Michael Jackson is arguably one of the most complex and least understood musical figures ever.
From a hardscrabble childhood in Gary, Indiana, to moonwalking his way to the apex of the entertainment industry, Jackson’s legacy is convoluted and complicated, to say the least.
But now, MJ Live, a live show featuring Michael Jackson impersonators which started in Las Vegas, Nevada, is suing Michael Jackson’s estate, claiming trademark rights to aspects of Jackson’s signature moves, appearances, and sound, as well as improper interference in the show’s upcoming live tour in favor of a musical supported by the estate.
Who’s going to have to beat it and deal with the man in the mirror, and who’s going to get to say leave me alone and jam on?
Let’s take a closer look at this thriller of a dispute to see how much blood on the dance floor there might be in open court!
Michael Jackson (Or at Least his Estate)
Even during his lifetime, Michael Jackson’s unique moves, music, and stage presence spawned innumerable imitators, impresarios, and impersonators. Many of these ended up in Las Vegas, Nevada, where a combination of unusual “likeness laws” regarding the right to publicity and a relatively freewheeling, laissez-faire cultural ethos which could best be summarized as “do whatever you want” gave celebrity impersonators and tribute bands surprisingly large opportunities to reach the public. Fans who couldn’t hope to afford a ticket to a concert for Michael Jackson, David Bowie, Cher, Prince, Queen, or Madonna, or were geographically or temporally stymied from attending such concerts even if they would have been financially feasible for some reason (think post-1977 Elvis Presley), could simply wander down the Las Vegas Strip and find a show featuring their favorite acts for a tenth of the price or less–sometimes even with dinner, drinks, and gratuity included.
While these tribute bands and impersonators were good enough to scratch the itch of the casual fan and fuel Sin City’s reputation as the Entertainment Capital of the World, very few of these acts came close to being big enough to be a genuine threat to the names they mimicked, even when they were playing only miles or even blocks away from each other at the same time. In addition, Nevada’s right of publicity laws gave (and continue to give) many of these acts a haven that effectively prohibited their icons from suing the acts even if they were so inclined. Provided they followed copyright and licensing laws, the acts could largely do as they pleased. Tribute bands such as “Purple Reign,” “Piano Man,” “Spice Wannabe,” and others, as well as single-act impresarios, flourished in this environment, all the time largely living in an entirely different world from the talents they portrayed.
After Jackson’s death in 2009, the stakeholders in his estate started making moves to consolidate the portions of Jackson’s IP and song library that weren’t already previously owned. Primary Wave Music, notorious recently for its role in the much-publicized latest lawsuit between Daryl Hall and John Oates, allegedly acquired a stake in Jackson’s library at some point, although this does not appear to be confirmable as of the publication of this post. Last year, Sony, which Jackson once owned half of and who bought out the Jackson estate’s share in 2016 for $750 million, made overtures to purchase a one-half interest in Jackson’s library from the estate as well, in a deal valued at between $800 and $900 million. As of now, it appears the deal has not been completed.
The complication here is that this tangled web of ownership makes who actually owns the rights to the King of Pop’s music, intellectual property, likeness, and image unclear, although the stakeholders in Jackson’s estate, including his mother and three children, assert they are the rightful owners to Jackson’s IP. This is just one of the many vexing and vexed questions swirling around the suit by MJ Live against the Jackson estate.
MJ Live
In 2012, three years after Michael Jackson passed away, MJ Live debuted in Las Vegas as a retrospective tribute to Michael Jackson. Featuring iconic Jackson costumes and songs, MJ Live purported to be the ultimate Michael Jackson experience for those who never got the opportunity to see the King of Pop in real life, or who wanted the feeling of seeing his music performed live even after his death. For over a decade, the show flourished, claiming recently that over 2,500,000 people have seen MJ Live. This success spawned a planned Broadway-esque national tour with stops in Illinois, Wisconsin, California, and New York.
But according to MJ Live, this was several bridges too far for the Jackson estate, who sent cease-and-desist letters to both the show itself and many of the venues outside of Nevada where MJ Live was slated to play, asserting trademark and copyright infringement against the show, which it allegedly called “low-class.” (Remember, Nevada’s unique right of publicity laws made the state a safe haven for impersonators of this sort.) MJ Live promptly sued the Jackson estate, claiming that the estate’s actions undermined a set of trademark rights the show had spent over a decade cultivating, in favor of the Jackson estate’s sanctioned Broadway production, “MJ: The Musical.”
The show’s legal team also filed a declaratory judgment action, effectively asking the court to rule that no wrongdoing or infringement upon the trademarks and IP held by the Jackson estate had occurred at MJ Live’s hands; that the show could continue both at its current home at the Tropicana Hotel and Casino in Las Vegas and elsewhere in the country; and furthermore, that it was the Jackson estate itself who was infringing on MJ Live’s trademarks, not the other way around. “Over the past eleven and one-half years…Plaintiff has spent millions of dollars advertising and promoting its MJ Live show…Plaintiff estimates that over 2,500,000 audience members, clapping and singing in their seats, jumping to their feet, and dancing in the aisles, have experienced the joy, excitement and thrill of MJ Live,” said the suit.
However, the Jackson estate’s attorney quickly fired back against the lawsuit, saying, “This lawsuit – including the claim that this impersonator show somehow owns a ‘trademark’ in ‘MJ,’ a trademark owned by Michael Jackson’s Estate and long associated with Michael and his Estate – is beyond frivolous.”
The Bottom Line
Obviously, this case is far more complex than I can do justice to, if you’ll pardon the unintentional pun, in a single article. There are a huge number of potential layers of ownership over the IP in question, and of course there’s the question of whether mere association is, by itself, sufficient to overcome trademark law. It’s worth remembering here that Michael Jackson isn’t the only famous “MJ” out there. What about Michael Jordan, Magic Johnson, Milla Jovovich, and Mick Jagger, all of whom are known to at least some of their fans as “MJ” and clearly distinct from the MJ that MJ Live and the Jackson estate are arguing over? Finally, there’s also the question of whether or not MJ Live’s assertions of having a viable trademark, and thus any degree of control over Jackson’s likeness, can possibly survive in the face of the Jackson estate’s apparently clear-cut prior claim.
Ultimately, however, I think the courts would have little choice but to side with the Jackson estate, barring a series of truly shocking revelations about who actually owns the rights to Michael Jackson’s likeness. While the laws in Nevada would seem to at least nominally prohibit the Jackson estate from going after MJ Live on its own turf without the show doing something truly egregious, the court might well find that a nationwide tour by MJ Live is taking things too far, metaphorically and literally. Further complicating matters, there is a (slim, in my estimation) chance that the court could find that MJ Live’s arguments do carry some merit, with consequences and outcomes that vary from inconceivable to cataclysmic for our understanding of IP law.
The only thing I’m sure of is that unless this case settles out of court, it’s sure to be a thriller for everyone watching!
About John Rizvi, Esq.
John Rizvi is a Registered and Board Certified Patent Attorney, Adjunct Professor of Intellectual Property Law, best-selling author, and featured speaker on topics of interest to inventors and entrepreneurs (including TEDx).
His books include “Escaping the Gray” and “Think and Grow Rich for Inventors” and have won critical acclaim including an endorsement from Kevin Harrington, one of the original sharks on the hit TV show – Shark Tank, responsible for the successful launch of over 500 products resulting in more than $5 billion in sales worldwide. You can learn more about Professor Rizvi and his patent law practice at www.ThePatentProfessor.com
Follow John Rizvi on Social Media:
YouTube: https://www.youtube.com/c/thepatentprofessor
Facebook: https://business.facebook.com/patentprofessor/
Twitter: https://twitter.com/ThePatentProf
Instagram: https://www.instagram.com/thepatentprofessor/
