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Patrice L. Johnson
Independent Study
July 27, 1998

I. Introduction

Many people with talent such as singing or acting, dream of the day when they are able to share their gift with the world. They look forward to earning the title "entertainer," as they dedicate their lives to honing their skills. Despite the bleak reality that few reach stardom, many of these entertainers delude themselves into thinking they will be the exception to the rule. Unfortunately, many entertainers never succeed, and their chance to bask in the limelight simply becomes a waning fantasy.

Well, what happens if a person is actually able to sign her first deal? Has this person actually reached success? In other words, does this entertainer have a profit margin at the end of the year as opposed to a debt. For many entertainers the answer is a shocking "No." However, this is not a surprising answer to those knowledgeable about the entertainment business. It is known that there are several main factors that affect whether an entertainer will be successful. Two of these factors are business deals through personal managers and agents(1) and contractual obligations to the companies(2)

Novice entertainers know that it is difficult to obtain employment independently and thus are easily persuaded by smooth-talking personal managers and personal agents.(3) These managers and agents do not necessarily have the artist's interest at heart.(4) The artist who knows little about the entertainment business, greatly depends on the manager or agent to manage her income. This trust precipitates bankruptcy for artist who unknowingly works with unscrupulous managers.(5)

In addition to managers or agents who prey on the neophytes, breaking into show business often requires "signing one's life away" through unfair contract agreements.(6) It is common for entertainers' first contract to be unbalanced.(7) Unknown entertainers will unwittingly enter one-sided contracts for a chance at fame.(8) All subsequent contract negotiations are based on the first, contract.(9)

This means that the artist will be indebted to the entertainment company unless the artist has several successful business ventures. Entertainers accept this treatment because to do otherwise would end their careers.(10) The quality of the entertainment contract may also be affected if the entertainer is Black. To adequately address this concern, other considerations must be examined such as racial discrimination to determine whether black entertainers are more likely to receive unfair contracts. This will be achieved by exploring social behavior and national statistics, which show a disproportionate difference between the treatment of blacks and whites in America.

For the purposes of this paper, racial discrimination will be analyzed in the first section. This will allow the reader to understand the dynamics of racial discrimination and how it permeates and affects the fabric of American life. The second section will address the relationship between entertainers and their personal managers and agents. The third section will explore contractual obligations entertainers have. The last section will synthesize the first three sections in order to determine whether white entertainers have an advantage over Black entertainers regarding contracts.

II. Racial Discrimination

For many white Americans racial discrimination no longer exists and for those who insist it does, are creating a nonexistent force. On the surface it may seem as if this view is not only plausible but correct. However, after comparing statistics and exploring the racial climate in America, it becomes clear that racial discrimination is tightly woven in our society. Because there are no specific statistics regarding black entertainers receiving worse contracts than their white counter-parts, general statistics on racism and discrimination will be analyzed. This will lay the foundation, delineating how racism affects every aspect of blacks' lives, eventually affecting black entertainers.
As one journalist wrote, "[look how Susan Smith from South Carolina] set off a nationwide manhunt by inventing a fictitious black kidnapper of the children she herself had just drowned."(11)

This tactic worked for Susan Smith, because as the author acknowledged, many whites believe that "Black people did it, did it to the country, did it to themselves. Black behavior, not white racism, became the reason why blacks and whites lived in separate worlds."(12) In this same article, the journalist examined David Shipler's book "A Country of Strangers: Blacks and Whites in America."(13) In this book, the writer scrutinized the images people have about blacks and whites. Shipler is quoted as stating in his book:

Color is the first contact between blacks and whites. It comes as the initial introduction, before a handshake or a word . . . It is the announcement, the label, the badge, the indelible symbol that triggers white assumptions about a black individual's intelligence, morality, reliability and skills.(14)
Although few whites will overtly admit that they feel blacks are inferior, polls, indirectly questioning the participant, show otherwise.(15) In a poll by the National Opinion Research Center at the University of Chicago, more than 50 percent of Americans rated blacks as less intelligent than whites.(16) More than 62 percent people, felt that blacks are lazier than whites.(17) Additionally 78 percent of the participants believed that blacks preferred to live on welfare.(18)  If entertainers contract with personal agents or managers, they will be less likely to receive a fair contract if the agent is white and believes the black entertainer is less intelligent.

Despite statistics, some people rather believe that blacks' economic situation is not because of racism but rather attributed to blacks' lower skills, less education and deteriorating family structure.(19) In an article, it was stated that Steven and Abigail Thernstrom believe the gap increase is great between blacks and whites because more Black households are run alone by women.(20) It was also stated that 24% of white adults obtained undergraduate degrees compared to 12% for blacks.(21) According to the National Assessment of Educational Progress, blacks test scores of 17 year olds were three years behind whites in math and almost four years behind in reading.(22) When one takes into account blacks' scores on these skills tests, it is contended that blacks would make the same if not more in salary than whites.(23) The Thernstrom's book has been used to support many different theories about race relations: from notions that blacks are less qualified for any meaningful employment to showing that situations have greatly improved for blacks.(24  In this article by David Frum, he stated that statistics show that life is improving for blacks. He quoted that in 1964 18% of whites admitted to having Black friends whereas today 66% stated they have Black friends.(25) In addition, 44% of whites said they attend church with blacks, which is up 10% then, in 1978.(26) Also, 66% of whites feel it is okay to date blacks, up from 56% in 1963.(27)

Although these statistics may seem impressive, they do not actually reflect whether race relations are improving in America. To determine whether improvement has occurred, one must examine whether blacks have power. It is not sufficient enough to say race relations have improved because now whites have more friends, when those same blacks may not be receiving deserving promotions and jobs because of discrimination. It is not sufficient enough to say race relations have improved because whites feel it is okay to date blacks when the Susan Smiths of the world can say blacks perpetrated a crime against them, and be instantly believed. It is not sufficient enough to say race relations have improved because blacks and whites, more than ever, attend the same churches when Black churches have been burnt to the ground by white supremacist over the past few years. If one wants to examine whether race relations have progressed, acknowledging niceties are not sufficient; areas of life such as: earning power, job selection and obtaining loans have to be analyzed.

Statistics outlining the disparity between blacks and whites in America are wide. Finding employment is difficult for blacks. The unemployment rate rose to 9.6 percent, from 9.3 percent in July 1997.(28) Additionally, blacks typically earn 63 cents on the dollar compared to whites.(29)  Whites have on the average, $43,000 wealth in assets compared to blacks' $4,300, mostly from the fact that blacks do not normally inherit large sums of money from relatives.(30) Because of these facts, blacks are twice as likely to live in poverty.(31)  Wealth, or lack of wealth affects every aspect of a person's life. The Census Bureau found that in 1996, 34 million blacks live in America, comprising 12.8% of the U.S. population.(32) Approximately 74% of all blacks 25 years or older, earned a high school diploma.(33)  However, only 14% of these blacks had earned a bachelor's degree.(34) The Bureau reported that in 1995 the median annual income for blacks was $25,970, however 2.1 million blacks, making up 26% of Black families, lived below the poverty level.(35) Of these families, only 46% involved married couples.(36) In another 1995 survey announced that blacks had a 12.1% chance of dropping out of highschool compared with and 8.6% chance for whites.(37) It is believed by some that socioeconomic status not race differentiates the dropout rate between blacks and whites.(38)

However, that theory is not introspective enough. Poverty and race are intricately related. If blacks are unable to obtain meaningful employment because of racial discrimination, then they will earn less income, be prone to poverty and only be able to graduate from high school. The aforementioned statistics show a connection between race, poverty and success. It is more than blacks refusing to succeed, it is being prevented from succeeding. When a person can not attain employment in which she is qualified, then she is more susceptible to economic powerlessness than whites' who competency are not judged by their race. In addition, if that person is chosen for the job, she is not assured that she is being paid comparable to her white counterparts doing the same job.

For example, Hall-of-Fame football player Kellen Winslow, who is black, was turned down for a position as the University of Missouri athletic director, his alma mater.(39)  Despite the fact that Winslow "brought to the table -- a law degree; practical business experience; status as a former student athlete, collegiate All-American, and an alumnus; a stellar professional career; leadership skills; charisma; and command of the English language," he still was overlooked for the job.(40)

Another aspect of racism, is that blacks lack the incapacity to be impartial when serving as a juror for a trial. A transcript of CBS This Morning revealed that Philadelphia District Attorney Candidate, Jack McMahon, encouraged the prosecuting attorneys to avoid choosing Black jurors if the defendant was also Black.(41) Even more appalling, McMahon encouraged the attorneys to choose jurors that were unfair and likely to convict.(42)
Although this story was shocking, many attorneys stated that they were not surprised of the content of the message.(43)

Racism also permeates this society, regarding blacks obtaining mortgage loans.(44) In a survey conducted by The Cincinnati Enquirer, examined more than 60,131 mortgages applications submitted to 268 banks, mortgage companies, savings and loans, and credit unions operating in the Cincinnati area.(45) It was found that the highest rejection for mortgages were low-income whites making less than $20,000 a year.(46) However, the more income blacks make the more apt they are to be rejected for a mortgage loan.(47) Blacks earning between $51,000 and $116,000 annually, were denied mortgages twice as much as whites earning the same amount.(48) The report asserted that government-insured loans, appeared to allow blacks to acquire a mortgage loan easier.(49)

Blacks with a higher income who sought conventional mortgages were rejected more than four times as often as those who sought loans insured by the Federal Housing Administration and twice as often as loans acquired from the Veteran's Affairs Department. Interestingly enough, whites did not experience a change in rejection by using conventional or government-backed loans.(50) "Irrespective of the type of loans sought, Black applicants were rejected more often than whites applicants."(51)

The aforementioned demonstrate just how prevalent race matters in this society. Because racism is ever-present in American culture, all blacks are subject to discrimination -- even black entertainers. Every behavior displayed by blacks are a representation of the Black culture, while actions of whites are individualized and separate from their larger group.(52)

Moreover, whites feel blacks are never qualified for the jobs or promotions they receive and are fundamentally incapable of doing a competent job.(53) Even if they are accepted, they still are incapable and are favored because of the color of their skin.(54) This rationalization allows whites to focus on blacks, ignoring the fact that whites are privileged because of the color of their skin.(55) These racists and discriminatory attitudes discussed above allow whites to view themselves as the victim(56) and attack blacks for improving their economic status. "But the principal problem with race relations in the United States resides in the white community, not the black community. People in the white community . . . are the biggest problem [because they have] racist attitudes [and] are indifferent to race relations."(57)


To understand how black entertainers are affected by racism in the entertainment industry, it is important to understand the different roles played. Entertainers, although may not be the most important, are be by far the most prominent. Entertainers are defined as "actors and actresses rendering the services on the legitimate stage. . ."(58)
This definition also includes people who engage in radio, musical arts or organizations, directs (stage, motion picture and radio),writers, cinematographers, composers, lyricists, etc.(59) Relatively speaking, it is easier to categorize entertainers than the other roles in the industry.(60) Generally it is difficult to delineate and separate the responsibilities of talent agents [hereinafter agents] and personal managers [hereinafter managers] because there is no bright line classification.(61)  However, entertainers hire agents to obtain employment and they hire managers for promotion and development.(62)

A. Agents

Agents and managers basically differ because agents are creatures of statutes governing their actions whereas managers are not.(63) Agents market the entertainers.(64) They are also known as bookers, managers or entertainers' managers. It is their responsibility to procure employment and receive employment offers.(65)
After employment is obtained, the agent must secure it; collect performance fees; deduct the agent's commission; and forward the net profit to the artist or her manager.(66) A firm may also handle these responsibilities for well-known entertainers. (67) Because the agent's contract allows the artist to disavow it, if the firm fails to obtain employment it does not earn money for its efforts.(68) Therefore, for new entertainers, the feat of obtaining a well-known agent is almost impossible because many employers are not interested in "no name" entertainers.(69)
 Moreover, agents only profit from this endeavor, if the artist is employed. Because of this reason agents feel justified in charging between 10% to 20% of the artist's gross profit.(70) Fundamentally, agents are negotiators for the entertainers.

B. Personal Managers

Personal managers are more intricately involved with the entertainers than the agents are.(71) New entertainers usually attempt first to find a manager.(72) Managers represent entertainers in contracts and business in general because many entertainers lack business savvy.(73) These managers usually act as agents, because most new entertainers can not obtain an agent.(74)  Managers have a wealth of knowledge that allows them "to guide, advance and promote the careers of clients who retain [their] services."(75) This support even includes financing these struggling entertainers' career.(76)  This characteristic differs from agents' responsibilities because agents usually do not sign an artist unless there appears to be a good chance of the artist succeeding.(77) In reality, managers becomes the artist's best friend. For example, If counseling is needed, then managers provide the session.(78)They also handle issues regarding accounting, tax, investments and royalties.(79) Additionally, they advise the artist on their presentation and the selection of materials, tailoring for the specific audition.(80) A career as a manager involves a great knowledge of the entertainment business and the ability to transfer a struggling artist into a sophisticated performer. Because this role requires so much effort, managers feel they have a right to charge handsome prices for their services to the entertainers.(81) Managers usually charge between 10% and 50% of the entertainers' gross income.(82) Managers feel they can charge this enormous fee because they bring the artist's career to its fullest potential.(83  In essence, managers attempt to exploit the artist's image. 

C. Regulations

The biggest problem for entertainers is that personal managers have unadulterated discretion to conduct business as they see fit.(84) However, agents must follow statutory guidelines.(85) In 1978, California promulgated the Talent Agencies Act(86) which regulates the procurement of employment for entertainers.(87) The Act focuses on agents.(88) However, a personal manager's actions may implicate the statute if it is deemed that she has procured employment for entertainers.(89) However, amendments have been added to the Act which created exceptions for the personal managers.(90)  For example, one example allows managers to procure employment for entertainers in the record industry.(91) For an inexperienced artist, the conscious effort to exclude managers from the Act is a great, mistake. Because the managers are fully involved in all areas of the artist's life, there is a tendency to exploit the artist. This is evident when one examines the different conflicts that arise between managers and their entertainers. Entertainers are more susceptible to this unfair treatment because most are inexperienced and completely and fully put their careers in their managers hand.(92)

There are two types of conflict that hinder the success and progress of the artist.(93) The first conflict is advisory. This occurs when a manager's interest and the artist's interest conflict.(94) This prevents the manager from zealously promoting, representing and advising his client.(95) For example, a manager might encourage an artist to enter a contract that ultimately is beneficial for the manager but not for the client. The second type of conflict is economic. This occurs when the managers receive multiple commissions from one action of the artist.(96) This issue may surface if the manager has the artist sign with a company in which the manager will receive royalties from the company and commission from the artist.(97) In the aforementioned situation, the artist is frequently left with a low profit-margin and little recourse.(98)



On the first contract, new entertainers usually agree to poor terms. Because the entertainment industry is unpredictable, entertainment companies sign a body of entertainers in hopes for the emergence of a star.(99) In the music industry, approximately 80 percent of the music companies fail to recoup their losses.(100) A 1980 Cambridge study showed that a record album had to at least sell 104,600 in order to break even.(101)  During that time, approximately 84 percent of record albums failed to sell the allotted amount in order to break even.(102) Over $200 million was lost because of entertainers who did not succeed.(103) Obviously these statistics today would have greatly increased, almost 30 years later.

The theory of contracts is to allow parties the freedom to engage in contracts without having the court interfere. In contracts, there must be a "meeting of the minds" between the parties that demonstrate a manifestation of willingness to enter the contract. This essentially means that the parties' intentions must be clear without overreaching or unfairness in the contract. Overreaching is when one party has substantially more bargaining power than the other. In addition, the weaker party does not understand the terms of the contract. So in other words, there is no meeting of the minds. 

Because of the sheer number, contracts are created in "bulk" for efficiency purposes. Unfortunately these standardized contracts create the issue of adhesion and unconscionable contracts for entertainers.(104) However, it is extremely difficult to meet the elements of an unconscionable contract in order to demonstrate that the contract terms were unfair.

A. Adhesion

Although adhesion contracts are not per se unfair, because of its structure it can be. Contracts of adhesion is a "standardized contract, which, imposed and drafted by the party of superior bargaining strength, relegates to the subscribing party only the opportunity to adhere to the contract or reject."(105) This is problematic because the purpose of contracts is to allow the parties to engage in bargaining to create a contract favorable to all parties involved.(106) However, just because a person becomes the party to an unjust contractual term, does not automatically make the entire contract unfair. Specific elements must be met in order to prevail on a theory of unfairness.(107) Examples of adhesion contracts are agreements signed when buying a car or obtaining credit or purchasing a house. Although there are some terms that are negotiable, most adhesion contracts have the "take it or leave it" motto. If the other party is unhappy with the set terms of the contract, she has the ability to refuse it and enter a more fair contract with a different party.(108) There is little room for all of the terms to be changed.(109)
The public policy surrounding adhesion contracts, is that it would be unreasonable for businesses to have a "meeting of the minds" with every customer they in which they came in contact.(110) It is more efficient for these businesses to create the contracts, simply allowing the customer to refuse the entire contract if it is unsatisfactory.(111) Factors that determine whether a contract is adhesive include the following(112)

- the contract contains standardized language
- the terms are not negotiated but premised on a "take or leave it" concept
- substantive terms are not freely negotiated
- the weaker party did not have the strength to receive a better deal
- the contract is completely drafted by the party with the most power
Once a contract is considered adhesive, then the next step is to determine whether the terms are so one-sided as to "shock one's conscience," or "Is the contract unconscionable?"

B. Unconscionable Contracts

The purpose of raising the defense of unconscionability is to prevent unfair surprise and oppression.(113) This includes an absence of a meaningful choice on one of the parties to the contract.(114)  The Official Comment in UCC 2-302 states that the contract must be so one-sided that it is unconscionable under the circumstances, at the time the contract was made.(115) There are two prongs that must be explored in order to determine whether a contract is unconscionable.(116)  One must examine the procedural and substantive aspect of the contract. The procedural portion of the analysis scrutinizes whether surprise or oppression exists.(117) Surprise is the extent to which the terms of the contract are hidden and drafted by the party seeking to enforce the contract.(118) For example, were the terms hidden in the middle of long paragraphs. Oppression refers to the unequal bargaining power, which essentially indicates that there was no real bargaining power.(119) However, the substantive prong looks at the actual terms of the contract.(120) The substantive prong is usually met, if the courts decide that the contract terms are overly harsh or one-sided, without reasonable, justification (ie. failing to meet industry norms).(121)

1. Procedural Prong

The procedural prong is satisfied by examining the following factors: age, education, intelligence, business acumen and experience, relative bargaining power, who drafted the contract, whether the terms were explained to the weaker party, whether alterations in the printed terms were possible, and whether there were alternative sources of supply for the goods in question.(122) It is difficult to meet the requirements for the procedural prong. If a person has business education and experience, but failed to completely read the contract or a section of the contract, then the contract is not procedurally unconscionable even though the terms may have been nonnegotiable.(123)

In Laurel Canyon, Ltd. V. Springsteen, singer Bruce Springsteen sued his record company Laurel Canyon to void a contract for unconscionability.(124) Springsteen had signed a personal management agreement with record producer Mike Appel.(125) Springsteen also signed separate, exclusive contracts with several companies all affiliated with "Laurel Canyon."(126) Appel, had great economic interests in these companies.(127)Springsteen had essentially agreed to pay Appel up to 50% in commission.(128)  He also sold all of his rights to Laurel Canyon.(129) Additionally, Springsteen's royalties, which is the largest revenue for entertainers, would be equally divided between him and Laurel Canyon.(130) He also signed a recording contract with Laurel Canyon for five albums.(131) From these contracts with Springsteen, Laurel Canyon signed an independent agreement with CBS Records to manufacture and distribute Springsteen's albums.(132) However, Laurel contracted with CBS for ten Springsteen albums.(133) This agreement generated a record royalty for Laurel which was three times greater than Springsteen was to receive.(134)  For example, Springsteen was earning approximately 10% while Laurel earned 40% of the royalties. Springsteen failed to read the contract or obtain a lawyer to review it.(135) Springsteen finally realized the inequity in the contract and asked that Laurel be audited before they renegotiate his contract.(136) The audit showed that during a four-year period Laurel earned $2 million from Springsteen, while he earned less than $100,000.(137) Springsteen sued Laurel in 1976, after the company refused to allow him to obtain someone else to produce his next album.(138) Despite the aforementioned facts, the court held that there was "no showing that the contracts . . . are unconscionable."(139)

The court seemed to focus on the fact that the contract was signed and not whether Springsteen understood it.(140) However, considering the given facts, the court could have found that the procedural prong was met for several reasons. First, Springsteen had no knowledge of the entertainment business. This means that he was not "educated" in that area and may not have understood the terms. Secondly, the terms may have been buried in a long, cumbersome contract. Thirdly, Springsteen may have signed the contract because he wanted to break into the business. These facts show that procedurally, Springsteen's contract with his personal manager may not have been favorable for him, contrary to what the court held.

In all, the ultimate goal is to demonstrate that the procedural prong has been met because, all of the factors together, indicate that there was a lack of bargaining power or "meeting of the minds." Without the latter, a contract seeks to exist. But because courts are cautious about voiding contracts for unconscionability, this prong is difficult to prove.

2. Substantive Prong

The substantive prong of unconscionability, lies on whether the terms of the contract were unreasonable.(141) Factors which relate to the contractual terms focus on whether they were commercially reasonable.(142) There are no set factors to rely on, because they change depending on the type of contract in dispute.(143) In Springsteen's case, we would need either a detailed description of the contract or the contract itself. On the information we have, it seems as if the contracts were substantively unconscionable. For example, Springsteen initially contracted with Laurel Canyon for five albums. However, after Laurel Canyon signed an agreement with CBS Records, it bound Springsteen for ten albums contract instead of the originally agreed upon five albums. This contract allowed Laurel to receive three times more royalty than Springsteen. Within a four-year period, Laurel earned two million dollars from Springsteen's effort, while Springsteen earned less than $100,000. From these facts, it can be concluded that the terms were substantively so unfair, to allow Springsteen to prevail on that prong. To allow Laurel Canyon to earn three times more than Springsteen is definitely unconscionable. However, courts, in general, refuse to find unconscionability in contracts between personal managers and entertainers because of industry norms.(144) Even if the bargaining power is one-sided and favors the stronger side, courts have held that it was not nonetheless unconscionable because the terms did not shock the conscience.(145)

V. Analysis

When examining the previous sections addressing racism; the role of personal agents and managers; and unconscionable contracts, it is clear that discrimination is tightly embedded in American culture. For Black entertainers it is even more difficult to enter the entertainment industry and excel because there are fewer opportunities. However, when those doors open, are black entertainers treated like their white counterparts? That question can be answered by looking at the country's race relations, exploring the relationship between entertainers and their managers or agents; and examining the nature of entertainment contracts. For the purpose of this analysis, the music industry will be explored.

As in any business, the ultimate goal is to profit from your endeavor. In the music industry, less than 20% of records produced earn a profit.(146) In 1980, these charted losses caused the industry to lose $200 million.(147) One agent stated that he signs unknown entertainers because the entertainment industry is filled with unexpected surprises.(148)  No one knows who may be the next overnight sensation.(149) "So we sign a lot of unknowns, beginners, small-timers, even plain and simple stumblebums, in the hope one out of a hundred will fight his way into the Big time."(150)  In addition, record companies' fundamental goal is to get the "biggest piece of the pie."(151) Usually the entertainer is not involved with the business aspect of the contract.(152) "Recording companies and agents have traditionally taken advantage of their entertainers' ignorance, inexperience, lack of involvement, naivete and/or lower social status."(153)

For the purposes of this paper, I will create two hypotheticals that separately address entertainers who have entered contract agreements with their 1) employees ie. personal managers and agents and 2) employers ie. directors and produces. Both of the hypotheticals will differ according to economic status and education. From there, each entertainer be examined according to whites perception of blacks and whether the contract is fair.

Gail is a Black, female singer. All of her life, she has wanted to perform as a singer and become famous. She studied voice and instrument at Juilliard School of Arts in New York City. Gail was a child prodigy and has learned her craft well. All Gail wants to do is sing. She finally gets her big chance when meets a white producer named Tom, at the club in which she performs. He tells her to come to his offices the next day. While she is there, Tom informs her that he wants her to sign a contract with the record company. Overjoyed, excited and in disbelief, Gail takes advantage of this opportunity. She contracts for 8 years with one album a year. She only is entitled to 10% of her record sales. She will also receive royalties up front to produce the record and advertising.

In looking at the scenario it may appear as if this simply comes with the territory. However, it is helpful to analyze the affect of socialization and how that may affect Tom's dealings with Gail. First of all, Gail is Black. He may subconsciously think that she is a very talented but unintelligent singer. This is plausible because blacks, as shown in the statistics above, are believed to be unintelligent by their white counterparts. 

Tom's first goal is to make money. The more one-sided the contract is, the more profit he can secure for himself and the producer. Because failure rates are so high, self-preservation is a great incentive. If Tom believes Gail is less intelligent, despite her accomplishments at school, he will be more apt to draft a contract agreement less favorable than he would for a white entertainer.

Gail is also at a disadvantage because she does not have a personal manager or agent to consult with nor a lawyer to read over the contract. The contract is definitely one-sided. However, because courts frequently refuse to interfere with contractual agreements, Gail will most likely have little redress from the unjust contract. Even if white entertainers enter into bad agreements, it is worse for Gail because of the socialization regarding blacks capabilities. 

Donnie is Black and 23 years old. He always knew that acting was his first love. Although his family is poor, he decides to go to California and bring his dream of stardom to fruition. After being in California a week, Donnie meets a Shirley, a white woman who offers her services as a manager. Donnie bites the bait and is now represented by Shirley. Shirley's service, does not come at a small price. In order to employ her, Donnie must contract away 40% of his gross earnings to Shirley once she finds him employment. After six months, Shirley eventually finds Donnie a small part on a local commercial. Reality hits and Donnie now is faced with the fact that his income will dwindle considerably after Shirley has received her commission. Donnie feels taken advantage of and wants to contest the validity of their contract.
Because managers work so closely with entertainers, they have much flexibility in determining what their fees will be. Because Donnie is Black and poor he has many strikes against him. It is most likely that he has had inferior education compared to whites because poor neighborhood usually entail poor schools. Lack of education, makes Donnie more vulnerable to unconscionable contracts. He most likely will not possess the business savvy needed to prevent entering into unwise contracts. Most entertainers, like Donnie, do not study the industry, placing them in a precarious situation, contractually. So, before Donnie even meets Shirley, he is at a disadvantage. 

Secondly, Donnie has no family he can depend on financially. He leaves home and travels to California with little money. He will soon be desperate for work, and will comprise his interests for a bad contract. Although he meets Shirley a week after moving to California, he does not earn any money through entertainment, for another six months. 

Thirdly, Donnie is Black, and Shirley is white. She knows Donnie is also poor and does not family who can financially help him. Because whites have the popular belief that blacks are inferior in intelligence, morals and values, Shirley can use this to her advantage and capitalize on his ignorance. Shirley may be more likely to draft a very one-sided, unconscionable contract because she can. Shirley may subconsciously believe that if blacks are inferior to whites, Donnie will not discover the unjust terms of the contract until it is too late. Because Shirley is not paid until Donnie has work, she has another incentive to carve the terms of the contract to benefit her. 

Donnie does not have the advantage of entering into an agreement with an agency company, because it only uses well-known entertainers. Furthermore, he may encounter the same behavior with the company as he has with Shirley. Donnie, like Gail has little recourse for justice. Although Donnie may meet some of the requirements which deem a contract unconscionable, the courts look at the normal procedures used in the industry.

For both Gail and Donnie, they are hindered from succeeding in the entertainment industry because they are black. In looking how blacks are generally treated in America, it is fair to say that this treatment follows blacks to the entertainment industry. If whites believe that blacks are inferior, they will be more apt to capitalize on them, especially when one-sided contracts guarantee success for the agents/producers in entertainment.


At the core of reality, racism and discrimination is so prevalent in American society that it affects every area of a Black person's life, even as an entertainer. Although there may not be statistics available specifically addressing this issue, there is enough evidence to demonstrate how racism is intertwined into our culture. The fact that whites believe blacks to be less intelligent, without morals and lacking values, shape the way whites deal with blacks. Until whites see blacks as equal, blacks will never receive fair treatment. It is difficult for whites to treat blacks with total respect when they feel they are better than blacks are. 

Undoubtedly, whites will deny that racism occurs to this extent, because it allows them to be free from guilt. However, blacks know just how racism affects their lives daily. Each and every day, blacks are depicted as immoral without values and unintelligent, within the media. This depiction allows whites to justify their treatment of blacks. Black entertainers are treated differently than whites, which is evidenced by analyzing the history between blacks and whites in this country. Understanding this fact, it is plausible that because whites think blacks are less intelligent, that whites will inevitably draft contracts that are generally more unfair for the black entertainers than for white entertainers.


1. 1. Gilenson, Hal I., "Badlands: Artist-Personal Manager Conflicts of Interest in the Music Industry," 9 Cardozo Arts & Ent. L.J. 501, 502 (1991).

2. 2. Van Beveren, Theresa E., "The Demise of the Long-Term Personal Services Contract in the Music Industry: Artistic Freedom Against Company Profit," 3 UCLA Ent. L. Rev. 377, 382 (1996).

3. 3. Gilenson, at 503.

4. 4. Id

5. 5. Van Beveren, at 384.

6. 6. Id. at 383.

7. 7. Id. at 385.

8. 8. Id. at 384.

9. 9. Id. at 402.

10. 10. Id. at 385.

11. 11. Geiger, Jack, "A Country of Strangers: Blacks and Whites in America" (book review) The Nation, December 1, 1997.

12. 12. Id.

13. 13. Id.

14. 14. Id.

15. 15. Id.

16. 16. Id.

17. 17. Id.

18. 18. Id.

19. 19. Berlau, John "Still a Big Race in Incomes," Investor's Business Daily, March 30, 1998.

20. 20. Id.

21. 21. Id.

22. 22. Id.

23. 23. Id.


24. See, Id. and Frum, David, "Telling a Different Story of Racism in America: New Book an Incredibly Hopeful Account," The Financial Post, July 5, 1997.


25. Frum, David, "Telling a Different Story of Racism in America: New Book an Incredibly Hopeful Account," The Financial Post, July 5, 1997.


26. Id.


27. Id.

28. 28. Pine, Art "Job Growth Slackens, Easing Inflation Fears Economy: Despite Sluggish Employment Figures in September," Los Angeles Times, October 4, 1997.

29. 29. Id.

30. 30. Id.

31. 31. de Pommereau, Isabelle "Why Black Financial Progress is Running into Speed Bumps Wage Gaps Grow Between Races," Christian Science Monitor, February 4, 1998.

32. Reuters, "New African American Census Figures Released," Los Angeles Times, June 29, 1997.

33. Reuters, Id.

34. Reuters, Id.

35. Reuters, Id.

36. Reuters, Id

37. Knight, Heather, Graduation Rates Rise for Blacks, Whites, not Latinos Education, Los Angeles Times, August 1, 1997.

38. Knight, Id.

39. 39. Farrell, Charles S. "Things that Should Make the Sports World Go, "Hmmmm?" Black Issues in Higher Education April 17, 1997.

40. 40. Id.

41. 41. CBS This Morning, April 4, 1997

42. 42. Id.

43. 43. Id.

44. McKinney, Jeff "Race may Override Income for Mortgages Wealthy Blacks, Poorer Whites Denied Most," The Cincinnati Enquirer, January 4, 1998.

45. McKinney, Id.

46. Id.

47. Id.

48. Id.

49. Id.

50. Id.

51. Id.

52. 52. Geiger, Id.

53. 53. Id.

54. 54. Id.

55. 55. Id.

56. 56. Id.

57. Enda, Jodi, "Clinton to Launch Effort to Ease Racial Tensions," Charleston Gazette & Daily Mail, June 8, 1997.

58. 58. O'Brien, James M., "Regulation of Attorneys Under California's Talent Agencies Act: A Tautological Approach to Protecting Artists," 80 Calif. L. Rev. 471(1992).

59. 59. Id.

60. 60. Id.

61. 61. Id.

62. 62. Gilenson, at 507.

63. 63. Id. at 506

64. 64. Obrien 

65. 65. Gilenson, Id.

66. 66. Id 

67. 67. Id.

68. 68. Id.

69. 69. Id.

70. 70. Id.

71. 71. Id. at 509

72. 72. Id 

73. 73. Lindey, Alexander, "Lindey on Entertainment, Publishing and the Arts, 14:A(3) (2d 3d/ 1990).

74. 74. Id.

75. 75. Gilenson, Id. at 

76. 76. Id.

77. 77. Id.

78. 78. Id.

79. 79. Id.

80. 80. Id.

81. 81. Id. at 510

82. 82. Obrien, Id.

83. 83. Id.

84. 84. Gilenson, Id. at 513

85. 85. Id.

86. 86. Id.

87. 87. Id.

88. 88. Id.

89. 89. Id.

90. 90. Id.

91. 91. Id.

92. 92. Id.

93. 93. Id. at 525

94. 94. Id.

95. 95. Id.

96. 96. Id.

97. 97. Id.

98. 98. Id.

99. 99. Simensky, Melvin, "Determining Damages for Breach of Entertainment Agreements," 8 SPG Ent. & Sports Law 1, 11(1990).

100. 100. Simensky at 11.

101. 101. Id.

102. 102. Id.

103. 103. Id.

104. 104. Id.

105. 105. Marcus, Adam J., "Buchwald v. Paramount Pictures Corp. And the Future of Net Profit," 9 Cardozo Arts & Ent. L. J. 545, 567 (1991).

106. Id.

107. Id.

108. Id.

109. Id.

110. Id.

111. Id.

112. Id.

113. 113. Id. at 572.

114. 114. Jones Distributing Company v. White Consolidated Industries, 943 F.Supp. 1445, 1460 (D.C. Western Division, 1996).

115. 115. Jones Distributing Company, 943 F. Supp. 1445, 1460

116. 116. Jones at 1460.

117. 117. Marcus at 567. 

118. 118. Marcus at 567. 

119. 119. Marcus at 567. 

120. 120. Marcus at 573.

121. 121. Marcus at 573.

122. 122. Jones at 1460.

123. 123. Jones at 1460.

124. 124. Gilenson at 527.

125. 125. Gilenson at 526.

126. 126. Id

127. 127. Id.

128. 128. Id. at 527.

129. 129. Id.

130. 130. Id.

131. 131. Id.

132. 132. Id.

133. 133. Id.

134. 134. Id.

135. 135. Id.

136. 136. Id. at 528.

137. 137. Id.

138. 138. Id.

139. 139. Id.

140. 140. Id.

141. 141. Id. at 516.

142. 142. Jones Distributing Co., 943 F. Supp. 1445, 1460.

143. 143. Id. at 1460.

144. 144. Gilenson at 517.

145. 145. Id. at 531.

146. Simensky, Melvin "determining Damages for Breach of Entertainment Agreements," Entertainment and Sports Lawyer, Spring 1990.

147. Simensky, Id.

148. Simensky, Id.

149. Simensky, Id.

150. Simensky, Id.

151. Van Beveren, Id.

152. Van Beveren, Id.

153. Van Beveren, Id.

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