In the case, the two parties disagreed on whether the date Phlake was to play was confirmed in the email correspondence between Phlake's booker and an external booker on behalf of Køge Festuge.

The court emphasised that the key terms regarding date, stage, playing time and fee were confirmed in the written correspondence between the parties, including the so-called deal memo. The agreement was not signed, but appeared in the email correspondence.  

In addition, the court also finds that there was no reason to believe that the external booker was not authorised to enter into agreements on behalf of Køge Festuge.   

A case of principle 

Nathalie Rothe, lawyer and chief advisor to the Danish Artist Association, agrees that the case is of a fundamental nature: 

"Our work is about putting artists in the best possible position so that they are treated properly and can make a living from their art. Many artists negotiate agreements in fast-paced and informal contexts. When an agreement is not honoured, you shouldn't stand alone. That's exactly why we pursue cases like this," says Nathalie Rothe.  

She also states that in all cases it is best to formalise an agreement:   

"It's important to emphasise that an agreement is binding, even if it's not necessarily signed. However, we encourage agreements to be formalised as it is easier to avoid misunderstandings," she says.  

However, the case highlights that agreements in the music industry can be binding even when a formal contract has not yet been signed if the key terms have been agreed and the artist has complied with the agreement - for example, by booking crew, organising production or announcing a concert date.  

Dansk Artist Forbund has developed a standard live dealthat you can freely use when signing a contract for a live performance. 

General practice in the music industry 

Jonathan Elkær, who together with Mads Bo Iversen make up Phlake, says the judgement confirms the feeling they had all along - that there was a deal in place:

"We clearly believe there was a deal. Køge Festuge's own booker confirmed both date and time in writing by email, and we were even flexible and moved our plans to make it all work out," says Jonathan Elkær.   

The two parties could not reach an agreement and the case ended up in court. But it's not only for the duo Phlake that the case could have an impact. Jonathan Elkær emphasises that The outcome of the case may affect more artists and organisers in the future:  

"Everyone in the music industry knows that agreements are often made via email, text messages, etc. and that these types of agreements are generally just as binding as a signed contract under Danish contract law," he says and continues:

"Otherwise, a lot of people in the industry will have to change their practices. I think it's a bit worrying if an organiser can walk away from a deal simply by claiming that their booker was not authorised to make the deal," he says. 

Køge Festuge has now appealed the case, which will be decided by the High Court.
 

"It also seems unrealistic to imagine that concert agreements will only be binding once an official contract has been signed. I think that would make the whole booking process unnecessarily heavy and cumbersome, and I hope the High Court will also recognise this," says Jonathan Elkær.  

Legal help at no cost

The union's legal department advises members on contracts, negotiations and disputes - and conducts cases when necessary and when they are of a fundamental nature that affects all artists. Members do not pay extra for legal assistance, even though litigation and legal representation can otherwise be a significant financial expense for the individual artist. Whether a case is pursued is assessed on a case-by-case basis. 

Jonathan Elkær is pleased that the Danish Artist Association has also recognised the case as important and principled, as it would have been very expensive to fight the case himself:

"If we were to pursue such a case, we would have to find lawyers ourselves. And that's hugely expensive for a band. So it's a huge help that the Danish Artist Association has taken the case. We're very grateful for that," says Jonathan Elkær

If you as an artist are in a dispute or are simply unsure about fees, contracts or collaboration, you can contact the union's legal advice at jura@artisten.dk or call 33 34 60 19.