Updated Aug. 28 at 3:07 p.m. ET
"They want to see that I fall / 'Cause I'm Michael Jackson."
— Lyric from "Breaking News"
Maybe. Maybe not.
One month before the December 2010 release of Michael — the first album released after the King of Pop's death in 2009 — Michael Jackson's family was very publicly raising doubts about whether three songs on the album had actually been performed by him. "I tried so hard to prevent this craziness, but they wouldn't listen," Jackson's nephew Taryll tweeted. "It doesn't sound like him," Jackson's sister, La Toya, said at the time. It's a controversy that diehard fans have kept their eyes on for nearly a decade and which has re-entered news feeds after arguments were heard last week in a long-running court case over it.
The three songs allegedly sung by someone other than Jackson — "Breaking News," "Monster" and "Keep Your Head Up" — were ostensibly recorded in New Jersey in 2007, with the pop star working alongside credited co-writers Edward Cascio and James Porte. (Reportedly, Jackson and his family were living in the house of Cascio's father at the time and made the tracks at Cascio's home studio.) After Jackson's death, Sony Music and Epic Records then packaged those tracks, along with six other unreleased songs of undisputed authenticity, into Michael, an album which peaked at No. 3 on the Billboard 200 — a relatively low showing for the King of Pop.
In 2012, two British men were arrested for hacking into a Sony network and making off with Jackson's entire recorded music catalog, a "$253 million heist." They later pleaded guilty and were given no jail time. (A few years later, you may remember, the company would be recovering from a far more damning technological snafu.) According to a report from The Guardian, the pair undertook the infiltration with the goal of verifying whether Jackson had actually sung on his posthumous songs.
Then, in 2014, Jackson fan Vera Serova sued Cascio, Porte, Sony Music, Jackson estate co-executor John Branca, MJJ Productions (the estate's music arm) and Angelikson Productions (Cascio's production company). Serova accused them all of, essentially, selling her and others a product that had been misrepresented. Separately, she accused Porte, Cascio and Angelikson of fraud.
Last week, on Aug. 21, arguments were heard in an appeal that has put Serova's main case on hold. The appeal centers on the question of whether Sony Music and the Jackson estate are liable for misrepresenting the contents of the album to consumers by depicting Jackson on its cover and by promoting the album's release in a YouTube video. To make the case that they should be removed from Serova's putative class action, both Sony Music and Jackson's estate hypothetically "admitted" that the songs were not sung by the late legend.
"We have conceded for purposes of this motion — solely for purposes of this motion — that Michael Jackson did not sing the vocals on those three songs," Zia Modabber, the lawyer representing Sony Music and the Jackson estate, explained in oral arguments obtained by NPR. "But they have alleged, and are stuck for all purposes, with the fact that the Angelikson [the production company of Edward Cascio] defendants — not us — were solely and exclusively in possession of knowledge about who actually sang them."
After attending last week's hearing, a person tweeting under the name A Truth Untold drew renewed attention to the controversy after writing several posts on the hearing that were widely interpreted as a smoking gun as to the tracks' inauthenticity. The truth is less clear-cut: Sony Music and the estate were in the midst of making a more specific argument — that the album's cover art and a video published ahead of its release are both First Amendment speech, not "commercial speech." How the appeals court judges rule on that notion will determine whether the accused parties are liable for misrepresenting the album's contents to consumers.
"The particular statement being complained of in our case in that video ad," Modabber continued, referencing the YouTube promo, "is it says that this is an album from the greatest musical entertainer of all time, from Michael Jackson. Well, it is an album — and it's really his estate — well, it is an album, from his estate. OK? ... The other point I would make about the video ad is that for somebody to say that they heard 'Here's an album from Michael Jackson,' and they translate that into 'every vocal on all of the songs were sung by Michael Jackson' — that is not a reasonable interpretation."
Driving the point home in a statement given to NPR on Aug. 24, Modabber wrote: "No one has conceded that Michael Jackson did not sing on the songs. The hearing Tuesday was about whether the First Amendment protects Sony Music and the Estate and there has been no ruling on the issue of whose voice is on the recordings."
On Tue., Aug. 28, the three appeals court judges ruled in Sony Music and the Jackson estate's favor in their appeal, effectively erasing their names from Serova's case going forward. The judges found that because they did not know for certain that it was Jackson singing on the three disputed songs, the album's cover and the promotional YouTube video were not strictly commercial speech and so not eligible for the two charges Serova attempted to bring against them.
"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. Under these circumstances, [Sony Music, MJJ Productions and the Jackson estate's] representations about the identity of the singer amounted to a statement of opinion rather than fact."
Serova's case against Angelikson Productions, Edward Cascio and James Porte will continue.