make sense to both counsel and artists that Entertainment Law practices may need to become full-service, including dealing with wills and trusts?


Photo credit: Michael album cover by Kadir Nelson.
Video: Sony Music ‘Michael’ album promotion