By: Domenic Romano and Josh Wueller

Chipotle is suing Frank Ocean in Los Angeles.  The R&B singer-songwriter backed out of his contract to record a cover of the Willy Wonka & the Chocolate Factory classic “Pure Imagination” for the fast casual restaurant chain’s advertising campaign.

Ocean contends that he had a right to walk away and keep the cash, but the terms of his contract with Chipotle seem to suggest otherwise.  Could this dispute have been avoided by a careful reading of the contract?  

In July of last year, Chipotle paid Ocean $212,500 up front to record the track, with another $212.5K to be paid “upon Chipotle’s acceptance of the Master.”  While in the studio, however, Ocean watched the video and refused to record the audio unless Chipotle took their logo out of the ad.  Ocean was replaced by Grammy Award-winning musician Fiona Apple, who recorded the “Pure Imagination” cover for the ad.

The rest is history.  Chipotle’s completed advertisement, “The Scarecrow,” went viral last fall.  The video has been viewed over 12 million times, and the restaurant chain coordinated its release with a wildly popular iOS game for the iPad and iPhone.  Chipotle’s efforts have been described as “one of the most successful marketing campaigns in history.”

What’s your beef, Ocean?  (Barbacoa or steak?)

According to Frank Ocean’s attorneys, the recording artist believed he would have the authority to tell Chipotle to take their logo out of their own project.  Ocean viewed the Chipotle logo as a breach of his understanding with the company and believed he had the right to terminate the contract on those grounds.  Not surprisingly, such approval language is conspicously absent from their three-page agreement.

The contract does state that Frank Ocean will have the right to listen to and approve the final recording of the master—that is, the sound recording of “Pure Imagination.”  He also was given the right to approve all advertising using his name or likeness.  As Chipotle was quick to point out, however, “Ocean’s repudiation was unjustified, as he had no rights, contractual or otherwise, to condition his performance and delivery of the Master on his approval of The Scarecrow film.”

In addition, Ocean’s claims that he had reached a separate, verbal agreement with Chipotle just doesn’t hold water.  The contract makes it clear that anything not in black and white won’t count: “Unless and until replaced . . . , [the contract] supercede[s] all prior drafts, correspondence and negotiations between the parties with respect to the subject matter hereof.”

Finally, as Chipotle highlights in its lawsuit, in the event that Ocean’s business dealings with the company go south, the contract requires that Ocean “shall remit to Chipotle all amounts paid to [Ocean] for his services.”  In other words, if he didn’t come through with the track, he wouldn’t get to keep the money.

Ocean writes the check for $212.5K

Frank Ocean seems to have met with his lawyers and come to his senses.  This week, he posted a photo of a check returning the $212,500, with “F*** OFF” written on the memo line.  Chipotle hasn’t received the check yet, but they’ve said, “If/when we get a check from Frank, we should be able to close the books on this.”

The “particularly brand-resistant” Frank Ocean is apparently not completely averse to future ad campaigns, considering the recent announcement of his collaboration with Diplo and members of The Clash for an upcoming Converse ad campaign.

It’s no surprise that Ocean is steaming over the six-figure refund: that’s a lot of burritos (about 26,000, to be exact).  Suffice it to say, he’ll probably be reading his contracts a lot more closely in the future.

Contributing Author: Victoria Gionesi

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Domenic Romano

Managing Attorney

(212) 865-9848

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Josh Wueller

Senior Law Clerk

(212) 865-9848

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