In the latest update about this case, I had reported that the defendants (Cascio, Porte, Sony and Estate) were planning to file dismissal requests and anti- SLAPP motions. Recently both Cascio/Porte and Sony/ Estate have filed their motions.
Note: Sony/ Estate and Cascio/Porte have different lawyers and therefore filed two separate motions. In this blog post I’ll focus on Sony/ Estate’s demurrer and anti-Slapp motion as it is more detailed. Cascio/Porte motion pretty much repeats the same thing. Motion can be found at this link : https://www.scribd.com/doc/298495674/Sony-MJ-Estate-Antislapp-Motion
First a little reminder about what is SLAPP and Anti- SLAPP? As I have previously explained “Lawsuits brought to scare, harass and intimidate defendants or restraint of business is called SLAPP. The motions filed by the defendants against such cases are called anti-SLAPP. In this instance it means that the defendants are planning to argue that the MJ fan who brought this case doesn’t really expect to win the case but brought this case in attempt to silence and intimidate the defendants in order to prevent them from saying that the Cascio songs are performed by MJ. It is possible that the defendants will argue that saying MJ sang these songs are their constitutional right under freedom of speech.”
In order to succeed in their anti-SLAPP motion defendants will need to prove that the statements they made (and mentioned in the complaint) are protected under the right of free speech in connection with an issue of public interest.
The statements at issue here are Weitzman’s statement sent to the fan clubs, Sony Music’s statement (sent to the media), statement written at the back of the “Michael” album, statements in a video about the “Michael” album and Cascio’s statements at Oprah show. (See the end of this post for the above mentioned statements.)
In their papers defendants argue these statements can be divided into two categories: 1) defendants’ public opinions about whether MJ performed Cascio tracks in response to the questions by press and 2) attribution of MJ as a performer of Cascio tracks on the album and the promotional materials.
Defendants argue that the MJ Fan’s complaint establishes that the controversy surrounding the Cascio tracks were an issue of public interest. They argue even MJ’s celebrity alone is enough to make first posthumous album an issue of public interest. Then defendants continue to argue that any statements they made were a public response to an issue of public interest.
Defendants then turn their focus on how the MJ Fan can succeed against the anti-SLAPP motion. In order to succeed the MJ fan will need to establish probability that she will prevail on merits. One way to do this is to argue that the statements mentioned in the complaint are commercial speech. While the US Constitution and anti-SLAPP protects noncommercial speech, there are laws that are designed to protect the public from false commercial speech.
So it is highly possible that this will turn into a debate of whether the statements were commercial speech or noncommercial speech. So how is commercial speech defined?
Defendants rely on a criteria previously used by the courts.(Note: There are other criteria that is used to differentiate between commercial and noncommercial speech as well.) According to this criteria used by the defendants speech is commercial when the speech is a traditional advertisement, the speech references a product and there was an economic motivation behind the speech. Defendants argue even if any speech satisfies all of the three conditions listed above, it would lose its commercial speech character if it is intertwined with noncommercial speech. In other words when commercial speech cannot be logically separated from the noncommercial speech, all of it is deemed as noncommercial speech and becomes fully protected under freedom of speech.
Based on this defendants argue that the Weitzman statement and Sony statement does not satisfy the commercial speech requirements. Defendants argue that both statements were to answer questions from the media/fans and neither statement invited or encouraged fans to buy the album. They merely expressed Sony and Estate’s point of view on a dispute. Furthermore defendants argue those statements do not satisfy the “traditional advertisement” requirement and they don’t have “economic motivation” as they were released one month before the release of the album.
As for the statement on the album cover, defendants argue that it was informational rather than directed at sales and it is not in the form of traditional advertisement. Furthermore they argue even if it could be considered commercial speech, it is combined with noncommercial speech making it all fully protected.
Here defendants rely on previous lawsuits against cyclist Lance Armstrong. In those lawsuits Lance Armstrong and his publishers were sued for false statements about (non) use of performance enhancing drugs on the book covers, statements and interviews given to the media. In Armstrong lawsuits, court determined such statements were “inextricably bound to the non-commercial contents of the book” and therefore fully protected under First Amendment.
Similarly the defendants argue even if the statement on the cover of “Michael” album considered to be commercial speech, it is inextricably intertwined with the album's noncommercial content of musical expression.
Alternatively the defendants focus on the difference between “statement of fact” and expressing an opinion. Defendants state that the both Sony and Weitzman statements said they performed an investigation and were confident in their opinion that it was MJ performing. Therefore they argue it makes those statements non-actionable opinions.
Finally as for the “Michael” album video, defendants mention it was for the whole album, it didn’t mention Cascio songs or any songs by name, it didn’t mention how many songs were on the album and it didn’t include any statements about how many of the songs were performed by MJ. The only thing the video conveyed was “Michael” was a new album from Michael Jackson. Defendants state as it is undisputed that 7 out of 10 songs were performed by MJ, there’s nothing false or deceptive in calling “Michael” an MJ album. Defendants mention musicians routinely release albums in their own names featuring performances by quest vocalists and musicians. Defendants argue that the video has promised “Michael” album to have “music written, performed and/or produced by Michael Jackson” and therefore it wasn’t false or deceptive to describe the album as from Michael Jackson.
So what’s next in this case? There has been an extension so some dates have changed. There is a telephonic hearing set for March 2nd, 2016. Based on the previous documents, discovery issue will be discussed in this hearing. Plaintiff MJ Fan have previously stated they might need to do some discovery to show the case has merit. Defendants have previously mentioned discovery is normally stayed during the anti-SLAPP motion and only limited discovery allowed if there is a good cause for it. Once the discovery issues are settled, it would be MJ Fan’s turn to respond to the anti- SLAPP motion. Then the judge will rule on the anti-SLAPP motion. If defendants succeed in their anti-SLAPP motion, this case will be over (of course an appeal is always a possibility). If the MJ Fan wins against the anti-SLAPP motion, the case will proceed with discovery, summary judgment and even a trial.
For reference the statements mention in the lawsuit
Sony statement : "We have complete confidence in the results of our extensive research as well as the accounts of those who were in the studio with Michael that the vocals on the new album are his own”.
Video statement : "a brand new album from the greatest artist of all time."
Link to the video: https://www.youtube.com/watch?v=_CXWxAuHi_4
“Michael” back cover: “This album contains 9 previously unreleased vocal tracks performed by Michael Jackson.”
Weitzman Statement :
As the Michael album was being put together, it was decided to bring Teddy Riley on board to work on several songs, including “Breaking News,” a song Michael recorded with Eddie Cascio and James Porte in late 2007 while living at the Cascio family home with his children. Riley produced and submitted “Breaking News” to Sony for inclusion on the album. At that time, no one ever mentioned that the vocals we heard on the Cascio songs, which were basically in demo format, might not be Michael. It was known, however, that the background vocals were a combination of Michael and James Porte.
After the tracks were submitted to Sony, three of these Cascio songs were selected to be on the album, and “Breaking News” was one of the three. The day after the submission and selection of the album tracks, for the very first time, the authenticity of Michael’s vocals on the Cascio tracks was questioned.
Because of these questions, I was immediately asked by co-Executors John Branca and John McClain to conduct an investigation regarding the authenticity of the lead vocals on the Cascio tracks.
Six of Michael’s former producers and engineers who had worked with Michael over the past 30 years - Bruce Swedien, Matt Forger, Stewart Brawley, Michael Prince, Dr. Freeze and Teddy Riley - were all invited to a listening session to hear the raw vocals of the Cascio tracks in question. All of these persons listened to the a cappella versions of the vocals on the Cascio tracks being considered for inclusion on the album, so they could give an opinion as to whether or not the lead vocals were sung by Michael. They all confirmed that the vocal was definitely Michael.
Michael’s musical director and piano player on many of his records over a 20-year period, Greg Phillinganes, played on a Cascio track being produced for the album, and said the voice was definitely Michael’s. Dorian Holley, who was Michael’s vocal director for his solo tours for 20 plus years (including the O2 Concert Tour) and is seen in the This Is It film, listened to the Cascio tracks and told me the lead vocal was Michael Jackson.
These are all engineers, producers and musicians who worked on tours and/or in the studio with Michael when he was recording Bad, Thriller, Off The Wall, Dangerous, Invincible, HIStory and Blood On The Dance Floor, and they all reconfirmed their belief that the lead vocals were Michael’s voice on the Cascio tracks.
The Estate then retained one of the best-known forensic musicologists in the nation to listen to the vocals without any instrumental accompaniment (“a cappella”), and to compare them with a cappella vocals from previous Michael songs. This expert performed waveform analysis, an objective scientific test used to determine audio authenticity, on the Cascio tracks, as well as previously released tracks with Michael’s voice, and reported that ALL of the lead vocals analyzed (which included Cascio tracks) were the voice of Michael Jackson.
Sony Music conducted their own investigation by hiring yet a second well-respected forensic musicologist who also compared the a cappella lead vocals from Cascio tracks against previously released vocals of Michael's, and found that Michael’s voice was the on all sets of the raw vocals. The Cascio tracks were also played for two very prominent persons in the music industry who played crucial roles in Michael’s career. Both of these individuals believed that the lead vocals were Michael’s.
Just to be absolutely certain, I also contacted Jason Malachi, a young singer who some persons had wrongfully alleged was a “soundalike” singer that was hired to sing on the Cascio tracks, and I confirmed that he had no involvement with this project whatsoever.
Sony decided that, given the overwhelming objective evidence resulting from the exhaustive investigations outlined above, they wanted to release a record that included three of the Cascio-Porte tracks - because they believed, without reservation, that the lead vocal on all of those tracks were sung by Michael Jackson.
Although there still seem to be concerns being expressed in some quarters about the authenticity of the lead vocals, notwithstanding the opinion of those who worked with Michael, and two independent forensic analysts, ultimately, Michael’s fans will be the judges of these songs, as they always are. We take all fan comments very seriously, and as I’d stated above, there is nothing more important to the Estate than Michael’s music, his legacy and his fans.
Michael’s fans are extraordinary in their quest for accuracy and their passions to raise their voices in a search for truth! We join with them in our care and concern for Michael. We are continuing to follow up with those who have worked in the studio or on tours with Michael, and if any new information comes to light, we will keep you and the fans advised.