THE LEGAL BATTLE BETWEEN The MICHAEL JACKSON ESTATE AND HBO

March 13, 2020

In light of widespread misinterpretation, it is crucial to address the legal dispute involving the Michael Jackson estate and HBO, particularly in the context of Leaving Neverland.

Fundamentally, defamation laws do not extend to the deceased, positioning the Estate with limited legal options against Leaving Neverland. Their approach hinges on an old contract with HBO, shedding light on the rationale behind the absence of legal action against entities like Channel 4 or Amos Pictures.

Central to the Estate's stance is the contention that HBO breached a non-disparagement agreement from a 1992 concert during the "Dangerous" tour. This agreement aimed to prevent HBO from making negative remarks about Michael Jackson or harming his reputation. However, such agreements have stirred controversy due to their potential restriction on freedom of expression. They essentially prohibit signatories from expressing negative opinions, even if factually accurate, prompting scrutiny of the Estate's decision to require HBO to sign such an agreement.

Moreover, the Estate has criticized HBO for its failure to provide a rebuttal to the allegations in the documentary, a significant point of contention. HBO, on the other hand, has refuted the applicability of the 26-year-old contract, adding another layer of complexity to the legal tangle.

In response to the dispute, the Estate has invoked arbitration proceedings as specified in the contract to address breaches. Conversely, HBO has argued that the validity of the contract and the motion to oblige fall under Federal court jurisdiction. This highlights the critical need for legal clarity in navigating the intricacies of this legal battle.

It is peculiar that the Estate has opted for public arbitration proceedings, as the usual recourse for such a request is a private lawsuit through alternative dispute resolution forums like JAMS or the American Arbitration Association. Any resistance from the opposing party could lead to a court intervention to enforce the arbitration agreement. In this instance, the Estate's choice to generate substantial attention prior to the release of Leaving Neverland is evident, exemplified by the public petition filed days before the documentary's airing, which sought to bring HBO to arbitration before a public court.

Regardless of the jurisdiction in which the dispute unfolds, it is crucial to recognize that the outcome of this lawsuit holds no definitive bearing on the documentary's veracity. The crux of the matter extends beyond mere authenticity. The Estate's onus lies in proving that the documentary indeed portrays Michael Jackson in a negative light in order to emerge victorious.

In simple terms, the implications of a victory for either party are as follows:

If the Estate prevails: It signifies a breach of the non-disparagement contract, thereby harming Michael Jackson's reputation, irrespective of the documentary's factual accuracy.

If HBO emerges victorious: It signifies that the agreement has lapsed and raises questions about the infringement on free speech laws.

It is important to note that neither outcome provides an affirmative judgment on the documentary's contents.

However, it is evident that the Estate, keen to shape public perception, strives to portray this dispute as a pursuit of truth rather than a mere contractual disagreement. Their deliberate insinuation of HBO's attempt to evade the lawsuit masks the initial denial of arbitration by HBO with the intent to resolve the matter in Federal court.

In September, a judge ruled in favour of the Estate, granting the arbitration request. However, in November, the same judge acquiesced to suspend the initial ruling, allowing HBO to pursue an appeal. The Estate sought to persuade the judge to maintain the order, contending that HBO was intentionally complicating a straightforward contract dispute. Nevertheless, the judge disagreed, asserting that the case raised challenging First Amendment free speech issues with limited precedents. The complexity of this legal battle is undeniable, reflecting the intricate interplay between contractual obligations and fundamental speech rights.

In February 2020, Theodore Boutrous, representing HBO, petitioned the court for the dismissal of the case, emphasizing that the concert had been broadcast only once and that neither party had acted as if the contract remained in effect for the subsequent 27 years. HBO's insistence on the dismissal of the lawsuit is unsurprising, as no company desires an unfavorable legal outcome, particularly if the contract's continued validity carries a high risk of potential losses.

Moving forward to December 2020, a three-judge panel from the U.S. Court of Appeals for the Ninth Circuit upheld the lower court's decision to arbitrate the matter as requested by Jackson's estate. While acknowledging HBO's assertion that the lawsuit may be "frivolous," the panel emphasized that the determination of its validity remains within the purview of an arbitrator.

HBO contended that the network never intended to grant Jackson and his heirs the authority to veto any content the network sought to broadcast. Additionally, Theodore Boutrous argued that the 1992 contract had effectively lapsed once both parties had fulfilled their obligations. However, Circuit Judges Richard Paez and Lawrence VanDyke, alongside Judge Karin Immergut, rebuffed this argument, asserting that an arbitration clause can still bind the parties even if the contractual obligations were completely fulfilled years ago.

As of the present, the matter continues to remain pending in arbitration, with no recent updates or developments reported on the lawsuit.

Update: As of February 6, 2023, the arbitration process has commenced, marking a pivotal juncture in the protracted legal dispute. The inherent privacy of arbitration underscores its significance, making predictions about its duration quite challenging. The responsibility now rests in the hands of the appointed arbitrator, Terry B. Friedman, a retired judge overseeing the proceedings under JAMS.

Friedman's decisive role entails determining the status of the contract, whether it has lapsed or remains in force, and subsequently evaluating the applicability of the non-disparagement clause. Should the arbitrator deem that the clause has indeed been breached by HBO, efforts will be made to facilitate a resolution in collaboration with the involved parties.