I predict, very soon, lawsuits in the USA will become a norm within the African community for cancellation of concerts. There are way too many “promoters” trying to do shows in the USA to promote African artists that have no business doing so. They lack the experience, business acumen and legal contracts in place and too often, their customers (fans of the artists) end up with the short end of the stick i.e. no concert, at times no refund and also no stars. While I wait for the inevitable to happen, let’s turn our attention to the inevitable law suits that are already occurring among American stars in the USA.
We have two examples to work with.
J-Lo in July canceled a concert she was scheduled to perform in Cyprus because she feared her appearance would make a “political” statement. She is now being threatened with a $40million suit.
REMG Entertainment filed suit claiming $57, 500 in damages on August 26th 2010 against artist Mos Def who canceled a concert he agreed to perform in Canada.
What Law Governs?
What Kind of Lawsuit is this?
Breach of Contract
What Does this Mean?
Let’s set up the scenario. Artist and promoter connect and agree they want to work together and that artist should perform in New York, for example, on a specified date. The prudent promoter and artist draft a performance agreement (usually 1-2pages) that outlines the basic terms including payment and perks that comes with artist’s performance, depending on how popular artist is. The day of the concert approaches and artist is nowhere to be found. What is the remedy for the promoter? What if the artist claims certain conditions in the contract was never fulfilled or in J.Lo’s case political reasons prevented performance? What result?
Promoter v Artist Breach of Contract Suit.
The Promoter can sue Artist under a breach of contract claim. To prevail, the promoter must show that:
- There was a valid contract between artist and promoter. Seems so common sense but often many promoters do not have a signed agreement in place. Just talks, series of back and forth emails and nothing concrete and in writing.
- Artist failed to perform or announced an intent not to perform (as in J.Lo’s case)
- There was no legally valid reason for the lack of performance. For example, the promoters in J.Lo’s suit say none of the terms in the contract called for lack of performance for political reasons.
- The failure of the artist to perform made it impossible for promoter to fulfill its obligations; and
- The promoter has been injured i.e. out of money etc.
Common Defenses Artist Can Use if Applicable
- We never had a contract. We talked and yes I sent emails but I never signed anything.
- I lacked the capacity to enter into an agreement- I was mentally impaired or I am a minor (under 18) etc.
- I was drunk! Intoxicated. They showed me a paper after I had drank 10 bottles of Moet. I didn’t even know what they said. I can’t even remember signing. Generally this defense is not very strong.
- I was under duress (blackmail, for example) and undue influence from an overbearing promoter who also happens to be my Uncle.
- The promoter misrepresented the facts and but for that misrepresentation artist would not have signed agreement.
- Unconscionable. Think, “how on earth could anyone negotiate such unfair contract with artist?” If promoter, for example, makes $50,000 and only pays J.Lo $1,000.
If the promoter prevails in a US court either in J-Lo or Mos Def’s case, then the remedy can be in the form of:
- Damages i.e. money
- Specific performance – forcing artist to perform
- Cancellation & restitution- In Mos Def suit, promoters claim they already gave him over $12,000. Restitution would be for Mos Def to return that money. Cancellation would void any other obligations both parties might owe to each other.