Michael Jackson died ten years ago, but his music lives on – as does the controversy that so often surrounded him. Both were central to a lawsuit which claimed that three songs on a posthumously released Jackson album were not actually performed by him, thus deceiving consumers.

The case was recently decided by the California Court of Appeal (Serova v. Sony Music Entertainment), with the record company arguing, somewhat bizarrely, that even if the tracks were not sung by Jackson, it should win the case – and it did.

Vera Serova, a fan of the singer, purchased the 2010 album, Michael. According to the album cover and other promotional material, all 10 songs on Michael had been recorded by Jackson, including nine that had never previously been released.

Serova became convinced that Jackson had not been the lead singer on three of the tracks: “Breaking News,” “Monster” and “Keep Your Head Up,” and that they had been recorded by a “sound-alike” performer.

She sued the record label and others involved in its production in 2014, claiming they had defrauded purchasers of the album. She sought class action for her lawsuit, which would allow her to pursue her claims on behalf of all who had bought the album.

Some members of the Jackson family, and others familiar with his recordings, supported Serova’s position.

But the singer described on the album cover as “the greatest artist of all time” was indeed the vocalist on three disputed tracks, according to representatives of Jackson’s estate, forensic musicologists, and producers, engineers, directors and performers who had worked with the late singer. The person alleged to have been the “sound-alike” performer said the voice on the recordings was not his.

The Los Angeles Superior Court threw out most of Serova’s claims, but it said she could continue to pursue two: that the wording on the album cover, and statements included in a promotional video, were deceptive.

Sony appealed, saying the trial court should have thrown out these two remaining allegations under California’s “anti-SLAPP” law, as it had the other claims.

SLAPP stands for “Strategic Lawsuit Against Public Policy,” meaning a suit whose goal or effect is to discourage someone from exercising their rights of free speech under the U.S. or California constitutions.

California courts use a two-prong test to evaluate an anti-SLAPP motion. The first criterion is if the lawsuit involves issues protected by the First Amendment, including the right to speak freely on issues of public interest, and the right to petition the courts and the government.

If the dispute does involve First Amendment issues, judges then consider whether the plaintiff can demonstrate a reasonable likelihood of winning if its claims are borne out.

Typically, most commercial speech, such as advertising, is not protected by the First Amendment.

The courts reason that companies have first-hand knowledge of the truth of claims such as whether goods are produced in the USA, the alcohol content of a beer, and the working conditions in factories where sneakers are manufactured. If a claim like this is false, the company cannot argue that the falsehood is protected as free speech.

Sony argued that the lower court should have granted its anti-SLAPP motion, tossing out the allegations, for two reasons.

First, it said, the identity of the artist on the three disputed tracks was a matter of real public interest and not simply a form of advertising, as Serova had argued.

The identity of the singer on the three tracks had been disputed by Jackson fans and members of his family before the album’s release. Sony and the Jackson estate had issued statements about it, and the topic had even been discussed on the Oprah Winfrey show.

Whether Jackson was the singer was “a controversial issue of interest to Michael Jackson fans and others who care about his musical legacy,” the appellate court noted, and “was also integral to the artistic significance of the songs themselves.” For that reason, it said, “statements about the identity of the artist were not simply commercial speech but were subject to full First Amendment protection.”

In addition, the appellate judges pointed out that Sony and others who produced the album had not recorded the tracks in question. In fact, solely to allow the court to rule on the anti-SLAPP motion, Sony had stipulated that “Jackson did not sing the lead vocals” on the three disputed tracks (without stating that they knew the actual identity of the singer.)

Therefore, they said, the record label and its associates did not have first-hand knowledge of whether Michael Jackson had actually performed the disputed tracks. This meant they could not be held to the strict standards that would exempt commercial speech from First Amendment protection.

In effect the defendants argued that, having acknowledged that the songs might not have been sung by Jackson, they displayed an uncertainty that made their claims protected free speech. The appellate court agreed.

It also said that Serova could not demonstrate a likelihood that she would prevail at trial. Sony’s anti-SLAPP motion was granted, and the lower court was ordered to strike the claims against Sony and the other appellants. Having made that ruling, the appellate judges said they did not need to address the question of whether the promotional statements about the album would be misleading to consumers.

The King of Pop has been dead for ten years, but his music lives on, not just for his fans but in the courts.

By Laurie Murphy