In case you haven’t heard, Tool fans are not happy. Last weekend, the iconic progressive metal act hosted its inaugural Tool Live in the Sand destination event, though judging from the in-person and online interactions there might not be another. Leading up to the festival, the band advertised “two unique [Tool] sets,” so fans were upset when the band played ten songs the first night and then repeated four of them in the following night’s nine-song setlist. Some fans booed, others flipped the band off, and now roughly 100 have joined a class-action lawsuit against Tool.
Stan Rusek, a lawyer in Augusta, GA who attended Tool Live in the Sand, is leading the case. As a longtime fan with 28 Tool shows under his belt, Rusek said he shares many fans’ frustration with the band after Tool played “Fear Inoculum”, “Rosetta Stoned”, “Pneuma”, and “Jambi” both nights. Rusek told Vulture that he does not have a filing date in mind, but will do so as soon as “ethically possible” after investigating his clients’ claims. The outlet reported on Thursday that he had roughly 100 clients signed up for the suit and “I expect a few dozen more per day for the next few weeks.”
“There was a palpable sense of betrayal in the air as the show began the second night, and it lingered throughout the remainder of the weekend,” Rusek told Metal Hammer earlier this week. “What it boils down to is that purchasers of the festival package were promised ‘two unique sets’ by Tool. While the comments on these posts argue about what ‘unique’ means, the reality is that the opportunity to see Tool play two unique sets, i.e. no repeats, was the determining factor for most attendees to pull the trigger on spending thousands of dollars to attend.”
For the past week, comment sections across social media have debated the meaning of “unique.” The band played two non-identical sets, so could that be interpreted as unique? Did Tool engage in false advertising with their fans? For answers, Vulture consulted Peter Nicolas, an endowed char-in-law at the University of Washington. In Nicolas’ professional opinion, the argument for a false advertising case hinges on the use of the word “unique,” which appeared throughout Tool’s promotional materials in the lead-up to the festival.
“There might be a little bit of playing fast and loose with lingo and the word ‘unique,'” Nicolas told Vulture. “There are two different ways one can interpret that word. What if it was, ‘Each night we’ll play one single and unique song’? There’s a legitimate argument that fans expected no overlap, and there’s also an argument for the band that ‘unique’ doesn’t necessarily mean every song in the setlist.”
Nicolas himself is not a Tool fan and shared some misgivings about Rusek becoming professionally involved in a case that is so personal. Citing the law school adage “Never represent yourself,” Nicolas observed that—if Rusek was looking at this with detached professional objectivity—he himself would probably see this isn’t a strong case.
“I’m not saying there’s no chance, but there’s a lot of things working against this particular lawsuit, and it’s going to cost you a lot of money,” Nicolas said. “What that means, though, is it makes it worse for Tool. Since this person is personally affected, using his own time, and not trying to persuade another lawyer, he’s motivated. He’s already caused them trouble simply from the negative publicity. My gut tells me that this isn’t going to go very far in terms of a court suit. That doesn’t mean it won’t influence things.”
Whether or not the case goes forward in a court of law, Tool is already facing consequences in the court of public opinion.
“The fact that we’re even talking about this, at all, tells you Tool has a problem,” he said, later adding, “It’s the type of thing no band wants. The main thing I tell my students, which relates to the intersection of music and law, is even when the law is on your side, something like this doesn’t look good. As an artist, you don’t want fans threatening to sue you.”
Tool has yet to comment on the lawsuit or the backlash regarding Live in the Sand. As boos and expletives rained down on the band, Tool cut its set 15 minutes short on the second night—skipping “Vicarious” which was written on the setlist (and played the night before).
“If I were managing and advising Tool, I’d say, ‘Without saying we did anything legally wrong, we acknowledge the unhappiness of the fans,'” Nicolas said. “And I’d voluntarily rebate a portion of the ticket prices. Again, not because they’re legally obligated to. It’s just a good gesture. I suspect something like that might happen. Maybe it’ll be negotiated with this particular lawyer, or maybe the band will decide to do it. I suspect there will be a brief negotiation to get this lawsuit not to happen. You don’t want this. Artists should be sued for copyright infringement. They shouldn’t be sued by their fans.”