Fan pays, fan demands

Fan pays, fan demands – this could be a short summary of the most recent decision-making tendencies of the Finnish Consumer Protection Office (Kilpailu- ja kuluttajavirasto KKV). KKV deemed it admissible to demand the return of money for a concert if the quality of the performance was significantly lower than the expected standards.

Helsinki, October 23, 2013. Chuck Berry, 87 years old, in a shiny shirt and a sailor hat, came to the stage and began his concert. Unfortunately, his “Roll Over Beethoven” or “Johnny B. Goode” didn’t quite sound the way they should. After a few songs the singer issued an apology and ended the concert, which was later explained as being due to health problems. One disappointed fan demanded the return of his money for the ticket and so the case found its way to KKV.

The case concluded at the beginning of July 2015. The Finnish office determined that demanding the return of the ticket price shall be conditional upon fulfilling certain additional requirements, thus minimizing the risk of a fan initiating disputes based on his/her individual, subjective opinion. It is the general opinion of the concert participants that will be of consequence in determining the possibility of demanding the return of the ticket price. No concert will be to everyone’s liking, so the majority’s vote shall be decisive.

In the case of Chuck Berry’s concert, KKV decided the concert organizer should be held liable and demanded the return of half the ticket price to disappointed fans. The President of the Finnish Consumer Protection Office, Pauli Ståhlberg, in an interview for Yleisradio (Finnish national broadcasting organization) stressed that not only illness, but also the intoxication of an artist may be the cause of a failed concert. Ståhlberg also added that “some musicians are under the influence of drugs while on the stage, but this has no impact on the quality of their performance.” This means that not the musician’s physical state alone, but the performance itself is a decisive factor in the obligation to return the ticket price. In turn, in the case of festivals, the President stated that as a rule demanding the return of money is not possible since a festival is to be assessed as a whole, and not dependent upon the performance of a given artist.

Unfortunately, the decision of KKV contains no additional guidelines regarding “the general dissatisfaction with a concert” (for example, what percentage of participants should be dissatisfied with the performance) and “concert’s non-compliance with standards” – which contributes to uncertainty of the law among the consumers and most of all among music event organizers.

And how does the situation look in Poland? A consumer concludes an agreement with an event organizer in respect of the presented offer. There are no doubts it is possible in Poland to demand the return of a ticket price if a concert did not take place or was postponed. However, these solutions concern situations when the concert did not occur at all. But what if the concert was simply a failure and did not meet our expectations?

Looking for an answer among similar civil law institutions, one can’t help but notice certain similarities and points in common between “dissatisfaction with a concert” and “compensation for a failed vacation”. Shattered hopes for the rest and relaxation of your dreams – personal injury – should be compensated. When buying a trip, we expect such benefits as peace and entertainment. The situation is similar in the case of concerts. Therefore, we could wonder whether the same rules as in the case of liability of tourist offices shouldn’t apply by analogy to the liability of a concert organizer. There have been no similar cases in Poland, and it should be admitted the Finnish solution has not found many followers in other countries – mainly due to the subjective artistic evaluation of performances.

From the perspective of festival or concert organizers concluding an agreement with an artist, one could consider claims on account of lack of conformity of services performed with the contract. In case an artist executes an agreement with a concert organizer, provisions regarding contracts for a specific task and regulations covering defects of work will be applicable. In such an event, the contents of the contract concluded with the concert organizer, in particular the description of services the artist undertakes towards the organizer to perform (e.g. duration of the performance) shall be of utmost importance. In case the performance does not meet requirements and expectations, it would be possible to demand an appropriate price reduction or, as a last resort, withdraw from the contract (which will imply an obligation to return mutual benefits – i.e. the artist’s remuneration). The relations with top world artists are riddled with many more problems since contracts with such artists are usually concluded on the basis of imposed standard contract terms, under foreign jurisdictions and foreign courts. Of course, provisions of such contracts can be and should be negotiated, but there is no doubt it is the artist’s management that holds the upper hand. Unless we’re Super Bowl organizers…

Slip-ups in the artistic world can happen to the best of us. For example, Pudelsi and their performance at the finale of the Great Orchestra (WOŚP) in 2004 in Chrzanów received a great deal of publicity in Poland. The court ordered Maciej Maleńczuk and his band Pudelsi to pay three thousand Polish zlotys to the organizers (the City Culture, Sports and Recreation Centre in Chrzanów) for a performance that was of poor quality and contrary to the contract. The concert was shorter than agreed, play-backed, and only Maciej Maleńczuk showed up on the stage, and not the entire band Pudelsi. On the other hand, the dispute regarding the performance of T.Love on Dni Pszowa was concluded by agreement of the parties. As was indicated by the onet.pl website and regional information portal nowiny.pl, the band showed up 2 hours late and the singer was intoxicated and unable to sing. But the artist measured up to the task – apologized to the fans and promised that such situation would not happen again, asking the local government of Pszów for a second chance and the possibility to perform again. Moreover, T. Love returned the entire remuneration to event organizers.

As we can see, a concert is not only entertainment, but also an organizationally and legally complicated matter. It should be looked at from the perspective of both consumer and organizer as well as organizer and artist. Although the Finnish practice and decisions do not have their equivalent in Poland, Polish consumers have appropriate means at their disposal to pursue their rights in the case of a failed concert. This must not be disregarded by artists and organizers. But we can only hope that everything’s going to be fine!