MARIAH CAREY VS. TECHNICAL PROBLEMS: LIVE MUSIC PERFORMANCE AGREEMENT - Fordham Intellectual Property, Media & Entertainment Law Journal
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MARIAH CAREY VS. TECHNICAL PROBLEMS: LIVE MUSIC PERFORMANCE AGREEMENT

MARIAH CAREY VS. TECHNICAL PROBLEMS: LIVE MUSIC PERFORMANCE AGREEMENT

“Music is spiritual. The music business is not” ~Van Morrison

The hottest topic from the widely-read magazines at the beginning of 2017 was the information about Mariah Carey’s performance during the celebration of the New Year’s Eve at Time Square. The author of All I want for Christmas is you song could not synchronize her performance with the music sound on the stage.1 As a result, the performance became extremely unfortunate in front of 2 million Time Square’s audience.2 As the artist stated, the problem with audibility of the sound in her earphones was noticed and reported before the live performance but it remained unresolved. As a result of the debacle, she accused Dick Clark Production of sabotage and she fired her creative director3

The situation can be an alert for other artists who ignore the properly written “Live Music Performance Agreement” or they are not using the way to protect their rights at all. Still, very often artists and those who organize different kind of performances rely only on an email correspondence or some oral arrangements. Once a problem occurs the prior agreement or correspondence is analyzed. Artists have various strategies, one of them prefers to sign an agreement before every performance, the other decides on it only when the value of the performance is in a higher value and the other one prefers not to care of it at all. As Mariah Carey’s example teaches us, the last solution may cause wasting money and time or maybe even loss of reputation in a gloomy scenario.

Those artists who do not ignore some possible risky situation should remember the following rules regarding contract law and such as those specified to music law. The below guideline is a collection of basic useful information and tips which should be taken into account before signing Live Music Performance Agreement. However, the parties of such agreement should remember about the general rule – freedom of contract which allows them to create any provision limited only by the law.

Such agreement is usually divided into several chapters which relate to the following points:

  1. BASIC TERMS: The Parties should remember about double checking basic details including personal details, a venue of the performance, start time and minimal duration of the performance as well as other vital information.
  2. DESCRIPTION OF SERVICES: This chapter should include details related to the event and the audience, including obligations of the organizer (a list of demands, a rider) providing e.g. bottles of water, food, parking space, hotel rooms, flight tickets, guest tickets etc. and obligations of the performer including e.g. arrival 1 hour before the performance, sound system check, providing high quality sound equipment etc. The arrangements may include other riders and may vary or exchange the aforementioned obligations e.g. security, sound and light, insurance or video and Audio-taping.4
  3. FINANCIAL PROVISIONS: The amount of the payment and payment method is most often resolved on the following scenarios – first payment (most often upfront 50% of the total amount, less frequently <50%) and the rest of the amount after successful completion of the performance. The first part of the payment is considered as a deposit refundable or more often non-refundable (also called as “a reservation fee”). The percentage of the merchandise for the performer may be included. Venues usually want to receive 15% up to 40% of gross sales from merchandise.5
  4. CANCELLATION OF THE PERFORMANCE: Cancellation policy is a core part of the Agreement and this part, more frequently than the other, makes it difficult to resolve legal problems. Properly constructed cancellation policy includes provisions regarding the situation when one party wants to cancel the performance with a notice e.g. less than 1-2 days and provide instruction to make the final financial calculation between the parties.
  5. INDEMNIFICATION & FORCE MAJEURE: The provision regarding indemnification covers the grievous situations, which are included in the music industry, and it states how the costs, losses, damages, fees etc. will be eventually paid. A similar provision concerns force majeure and provides information about the situation which once happened will not cause any responsibility. Force majeure (superior force) may include among others acts of God, explosion, vandalism, storm or similar occurrences, orders or acts of military or civil authorities, national emergencies, riots, wars, strikes or supplier failures.6
  6. UNRESOLVED LEGAL DISPUTE: The provision which furnishes information about the way of resolving possible problems, most often includes – negotiations, then if necessary, dispute resolution which may more likely protect the privacy of the parties and it is less expensive method to solve the problem rather than claim rights in the court.7 Mediation may be included.
  7. THE FINAL PROVISIONS: The last chapter of the Agreement is equally important and the provisions are highly significant once the legal problem occurs. It includes provisions regarding severability, possible amendments, granted/not granted license and right to record the performance.8 The Agreement should be signed by both parties. Such person as a representative, agency may sign the Agreement on behalf of the Party, once such legal rights were given. Both Parties should keep one original document of the Agreement.

The example of Mariah Carey’s performance provides not only a hot topic for tabloids but also impels us to focus on legal aspects of the issue. It is a sad story, but to avoid such embarrassment again in the future and make clear the matter of responsibility for such scenarios, it is worth to read carefully the above tips. Artists and performance organizers should keep it in mind before next live music performance!

 


  1. Ed Mazza, Mariah Carey Rings In 2017 With Painful Lip Sync Fail On Live TV, The Huffington Post, http://www.huffingtonpost.com/entry/mariah-carey-new-years-eve-lip-sync_us_58688b67e4b0de3a08f8cb4a [https://perma.cc/C4CK-J6Q6].

  2. The energy here is like out control: Time Square kick off American New Year Celebration, CBS News, http://www.cbsnews.com/news/new-year-celebrations-times-square-2017/ [https://perma.cc/KXC7-CDUR].

  3. Mariah Carey’s production team denies sabotaging New Year’s performance, Telegraph, http://www.telegraph.co.uk/news/2017/01/02/mariah-careys-production-team-denies-sabotaging-new-years-performance/ [https://perma.cc/J4YM-X8W4].

  4. Bobby Borg, Business Basics for Musicians: The Complete Handbook from Start to Success, 2015.

  5. Richard Stim, Music Law: How to Run Your Band’s Business, 2015, p.154.

  6. D. Waddell, Rich Barnet, Jake Berry: This business of concert Promotion and Touring: A Practical Guide to Creating, Selling, Organizing and Staging Concerts, 2007, p. 145.

  7. Simon Cann, Rocking Your Music Business: Run Your Music Business at Home and on the Road.

  8. Nigel Parker, Music Business: Infrastructure, Practice, and Law, 2004, p. 286.

Judyta Kasperkiewicz

Judyta is a Ph.D. candidate and an attorney-at-law who specializes in creative law and business.