Entertainment Law Reporter
September 2005 Volume 27 Number 3

Dismissal of musician’s discrimination lawsuit against Elektra Records, complaining that company refused to sign him to recording contract because of his national origin, is affirmed by Court of Appeals

        Nathaniel W. Flores is a musician who has tried without success – “for many years” he says – to get signed to a recording contract by Elektra Records. In that respect, he is like thousands of other aspiring recording artists. But in one respect he is different.

        Rather than simply accept rejection, Flores did something about it. He filed a lawsuit against Elektra, alleging that by failing to sign him, the company violated Title VII of the Civil Rights Act – the federal statute that prohibits discrimination in employment on the basis of national origin.

        According to Flores, he is a “world renowned” musician who has performed in Starbucks in Fresno and Oxnard, and even at the Whiskey A Go Go. Flores claims that Elektra wouldn’t sign him because of his “Spanish or Portuguese sounding surname.” And he asked the court to award him “a spot on [the] Elektra Records line up” or $3 million.

        Many people would relish the opportunity to become an A&R executive for a major record company. But federal District Judge Oliver Wanger is not one of them. In response to a motion by Elektra, the judge dismissed Flores’ lawsuit entirely, with an unpublished order (that doesn’t appear, even on Lexis or Westlaw).

        Flores appealed, without success. In a short Memorandum decision, marked “may not be cited,” the Court of Appeals affirmed the dismissal of Flores’ case.

        The appellate court ruled first that Flores had simply failed to allege the essential elements of a discrimination case. That may have happened because Flores represented himself, and – not being a lawyer – he didn’t know what those elements were. Nevertheless, the appellate court held that Judge Wanger was right when he dismissed Flores’ case “with prejudice,” for an important reason that applies to all aspiring recording artists.

        That second reason was this: recording artists are independent contractors, not employees, and in his complaint, Flores conceded as much. Title VII, however, “protects employees, not independent contractors.” As a result, Title VII doesn’t control which artists record companies choose to sign. That job still belongs, exclusively, to their A&R executives.

        Flores represented himself. Elektra Records was represented by Adam Levin of Mitchell Silberberg & Knupp in Los Angeles.

Flores v. Elektra Records, 124 Fed.Appx. 502, 2005 U.S.App.LEXIS 2346 (9th Cir. 2005)