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Legal Eagle

Contracts

Q: Tribute Band members changing

If I hire a tribute band, only to discover that the members have all changed and their quality is much less than that of their predecessors, do I have any redress?

A: Your question is very topical because the Spice Girls were recently sued in the high court by a major sponsor who complained that the departure from the group of Ginger Spice Geri Halliwell caused it substantial losses. The defendants argued that Halliwell had told the rest of the group she was leaving before the deal was concluded. The judge ruled that the band was liable to pay damages. It seems from reports of the case in the national press that the decision turned on the express terms of the contract and on ?unintentional? misrepresentation by the group.

The answer to your question is entirely dependent upon the terms of your contract for the hire of the band concerned and what, if any, representations were made as to its constituent members, and which members of the band were contracting parties. The contract terms may be either express or implied from the surrounding circumstances. So far as express terms of the contracts are concerned, it is possible for the contract to be entirely in writing or entirely oral or partly one and partly the other. It is not uncommon for written terms to be supplemented by oral collateral warranties which, however, are very much a matter of evidence and, if disputed, not easy to establish.

If it was an express term of the contract that the band would perform as at present constituted, or if the individual members of the band were named as the ones who would be performing under the band’s name, then undoubtedly you would have a good cause of action for breach of contract, if those specific express terms were broken. However, I shall assume that the contract is silent on the point and that whoever contracted with you to supply the band simply referred to it by its collective name. In that event, any court adjudicating on the matter would look at all the surrounding circumstances in order to determine whether there was an implied term to the effect that the performers in the band would be the ones whom you expected. The court will have regard to the factual background against which the contract was made including the commercial purpose of the transaction.

The court will be reluctant to depart from the literal meaning of the contract where that meaning is clear, but if it is not clear the court will seek to interpret it in accordance with business common sense. Relevant matters for consideration in deciding whether or not there was such an implied term might include, for example, the purpose of the hire, the reputation of the band and the perception of the public as to its members and whether the individual members had separate reputations and public personalities of their own. I note you refer to 'all' members of the band changing, in which case you could argue that, although the name of the band may be the same, the changes were so radical as to go to the fundamental root of the contract, whereas if only one or two out of a five or six member band were to have changed, the difference this would make might, perhaps, be of less importance. Thus, a pop group appearing in variety bills or concerts of their own would very likely be regarded differently than, for example, a band being hired for a wedding or other social event. It would also be relevant to enquire whether the changes had all taken place at the same time or very close together as distinct from being spread over a long period of time when they would be less noticeable and have less effect on the reputation attaching to the band’s name. It may not be easy to determine whether, in effect, you hired a band of a particular type, performing under a particular name and just comprising a specified number of reasonably competent instrumentalists/vocalists, or whether you hired a band made up of specific individuals playing specific musical instruments and with or without a specific vocalist or vocalists.

You say that the quality is much less than before. While that is certainly a very material factor, it is open to challenge, since quality is very much a matter of subjective opinion and possibly expert evidence.

Your question seems to indicate that you have not yet hired the band concerned, in which case my advice to you is to ensure that there is a written contract which specifies the names of each individual performer, which musical instruments each respectively is to play, and who, if any, are to be the vocalists, and whether or not the named members of the band are to be supplemented by 'session' musicians or other unnamed individuals, and under what name the band is to perform. Further, if you have not heard them perform live, I would suggest you do so before hiring them. These are all just common sense precautions. If you want the law to protect you then you should try to get as much detail in the contract as possible in order to ensure that you are not disappointed.

The short answer to your question is that I think you probably do have legal redress but it all depends on the terms of the contract and possibly on the surrounding circumstances about which you have not given me sufficient information to enable me to express a definitive opinion.

First published March 2000