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Contracts

Q: Breach of contract by publicist

Several months ago I produced a touring show which performed to satisfactory houses at a number of small scale venues. The one exception was a theatre which insisted on handling the publicity itself, yet failed to promote the production at all. To put it bluntly, we bombed at the box office as a result. Do I have any comeback?

A: First it is necessary to establish if there was a breach of contract. That must depend on the terms of the contract itself, since no obligation on the part of the theatre to publicise is likely to be implied, if not expressly agreed, bearing in mind that it was open to the contracting parties to agree that publicity would be supplied from another source, e.g. yourself or an outside promoter.

However if the, theatre agreed to provide any publicity at all for the production then in the absence of express agreement as to the nature and extent of the publicity concerned, the law would imply an obligation to provide reasonable publicity, and what is reasonable would depend on all the relevant circumstances and on evidence as to what is usual in other comparable cases.

Assuming you can establish a breach of contract on this basis, the next question is what damage have you suffered from the breach? If you were to be paid a fixed performance fee not dependent on box office receipts, then you will have suffered no financial loss. If the contrary is the case and your remuneration was geared to the amount of box office receipts, then you will be entitled to recover as damages whatever financial loss you can show (the onus being on you) that you sustained. Obviously this will have to be estimated on a reasonable basis by comparison with comparable cases and the opposition will try to distinguish whatever comparables you put forward, so that, at the end of the day, if liability is established and a figure cannot be agreed, it will be for the judge to decide what is reasonable after considering the evidence which is put before him. I do not think that in a case of this kind you are likely to be able to recover compensation for loss of opportunity to enhance your reputation due to reduced audience attendance, but you have nothing to lose by adding such a claim if you are going to sue anyway for financial loss.

First published 1995