Carly Simon Sues Starbucks For Not Promoting Her Album Enough

from the hello-old-way-of-thinking... dept

Starbucks got plenty of attention a few years back for trying to start its own music label. We had hoped that maybe the company would try to do something unique and different with it, but, instead, it basically just tried to set up a conventional music label that was going to rely on selling CDs via Starbucks. Doing things the conventional way at a time when an industry is in upheaval makes little sense, and it didn't take long for Starbucks to dump the label. However, one of the last CDs it put out was by well known singer Carly Simon -- and Simon is now suing Starbucks for $5 to $10 million, using famed power lawyer David Boies.

While it does seem pretty clear that Starbucks didn't do all that much to promote the album after deciding to get out of the music label business, it's hard to feel particularly sympathetic to Simon. The same thing could have happened with any record label -- and given how many are struggling these days, it certainly could have happened. Furthermore, nothing in the article above suggests that Simon did anything to help promote the album herself or work on any aspect of the business model. It sounds like she just sat back and expected Starbucks to do everything and just start sending her checks. On top of that, the deal still included a huge advance (while she says not all of it was paid, the official advance was $575,000 -- hardly a small sum). And, again, her complaints of losing some money in the stock market, and owing money on one house in fancy Martha's Vineyard while being unable to sell her apartment in Greenwich Village (not exactly the low rent district) doesn't make her the most sympathetic of characters.

On top of all this she still sold 124,000 copies of the album.

Considering that only about 100 albums last year were able to sell more than 250,000 CDs, it seems like Simon should be thankful she was able to sell as many as she did -- especially given the fact that she seems to think Starbucks had the total responsibility for selling the album. This whole lawsuit seems to be a very old school recording industry artist mindset -- where the artist isn't expected to get involved at all, but just expects to sit back and get handed millions of dollars. Sorry, the market doesn't work that way any more, even if Starbucks is involved.


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  1.  
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    Stephen Downes (profile), Oct 13th, 2009 @ 12:39pm

    The question is not whether or not Starbucks promoted the album - we know it didn't - and not whether or not some other label would have promoted the album - we know they might not have - but whether or not Starbucks had a contract with Streisand where it promised to promote the album. And that bit if information, really the most important bit of information, is missing from the story.

     

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    Bryan, Oct 13th, 2009 @ 12:49pm

    What does the contract say?

    Michael,

    Your feelings about tough times or how much money Simon made are irrelevant. The material point here is what the contract between the parties states each would do. You neglected to post that piece of information.

     

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    Anonymous Coward, Oct 13th, 2009 @ 12:55pm

    Re: What does the contract say?

    Some material points from thy NYT hint a this:

    Starbucks didn't distribute as widely as promised.
    Starbucks changed the marketing plan.
    The label Starbucks gave her to wouldn't respond to her.

    Instead the author skips over the details and sides with the NYT's author's opinion in the antepenultimate paragraph.

     

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    ChimpBush McHitlerBurton, Oct 13th, 2009 @ 1:01pm

    Re: Ain't Singin' for Pepsi...

    I'm sorry, your mention of Streisand forces me to ask:

    Are we now going to coin the "Simon Effect" to describe when a has-been musician sues a beverage company for lost royalties?

    ..I can hardly wait for the Neil Young/Coke suit.

    CBMHB

     

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    Dave, Oct 13th, 2009 @ 1:03pm

    Yeah, what the guys said above. And sure, as a fellow geezer, i feel sorry for Carly. but unless they contractually promised to promote the CD at a certain number of places or for a certain quantity of ads or something, she doesn't have a leg to stand on.

    I'm thinking there was plenty of happy-talk about "sure, we'll push the CD at all 300,000 stores, we love it, blah blah". She believed it, especially after part of the advance money came in, and now she understandably feels betrayed. What they could have done is communicated more frequently and honestly, but they're probably clear legally. Of course, the music business is probably one of the most corrupt. It's interesting to see that the high and mighty have real problems sometimes, just like the rest of us.

     

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    Ima Fish (profile), Oct 13th, 2009 @ 1:08pm

    Re:

    "the question is... whether or not Starbucks had a contract with (Simon) where it promised to promote the album."

    Agreed. Mike's rant about not being sympathetic towards Simon's plight is irrelevant. The issue is whether Starbucks breached its contract with Simon.

    Mike, we may be in a brave new digital world, but contract law still exists. Maybe if you went to law school you'd know about it.

     

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    Anonymous Coward, Oct 13th, 2009 @ 1:22pm

    If it makes her feel any better, the only reason I bought the album was because I saw it there on one of my rare visits to Starbucks.

     

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    Stuart, Oct 13th, 2009 @ 1:29pm

    Dont need a law degree

    for mike to figure it out. The problem is that when a story actually is what Mike needs it to be he reports well and with good facts. When Mike just needs a story he will find something that kinda fits and throw it out there and be misleading and vague. Mikes posts are sometimes useful and sometimes even insightful. But. If you just believe Mike without looking at all the facts you will get screwed. Mike is talented and hard working on this stuff, but he has no moral compass. The ends justifies the means kind of thing.

     

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    Grax, Oct 13th, 2009 @ 1:39pm

    Whatever.

    Anecdotal evidence at best....

    But I have about a half-dozen Starbucks in my area. I might visit one of them perhaps once a week. Maybe twice a week if I'm traveling. For the past several months, very often the barista/cashier would ask if I've heard the latest Carly Simon CD. They'd proclaim how good it is, while proudly pointing to the CDs next to the ever-present Via packets. This has happened several times, and by different baristas. It quickly became obvious that they *were* being told to push it.

    Now I'd rather shove a fork through my ear than listen to that CD, so my answer is always in the negative. But if that isn't promoting an album, I don't know what is.

     

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    thublihnk (profile), Oct 13th, 2009 @ 1:44pm

    Re: Dont need a law degree

    I'll admit Mike's in the wrong here, but to proclaim that he has 'no moral compass' because he twisted a story to be about an issue it has pretty much nothing to do with is a little harsh, don'tcha think?

    Misreporting facts

     

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    thublihnk (profile), Oct 13th, 2009 @ 1:46pm

    Re: Re: Dont need a law degree

    Oh dammit. Using a lesser-than symbol in a post is apperently not allowed here...?

    What I was trying to say at the end there was

    Misreporting facts "Lesser-than" Punching kittens.

     

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    roxanneadams (profile), Oct 13th, 2009 @ 2:20pm

    I also saw the Carly Simon CD at Starbucks on one of my rare visits there, and it was positioned right next to the cash register. I remember picking up the CD package, looking at it and then putting it back, because I thought the price was too high.

     

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    Mike Masnick (profile), Oct 13th, 2009 @ 2:51pm

    Re: Re:

    Mike, we may be in a brave new digital world, but contract law still exists. Maybe if you went to law school you'd know about it.

    No need to be dickish about it. I recognize that it's a contractual dispute (don't need to go to law school to know that).

    The point of the post, though, was how very old school this whole project was -- and how there were much smarter ways to promote an album.

     

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    Mike Masnick (profile), Oct 13th, 2009 @ 2:55pm

    Re: Dont need a law degree

    for mike to figure it out.

    Indeed. I never said that it wasn't a contractual dispute. My point is what a silly project this was in the first place, and how silly it is for her to be complaining about it now.

    The problem is that when a story actually is what Mike needs it to be he reports well and with good facts. When Mike just needs a story he will find something that kinda fits and throw it out there and be misleading and vague.

    What?!? I don't "need" stories to be anything.

    But. If you just believe Mike without looking at all the facts you will get screwed.

    I'd argue that's true of ANYONE.

    Mike is talented and hard working on this stuff, but he has no moral compass.

    If you actually knew me, you'd know how ridiculous that statement sounds.

    The ends justifies the means kind of thing.

    I've never believed that. Never.

    Based on your reasoning, hell, I could argue the same thing about you. You don't know me at all, yet you presume to judge my moral compass? Clearly, you don't know the facts, didn't research the facts and (based on your own twisted logic) have no moral compass yourself.

    See how idiotic that is?

     

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    GeneralEmergency (profile), Oct 13th, 2009 @ 3:09pm

    Re: Re: Ain't Singin' for Pepsi...

    ....Or maybe the "Anticipation Effect"?

    You know...where a washed up, hagged out has-been expects time to move backward and the Shiny Disk Music Business to cooooooome baaaaack!


    oh, Man. That was waaaay harsh.

     

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    Matt (profile), Oct 13th, 2009 @ 4:46pm

    Gad. She's so vain to think she would have sold more than 140k if they had pushed her drek harder. She expects she can just sit around in anticipation, and Starbucks will feed her sales? There isn't half a chance of such a thing, even if you're a legend in your own time: your talent, not your marketing staff, must generate your sales. Apparently, you better not tell her that you are going to put her album in your stores - it might lead to a lawsuit later.

    But then, nobody does this sort of silliness better. From what I have read, Carly hales from a line of copyright maximalists and, for her own part, (in near perfect contrast to her husband) is known to be averse to stage performance. She makes her living from recordings, because other models would not work for her. This sort of misguided litigeousness seems to go hand-in-glove with a bent toward IP stupidity.

     

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    Matt (profile), Oct 13th, 2009 @ 5:17pm

    Re: Re:

    Well... no. The claim is not breach of contract, but tortious interference, concealment of material facts (aka fraud), and unfair business practices (generally, deceptive practices). These are all tort claims - they are not about the content of a contract, but about a general standard of care.

    Generally, interference is not an available tort claim if the contract with which the tortfeasor allegedly interfered was one to which they are a party. Unfair practices generally is available only for a consumer of goods or services. So that is a stretch to say the least. That leaves the material misrepresentation claim. For someone as sophisticated as Ms. Simon, this is going to be a _very_ tough claim to make out, particularly if the contract had a merger or integration clause (it did, I'm sure).

     

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  18.  
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    Henry Emrich, Oct 13th, 2009 @ 9:24pm

    Carly WHO?

    Joking -- I know who Carly Simon is. :)

    But, that's not to say that *everybody* who walks into Starbucks knows who she is, or cares, for that matter.

    Another thing that would help to know is the song-list from the album itself. Too many "big-name" types have been in their insulated little celebrity bubble for so long that they just figure people should be falling all over themselves to buy their latest stuff whatever it is.

    Additionally, who's to say that just because you might like Carly Simon's *earlier* stuff, you'll inevitably like what she did, now? Not every Beatles fan is a Wings fan, so just because you did something cool *once* doesn't automatically translate into some Borg collective that's automatically guaranteed to buy your stuff just because it's *you*.

    I'd be more likely to believe Carly's side of the story if I heard something off the album, so as to judge whether it's actually good or not.

    "Masnick has no Moral compass?"
    And I bet he has the dead girl-scouts in his basement to prove it, too. :)

     

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    Henry Emrich, Oct 13th, 2009 @ 9:26pm

    Carly WHO?

    Joking -- I know who Carly Simon is. :)

    But, that's not to say that *everybody* who walks into Starbucks knows who she is, or cares, for that matter.

    Another thing that would help to know is the song-list from the album itself. Too many "big-name" types have been in their insulated little celebrity bubble for so long that they just figure people should be falling all over themselves to buy their latest stuff whatever it is.

    Additionally, who's to say that just because you might like Carly Simon's *earlier* stuff, you'll inevitably like what she did, now? Not every Beatles fan is a Wings fan, so just because you did something cool *once* doesn't automatically translate into some Borg collective that's automatically guaranteed to buy your stuff just because it's *you*.

    I'd be more likely to believe Carly's side of the story if I heard something off the album, so as to judge whether it's actually good or not.

    "Masnick has no Moral compass?"
    And I bet he has the dead girl-scouts in his basement to prove it, too. :)

     

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  20.  
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    Dan, Oct 14th, 2009 @ 12:47am

    Carly your so bad!

    With just your advance you grossed at least $4.64 per copy, we don't know what the rest of the terms were. As to your bad real estate investments, welcome to the real world. Did you really think you could make 5 or 10 million on the album? Hows that working for you?

     

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  21.  
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    Anonymous Coward, Oct 14th, 2009 @ 3:58am

    I know who Carly Simon is, so Should You

    Carly Simon is the daughter of the founding of the Publishing House Simon and Schuster. http://en.wikipedia.org/wiki/Carly_Simon She was born into great wealth. If she is bankrupt it is due to her own lavish lifestyle, mismanagement of money or incompetence. It appears she is blaming anyone except herself for her status in life.

     

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    number12 (profile), Oct 20th, 2009 @ 3:20pm

    Re: Re: Re:

    Interesting post given most of what's been written here. I would just guess, that there have been screenwriters, and various other people in artistic pursuits, who have made cases similar (tortioius interference)to this in at least some of the details that exist in this case - during the 1980s maybe.. and probably in the 1950s and 60s as well. Wouldn't you think? And remember, I'm assuming you don't know the basis for the claim to tortious interference. Therefore, you can't really dismiss that such a claim might have factual merit. Right? Do you know the details?

     

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    Mike S, Oct 22nd, 2009 @ 8:51pm

    Carly is to blame

    Carly is to blame for her poor CD sales, and she has always been to blame because she never really toured in her career. She is always complaining about record companies that are not promoting her stuff. Well, they can only do so much. Music either finds whatever audience it finds.

    Anyway, I find many of you to be supremely stupid. Carly Simon is not an "heiress" of the Simon & Shuster fortune by any means. I think she got something like $30,000 back in the late 1960's from her father's estate. And the people who are calling her a "has been" and a "washed up hag" are just bitterly vicious and hateful. If Carly Simon is a "has been" it's certainly better than what you are - a never was.

    Carly is a very talented lady. She has made countless great albums. She has an incredible sense of melody and she's a great lyricist as well. Her voice used to be great too. It's just lately that her voice is not good anymore, but that has come with age and whatever else causes that sort of thing. I think it's sad that she can hardly sing anymore, I really do, because she did have a great voice back in the day. Her voice is pretty much gone now, however, so I don't think her latest music will find much of an audience at all because she doesnt' right. Only her most desperate fans sit around talking about how great she still sounds. Are they sycophants? Yes, most likely.

    Anyway, Carly gets a lot of credit for 25 years of great music. For all those years of making great music she deserves to be in ignorant Jann Wenner's "Rock N' Roll Hall of Fame."

     

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    Mike S, Oct 22nd, 2009 @ 8:54pm

    Carly is to blame

    Correcting some mistakes I just made on my post...

    "Music either finds whatever audience it finds, OR IT DOES NOT"

    "Her voice is pretty much gone now, however, so I don't think her latest music will find much of an audience at all because she doesn't SOUND right."

     

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    Karl (profile), Jun 5th, 2010 @ 8:04am

    Re: Carly your so bad!

    Um, an advance is something you give artists so that they can pay for the recording expenses. Until that advance is paid back, they don't get any royalties whatsoever.

    You don't "make" money with an advance, any more than you "make" money when you buy a toaster with a credit card. (And if credit cards were like major labels, after you pay them back, the card company would own the toaster.)

    I have a lot of sympathy for Simon. But she's been around long enough, so she should know by now that this is how label contracts work. Exactly the same thing happens to roughly 90% of artists on a major label, and legally speaking, they can do nothing about it.

     

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    Karl (profile), Jun 5th, 2010 @ 8:08am

    Re: I know who Carly Simon is, so Should You

    Well, according to her, she only inherited $60,000. That's not chump change, but it hardly makes her a robber baron.

    I do agree that her own mismanagement of money has something to do with this case, though. It's just not her family's money.

     

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