Concert tickets as contracts: Madonna sued for breach of contract for concert delay

THIS POST IS FEATURED ON MUSIC ECOSYSTEMS INSTITUTE

By: Sarah Gilbert

In light of three recent lawsuits filed against the iconic popstar Madonna for starting her concert late, it’s an opportunity to revisit and evaluate Madonna’s history with similar lawsuits, as well as discuss the legal validity of these types of lawsuits. 

1. Background

In 2019, two separate suits were filed against Madonna, Live Nation, and the venues in both New York and Florida for the delay of the concerts held in those cities. These two cases were for concerts held during Madonna’s Madame X tour and were ultimately settled. 

2019 New York Madame X Tour 

The New York case included seven causes of action including: violation of New York general business law; false advertising; breach of contract; promissory estoppel; negligent misrepresentation; and unjust enrichment. According to the New York complaint the show was originally scheduled for 8:30 pm, but it did not start until 10:40 pm. The complaint also alleges there was a no-phone policy which was only disclosed after the purchase of the tickets. 

2019 Florida Madame X Tour 

After a slew of shows started late, Madonna and Live Nation changed the start time of all further shows on the Madame X tour from 8:30 pm to 10:30 pm. Despite the time change, the Florida concert did not start until 11:15 pm. The Florida case included seven causes of action including: breach of contract; breach of the implied covenant of good faith and fair dealing; promissory estoppel; negligent misrepresentation; deceptive and unfair trade practices; and unjust enrichment. In addition to the undisclosed phone policy mentioned in the New York complaint, and concert time being changed then being further delayed, the Florida complaint alleges the defendants purposely and deceptively withheld informing concertgoers that Madonna would keep the venue at a hot and uncomfortable temperature during her performance. 

In these cases, the concert goers are suing for breach of contract, but it’s important to determine if there is actually a contract and who are the parties to it. 

2. Concert tickets as contracts

Concert tickets are generally considered to be contracts. You enter into a contractual agreement with the promoter, event organizer, or venue when you purchase a ticket. This kind of contract typically includes terms regarding the date and time of the event, the location, and your right to attend the event which are most often subject to change. When you agree to the terms and conditions and the possibility that the terms may change, you are provided with a ticket which serves as evidence of the contractual agreement and includes details about the rights and obligations of both parties.

The three defendants in each case are Madonna, Live Nation, and the respective venue where the show was held. 

It would be simple to assume the attendees of the Madonna concert entered into a contract with Live Nation when they purchased the tickets, and thus agreed to the terms and conditions which would include that the start time of the concert is subject to change. However, in each case the concert goers purchased their tickets from resellers rather directly from Live Nation. The Madonna fans argue that because they did not directly purchase the tickets from Live Nation they are not subject to Live Nation’s terms and conditions including a right to change the time of performance, the right to refuse refunds, and additionally an arbitration clause. With this claim in mind, it is important to note that fans should be pursuing a refund from the reseller they directly purchased the ticket from. 

So why did the concertgoers include Live Nation as a party in this suit if they claim they are not bound by the terms and agreements of the tickets? The answer is that Live Nation is the owner of MTours the promoter of Madonna’s Tour, and as the promoter of the concert they are responsible for the delays and other inconveniences.

As previously stated, the fans in these cases should ultimately be pursuing a refund from the resellers for breach of contract, and it begs the question why not? This most likely is because there is a stronger monetary gain to go after Live Nation.

The fans would most likely be bound by the terms and conditions of Live Nation despite purchasing from a third-party reseller. However, in the case that the fans are in fact not bound by the terms and conditions they must prove that: 

• There was a reasonable expectation to the concert starting on the time listed on the actual ticket and that the start time was a material fact at the time of purchase. 

• There was reasonable expectation that cell phones would be permitted, and the use of cell phones was a material factor at the time of purchase.

For most concertgoers in general, it is reasonable for concerts to not start at the exact time printed on the tickets. There are so many factors that go into putting on a concert and there are often many technical challenges that can cause delays. Additionally, considering Madonna has a reputation for starting concerts late, the answer would probably be that a reasonable person attending her show would not expect her to start on time. 

In recent years there is a trend of hosting no-phone concerts. These concerts attempt to create an opportunity for the fans to be mindfully present with the artists. However, for some fans taking photos and recordings of the performance is an essential consideration for attending a concert. The choice to attend a concert where phones are allowed is a material factor for many when deciding to attend a concert. Here, fans allege the no-phone policy was not disclosed until after the sale of tickets. It would be unreasonable for a no-phone policy to be implemented after tickets were purchased, for fans who wanted to attend the show for the purpose of taking photos and would not have attended the show if they had known they would be unable to use their phones. 

Although a delay in the start of a performance is a reasonable expectation, in combination with a cell-phone ban that only was disclosed after the sale, the delay can become unreasonable. As there was no access to phones the concert goers had no way to arrange for rides home or update their families that the concert had not ended until approximately 1:00 am. 

The start time of a concert could also be considered a material factor at the time of purchase. For the Florida concert, the start time of the concert was pushed to a time after a statewide curfew was imposed so that fans under the age of 18 would not be allowed to attend the concert without a guardian. The fans argue that the start time was a material factor when purchasing the tickets and when they wanted to resell them the value of the ticket has severely diminished due to the new start time.  

3. What is different this time? 

As previously mentioned, three recent lawsuits have been filed against Madonna for similar delays on her most recent Celebration tour by fans in Washington D.C., New York, and California. The two previous cases in 2019 were both voluntarily dismissed by the plaintiffs as the parties agreed to a settlement.

The most notable difference between the 2019 cases and the 2024 cases is that the fans who attended the 2024 show did in fact purchase their tickets from Live Nation and thus agreed to the terms and conditions at the time of purchase. In the 2024 New York Complaint the fans argue that Live Nation has been engaging in repeated deceptive acts as there is an established history of Live Nation selling tickets for a show starting at 8:30 pm knowing the show would not actually start until 10:30 pm. The 2024 fans, similar to the 2019 fans, claim they would not have purchased the tickets had they known it would not begin until 10:30 pm. 

Another interesting difference is that the Washington D.C. complaint includes Madonna’s allegedly lip synching her performance as a deceptive trade practice. This brings up the question of whether it is reasonable to expect concerts to be fully sung live. In concerts that involve heavy choreography and for certain artists, it’s understood that the use of pre-recorded tracks of vocals is common practice.  

Madonna’s attorney responded to the 2024 New York case stating there is no legal injury in inconvenience. In response to this the Washington D.C. plaintiffs highlight that “this Complaint is not about unhappy fans who don’t want to stay up late, but instead, reasonable, responsible people who had commitments to babysitters, work, getting their vehicles out of parking lots that closed at 12:00 midnight, and realizing that public transportation would no longer be operating.”’

On May 29, the third complaint was filed in California. This complaint added onto the previous allegations in the D.C. and New York complaints, but also included allegations that Madonna did not give warning there would be nudity and pornography present in the show.

These complaints, compounded with recent tragedies which have resulted from delays in concerts and poor crowd control, present ripe challenges to courts in addressing what might have seemed to be garden variety nuisances but now may be more weighty issues in the concert industry. However, since these cases all deal with fans who purchased tickets from resellers and the resellers are not listed as parties in the cases, it’s possible to assume these cases could be attempts to extort settlements for a disappointing concert experience.